Exhibit 10.164
MODIFICATION AGREEMENT
This Modification Agreement (this "AGREEMENT") is made as of
the 15th day of July, 2002 between MORNINGSIDE PLAZA, LLC, a Delaware limited
liability company, having its principal place of business at 00 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx, Xxxx 00000 ("BORROWER") and XXXXXX BROTHERS BANK, FSB, a
Delaware corporation, having an address at 0000 Xxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000 ("LENDER").
R E C I T A L
A. Pursuant to that certain Loan Agreement (the "LOAN
AGREEMENT") dated August 2, 2001, between Lender, as lender, and Borrower, as
borrower, Lender made a loan in the original principal amount of $2,650,000.00
(the "Loan") to Borrower. The Loan is evidenced by a certain promissory note
dated August 2, 2001 made by Borrower to Lender in the principal amount of the
Loan (the "NOTE") and secured by, among other things, a first priority Mortgage
and Security Agreement (the "SECURITY INSTRUMENT") encumbering property commonly
known as Morningside Plaza, located in Dade City, Florida (the "PROPERTY").
B. Borrower and Lender have agreed to modify the Loan
Documents as hereinafter provided.
NOW THEREFORE, in consideration of the agreements set forth
herein and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows (capitalized terms used herein and
not otherwise defined shall have the meanings set forth in the Loan Documents,
as modified hereby):
1. MATURITY DATE. The definition of "Maturity Date", as defined in
Section 1.1 of the Loan Agreement, is hereby deleted in its entirety and
replaced with the following:
"MATURITY DATE" shall mean July 11, 2007 or such other date on
which the final payment of principal of the Note becomes due and
payable as therein or herein provided, whether at such stated
maturity date, by declaration of acceleration, or otherwise."
2. GUARANTORS. The following definition is hereby added to Section 1.1
of the Loan Agreement:
"GUARANTORS" shall mean Glimcher Properties Limited Partnership,
Glimcher Properties Corporation and Glimcher Development
Corporation.
3. OTHER DEFINITIONS. The following definitions set forth in Section
1.1 of the Loan Agreement, and all references thereto in the Loan Documents, are
hereby deleted in their entirety: "Defeasance Date," "Defeasance Deposit",
"Defeasance Event", "Permitted Release Date," "Scheduled Defeasance Payments,"
and "Successor Borrower."
4. PREPAYMENTS. Section 2.3.1 of the Loan agreement is hereby deleted
in its entirety and replaced with the following:
"2.3.1 VOLUNTARY PREPAYMENTS. Provided no Event of Default exists,
the principal balance of the Loan may be prepaid, in whole but not
in part, upon not less than 15 days prior written
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notice from Borrower to Lender specifying the scheduled payment
date on which prepayment is to be made (the "PREPAYMENT DATE")
and provided such prepayment is accompanied by payment to Lender
of (i) all accrued and unpaid interest on the outstanding
principal balance of the Loan to and including the Prepayment
Date and together with a payment of all interest which would have
accrued on the principal balance of the Loan to and including the
tenth (10th) day of the calendar month in which the Prepayment
Date occurs, if such prepayment occurs on a date which is not the
eleventh (11th) day of a calendar month, (ii) all other sums
payable with respect to the Loan, and (iii) a prepayment premium
equal to a percentage of the outstanding principal amount of the
Loan, which percentage shall equal (a) three percent (3%) of the
outstanding principal amount of the Loan if the Loan is prepaid
prior to July 11, 2003, (b) two percent (2%) of the outstanding
principal amount of the Loan if the Loan is prepaid on or after
July 11, 2003 but prior to July 11, 2004, and (c) one percent
(1%) of the outstanding principal amount of the Loan if the Loan
is prepaid on or after July 11, 2004."
5. PREPAYMENTS AFTER DEFAULT. Section 2.3.3 of the Loan Agreement is
hereby deleted in its entirety and replaced with the following:
"2.3.3 PREPAYMENTS AFTER DEFAULT. If, prior to the Maturity Date
and during any period of time in which an Event of Default remains
uncured, payment of all or any part of the Debt is tendered by
Borrower or otherwise recovered by Lender, such tender or recovery
shall be deemed a voluntary prepayment by Borrower and Borrower
shall pay, in addition to the Debt, an amount equal to a
percentage of the then outstanding principal amount of the Loan,
which percentage shall equal (a) three percent (3%) of the
outstanding principal amount of the Loan repaid if the Loan is
repaid prior to July 11, 2003, (b) two percent (2%) of the
outstanding principal amount of the Loan repaid if the Loan is
repaid on or after July 11, 2003 but prior to July 11, 2004, and
(c) one percent (1%) of the outstanding principal amount of the
Loan repaid if the Loan is repaid on or after July 11, 2004."
6. DEFEASANCE. Section 2.4 of the Loan Agreement is hereby deleted in
its entirety.
7. RELEASE OF PROPERTY. The first paragraph of Section 2.5 of the Loan
Agreement is hereby deleted in its entirety.
8. TRANSFER RIGHT. The provisions of Section 6.4 of the Security
Instrument beginning with the phrase, "Notwithstanding anything to the contrary
contained in this Article 6, and in addition to the transfers permitted
hereunder, following the sale of the Loan in a securitization, Lender's consent
to a sale, assignment, or other transfer of the Property . . ." through the end
of such Section 6.4, are hereby deleted in their entirety.
9. GUARANTY. Simultaneously herewith, Borrower shall cause Guarantors
to execute and deliver a Guaranty of Payment of the Loan in form acceptable to
Lender. The foregoing Guaranty of Payment shall be deemed a guaranty issued in
connection with the Loan for the purposes of the Loan Agreement.
10. OUTSTANDING BALANCE. Borrower certifies and agrees that the
outstanding principal balance of the Loan as of the date hereof is
$2,629,921.16. Borrower covenants and agrees that the above-described amount is
outstanding and that there exists no offset, defense or counterclaim to the
payment thereof in accordance with the terms of the Note, the Loan Agreement,
the Security Instrument and other Loan Documents.
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11. REPRESENTATION. Borrower represents and warrants to Lender that as
of the date hereof: (i) the Property has not been transferred or conveyed, and
(ii) title to the Property has not become subject to any additional liens or
encumbrances, and (iii) no Event of Default has occurred and is continuing.
12. OTHER DOCUMENTS. All References in the Loan Documents to the Loan
Agreement, the Note, and the Security Instrument shall mean the Loan Agreement,
the Note and the Security Instrument, as hereby modified.
13. NO ADDITIONAL MODIFICATION; COUNTERPARTS. Except as expressly
modified or supplemented hereby, the terms and provisions of the Loan Agreement,
the Note, the Security Agreement and the other Loan Documents remain unmodified
and remain in full force and effect. This Agreement may not be modified, amended
or supplemented without the written consent of the parties hereto. This
Agreement may be executed in multiple counterparts and, upon execution of
counterparts by all parties hereto, such counterparts shall constitute a single
fully executed instrument.
14. BINDING NATURE. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective heirs, legal representatives,
successors and assigns.
15. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
principles of conflict laws and any applicable law of the United States of
America.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement between Borrower and Lender with respect to the
subject matter hereof and supersedes all prior written and oral understandings
and agreements between Borrower and Lender with respect thereto. Borrower hereby
acknowledges that, except as incorporated in writing in this Agreement, there
are not, and were not, and no persons are or were authorized by Lender to make,
any representations, understandings, stipulations, agreements or promises, oral
or written, with respect to the subject matter hereof.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
BORROWER:
MORNINGSIDE PLAZA, LLC,
a Delaware limited liability company
By: GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership, its sole member
By: GLIMCHER PROPERTIES CORPORATION,
a Delaware corporation, its sole general partner
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
Address of Borrower: 00 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxx 00000
LENDER:
XXXXXX BROTHERS BANK, FSB,
a federal stock savings bank
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
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ACKNOWLEDGMENTS
State of Ohio )
)ss.
County of Franklin )
The foregoing instrument was acknowledged before me this 12 day of
July, 2002, by Xxxxxx X. Xxxxxxx, the Executive Vice President of Glimcher
Properties Corporation, a Delaware corporation, the general partner of Glimcher
Properties Limited Partnership, a Delaware limited partnership, the sole member
of Morningside Plaza, LLC, a Delaware limited liability company, on behalf of
the company. He is personally known to me.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ XXXXX XXXXXXX XXXXXX
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Notary Public
Commission
Expiration: 11/22/04
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State of New York )
)ss.
County of ________ )
The foregoing instrument was acknowledged before me this 17 day of
July, 2002, by Xxxxxxxx X. Xxxxxx, the Authorized Signature of Xxxxxx Brothers
Bank, FSB, a federal stock savings bank, on behalf of the company. He/she is
personally known to me or has produced ______ as identification.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ XXXXXXXX XXXXXXXX
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Notary Public
Commission
Expiration: 9/18/02
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