Exhibit 10.22
MODIFICATION AGREEMENT
THIS MODIFICATION AGREEMENT is made as of the ___________day of August,
2001 by and among JDI HAMPTON, L.L.C., an Illinois limited liability company
("LENDER") and OLD POINT COMFORT HOTEL, L.L.C., A Virginia limited liability
company ("BORROWER") and XXXX XXXXX ("GUARANTOR").
RECITALS:
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A. On September 14, 2000, Borrower borrowed from Lender and Lender lent
to Borrower, the sum of ONE MILLION SIX HUNDRED SEVENTY-FIVE THOUSAND DOLLARS
($1,675,000) (the "Loan"), and the Loan was evidenced by a Mortgage Note dated
September 14, 2000 in the principal amount of ONE MILLION SIX HUNDRED
SEVENTY-FIVE THOUSAND DOLLARS ($1,675,000.00) (the "Note").
B. The Note was secured by the following described documents each dated
as of September 14, 2000 (the Note and the documents listed below are
collectively, the "Loan Documents"):
1. Loan Agreement and between Borrower and Lender (the "Loan
Agreement");
2. Leasehold Deed of Trust ("Mortgage") placing a first
mortgage lien on Borrower's leasehold interest in certain real property legally
described on Exhibit A attached hereto and made a part hereof ("Property");
3. Assignment of Rents and Lessor's Interest in Leases
("Assignment of Rent");
4. Security Agreement;
5. Continuing Guarantee of Guarantor;
6. Environmental Indemnity Agreement;
7. UCC Financing Statements and Fixture Filing; and
8. Collateral Assignment of Management Contract;
C. Borrower wishes, ad Lender is willing, to modify the terms of the
Loan Documents, subject to the terms and conditions set forth below.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements contained herein, and other good and valuable
consideration and receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
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1. Recitals. The foregoing recitals are hereby incorporated into and
made a part of this Modification Agreement.
2. Capitalized Terms. Capitalized terms contained in this Modification
Agreement shall retain the meaning given under the Xxxx or the Loan Documents.
3. Maturity Date. The Loan Documents and the Note are hereby amended to
provide that the Maturity Date, as defined in the Note, shall be November, 13,
2001, and any reference to the Maturity Date in the Loan Documents will refer to
the Maturity Date as amended b this Modification Agreement.
4. Documents to Remain in Effect: Confirmation of Obligations. The Note
and the Loan Documents shall remain in full force and effect as originally
executed and delivered by the parties, except as expressly modified and amended
herein, and who have agreed to all of the terms, conditions, obligations and
liabilities of the Loan Documents. All references in the Note and the Loan
Documents to such documents shall be deemed to refer to the Note and Loan
Documents as modified herein. Borrower hereby confirms and reaffirm that the
Loan Documents secure the Note. To induce Lender to enter into this Modification
Agreement, Borrower hereby represents, acknowledges and agrees that it does not
now have or hold any defense to the performance of any of its obligations under
the Note or the Loan Documents, nor does Borrower have any claim against Lender
which might be set-off or credited against any payments due under any of the
Note or Loan Documents. Borrower further represents, acknowledges and agrees
that it does not have any actual or potential actions, claims, suits or defenses
arising from any letters of intent, correspondence or other communications (oral
or written) among Borrower, Guarantors (as defined in the Loan Documents) and
Lender.
5. Consent of Guarantor. Guarantor expressly consents to the terms,
provisions and conditions of the Modification and acknowledges and ratifies all
other terms of the Guarantee.
6. Certifications, Representations and Warranties. In order to induce
Lender to enter into this Modification Agreement, Borrower hereby certifies,
represents and warrants to Lender that all certifications, representations and
warranties contained in the Note and the Loan Documents and in all certificates
heretofore delivered to Lender are true and correct as of the date hereof, and
all such certifications, representations and warranties are hereby remade and
made to speak as of the date of this Modification Agreement.
7. Additional Certificates, Representations and Warranties. In addition
to the certifications, representations and warranties set forth in the Note and
Loan Documents, Borrower hereby certifies, represents and warrants to Lender
that:
(a) Borrower is duly organized, validly existing and in good
standing under the laws of the State of Virginia, have all necessary
power to carry on their present businesses, and have full right, power
and authority to enter into and execute and deliver this Modification
Agreement and to otherwise perform and consummate the transactions
contemplated hereby.
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(b) This Modification Agreement has been duly authorized,
executed and delivered by Borrower and constitutes valid and legally
binding obligations enforceable again Borrower in accordance with its
terms. The execution and delivery of this Modification Agreement and
compliance with the provisions hereof and hereof under the
circumstances contemplated herein and therein do not and will not
conflict with or constitute a breach of violation of or default under
the agreement creating Borrower or any agreement or other instrument to
which Borrower, Guarantor, or either of them, is a party, or by which
any one of them is bound, or to which any of their properties are
subject, or any existing law, administrative regulation, court order or
consent to decree to which any one of them is subject.
(c) There is no litigation or administrative proceeding
pending or threatened to restrain or enjoin the transactions
contemplated by this Modification Agreement or questioning the validity
hereof, or in any way contesting the existence or powers of Borrower or
Guarantor, or in which an unfavorable decision, ruling or finding would
adversely affect the transactions contemplated by the Modification
Agreement.
(d) Borrower and Guarantor are in full compliance with all of
the terms and conditions of the Modification Agreement and the Loan
Documents, no event of default has occurred and is continuing with
respect thereto and no event has occurred and is continuing which with
the lapse of time or the giving of notice or both would constitute such
an event of default, and Borrower and Guarantor hereby release and
waive and all (i) defenses to payment of obligations under the Loan
Documents; and (ii) claims or causes of action which Borrower or
Guarantor may have against Lender or its agents.
(e) As of the date hereof, (i) there has been no Event of
Default as defined in the Mortgage that has not been waived or cured;
and (ii) all expenditures of the Loan proceeds that have been made or
that will be made by Borrower are solely for the purposes set forth in
this Modification Agreement and the Loan Documents.
8. Conditions Precedent. Borrower acknowledges and agrees that this
Modification agreement shall be of no force or effect unless and until this
Modification Agreement has been executed by Borrower and delivered to and
accepted and executed by Lender, and properly recorded, if applicable.
9. Not a Novation. Borrower and Lender expressly state, declare and
acknowledge that this Modification Agreement is intended only to modify
Borrower's and Guarantor's continuing obligations under the Note and the Loan
Documents in the manner set forth herein and is not intended as a novation.
10. Entire Agreement. This Modification Agreement sets for the all of
the covenants, provisions, agreements, conditions and understandings of the
parties relating to the subject matter of this Modification Agreement, and there
are no covenants, promises, agreements, conditions or understanding, either oral
or written, between them other than as are herein set forth. The parties hereto
hereby agree that the terms of this Modification Agreement supersede all of the
terms, conditions and obligations of Lender set forth in all prior commitment
letters, correspondence or other commitments (oral or written) among Borrower,
Guarantor and Lender.
11. Additional Documents. Borrower and Guarantor agree to execute and
deliver such other and further documents requested by Lender or its counsel to
achieve the objectives of this Modification Agreement.
12. Successors. This Modification Agreement and the Additional Loan
Documents shall inure to the benefit of and shall be binding upon the parties
and their respective successors, assigns and legal representatives.
13. Severability. In the event any provision of the Modification
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof.
14. Amendments, Changes and Modifications. This Modification Agreement
may be amended, changed, modified, altered or terminated only by a written
instrument executed by all of the parties hereto.
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15. Construction.
(a) The words "hereof", "herein", and "hereunder", and other
words of a similar import refer to this Modification Agreement as a
whole and not to the individual sections in which such terms are used.
(b) The headings of the Modification Agreement are for
convenience only and shall not define or limit the provisions hereof.
(c) Where the context so requires, words used singular shall
include the plural and vise versa, and words of one gender shall
include all other genders.
16. Execution of Counterparts. This Modification Agreement may be
simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
17. Governing Law. This Modification Agreement is prepared and entered
into with the intention that the law of the State of Illinois shall govern its
construction and enforcement.
PARAGRAPH 18 CONTINUES ON NEXT PAGE
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18. Effective Date. The effective date of this Modification Agreement
shall be as of the date hereof.
IN WITNESS WHEREOF, the parties have executed this Modification
Agreement as of the date first above written.
LENDER:
JDI HAMPTON, L.L.C., an Illinois limited liability company
By:__________________________________
Its:__________________________________
BORROWER:
OLD POINT COMFORT HOTEL, L.L.C., a Virginia limited liability company
By:_________________________________
Name:_______________________________
Its:_________________________________
GUARANTOR:
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Xxxx Xxxxx
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*19. Notwithstanding the provisions of paragraph 3 above, the Maturity
Date (as defined in the Note) shall be September 13, 2002, and any references to
the Maturity Date in the Loan Documents will refer to September 13, 2002. As
consideration for such additional ten (10) month extension, the Borrower shall
pay to the Lender on or before October 11, 2001, an extension fee in the amount
of $16,750.00.
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
I, the undersigned, a Notary Public in and for said County, in the
State aforesaid, do hereby, certify that _____________________________, a
Manager of JDI Hampton, L.L.C., an Illinois limited liability company, who is
personally known to me to be the same person whose name is subscribed to the
foregoing instrument, appeared before me this day in persona and acknowledged
that he signed and delivered the said instrument as his own free and voluntary
act and as the free and voluntary act of said limited liability company for the
uses and purposed therein set forth.
GIVEN under my hand and notarial seal this____day of August, 2001.
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Notary Public
My Commission Expires:
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STATE OF )
) SS
COUNTY OF )
I, ______________, a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that _________________, the _____________ of OLD
POINT COMFORT HOTEL, L.L.C., a Virginia limited liability company, personally
known to me to be the same person whose name is subscribed to the foregoing
instrument as such ___________________, appeared before me this day in persona
and acknowledged that he signed and delivered the said instrument as his own
free and voluntary act, and as the free and voluntary act of said corporation
for the used and purposes therein set forth.
GIVEN under my hand and notarial seal, this ___day of August 2001.
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NOTARY PUBLIC
My commission expires:_______________________
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STATE OF ILLINOIS )
) SS
COUNTY OF )
I, _____________________, a Notary Public in and for said County in the
State aforesaid, DO HEREBY CERTIFY that XXXX XXXXX, personally known to me to be
the same person whose name he subscribed to the foregoing instrument, appeared
before me this day in person and acknowledged that he signed, sealed and
delivered the said instrument as his free and voluntary act, for the uses and
purposes therein set forth.
GIVEN under my hand and Notarial Seal this ___ day of August, 2001.
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NOTARY PUBLIC
My Commission Expires:
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