Exhibit 10.3
FIRST AMENDMENT TO AND EXTENSION OF NON-RECOURSE
PROMISSORY NOTE SECURED BY DEED OF TRUST
This First Amendment to and Extension of Non-Recourse Promissory
Note Secured by Deed of Trust ("Amendment") is made this 11th day of April, 2002
by and between TC KEARNY VILLA LP, a Delaware limited partnership ("Borrower"),
and DELTA DESIGN, INC., a Delaware corporation ("Lender").
RECITALS
A. Lender made a loan to Borrower in the original principal
amount of Nine Million Three Hundred Seventy-Five Thousand and 00/100 Dollars
($9,375,000.00) (the "Loan"), evidenced by that certain Non-Recourse Promissory
Note Secured by Deed of Trust dated April 11, 2001 (the "Note"), and secured by
a Deed of Trust With Assignment of Rents (the "Deed of Trust"), recorded on
April 16, 2001 as Document Number 2001-0231974 in the San Diego County
Recorder's Office, encumbering certain real property owned by Trustor, as more
particularly described in the Deed of Trust.
B. Borrower and Lender have agreed, among other things, to
extend the Maturity Date (as defined in the Note), and to amend the Note,
subject to the terms and conditions set forth herein.
C. Capitalized terms used but not defined herein shall have
their meanings set forth in the Note.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
(1) Maturity Date. The "Maturity Date" under the Note is hereby
revised to mean March 31, 2003, and, accordingly, notwithstanding anything to
the contrary contained in the Note, Deed of Trust, or any other document, the
then outstanding principal balance of the Note, together with all interest
unpaid and accrued thereon shall be due and payable on March 31, 2003.
(2) Borrower Payments. Concurrently upon Borrower's execution of
this Amendment, in consideration of the extension granted herein, Borrower shall
pay to Lender the amount of One Hundred Ninety Thousand Nine Hundred Ninety-Five
and 12/100 Dollars ($190,995.12) as a reduction of principal owing under the
Note, which amount represents principal for the period from April 11, 2001
through April 10, 2002, assuming a 20 year amortization schedule (Borrower shall
not be required to pay any additional amounts in consideration of the
extension). Accordingly, from and after the date hereof, the outstanding
principal balance of the Note will equal Nine Million One Hundred Eighty-Four
Thousand Five Hundred Fourteen and 88/100 Dollars ($9,184,004.88) (unless and
until the principal balance of the Note is further reduced, if at all, in which
event , the interest payments under the Note shall be reduced accordingly).
Notwithstanding the foregoing, Borrower shall not be obligated to pre-pay any
additional amounts with respect to the principal balance of the
Note or otherwise, and payments under the Note shall remain as interest only
payments (on the then outstanding principal amount of the Note), as set forth in
Section 2 (a) of the Note.
(3) Facsimile. Each party hereto, and its respective successors
and assigns shall be authorized to rely upon the signatures of all of the
parties hereto on this Amendment which are delivered by facsimile as
constituting a duly authorized, irrevocable, actual, current delivery of this
Amendment with original ink signatures of each person and entity.
(4) Governing Law. This Amendment shall be construed and
enforced in accordance with the laws of the State of California.
(5) Counterparts. This Amendment may be executed in
counterparts, each of which shall be deemed an original, and all of which when
taken together, shall constitute one and the same instrument.
(6) Note in Full Force. Except as set forth herein, the terms
and conditions of the Note shall remain unmodified and in full force and effect,
and nothing contained herein shall be deemed to increase the amounts owing under
the Loan, Note or Deed of Trust.
(7) Authority. Borrower and Lender each have, or will have, the
legal power, right and authority to enter into Amendment and to consummate the
transactions contemplated hereby. Borrower and Lender each represent and warrant
to the other that each individual executing this Amendment has the legal power,
right and actual authority to execute this Amendment and to bind Borrower and
Lender, as applicable, to the terms and conditional hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Modification as of the date first written above.
"BORROWER"
TC KEARNY VILLA LP,
a Delaware limited partnership
By: Xxxxxxxx Xxxx So. Cal., Inc.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Its: Vice President
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"LENDER"
DELTA DESIGN, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Its: Vice President
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