EXHIBIT NO. 10.134
NOTE AND MORTGAGE MODIFICATION AND ASSUMPTION AGREEMENT
THIS NOTE AND MORTGAGE MODIFICATION AND ASSUMPTION AGREEMENT
("Agreement") is made this 30th day of January, 1998, by and between XXXX-XXXX
REALTY, L.P., a Delaware limited partnership, having a mailing address of 00
Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (hereinafter called "BORROWER") and
FIRST UNION NATIONAL BANK, a national banking association organized and existing
under the laws of the United States of America, successor by merger to FIRST
FIDELITY BANK, NATIONAL ASSOCIATION, with offices at Xxx Xxxxx Xxxxx Xxxxxx,
XX-0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (hereinafter called "BANK"); and BROMLEY
COMMON ASSOCIATES, a New Jersey general partnership, 000 Xxxxxxxx Xxxxx, having
a mailing address of Xxxxxxxxxx, Xxx Xxxxxx 00000 (the "Original Borrower",
hereinafter "Bromley")
BACKGROUND
On or about September 15, 1995, Bromley borrowed from Bank the
principal sum of Six Million Seven Hundred Thousand Dollars ($6,700,000.00) (the
"Loan") and made, executed and delivered to Bank its Promissory Note (the
"Note") payable with interest per annum at the fixed rate of seven and
one-quarter percent (7.25%) in consecutive monthly payments of principal and
interest, based upon a hypothetical fifteen (15) year term, with all unpaid
principal and interest accrued thereon due and payable in full on October 31,
2000. Bromley was afforded the option to extend the maturity date for an
additional term of sixty (60) months.
As collateral security for the obligations of Bromley to Bank, Bromley
on September 15, 1995, executed and delivered to Bank, together with other
documents (the "Loan Documents") (including a certain loan agreement dated
September 15, 1995, the "Loan Agreement"), a Mortgage and Security Agreement
(the "Mortgage") on the premises owned by Bromley and located in the Township of
Burlington, County of Burlington, State of New Jersey, known and designated as
Block 120.03, Lots 1 and 2 on the official tax map, commonly known as #3 and #5
Xxxxx Xxxx, Xxxxxxx Corporate Center (the "Mortgaged Premises"), said property
being more fully described in Exhibit "A" attached hereto and made a part
hereof, said Mortgage having been recorded on September 25, 1995 in the Office
of the Clerk of Burlington County in Book 6091 of Mortgages Page 232.
Bromley has requested that the Bank permit the Borrower to assume the
Loan to Bromley and modify the Loan. Borrower has agreed to repay to Bank all
amounts which are due under the terms of the Note, as modified hereby, and Bank
has agreed to modify the Note and Mortgage and to memorialize same, hence this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein and in
the Loan Documents contained and intending to be legally bound hereby, the
parties agree as follows:
1. Incorporation of Recitals
The recitals set forth above in the Background section of this
Agreement are hereby incorporated by reference into this Agreement as if same
had been fully set forth at length herein.
2. Assumption of Mortgage
As consideration of the transfer of title of the Mortgaged
Premises from Bromley to Borrower, Borrower hereby assumes the obligations of
Bromley to the Bank under the Note, Mortgage and other Loan Documents set forth
therein with the same force and legal effect as if Borrower was the original
party thereto. Bromley, Borrower and Bank acknowledge that the amount of the
obligation to be assumed is as set forth below in paragraph 3. Bromley hereby
agrees to convey to Borrower by Bargain and Sale Deed with Covenants Against
Guarantor's Acts all their right, title and interest in the Mortgaged Premises.
3. Affirmation of Amount Due
Bank and Borrower hereby acknowledge and agree that as of the
date of this Agreement, there is due and owing to Bank on its Note and Mortgage
the sum of Six Million One Hundred Fourteen Thousand Seven Hundred Forty Two and
34/100 Dollars
($6,114,742.34).
4. Terms of Modification of Obligation
Bank agrees to the modification of the Note and the Mortgage
upon the following revised terms:
(a) The Bank hereby agrees to the assumption of the Loan to
Bromley by the Borrower and the Borrower shall now be obligated to pay all
principal and interest when due and shall be obligated to comply with the terms
and conditions of the Note, Mortgage, Loan Documents and this Agreement. In
consideration of the assumption of the Loan by Borrower, Borrower on or before
the date hereof shall pay to Bank an assignment fee in the amount of $22,000.00.
(b) On or before the date hereof, Borrower shall reduce the
principal outstanding balance of the Loan set forth in Paragraph 3 above to Four
Million Four Hundred Thousand Dollars ($4,400,000.00), without premium or
penalty.
(c) The date upon which all unpaid principal and interest and
other charges owing pursuant to the Note and Mortgage is due and payable by
Borrower to Bank is October 31, 2000 (the "Maturity Date") with no option to
extend the Maturity Date.
(d) Interest only shall be payable in monthly installments of
$26,583.33 beginning on the first day of March, 1998 and continuing on the first
day of each consecutive month thereafter until October 31, 2000, on which date
all unpaid principal and interest
accrued and unpaid thereon shall be due and payable. During the term hereof, the
interest rate hereon ("Interest Rate") (computed on the basis of the actual
number of days elapsed and a year of 360 days) shall continue to be at the fixed
rate of seven and one-quarter percent (7.25%) per annum Bank.
(e) Upon execution of this Agreement and payment by the
Borrower of the monies set forth in Paragraphs 4(a) and (b), the obligation of
Bromley pursuant to the Note and Mortgage and other Loan Documents shall be
terminated and of no further force and effect; and (ii) the liability of Xxxxxxx
X. Xxxxx, Xx., Xxxxx Xxx Xxxxx, Xxxx X. XxXxxxxx and Xxxxxx X. XxXxxxxx, as
original guarantors for the full, prompt and unconditional performance of the
terms and conditions of the Note, Mortgage, Guaranty and other Loan Documents
shall be hereby terminated.
(f) Paragraph 5.1 of the Loan Agreement shall be amended by
the addition of the following language:
Notwithstanding the foregoing: (i) transfers of
interests in Xxxx-Xxxx Realty, L.P. and its general
partner shall not require the consent of Mortgagee
and (ii) with advance written notice to Mortgagee
(but without requiring Mortgagee's consent), the
Mortgaged Premises may be conveyed to an affiliate of
Mortgagor or following a merger or consolidation of
Mortgagor (provided that no such transfers shall
limit in any way Mortgagor's obligations hereunder.
(g) Paragraph 5.4.1 of the Loan Agreement shall be amended to
read as follows:
Borrower shall furnish to Bank the following
financial information: (i) not later than ninety (90)
days after the end of each fiscal year a copy of the
audited financial statements prepared by the Borrower
and filed with the Securities and Exchange
Commission; and (ii) not later than July 30 and
January 30 of each year, semi-annual, management
prepared financial statements in form reasonably
satisfactory to Bank relating to the operation of the
Mortgaged Premises including, without limitation, a
statement of cash flows, certified rent roll, summary
of leases, a statement of profits and losses and any
other information requested by Bank.
(h) The Borrower and the Bank acknowledge that the Debt
Service Coverage Ratio required by Paragraph 5.7.1 of the Loan Agreement shall
be maintained by the Borrower during the balance of the term of the Loan. For
purposes of calculating the Debt Service Coverage Ratio, the aggregate principal
and interest utilized in the formula shall be Four Hundred Eighty One Thousand
Nine Hundred Ninety Two Dollars ($481,992.00).
(i) Paragraphs 5.7.2, 5.7.4 through and including 5.7.9 and
6.1.6 are hereby deleted from the Loan Agreement and shall have no further force
and effect.
(j) Paragraph 4.4 of the Mortgage and paragraph 7 of the Loan
Agreement shall be amended to read as follows:
Notwithstanding anything contained herein or in the
Loan Documents, all proposed leases for the Mortgaged
Premises or any part thereof consisting more than
fifty percent (50%) of the leased area of the
Mortgaged Premises shall be submitted to Bank for its
review and approval prior to the execution of such
leases. Bank shall have five (5) business day after
receipt of such leases to review and approve the
leases. If Bank has not approved such leases within
such period, the leases shall be deemed approved. All
leases must be in writing on Borrower's standard
lease form, at market rates with no concessions, and
must be subordinate to the lien of the Mortgage. Bank
shall have no obligation to grant rights or
nondisturbance to any tenant.
5. Intention to Renew
It is the intention of the parties that the Note being
modified hereby is a renewal of the existing obligations of Bromley as evidenced
by the Note and is not intended by the parties to be an accord and satisfaction
or a novation of the Loan evidenced by the Note.
6. Affirmation by the Borrower of Collateral
The Borrower hereby represents, warrants and affirms to the
Bank that it is the intention of the parties to this Agreement that all existing
collateral security held by the Bank shall continue to serve as collateral for
the Note and any other liabilities due the Bank by the Bromley pursuant to the
Note, and until the Loan is paid in full, the security interests and Mortgage
held by the Bank shall otherwise continue in full force and legal effect. As an
additional inducement for the Bank's extension, the following security interests
are hereby confirmed and granted by the Borrower to the Bank:
A. To secure the payment and performance of all liabilities of the
Borrower to the Bank, the note, the guaranty and any other loan documents or
obligations of the Borrower to the Bank, the Borrower hereby grants to the Bank
a security interest in the following property owned by the Borrower (hereinafter
the "Collateral"):
(i) Any and all buildings and improvements now or hereafter
erected on, under or over the Mortgaged Premises;
(ii) Any and all fixtures, machinery, equipment and other
articles of real, personal or mixed property, belonging to Borrower, at any time
now or hereafter installed in, attached to or situated in or upon the Mortgaged
Premises, or the buildings and improvements now or hereafter erected thereon, or
used or intended to be used in connection with the Mortgaged Premises, or in the
operation of the buildings and improvements, plant, business or dwelling situate
thereon, whether or not such real, personal or mixed property is or shall be
affixed thereto, and all replacements, substitutions and proceeds of the
foregoing, including
without limitation: (i) all appliances, furniture and furnishings; all articles
of interior decoration, floor, wall and window coverings; all office,
restaurant, bar, kitchen and laundry fixtures, utensils, appliances and
equipment; all supplies, tools and accessories; all storm and screen windows,
shutters, doors, decorations, awnings, shades, blinds, signs, trees, shrubbery
and other plantings; (ii) all building service fixtures, machinery and equipment
and any kind whatsoever; all lighting, heating, ventilating, air conditioning,
refrigerating, sprinkling, plumbing, security, irrigating, cleaning,
incinerating, waste disposal, communications, alarm, fire prevention and
extinguishing systems, fixtures, apparatus, machinery and equipment; all
elevators, escalators, lifts, cranes, hoists and platforms; all pipes, conduits,
pumps, boilers, tanks, motors, engines, furnaces and compressors; all dynamos,
transformers and generators; (iii) all building materials, building machinery
and building equipment delivered on site to the Mortgaged Premises during the
course of, or in connection with any construction or repair or renovation of the
buildings and improvements; (iv) all parts, fittings, accessories, accessions,
substitutions and replacements therefor and thereof; and (v) all files, books,
ledgers, reports and records relating to any of the foregoing.
(iii) Any and all leases, subleases, tenancies, licenses,
occupancy agreements or agreements to lease all or any portion of the Mortgaged
Premises and all extension, renewals, amendments, modifications and replacements
thereof, any options, rights of first refusal or guarantees relating thereto
(collectively, the "Leases"); all rents, income, receipts, revenues, security
deposits, escrow accounts, reserves, issues, profits, awards and payments of any
kind payable under the Leases or otherwise arising from the Mortgaged Premises
including, without limitation, minimum rents, additional rents, percentage
rents, parking, maintenance and deficiency rents (collectively, the "Rents");
all accounts, general intangibles and contract rights (including any right to
payment thereunder, whether or not earned by performance) of any nature relating
to the Mortgaged Premises or the use, occupancy, maintenance, construction,
repair or operation thereof; all management agreements, franchise agreements,
utility agreements and deposits, building service contracts, maintenance
contracts, construction contracts and architect's agreements; all maps, plans,
surveys and specifications; all warranties and guaranties; all permits, licenses
and approvals; and all insurance policies, books of account and other documents,
of whatever kind or character, relating to the use, construction upon,
occupancy, leasing, sale or operation of the Mortgaged Premises;
(iv) Any and all estates, rights, tenements, hereditaments,
privileges, easements, reversions, remainders and appurtenances of any kind
benefitting the Mortgaged Premises; all means of access to and from the
Mortgaged Premises, whether public or private; all streets, alleys, passages,
ways, water courses, water and mineral rights; all rights of Borrower as
declarant or unit owner under any declaration of condominium or association
applicable to the Mortgaged Premises; and all other claims or demands of
Borrower, either at law or in equity, in possession or expectancy of, in, or to
the Mortgaged Premises; and
(v) Any and all "proceeds" of any of the above-described
Mortgaged Premises, which term shall have the meaning given to it in the New
Jersey Uniform Commercial Code and shall additionally include whatever is
received upon the use, lease, sale, exchange, transfer, collection or other
utilization or any disposition or conversion of any of the Mortgaged Premises,
voluntary or involuntary, whether cash or non-cash, including proceeds
of insurance and condemnation awards, rental or lease payments, accounts,
chattel paper, instruments, documents, contract rights, general intangibles,
equipment and inventory.
7. Representations and Warranties Continuing
Bromley and Borrower hereby represents and warrants to the
Bank as follows:
(a) All representations and warranties contained in the Loan
Documents are true and correct as of the date hereof except as otherwise
specified to the Bank in writing prior hereto;
(b) All real property taxes and water and sewer rents which
are due are paid, and all insurances remain in full force and effect.
(d) Other than the liens and mortgages as set forth in the
Title Commitment No. TS-11358 and TS-11359 issued by Title Services of New
Jersey, Inc., agent for First American Title Insurance Company, there have not
been granted to any other person or entity, mortgages on or security interests
in any of the real or personal property pledged by the Borrower as security for
the Loan due Bank and that the Mortgage is a first mortgage.
8. Enforceability
(a) The validity, priority and security of the Mortgage
modified hereby, the Note and any other documents or instruments executed and
delivered by Borrower to Bank, shall not be impaired by anything contained in
this Agreement and all references to such Mortgage and such documents shall be
deemed to refer to the instrument and Mortgage as modified by this Agreement.
(b) In the event Borrower fails to strictly comply with the
terms hereof and with the terms of the Note, and defaults in said terms hereof
and thereof, Bank shall be entitled to enforce the provisions of this Agreement,
of the Note and any other Loan Documents executed and delivered to Bank by
Borrower by foreclosure or otherwise.
9. Limitation of Liability
Notwithstanding anything to the contrary herein or in any Loan
Documents, Borrower, the General Partners of Borrower, and any officer,
director, partners, member or stockholder of either shall have no personal
liability whatsoever to Bank except as herein provided; and the liability of
Borrower, the General Partners of Borrower, and any officer, director, partner,
member or stockholder of either, under the Loan Documents shall be limited to
and satisfied from the Mortgaged Premises and the proceeds thereof, and the
rents and all other income arising therefrom, the Bank waiving any right of that
Bank may have to claim a deficiency judgment or other judgment for money damages
against Borrower, its General Partners and any officer, director, partner,
member or stockholder of either, under any Loan Document; provided, however,
that nothing in this Paragraph shall (i) preclude Bank from foreclosing the lien
of the Mortgage or from enforcing any of its rights or remedies in law or
in equity against Borrower except to the extent set forth in this Paragraph,
(ii) limit the right of Bank to make Borrower as a party defendant in any action
brought under this Note, the Mortgage or any Loan Document so long as execution
or any judgment is limited to the Mortgaged Premises, or (iii) limit the
personal liability of Borrower to Bank (A) for fraud or willful
misrepresentation, (B) under any environmental indemnity of Borrower, or (C)
following an event of default, the misapplication of any proceeds received by
reason of damage, loss or destruction of any portion of the Mortgaged Premises
under any insurance policies or awards resulting from condemnation or the
exercise of the power of eminent domain.
10. Representations of Borrower by Counsel; No Representations by Bank
(a) The Borrower represents to the Bank that it has, at all
times pertinent to this Agreement, been represented by advisors of its own
selection including but not limited to attorneys at law and certified public
accountants; that it has not relied upon any representation, warranty, agreement
or information provided by the Bank, its employees, agents or attorneys; that it
acknowledges that it has been and is informed of its rights, duties and
obligations with respect to the Loan due the Bank under all applicable laws;
that its has no set-offs, defenses or claims against the Bank with respect to
the Loan due the Bank by the Borrower; and that it is indebted to the Bank in
the amounts recited in this Agreement.
(b) The Borrower has previously delivered to the Bank its
financial statements for the calendar year ended 1996. In order to induce the
execution of this Agreement by the Bank, the Borrower represents and warrants to
the Bank that said financial statements are true and correct and present fairly
the financial condition of the Borrower as of the date of the financial
statements.
(c) The Borrower acknowledges and agrees that the Bank has
made no representations, warranties, agreements or provided information to them
in order to induce the execution of this Agreement, except as set forth in the
Non-Disturbance Agreement and Estoppel Certificate attached hereto as Exhibits
"B" and "C". The Borrower further acknowledges and agrees that all agreements of
the parties are set forth in this Agreement and/or in the written documentation
evidencing the Loan, including but not limited to the Note and Mortgage, signed
by them prior to the date of this Agreement.
11. Bankruptcy or Insolvency
(a) The Borrower agrees not to permit to be filed, an
involuntary petition in bankruptcy pursuant to the United States Bankruptcy Code
or an insolvency proceeding pursuant to any state insolvency law, or to the
extent that anyone challenges the granting of any security interest, mortgage or
other collateral security to the Bank, or if said security interest, mortgage or
other interest or payment to the Bank is held to be a preference under the
United States Bankruptcy Code or any applicable insolvency law, such event shall
be deemed to be an event to default hereunder and the parties to this Agreement,
with respect to any property deemed to be a preference, shall be restored to
their status quo ante which existed prior to the signing of this Agreement and
the Bank shall be entitled to exercise all of its rights
and remedies which existed under the Note and the Mortgage in effect immediately
prior to the date of the signing of this Agreement.
(b) In the event Borrower shall (i) file with any bankruptcy
court of competent jurisdiction or be the subject of any petition under Title 11
of the U.S. Code, as amended, (ii) be the subject of any order for relief issued
under such Title 11 of the U.S. Code, as amended (iii) file or be the subject of
any petition seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any present or future Federal
or state act or law relating to bankruptcy, insolvency, or other relief for
debtors, (iv) have sought or consented to or acquiesced in the appointment of
any trustee, receiver, conservator, or liquidator, (v) be the subject of any
other judgment or decree entered by any court of competent jurisdiction
approving a petition filed against such party for any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief under any present or future Federal or state act or law relating to
bankruptcy, insolvency, or relief for debtors, Bank shall thereupon be entitled
to relief from any automatic stay imposed by Section 362 of Title 11 of the U.S.
Code, as amended or otherwise, on or against the exercise of the rights and
remedies otherwise available to Bank as provided in any and all documents
evidencing the Loan referred to herein, as hereby amended, and as otherwise
provided by law.
12. Conflicts of Laws
This Agreement shall be governed by the laws of the State of
New Jersey
13. Binding Effect; Ratification of Loan Documents
(a) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their heirs, executors, administrators,
successors and assigns. The Borrower hereby acknowledges receipt of a true copy
of this Agreement.
(b) All of the terms, conditions or provisions of the Note and
the Mortgage and any other Loan Documents executed and delivered by Borrower to
Bank not expressly revised or modified hereby, shall otherwise remain in full
force and legal effect.
14. WAIVER OF JURY TRIAL
THE BORROWER AND THE BANK UPON ADVICE OF THEIR RESPECTIVE
ATTORNEYS, HEREBY KNOWINGLY, INTENTIONALLY, VOLUNTARILY, EXPRESSLY AND MUTUALLY
WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
(i) ARISING UNDER THIS AGREEMENT OR ANY OTHER DOCUMENTS EVIDENCING THE LOAN, OR
(ii) IN ANY WAY CONNECTED WITH OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR ANY OF THE OTHER
DOCUMENTS EVIDENCING THE LOAN, OR THE TRANSACTIONS RELATED HERETO OR THERETO, OR
(iii) IN ANY
LITIGATION BETWEEN THE PARTIES, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE, AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE THIS ORIGINAL AGREEMENT OR A COPY THEREOF WITH ANY COURT
AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO A TRIAL BY JURY.
THIS AGREEMENT IS SUBJECT TO MODIFICATION AS DEFINED BY N.J.S.A.
46:9-8.1 ET SEQ.
IN WITNESS WHEREOF, the parties have hereunto executed this Agreement
the day and year first above written.
XXXX-XXXX REALTY, L.P., a Delaware
limited partnership
By: XXXX-XXXX REALTY CORPORATION,
Attest: a Maryland corporation, General Partner
_________________________ By:_____________________________
, Secretary , President
(Corporate Seal)
BROMLEY COMMON ASSOCIATES, a New
Witness: Jersey general partnership
_________________________ By:_____________________________
, General Partner , General Partner
FIRST UNION NATIONAL BANK
By:_____________________________
Xxxxx X. Xxxxxxxxxxx,
Vice President
STATE OF NEW JERSEY )
:SS
COUNTY OF CAMDEN )
BE IT REMEMBERED that on this ____ day of January, 1998,
before me, a Notary Public, personally appeared _____________________________
who acknowledged himself to be the President of Xxxx-Xxxx Realty Corporation,
General Partner of Xxxx-Xxxx Realty, L.P., the Delaware limited partnership
named in the foregoing instrument, and that he as such general partner, being
authorized to do so in accordance with the terms of the Partnership Agreement
executed and delivered the foregoing document.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
--------------------------------
Notary Public
STATE OF NEW JERSEY )
:SS
COUNTY OF CAMDEN )
BE IT REMEMBERED that on this ______ day of January, 1998,
before me, a Notary Public, personally appeared
_________________________________, who acknowledged himself to be the General
Partner of Bromley Common Associates, the New Jersey general partnership named
in the foregoing instrument, and that he as such general partner, being
authorized to do so in accordance with the terms of the Partnership Agreement
executed and delivered the foregoing document.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
--------------------------------
Notary Public
COMMONWEALTH OF PENNSYLVANIA )
: SS
COUNTY OF PHILADELPHIA )
On this the ___ day of January, 1998, before me, a Notary
Public, personally appeared Xxxxx X. Xxxxxxxxxxx, who acknowledged himself to be
a Vice President of First Union National Bank, the corporation named in the
foregoing instrument, and that he as such officer, being authorized to do so by
a proper resolution of the Board of Directors, executed the foregoing instrument
for the purposes therein contained by signing the name of the corporation by
himself as a Vice President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
--------------------------------
Notary Public
RECORD AND RETURN TO:
XXXXXXXX XXXXXX LLP
XxxxxxxXxxx - Xxxxx 000
000 Xxxxxxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx III, Esquire
