Exhibit 10.22
MODIFICATION AND CONSENT AGREEMENT
THIS MODIFICATION and CONSENT AGREEMENT ("this Agreement")
is executed as of November 29, 2004, by and between
Hypothecators Mortgage Company ("Hypothecators"), whose
address for purposes of this Agreement is 0000 Xxxxxx
Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxx, XX 00000; 000 Xxxxxx Xxxxxx
Property Development, LLC, a New York limited liability
company (the "Owner"), whose address for purposes of this
Agreement is 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000;
000 Xxxxxx Xxxxxx, XXX, x Xxx Xxxx limited liability company
("the LLC Member"), whose address for purposes of this
Agreement is 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000;
DCI USA, Inc., a Delaware corporation ("DCI"), whose address
for purposes of this Agreement is 000 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx 00000; Xxxxx Xxxxxxxxxx ("Yerushalmi"),
Xxxxxxxx Xxxx Xxxx ("Ofir") and Xxxxxxxx Xxxxx ("Rigbi"),
whose addresses for purposes of this Agreement shall be c/o
Xxxxx Xxxxxxxxxx, 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx
00000.
RECITALS
A. Owner entered into a construction loan agreement
("the Loan Agreement") with Hypothecators dated March 5,
2004, and into various other collateral loan documents with
Hypothecators including but not limited to a mortgage note,
mortgage, collateral assignment of leases and rents, and
option agreement (collectively referred to as "the Loan
Agreement Documents"), all of which were dated March 5,
2004.
X. Xxxxxxxxxx, Ofir, and Rigbi entered into a pledge
agreement and guaranty agreements ("the Additional Loan
Agreement Documents") dated March 5, 2004, to further secure
and guaranty repayment of the Loan Agreement.
C. Due to a change in the membership of the Owner not
reflected in the Loan Agreement, the Loan Agreement
Documents, and the Additional Loan Agreement Documents, all
of which collectively shall be referred to as "the
Hypothecators Loan Documents," the parties undersigned
hereby desire to modify the Hypothecators Loan Documents
pursuant to the modifications set forth below.
D. The parties also desire to consent to a change in
the amount of and the use of the loan funds loaned to the
Owner pursuant to the terms of the Hypothecators Loan
Documents as set forth below.
NOW, THEREFORE, for good and valuable consideration, all of
the parties agree as follows:
1. Modification of the Hypothecators Loan Documents. The
parties hereby agree that the membership of the Owner for
purposes of the Hypothecators Loan Documents is and shall be
until otherwise modified and agreed to by all of the parties
as follows:
- The LLC Member, a single asset New York limited
liability company, whose sole asset is a 60% membership
interest in the Owner. The LLC Member is wholly owned by
Yerushalmi and Ofir. Yerushalmi is the managing member of
the LLC Member.
- Ofir, who owns a 10% membership interest in the
Owner.
- Rigbi, who owns a 30% membership interest in the
Owner.
The sole members of the LLC Member, who collectively own
100% of the total membership interests of the LLC Member,
are Yerushalmi and Ofir.
Furthermore, the parties hereby agree that the LLC Member
shall be permitted to transfer all or part of its membership
interest in the Owner to DCI USA, Inc.
2. Consent: Loan Amount. Hypothecators hereby consents and
the parties mutually agree that the total principal loan
amount under the Hypothecators Loan Documents shall be and
is FOUR HUNDRED THOUSAND DOLLARS ($400,000) ("the Loan
Proceeds").
3. Consent: Use of Loan Proceeds. Hypothecators hereby
consents and the parties mutually agree that the Owner shall
be free to use the Loan Proceeds for purposes other than for
construction financing and may enter into an agreement with
another entity for the repayment of the Loan Proceeds for
and on behalf of Owner, as long as the Hypothecators Loan
Documents and the obligations of Owner, the LLC Member,
Xxxxxxxxxx, Xxxx, and Rigbi, including but not limited to
the obligations of repayment to Hypothecators, are not
affected or altered in any way not expressly set forth
herein.
4. Nothing contained hereinabove, shall be deemed to affect
in any way any other term or condition of the Hypothecators
Loan Documents not explicitly set forth herein, including
but not limited to, the rights granted to Hypothecators in
the event of default under any of the Hypothecators Loan
Documents. Furthermore, the LLC Member, Xxxxxxxxxx, Xxxx,
Rigbi and DCI hereby agree that each of them individually
and collectively shall indemnify and hold harmless
Hypothecators from any and all damages arising from any
event of default under the Hypothecators Loan Documents.
The remainder of this page left blank intentionally.
IN WITNESS WHEREOF, the parties undersigned have executed
this Agreement as of the date appearing on the first page of
this Agreement.
Hypothecators Mortgage Company 000 Xxxxxx Xxxxxx
Property Development, LLC
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxxx Xxxxxx Name: Xxxxx
Xxxxxxxxxx
Title: President Title: Managing
Member
000 Xxxxxx Xxxxxx, LLC
By:/s/ Xxxxx Xxxxxxxxxx By:/s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx Name: Xxxxx
Xxxxxxxxxx
Title: Managing Member Title:
Individual Capacity
By:/s Jonathann Xxxx Xxxx By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxx Xxxx Name:
Xxxxxxxx Xxxxx
Title: Individual Capacity and as
Title: Individual Capacity and as
Member of 231 Norman Member of 000 Xxxxxx
Xxxxxx
Xxxxxx Property Development, LLC Property
Development, LLC
and as Member of 000 Xxxxxx
Xxxxxx, LLC
DCI USA, Inc.
By: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx
Title: Chairman
