FIRST LOAN MODIFICATION AGREEMENT
Exhibit
10.55
THIS FIRST LOAN MODIFICATION AGREEMENT (this “Modification” or this “Agreement”)
is made as of the day of December, 2006, by and among: (a) XXXXXXXX
BELLEMEADE, L.C., a Virginia limited liability company (“Borrower”); (b) XXXXXXXX HOMEBUILDING
COMPANIES, INC., a Delaware corporation (“Guarantor”);
(c) BANK OF AMERICA, N.A., a national
banking association, its successors and/or assigns (“Lender”) and (d) XXXXX X. XXXXXXXX, a
resident of Fairfax County, Virginia as Trustee (the “Trustee”).
RECITALS:
WHEREAS, pursuant to the terms of that certain Loan Agreement dated as of September
28, 2005, by and between Lender and Borrower (as the same may be amended, renewed, supplemented or
restated from time to time, the “Loan Agreement”), Lender made a loan (the “Loan”) to Borrower in
the original principal amount of Forty-Six Million Seven Hundred Twenty-Five Thousand and No/100
Dollars ($46,725,000.00), as evidenced by that certain Deed of Trust
Note dated September 28, 2005
made by Borrower payable to the order of Lender in the original principal amount of Forty-Six
Million Seven Hundred Twenty-Five Thousand and No/100 Dollars ($46,725,000.00) (as the same may be
amended, renewed, supplemented or restated from time to time, the
“Note”); and
WHEREAS, Borrower’s obligations under the Note are secured by, among other things, a Credit
Line Deed of Trust and Security Agreement dated September 28, 2005, from Borrower for the benefit
of Lender, and recorded among the land records of Loudoun County, Virginia on September 29, 2005
as instrument #200509290111056 (as the same may be amended, renewed, supplemented or restated from
time to time, the “ Deed of Trust”), covering certain real property and improvements thereon
located in Loudoun County, Virginia and more particularly described therein and on Exhibit
A attached hereto (collectively, the “Property”); and
WHEREAS,
the Deed of Trust also secured a certain letter of credit facility (the “LOC
Facility”)in the amount of One Million and No/100 Dollars
($1,000,000.00), as evidenced by that
certain Letter of Credit Note dated as of September 28, 2005 made by Borrower payable to the order
of Lender in the original principal amount of One Million and No/100 Dollars ($1,000,000.00) (the
“LOC Note”), however the LOC Facility was cancelled and terminated prior to the date hereof; and
WHEREAS, Borrower’s obligations under the Note are guaranteed by Guarantor pursuant to a
Guaranty Agreement dated September 28, 2005 (as the same may be amended, renewed, supplemented or
restated from time to time, the “Guaranty”); and
WHEREAS, the outstanding principal balance under the Loan as of the date hereof is
Thirty-Three Million One Hundred Twenty Three Thousand Three Hundred Twenty and 72/100 Dollars
($33,123,320.72); and
WHEREAS, Borrower’s obligations under the Note and the other Loan Documents (hereinafter
defined) are hereinafter collectively called the “Obligations” the Note, the Deed of Trust, the
Loan Agreement, the Guaranty and all other documents previously, now or hereafter executed and
delivered to evidence, secure, guarantee, or in connection with, the Obligations, as the same may
from time to time be renewed, extended, amended, supplemented or restated, are hereinafter
collectively called the “ Loan Documents ”.and all liens, security interests, assignments,
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superior titles, rights, remedies, powers, equities and priorities securing the Note or
providing recourse to Lender with respect thereto are hereinafter
collectively called the “ Liens”;
and
WHEREAS, at the request of the Borrower, the Lender has agreed to modify the Loan to (i)
extend the Maturity Date of the Loan; (ii) modify the maximum
principal amount of the Loan; (iii)
modify certain payment terms of the Loan; and (iv) make certain other changes to the Loan Documents
as set forth herein; and
WHEREAS, Lender issued a notice of default to Borrower and Guarantor on October 18, 2006 (the
“Notice”) with respect to the Loan which was disputed by Borrower and Guarantor. Upon execution and
delivery of this Modification by Borrower and Guarantor and provided that the conditions set forth
in Section 3 of this Modification are satisfied, Lender hereby expressly agrees that the Notice is
withdrawn and of no further force and effect; and
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged by all
parties, the parties agree as follows:
1. Recitals. The recitals set forth above are a material part of this Agreement.
Borrower acknowledges and affirms the accuracy of the recitals set forth above.
2. Definitions. All capitalized terms herein, unless otherwise defined herein, shall
have the same meaning ascribed to such terms as in the Loan Documents.
3. Modification
to Atlanta Loan, Highlands Loan and Fifteen Million
Dollar Xxxxxxxx Loan. Simultaneously with the execution of this Agreement, (i) Xxxxxxxx
Homes of Atlanta, LLC, Xxxxxxxx Homes of Myrtle Beach, LLC (formerly known as
Xxxxxx-Xxxxxxxx Homes/South Carolina, LLC) and Guarantor shall execute that certain Loan
Modification Agreement in connection with that certain loan originally made by Lender to
Xxxxxxxx Homes of Atlanta, LLC (formerly known as PCH Development, LLC which is successor by
merger to Xxxxxx Xxxxxxxx Homes, Inc.) in the original principal amount of Seven Million Five
Hundred Thousand and No/100 Dollars ($7,500,000.00) (as the same has
been amended, renewed,
supplemented or restated from time to time, the “Atlanta Homes Loan”) (ii) Highland Avenue
Properties, LLC and Guarantor shall execute that certain Loan Modification Agreement in
connection with that certain loan originally made by Lender to Highland Avenue Properties,
LLC in the original principal amount of Four Million Eight Hundred Fifty-One Thousand Two
Hundred Thirty-Five and No/100 Dollars ($4,851,235.00) (as the same has been amended,
renewed, supplemented or restated from time to time, the “Highlands Loan”) and (iii)
Guarantor shall execute that certain Second Loan Modification Agreement in connection with
that certain loan originally made by Lender to Guarantor in the original principal amount of
Fifteen Million and No/100 Dollars ($15,000,000.00) (as the same may be amended, renewed,
supplemented or restated from time to time, the “Fifteen Million Dollar Xxxxxxxx Loan”).
4. Maturity. All of the Obligations, including (without limitation) all outstanding
principal, accrued and unpaid interest, outstanding late charges, unpaid fees, and all other
amounts outstanding under the Note and the other Loan Documents, shall be due and payable in
full on December 31, 2007 (the “Maturity Date”). All
references to the Maturity Date
contained in the Loan Documents shall refer to the Maturity Date as defined in this
Agreement.
5. Amount of Loan. The Note and the Loan Documents are hereby amended to reduce
the maximum aggregate principal amount which can be outstanding under the Loan to
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Thirty-Three Million One Hundred Twenty Three Thousand Three Hundred Twenty and 72/100 Dollars
($33,123,320.72). There shall be no further advances of principal under the Loan. Any reference in
any of the Loan Documents to the amount of the Loan or Note as $46,725,000.00 is hereby deleted in
its entirety and the amount $33,123,320.72 is substituted in lieu thereof. From and after the date
hereof, Borrower must make all payments of any kind whatsoever, due by Borrower to Lender in
connection with the Loan, via wire transfer of immediately available funds, in accordance with the
wiring instructions attached hereto as Exhibit B.
6. Condominium. Lender hereby agrees that Borrower is permitted to terminate
the declaration of condominium in effect at the Property and lease any of the units at the
Property provided that Borrower complies with all applicable laws, rules and regulations with
respect thereto.
7. Deed of Trust Note.
a.
Section 1(a). Section 1(a) of the Note is hereby deleted in its entirety
and replaced with the following:
“Accrued and unpaid interest shall continue to be due and payable on the first day of each
month until December 31, 2007 (the “Maturity Date”), at which time the entire
outstanding principal balance hereof, all accrued and unpaid interest hereon and ail other
amounts payable hereunder, shall be due and payable in full without notice. Notwithstanding
the foregoing, Borrower may elect to extend the Maturity Date for one (1) period of twelve
(12) months (the “Extension Period ”)provided that: (i) prior to the commencement
of the Extension Period,` no Default has occurred and remains uncured under (a) this Loan or
(b) that certain loan originally made by Beneficiary to Xxxxxx-Xxxxxxxx Homes, Inc. in the
original principal amount of Seven Million Five Hundred Thousand and No/100 Dollars
($7,500,000.00) (as the same has been amended, renewed, supplemented or restated from time
to time, the “ Atlanta Homes Loan”) or (c) that certain loan originally made by
Beneficiary to Highland Avenue Properties, LLC in the original principal amount of Four
Million Eight Hundred Fifty One Thousand Two Hundred Thirty-Five and No/100 Dollars
($4,851,235.00) (as the same has been amended, renewed, supplemented or restated from time
to time, the“Highlands Loan”) or (d) that certain loan
originally made by Beneficiary
to Xxxxxxxx Homebuilding Companies, Inc. in the original principal
amount of Fifteen Million
and No/100 Dollars ($15,000,000.00) (the “Fifteen Million
Dollar Xxxxxxxx Loan”);
and (ii) the Borrower has timely made all required principal payments pursuant to Section
1(b) hereof; and (iii) the Borrower pays an extension fee to Lender in an amount equal to
one-half of one percent (0.50%) of the then outstanding Loan amount, taking into account
any payments made in reduction of the then outstanding Loan amount, which extension fee
must be paid by Borrower to Lender in immediately available funds on or before December 31,
2007; and (iv) the Borrower pays to Lender, in immediately available funds on or before
December 31, 2007, an amount (the “Mandatory September
Appraisal Payment”)
sufficient to reduce the then outstanding principal balance of the Loan to eighty-percent
(80%) of the value of the Property as determined pursuant to the September Appraisal (as
hereinafter defined), and (v) on or before August 1, 2007, Borrower provides Lender with
written notice that Borrower elects to extend the Maturity Date for the Extension Period
(such election in accordance with the terms hereof shall be referred
to as the “Extension
Option”).
Upon the timely receipt by Lender of Borrower’s written election to exercise the
Extension Option, Lender shall order an “as-is” appraisal of the Property on a per unit
basis in September of 2007, at the sole cost and expense of Borrower, which appraisal shall
be satisfactory to Lender in Lender’s sole discretion (the
“September Appraisal”).
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The Mandatory September Appraisal Payment shall be calculated, in Lender’s sole
discretion, based upon: (i) the September Appraisal and (ii) the number of units
encumbered by the Deed of Trust (as hereinafter defined) on December 30, 2007 and (iii)
the principal amount of the Loan outstanding on December 30, 2007.”
b. Section 1(b). Section 1(b) of the Note is hereby deleted and
replaced with the following:
“In addition to all payments due and payable pursuant to Section 1(a) of this Note,
Borrower shall pay to Lender, in immediately available funds, payments to reduce the
outstanding principal balance of the Loan in accordance with the following schedule
contained in this Section 1(b):
| Due Date | $
Amount of Required Principal Payment |
|
| June 30, 2007 | $ 500,000.00 | |
| Extension Period | ||
| March 31,2008 | $1,000,000.00 | |
| June 30, 2008 | $1,000,000.00 | |
| September 30, 2008 | $1,000,000.00 |
Borrower hereby agrees that, in the event Borrower in unable to make the
aforementioned payments from the sale of units at the Property, Borrower is nevertheless
obligated to make the aforementioned payments to Lender with no exceptions. Failure to make
any of the payments specified on the schedule contained in this Section 1 (b) shall
constitute a Default and/or Event of Default as defined in the Loan Documents and Lender
shall be immediately entitled to exercise all remedies available to Lender under any and all
of the Loan Documents-.—
8. Deed of Trust.
Section 10.1. Section 10.1 of the Deed of Trust is hereby deleted and
replaced with the following:
“Prior to the Maturity Date, upon request from the Grantor, and provided no default
exists under any of the Loan Documents, the Beneficiary shall release any Unit upon
payment by the Grantor of a release price in accordance with the schedule below. The
payment of a release price shall be applied as set forth in Section 8 of the Deed of
Trust Note and in accordance with Exhibit B attached hereto. The Grantor shall pay any
and all legal fees incurred by the Beneficiary in connection with any such release.
| Type of Unit | Square Footage | Release Price | ||||||
1 bedroom/1 bath |
486 | $ | 136,334 | |||||
1 bedroom/1 bath |
590 | $ | 163,619 | |||||
1 bedroom/1 bath |
677 | $ | 177,262 | |||||
1 bedroom/1 bath |
748 | $ | 185,447 | |||||
2 bedroom/2 bath |
901 | $ | 222,813 | |||||
2 bedroom/2 bath |
1010 | $ | 238,835 | |||||
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If Grantor elects to extend the Maturity Date in accordance with the terms of the Deed
of Trust Note (as the same may be amended, renewed, supplemented or restated from time to
time), Beneficiary shall release any unit upon payment by the Grantor of a release price
determined by Lender, in Lender’s sole discretion, equal to the greater of either (i) the
release price listed in this Section 10.1 for the unit Grantor wishes to have released or
(ii) the as-is value of the unit as determined by the September Appraisal (as defined in the
Deed of Trust Note).”
9. Loan Agreement.
a. Section 6.1(b).
The following language shall be added to the
Loan Agreement as Section 6.1(b) and the remaining subsections of Section 6.1 shall be
re numbered accordingly:
“(b) Additionally, Borrower must submit to Lender (i) within ten (10) days from the end of
each month, monthly financial statements (all of which financial statements must include a
balance sheet, income statement, sources and uses of funds for such fiscal month, projected
sources and uses of funds for the coming month, detailed listing and description of all
contingent liabilities, tax returns, written verification of liquidity and such other
supporting schedules and documentation). All such financial statements shall be certified as
true and correct by the Chief Financial Officer of Xxxxxxxx Homebuilding Companies, Inc. in
a form acceptable to the Lender in all respects; and (ii) within thirty (30) days from the
end of each month a certified rent roll for the Property; and”
b. Section 6.15. Section 6.15 of the Loan Agreement is hereby deleted
and replaced in its entirety with the following:
“In accordance with Section 1 (b) of the Note, Borrower shall pay to Lender, in immediately
available funds, payments to reduce the outstanding principal balance of the Loan as follows:
| $ Amount of Required Principal | ||
| Due Date | Payment | |
June 30, 2007 |
$ 500,000.00 | |
Extension
Period
|
||
March 31
, 2008 |
$ 1,000,000.00 | |
June 30
, 2008 |
$1,000,0000.00 | |
September
30 , 2008
|
$ 1,000,000.00 |
Borrower hereby agrees that, in the event Borrower in unable to make the
aforementioned payments from the sale of units at the Property, Borrower is nevertheless
obligated to make the aforementioned payments to Lender with no exceptions. Failure to make
any of the payments specified on the schedule contained in this Section 6.15 shall constitute
a Default and/or Event of Default as defined in the Loan Documents and Lender shall be
immediately entitled to exercise all remedies available to Lender under any and all of the Loan
documents.”
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10. Borrower’s Representations and Warranties. The Borrower hereby reaffirms all
of representations and warranties set forth in the Loan Documents, and further represents
and warrants that; (a) the Borrower is the sole legal and beneficial owner of the Property;
(b) the execution and delivery of this Agreement does not contravene, result in a breach of,
or constitute a default under, any deed of trust, loan agreement, indenture or other contract
or agreement to which Borrower is a party or by which Borrower or any of its properties may
be bound (nor would such execution and delivery constitute such a default with the passage of
time or the giving of notice or both), and does not violate or contravene any law, order,
decree, rule, regulation or restriction to which Borrower or the Property is subject; (c)
this Agreement constitutes the legal, valid and binding obligations of Borrower enforceable
in accordance with its terms; (d) the execution and delivery of, and performance under, this
Agreement are within Borrower’s power and authority without the joinder or consent of any
other party and have been duly authorized by all requisite action, and are not in
contravention of any law, or of any indenture, agreement or undertaking to which Borrower
is a party or by which it is bound; (e) there exists no default under the Note or any other
Loan Document; (f) there are no offsets, claims or defenses with respect to the Obligations;
and (g) Borrower is duly organized and legally existing under the laws of the state of its
organization and is duly qualified to do business in the Commonwealth of Virginia. The
Borrower further represents and warrants that, except as disclosed in public filings, there
is no material suit, judicial or administrative action, claim, investigation, inquiry,
proceeding or demand pending (or, to Borrower’s knowledge, threatened) against (i) Borrower,
or against any other person liable directly or indirectly for the Obligations, or (ii) which
affects the Property or the Borrower’s title to the Property, or (iii) which affects the
validity enforceability or priority of any of the Loan Documents. Borrower agrees to
indemnify and hold the Lender harmless against any loss, claim, damage, liability or
expense (including, without limitation, attorneys’ fees) incurred as a result of any
representation or warranty made by Borrower herein which proves to be untrue or inaccurate in
any respect, and any such occurrence shall constitute a default under the Loan Documents.
11.
Guaranty. Paragraph (i) and (ii) are hereby deleted from
Section 4 of the Guaranty.
12. Renewal; Lien Continuation; No Novation. Borrower hereby renews
the Obligations and promises to pay and perform all Obligations as modified by this
Agreement. The Liens are hereby ratified and confirmed as valid, subsisting and continuing to
secure the Obligations, as modified hereby. Nothing herein shall in any manner diminish,
impair, waive or extinguish the Note, the Obligations or the Liens. The execution and
delivery of this Agreement shall not constitute a novation of the debt evidenced and secured
by the Loan Documents.
13. Expenses. Borrower shall pay all costs and expenses and reimburse Lender for
any and all expenditures of every character incurred or expended from time to time,
regardless of whether a default shall have occurred, in connection with (a) this Agreement;
(b) the restructuring of the Loan which has occurred previous to and simultaneously with the
execution of this Agreement; (c) the issuance by Lender at any time (including any time prior
to the execution of this Agreement) of any default letters or standstill letters or
correspondence of any kind to Borrower in connection with the Loan; (d) the evaluation,
monitoring and protection of the Property pursuant to rights given in the Loan Documents or
by law; and (e) the creation, perfection or realization upon the Liens, and all costs and
expenses relating to Lender’s exercise of any of its rights and remedies under any of the
Loan Documents or at law, including, without limitation, all filing fees, taxes, brokerage fees
and commissions, title review and abstract fees, recordation and transfer taxes, Uniform
Commercial Code search fees, other fees and expenses incident to title searches,
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reports and security
interests, escrow fees, attorneys’ fees, legal expenses, court Costs, fees and expenses
incurred in connection with any complete or partial liquidation of the Property, and all fees and
expenses for any professional service relating to the Property or any operations conducted in
connection with it; provided, however, no right or option granted by Borrower to Lender or
otherwise arising pursuant to any provision of this or any other document shall be deemed to impose
a duty on Lender to supervise, monitor or protect any aspect of the Property or any operations
conducted in connection with it.
14. Reaffirmation
of Guaranty. Guarantor, by signature below as such, for a
valuable consideration, the receipt and adequacy of which are hereby acknowledged, hereby
consents to and joins in this Agreement and hereby declares to and agrees with Lender that
the Guaranty Agreement is and shall continue in full force and effect for the benefit of
Lender with respect to the Obligations, as amended by this Agreement, that there are no
offsets, claims, counterclaims, crossclaims or defenses of the Guarantor with respect to the
Guaranty Agreement nor, to the Guarantor’s knowledge, with respect to the Obligations, that
the Guaranty Agreement is not released, diminished or impaired in any way by this Agreement
or the transactions contemplated hereby, and that the Guaranty Agreement is hereby ratified
and confirmed in all respects. Each Guarantor hereby reaffirms all of the representations,
warranties and covenants set forth in the Guaranty Agreement. Each Guarantor acknowledges
that without this consent and reaffirmation, Lender would not execute this Agreement or
otherwise consent to its terms.
15. Authorization. At the time of execution of this Modification, Borrower shall, if
and to the extent requested by Lender, deliver to Lender (a) the opinion of Borrower’s
counsel dated the date hereof, in form and substance satisfactory to Lender, that this
Agreement has been duly authorized, executed and delivered by Borrower and the Guarantor and
is binding on, and enforceable against, the Borrower and the Guarantor in accordance with its
terms; and (b) such other evidence of due authorization and execution by the Borrower and the
Guarantor as the Lender may require.
16. Further Assurances. The Borrower agrees to execute and deliver to the Lender,
promptly upon request from Lender, such additional documents as may be necessary or
appropriate to consummate the transactions contemplated herein or to perfect, or continue the
perfection of, the Liens.
17. No Defenses. Borrower and Guarantor, as the case may be, each represent
and warrant that they (individually and collectively) have no claims, actions, causes of
action, defenses, counterclaims or setoffs of any kind or nature which they can assert
against Lender in connection with the making, closing, administration, collection or
enforcement by Lender of the Loan Documents, this Agreement or any
related agreements.
18. Default Under Deed of Trust. If Borrower shall fail to keep or perform any of
the covenants or agreements contained herein or in any of the Loan Documents, or if any
statement, representation or warranty contained herein is false, misleading or erroneous in
any material respect, Borrower shall be deemed to be in default under the Deed of Trust and
Lender shall be entitled at its option to exercise any and all of the rights and remedies
granted pursuant to the Deed of Trust, as amended hereby, or any other Loan Document or to
which Lender may otherwise be entitled, whether at law or in equity.
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19. No Waiver by Lender. Borrower acknowledges and agrees that the execution
of this Agreement by the Lender is not intended nor shall it be construed as (a) an
actual or implied waiver of any, default under the Note, the Deed of Trust or any other Loan Document (apart from
Borrower’s failure to make the principal payment required to be made under the Loan on September
30, 2006), or (b) an actual or implied waiver of any condition or obligation imposed upon the
Borrower pursuant to the Note, the Deed of Trust or any other Loan Document, except to the extent,
if any, specified herein.
20. Borrower’s
Performance. If Borrower should fail to comply with any of the
agreements, covenants or obligations of the Borrower under this or any other Loan Document, then
Lender (in Borrower’s name or in its own name) may, but is under no obligation to, perform them or
cause them to be performed for the account of Borrower at Borrower’s sole expense. Any and all
expenses thus incurred or paid by Lender shall be Borrower’s demand obligations to Lender and shall
bear interest, from the date of Lender’s payment of any such obligation or expense for Borrower’s
account until the date on which Borrower repays it to Lender, at the default rate of interest set
forth in the Note. Upon making any such payment or incurring any such expense, Lender shall be
fully subrogated to all of the rights of the person or entity receiving such payment. Any amounts
owing by Borrower to Lender pursuant to this provision or any other provision of this Agreement
shall automatically and without notice constitute a portion of the Obligations evidenced by the
Note secured by the Deed of Trust and the other Loan Documents, and guaranteed by the Guarantors
under the Guaranty. The amount and nature of any such expense and the time when paid shall be fully
established by the affidavit of Lender or any of Lender’s
officers or agents.
21. Release of Lender. Upon execution of this Agreement, Borrower and
Guarantor each hereby releases, remises and forever discharges Lender, its employees,
officers, directors, consultants, advisors, participants, agents and affiliates
(collectively, the “Lender Parties”) from any and all causes of actions, suits, debts,
claims and demands whatsoever arising prior to execution of this Agreement in law or in
equity due to any action taken or omitted be taken by any of the Lender Parties in connection
with the Loan, the Atlanta Homes Loan, the Highlands Loan, the LOC Note, the Fifteen Million
Dollar Xxxxxxxx Loan or any other potential transaction between Guarantor (or any affiliate
of Guarantor) and Lender that may have been discussed with Lender but not consummated.
22. Miscellaneous. To the extent of any conflict between the Note (or any earlier
modification of it) and this Modification, this Modification shall control. Except as hereby
expressly modified, all terms of the Note and all other Loan Documents (as any of them may have
been previously modified by any written agreement) remain in full force and effect. This Agreement
(a) shall bind and benefit the parties hereto and their respective heirs, beneficiaries,
administrators, executors, receivers, trustees, successors and assigns (provided, however, no
party other than the Lender shall assign its rights hereunder without the prior written consent of
the Lender); (b) may be modified or amended only by a writing signed by the Lender and the
Borrower; (c) SHALL BE GOVERNED BY (INCLUDING BUT NOT LIMITED TO ITS VALIDITY, ENFORCEMENT AND
INTERPRETATION) THE LAWS OF THE COMMONWEALTH OF VIRGINIA AND UNITED STATES FEDERAL LAW; (d) may be
executed in several counterparts, and by the parties hereto on separate counterparts, and each
counterpart, when executed and delivered, shall constitute an original agreement enforceable
against all who signed it without production of or accounting for any other counterpart, and all
separate counterparts shall constitute the same agreement; and (e) embodies the entire agreement
and understanding between the parties with respect to modifications of documents provided for
herein and supersedes all prior conflicting or inconsistent agreements, consents and
understandings relating to such subject matter. “Borrower” shall include, in their individual
capacities and jointly, all parties hereinabove named as the Borrower. The duties, covenants,
conditions, obligations, and warranties of the Borrower in this Agreement shall be joint and
several obligations of the Borrower and, if more than one, of each party named a the Borrower
hereinabove, and each such party’s heirs, legal representatives, successors and assigns.
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If any Borrower is a corporation, partnership of other legal entity, the Borrower xxx the
person or persons signing for it represent and warrant to the Lender that this Agreement is
duly executed, acknowledged and delivered by the Borrower’s duly authorized representatives.
Whenever used herein, the singular number shall include the plural and the plural the
singular, and any gender shall be applicable to all genders. The use of the words “herein”,
“hereof”, “hereunder” and other similar compounds of the word “here” shall refer to this entire
Modification and not to any particular section, paragraph or provision. The headings in this
Modification shall be accorded no significance in interpreting it.
23. Notices. All notices, in connection with the Loan addressed to Lender, shall
hereinafter be sent to Lender at the following address:
Lender:
Xxxxxx Xxxxxxx
Bank of America, N.A.
000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Fax (000) 000-0000
Bank of America, N.A.
000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Fax (000) 000-0000
with a copy to:
Bank of America, N.A.
Attn: Loan Administration, Xxxxxxx Xxxxxxx
000 X. Xxxxxxx Xxxxxxxxx (0xx Xxxxx)
Xxxxx, XX 00000
Fax (000) 000-0000
Attn: Loan Administration, Xxxxxxx Xxxxxxx
000 X. Xxxxxxx Xxxxxxxxx (0xx Xxxxx)
Xxxxx, XX 00000
Fax (000) 000-0000
with a copy to:
Bank of America, N.A.
Attn:Loan Administration, Xxxxxx Xxxxxx
000 X. Xxxxxxx Xxxxxxxxx (0xx Xxxxx)
Xxxxx, XX 00000
Fax (000) 000-0000
Attn:Loan Administration, Xxxxxx Xxxxxx
000 X. Xxxxxxx Xxxxxxxxx (0xx Xxxxx)
Xxxxx, XX 00000
Fax (000) 000-0000
with a copy to:
Xxxxxxxxxxx, Misler, Sloan, Kletzkin & Ochsman, PLLC
Attn: Xxxxx X. Xxxxxxx
0000 00xx Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
0000 00xx Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
[remainder of page intentionally left blank]
[signatures to follow]
[signatures to follow]
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EXECUTED ON THE DATE OR DATES OF THE ACKNOWLEDGMENTS HEREOF, BUT EFFECTIVE AS OF
THE DATE FIRST STATED IN THIS AGREEMENT.
THE DATE FIRST STATED IN THIS AGREEMENT.
| WITNESS: | BORROWER: | |||||||
| XXXXXXXX BELLEMEADE, L.C., a Virginia | ||||||||
| limited liability company | ||||||||
| By: | XXXXXXXX HOMEBUILDING | |||||||
| COMPANIES, INC., as Manager | ||||||||
| /s/ Xxxxx Xxxxxxxx | By: | /s/ Xxxxxxxxxxx Xxxxxxxx | ||||||
| Print Name: Xxxxx Xxxxxxxx | Print Name: | |||||||
| Print Title: | ||||||||
[SEAL]
COMMONWEALTH OF VIRGINIA
|
) | |||||
| )ss: | ||||||
COUNTY OF FairFax
|
) | |||||
I, Xxxxx X. Xxxxx, a Notary Public
in and for the aforesaid said jurisdiction, do hereby certify that Xxxxxxxxxxx Xxxxxxxx who is
personally well known to me as (or satisfactorily proven to me to be) the person who signed the
foregoing instrument executed this 28 day of December,2006, personally appeared before me in said
jurisdiction and acknowledged that he is the CEO of XXXXXXXX HOMEBUILDING COMPANIES, INC., a
Delaware corporation, which is the Manager of XXXXXXXX BELLEMEADE, L.C., a Virginia limited
liability company which is a party to the foregoing instrument; that he has been duly authorized to
execute and deliver the foregoing instrument for the purposes therein contained and that the same
is his act and deed and the act and deed of XXXXXXXX BELLEMEADE, L.C.
IN WITNESS WHEREOF, I have set my hand and Notarial Seal, this 28 day of December , 2006.
| Xxxxx X. Xxxxx
|
||||
(SEAL) |
||||
| My Commission expires: 11-30-08 |
| [signatures continue on the next page] |
||||
Bank of America — Xxxxxxxx Bellemeade Modification
Page 10
| WITNESS: | LENDER: | |||||
| BANK OF AMERICA, N.A. | ||||||
| By: | ||||||
| Print Title: | ||||||
[CORPORATE SEAL]
STATE OF FLORIDA
|
) | |||||
| ) ss: | ||||||
COUNTY OF HILLSBOROUGH
|
) | |||||
I,
, Notary Public in and for the aforesaid said jurisdiction, do hereby
certify that
, who is personally well known to me as (or satisfactorily proven to me to be)
the person who signed the foregoing instrument executed this day of ,
2006, personally appeared before me in said jurisdiction and
acknowledged that he is the , of BANK OF AMERICA, N.A., a national
banking association; that he has been duly authorized to execute and deliver the foregoing
instrument for the purposes therein contained and that the same is his act and deed and the act
and deed of BANK OF AMERICA, N.A.
IN WITNESS WHEREOF, I have set my hand and Notarial Seal, this day of
, 2006.
(SEAL) |
||||
| My Commission expires: | ||||
[signatures continue on the next page]
Bank of America — Xxxxxxxx Bellemeade Modification
Page 11
| WITNESS: | GUARANTOR: | |||||||
| XXXXXXXX HOMEBUILDING COMPANIES, | ||||||||
| INC, a Delaware corporation | ||||||||
| /s/ Xxxxx Xxxxxxxx | By: | /s/ Xxxxxxxxxxx Xxxxxxxx | ||||||
| Print Name: Xxxxx Xxxxxxxx | Print Name: Xxxxxxxxxx Xxxxxxxx | |||||||
| Print Title: CEO | ||||||||
[SEAL]
COMMONWEALTH OF VIRGINIA
|
) | |||||
| ) ss: | ||||||
COUNTY OF FairFax
|
) | |||||
I,
Xxxxx X. Xxxxx, a Notary Public in and for the aforesaid said jurisdiction, do
hereby certify that Xxxxxxxxxxx Xxxxxxxx, who is personally well known to me as (or
satisfactorily proven to me to be) the person who signed the foregoing instrument executed
this 27 day of December, 2006, personally appeared before me in said jurisdiction and
acknowledged that he is the CEO of XXXXXXXX HOMEBUILDING COMPANIES, INC., a Delaware
corporation which is a party to the foregoing instrument; that he has been duly authorized
to execute and deliver the foregoing instrument for the purposes therein contained and
that the same is his act and deed and the act and deed of XXXXXXXX HOMEBUILDING COMPANIES,
INC., a Delaware corporation.
IN WITNESS WHEREOF, I have set my hand and Notarial Seal, this 27 day of
December, 2006.
| /s/ Xxxxx X. Xxxxx
|
||||||
(SEAL) |
||||||
| My Commission expires: 11-30-08 | ||||||
[signatures continue on the next page]
Bank of
America — Xxxxxxxx Bellemeade Modification
| WITNESS: | TRUSTEE: | |||||
| Sole Acting Trustee | ||||||
[CORPORATE SEAL]
COMMONWEALTH OF VIRGINIA
|
) | |||||||
| ) | ss: | |||||||
COUNTY OF
|
) |
I
HEREBY CERTIFY that on this day of , 2006, before me, the subscriber,
a Notary Public in and for the jurisdiction aforesaid, personally appeared in said jurisdiction
XXXXX X. XXXXXXXX, personally well known to me (or satisfactorily proven) to be the person who
executed the foregoing instrument as TRUSTEE; and acknowledged that, having authority to do so,
she executed the foregoing instrument as her act and deed for the purposes therein contained, and
delivered the same as such.
WITNESS my hand and Notarial Seal the year and day first above written.
| [SEAL]
|
||||
| Notary Public |
Bank of America — Xxxxxxxx Bellemeade Modification
