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EXHIBIT 10.51
STATE OF SOUTH CAROLINA )
) MODIFICATION AGREEMENT
COUNTY OF GREENVILLE ) RELATING INTER ALIA TO THE
) FOLLOWING:
)
) MORTGAGE, ASSIGNMENT OF
FILED ) LEASES AND RENTS AND
JAN 13 1999 ) SECURITY AGREEMENT
Xxxx X. Xxx ) DATED JUNE 2, 1988
Register of Deeds ) AND RECORDED WITH THE
) REGISTER OF DEEDS
) FOR GREENVILLE COUNTY,
) SOUTH CAROLINA IN MORTGAGE
) BOOK 1936 AT PAGE 273
THIS MODIFICATION AGREEMENT (the "Agreement") executed this 21st day of
December, 1998 to be effective as of the 10th day of October, 1998 by and
between XXXXXXX COMPANIES INCOME PROPERTIES, L.P., I, as successor in interest
to DAYTON & ASSOCIATES VII, ("Borrower") and NEW YORK LIFE INSURANCE COMPANY,
whose address is 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, ("NYLIC").
WITNESSETH:
WHEREAS, NYLIC previously made a loan available to the Borrower in the
original principal amount of Seven Million Fifty Thousand and No/100 Dollars
($7,050,000.00) (the "Loan");
WHEREAS, the Loan was evidenced by that certain promissory note in the
original amount of $7,050,000.00 from Borrower for the benefit of NYLIC (the
"Note") and secured inter alia by a lien on that certain parcel of real property
and improvements thereon pursuant to that certain Mortgage, Assignment of Leases
and Rents and Security Agreement from Borrower dated June 2, 1988 and recorded
with the Register of Deeds for Greenville County, South Carolina in Mortgage
Book 1936 at Page 273 as amended by that certain Loan Modification and
Extension Agreement and Mortgage Amendment, effective as of June 10, 1993
recorded in Mortgage Book 2442, page 450, as further amended by that certain
Second Loan Modification and Extension Agreement and Mortgage Amendment,
effective as of June 10, 1994, recorded in Mortgage Book 2632, Page 103 and
further amended by that certain Third Loan Modification and Extension Agreement,
Cross Pledge and Default Agreement, and Mortgage Amendment Agreement, effective
September 29, 1995 recorded in Mortgage Book 2700, Page 1867 (as amended,
modified or assigned, the "Mortgage").
WHEREAS, the Note and the Mortgage and any and all other documents related
to the Loan are collectively referred to as the "Loan Documents".
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WHEREAS, except as otherwise provided, all terms herein shall have the
meanings ascribed thereto in the Loan Documents;
WHEREAS, the Loan became due and payable in full on October 10, 1998, which
was the maturity date of the Loan, NYLIC has notified Borrower of the same and
Borrower desires NYLIC to waive the event of default and modify the terms of the
Loan Documents; and
WHEREAS, Borrower and NYLIC have agreed to amend certain terms of the Loan
and the Loan Documents to inter alia change the maturity date of the Loan to May
10, 1999, to provide a new repayment schedule and to modify the interest rate.
NOW, THEREFORE, in consideration of the mutual promises contained
hereinbelow, the sum of Five and No/100 Dollars ($5.00) and other good and
valuable consideration, the receipt, sufficiency and adequacy of which the
parties do hereby acknowledge, the parties do hereby agree as follows:
1. The Note, and Loan Documents as applicable, are amended as follows:
(a) From and after October 10, 1998 through May 10, 1999 (the "Extended
Maturity Date"), the Loan will accrue interest at a fixed rate per
annum equal to seven (7%) percent;
(b) Commencing November 10, 1998 and continuing on the tenth day of
December 1998, January 1999, February 1999, March 1999 and April
1999, interest only payments in the amount of $37,072.47 will be
due and payable;
(c) Commencing November 10, 1998 and continuing on the tenth day of
December 1998, January 1999, February 1999, March 1999 and April
1999, Borrower will deposit into escrow with NYLIC payments for
insurance and ad valorem taxes as required under the Loan Documents
(such monthly payments currently being equal to $8,011.00);
(d) Unless sooner demanded as provided herein, all outstanding
principal together with accrued unpaid interest due under the Loan
shall be due and payable in full on May 10, 1999;
(e) The Borrower shall be entitled to prepay the Note in full at par
without fee or premium on a date which is designated by Borrower in
writing given to NYLIC at least ten (10) days prior to such date;
and,
(f) Notwithstanding anything to the contrary in the Note or Loan
Documents, NYLIC shall have the right, at its sole option, upon
fifteen (15) days prior written notice to Borrower, with or without
cause and irregardless of
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whether an event of default shall exist or not, to accelerate
repayment of the Loan in full and demand Borrower repay the Loan
in full.
2. The Loan Documents are amended by deleting all references to the
maturity date of "October 10, 1998" and substituting in lieu thereof the
maturity date of May 10, 1999.
3. The principal balance due and owing under the Loan Documents as of the
date hereof, after giving effect to Borrower's payment of all principal payments
required to be paid hereunder is $6,355,280.53.
4. The Borrower represents and warrants that, at the time of the execution
and delivery of this Agreement, Borrower has good and absolute title to the real
property encumbered by the Loan Documents, and has full power and authority to
subject the same to the lien of the Loan Documents and the same is free and
clear of all liens, charges and encumbrances whatsoever, except those created by
the Loan Documents or those known to NYLIC and those set forth in NYLIC's
existing title insurance policy for the Loan (the "Title Policy").
5. Except as otherwise modified hereby, the terms and provisions of the
Loan Documents shall remain in full force and effect.
6. As a condition precedent to NYLIC's agreement herein:
(a) upon the execution of this Agreement, pay all costs and expenses,
including but not limited to attorney's fees, recording fees and
title charges incurred in connection with this Agreement and/or
the consummation of the transaction contemplated hereby together
with all costs and expenses of NYLIC, including attorney's fees
and expenses incurred as a result of Borrower's failure to pay the
amounts due under the Loan on or before October 10, 1998;
provided, however, Borrower shall not be required to pay any
amounts in excess of those limits agreed to by Borrower and NYLIC
in that certain letter agreement dated November 24, 1998;
(b) no default shall exist under the Loan Documents as of the date
hereof nor shall any event have occurred which with the passage of
time or the giving of notice, or both, would constitute such a
default;
(c) on or before November 30, 1998, NYLIC shall have received (i) a
payment in the amount of $72,471.00 representing the installment
of principal and accrued interest due on October 10, 1998 and late
charges in the amount of $357.07; and, (ii) an additional payment
of $45,083.47 representing accrued interest through November 10,
1998 and the required escrow deposit due for such date;
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(d) on or before December 21, 1998, Borrower shall provide or cause to
be provided to NYLIC an independent title report opining that
there are no matters of record filed subsequent to the effective
date of Lender's Title Policy except for such matters as are
expressly approved by NYLIC in its discretion.
7. Borrower and NYLIC agree that it is the intent of the parties that the
execution of this Agreement or any documents as contemplated by this Agreement
or the consummation of any transactions contemplated by this Agreement shall
constitute a modification, restatement and renewal under the Loan and shall not
be construed as a novation.
8. By executing this Agreement, Borrower is reconfirming the accuracy and
correctness of all representations contained in the Loan Documents.
9. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same instrument, and in making proof of this Agreement, it shall not be
necessary to produce or account for more than one such counterpart.
10. Borrower hereby agrees that NYLIC, and its officers, directors,
employees and agents are irrevocably and unconditionally released and discharged
of any and all claims, demands, obligations, liabilities, costs and expenses,
now existing (including, without limitation, any obligations or commitment of
NYLIC to provide any financial accommodations to Borrower under the Loan
Documents) arising out of or related to the Loan Documents.
[THE REST OF THIS PAGE HAS BEEN LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of this
21st day of December, 1998 to be effective as of October 10, 1998.
WITNESSES AS TO BORROWER: BORROWER
XXXXXXX COMPANIES INCOME
PROPERTIES, L.P.I, as successor in
interest to DAYTON & ASSOCIATES VII
(SEAL)
By: Xxxxxxx Management, L.P.
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As Its: General Partner
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/S/ XXXXXX X. XXXXX By: /s/ Xxxxx X. Xxxxxx, Xx.
------------------- ------------------------
Name: Xxxxx X. Xxxxxx, Xx.
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Its: Authorized Agent
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IN WITNESS WHEREOF, the parties have executed this Agreement this 21st day
of December, 1998 to be effective as of October 10, 1998.
WITNESS AS TO NYLIC: NYLIC:
NEW YORK LIFE INSURANCE COMPANY
(SEAL)
/s/ By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------- ------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
/s/ -----------------------------
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Its: Real Estate Vice President
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STATE OF GEORGIA )
) PROBATE
COUNTY OF RICHMOND )
PERSONALLY appeared before me the undersigned witness and made oath that
s/he saw the within-written Xxxxxxx Companies Income Properties, L.P.I, as
successor in interest to Dayton & Associates VII by Xxxxx X. Xxxxxx, Xx., its
Authorized Agent, sign, seal, and as its act and deed, deliver the
within-written instrument for the uses and purposes therein mentioned, and that
s/he with the other witness whose signature appears above, witnessed the
execution thereof.
/s/___________________
Witness
SWORN TO before me this
17th day of December, 1998.
/s/ Xxxxxx X. Xxxxx (L.S.)
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Notary Public for Georgia
My Commission Expires: 8/20/02
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STATE OF NEW YORK )
) PROBATE
COUNTY OF NEW YORK )
PERSONALLY appeared before me the undersigned witness and made oath that
s/he saw the within-written New York Life Insurance Company, by Xxxxxxx X.
Xxxxxxxxx, its Real Estate Vice President, sign, seal, and as its act and deed,
deliver the within-written instrument for the uses and purposes therein
mentioned, and that s/he with the other witness whose signature appears above,
witnessed the execution thereof.
/s/
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Witness
SWORN TO before me this
21st day of December, 1998.
/s/ Xxxxxxx X. Xxxxxxx
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Notary Public for New York
My Commission Expires: 1/26/99
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