EXHIBIT 10.61
STATE OF SOUTH CAROLINA )
) MODIFICATION AGREEMENT
COUNTY OF AIKEN ) RELATING INTER ALIA TO THE
) FOLLOWING:
)
) MORTGAGE, ASSIGNMENT OF
) LEASES AND RENTS AND
) SECURITY AGREEMENT
) DATED JUNE 6, 1988 TO
) BE EFFECTIVE JUNE 8, 1988
) AND RECORDED WITH THE
) REGISTER OF DEEDS
) FOR AIKEN COUNTY,
) SOUTH CAROLINA IN MORTGAGE
) BOOK 1052 AT PAGE 198
THIS MODIFICATION AGREEMENT (the "Agreement") executed this ____ day of
June, 2001 to be effective as of the 10th day of May, 2001 by and between
XXXXXXX COMPANIES INCOME PROPERTIES, L.P., I, as successor in interest to MBB
DEVELOPMENT ASSOCIATES, ("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 Eleven Million Four Hundred Thousand and No/100
Dollars ($11,400,000.00) (the "Loan");
WHEREAS, the Loan was evidenced by that certain promissory note in the
original amount of $11,400,000.00 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 6, 1988 to be
effective June 8, 1988 and recorded with the Register of Deeds for Aiken County,
South Carolina in Mortgage Book 1052 at Page 198 as amended by that certain Loan
Modification and Extension Agreement and Mortgage Amendment, effective as of
June 10, 1993 recorded in Mortgage Book 718, page 337, 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 777, Page
324 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 805, Page 48 and further
amended by that certain Modification Agreement, effective December 10, 1998
recorded in Mortgage Book 956, Page 41; and, further amended by that certain
Modification Agreement, effective May 10, 1999 recorded in Mortgage Book 1012,
Page 5; further amended by that certain Modification Agreement effective May 10,
2000 recorded in Mortgage Book 1032, Page 60; and, further amended by that
certain
Modification Agreement, effective November 10, 2000, to be recorded (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".
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 May 10, 2001, which
was the maturity date of the Loan, NYLIC has notified Borrower of the same and
Borrower desires NYLIC to waive the maturity date 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, 2002 and to provide a new repayment schedule.
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 May 10, 2001 through May 10, 2002 (the
"Extended Maturity Date"), the Loan will accrue
interest at a fixed rate per annum equal to seven
(7%) percent;
(b) Commencing June 10, 2001 and continuing on the tenth
day of each month thereafter until the Extended
Maturity Date, payments in the amount of $66,433.00
will be due and payable. Such payments will be
applied first to accrued and unpaid interest and then
to principal;
(c) Commencing June 10, 2001 and continuing on the tenth
day of each month thereafter until the Extended
Maturity Date, 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 $9,258.00);
(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, 2002;
(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,
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(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 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.
1. The Loan Documents are amended by deleting all references to
the maturity date of "May 10, 2001" and substituting in lieu thereof the
maturity date of "May 10, 2002".
2. The principal balance due and owing under the Loan Documents
as of May 10, 2001, after giving effect to Borrower's payment of all principal
payments required to be paid hereunder, is $9,879,157.91.
3. 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").
4. Except as otherwise modified hereby, the terms and provisions
of the Loan Documents shall remain in full force and effect.
5. As a condition precedent to NYLIC's agreement herein:
(a) upon the execution of this Agreement, Borrower shall
pay all costs and expenses, including but not limited
to attorney's fees, recording fees and title charges
incurred in connection with this Agreement, any prior
modification of the Loan Documents, all matters
related to the Loan Documents and/or the consummation
of the transaction contemplated hereby.
(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;
6. 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.
7. By executing this Agreement, Borrower is reconfirming the
accuracy and correctness of all representations contained in the Loan Documents.
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8. 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.
9. 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.
10. Borrower acknowledges and agrees that NYLIC has the right to
direct all parties occupying any portion of the property which is the subject of
the Mortgage to remit all rents and other monies due Borrower to be directed to
NYLIC. Borrower acknowledges and agrees that all rents (including percentage
rents), income, expense reimbursements and profits derived from the property
which is the subject of the Mortgage have been directed by NYLIC to be remitted
directly to NYLIC by the third parties obligated therefor (collectively the
"Rents"). Any of the Rents received by Borrower will be received in trust by
Borrower and remitted to NYLIC within two (2) business days of Borrower's
receipt thereof. NYLIC shall deposit the Rents in an account controlled by NYLIC
(the "Rents Account"). To the extent funds on deposit in the Rents Account are
sufficient therefor, so long as no Event of Default has occurred or its
continuing, NYLIC shall disburse funds from the Rents Account for the following
purposes and in the following order: (i) for payment of the amount specified in
Paragraph 1(b) hereinabove; (ii) for payment of the amount specified in
Paragraph 1(c) hereinabove; (iii) to Borrower for Budgeted Expenses, as
hereinafter defined; and, (iv) for deposit and disbursement to the Account
Control Agreement by and between Borrower and NYLIC dated as of November 10,
2000. Prior to any disbursement for Budgeted Expenses NYLIC shall require
Borrower to submit a written request for disbursement together with copies of
the cash register and cash disbursement journal maintained for the property with
such additional documentation as NYLIC may request. For purposes hereof, the
term "Budgeted Expenses" means the expenses of the property which is the subject
of the Mortgage set forth in a written summary, in form and content acceptable
to Lender (the "Budget"). The Budget shall, as a minimum, set forth a twelve
month summary by month of reasonable and ordinary expenses of the property
reasonably consistent with historical experience. Borrower has submitted to the
Lender the initial Budget for calendar year 2001 and agrees to submit the Budget
for calendar year 2002 no later than November 30, 2001.
12. Borrower acknowledges, consents and agrees after consultation
with its counsel and otherwise knowingly and voluntarily, that (i) prior to
giving effect to this Agreement, an Event of Default existed under the Loan,
giving NYLIC the immediate and unconditional right to proceed against the
Borrower and the collateral securing the obligations under this Agreement,
including without limitation, foreclosure of the collateral constituting real
and personal property of Borrower; (ii) in the event of proceedings by NYLIC
against the Borrower and/or the collateral, Borrower has the right to file a
petition in bankruptcy under the United States Bankruptcy Code (the "Bankruptcy
Code"); (iii) Borrower hereby gives up, surrenders and waives the protection of
the "automatic stay" provisions of the Bankruptcy
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Code with respect to the collateral securing the Borrower's obligations under
this Agreement and further agrees not to take a contrary or adverse position in
any future bankruptcy proceedings against the collateral and/or NYLIC and
specifically agrees that NYLIC may proceed against the Borrower and/or
collateral without the necessity for lifting of the automatic stay under the
Bankruptcy Code, without regard to adequate protection, equity in the subject
property, the necessity of the subject property for an effective reorganization
or any other matter affecting NYLIC's right or ability to obtain immediate
relief from stay; and (iv) in the event of a bankruptcy filing by or against
Borrower, Borrower agrees to waive the exclusive right to file a plan of
reorganization during the initial 120 day period, and, otherwise, not to seek
any extension or modification of the 120 day period in which only the debtor may
file a plan of reorganization as provided in the Bankruptcy Code.
[THE REST OF THIS PAGE HAS BEEN LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement this ____
day of May, 2001 to be effective as of May 10, 2001.
WITNESSES AS TO BORROWER: BORROWER:
XXXXXXX COMPANIES INCOME
PROPERTIES, L.P. I, as successor in
interest to MBB DEVELOPMENT
ASSOCIATES (SEAL)
/s/ Xxxxx Xxxxxxxxxxx By: /s/ Xxxxx X. Xxxx
---------------------------------- ------------------------------------
Name: Xxxxx X. Xxxx
----------------------------------
/s/ Xxxxxx X. Xxxxxxxxx Its: Authorized Agent
---------------------------------- -----------------------------------
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IN WITNESS WHEREOF, the parties have executed this Agreement this ____
day of June, 2001 to be effective as of May 10, 2001.
WITNESS AS TO NYLIC: NYLIC:
NEW YORK LIFE INSURANCE COMPANY
(SEAL)
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------- ------------------------------------
Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxxxx
----------------------------------
/s/ Xxxxx X. Xxxx Its: Real Estate Vice President
---------------------------------- -----------------------------------
Xxxxx X. Xxxx
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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 MBB Development Associates by Xxxxx X. Xxxx, 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/ Xxxxx Xxxxxxxxxxx
---------------------------------------
Witness
SWORN TO before me this
6th day of June, 2001.
/s/ Xxxxxx X. Xxxxxxxxx (L.S.)
----------------------------------
Notary Public for Georgia
My Commission Expires: 7-21-2001
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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/ Xxxxxxx X. Xxxxx
---------------------------------------
Witness Xxxxxxx X. Xxxxx
SWORN TO before me this
11th day of June, 2001.
/s/ Xxxxx X. Xxxxx (L.S.)
-------------------------------
Notary Public for New York
My Commission Expires: Jan. 11, 2003
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