Exhibit 10.49c
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Dated as of June 30, 2004
MORTGAGE MODIFICATION AGREEMENT
between
RD METHUEN ASSOCIATES LIMITED PARTNERSHIP,
a Massachusetts limited partnership,
Mortgagor,
and
FLEET NATIONAL BANK, as
Administrative Agent for Lenders (as hereinafter defined)
(together with its successors in such capacity, "Mortgagee")
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RECORD AND RETURN TO:
Xxxxxx Xxxxxx LLP
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
MORTGAGE MODIFICATION AGREEMENT
MORTGAGE MODIFICATION AGREEMENT dated this 30th day of June,
2004 between RD METHUEN ASSOCIATES LIMITED PARTNERSHIP, a Massachusetts limited
partnership ("Mortgagor") and FLEET NATIONAL BANK, as Administrative Agent
("Mortgagee").
W I T N E S S E T H:
WHEREAS, Mortgagee is now the lawful owner and holder of the
note (collectively, the "Original Note") secured by that certain Fee and
Leasehold Mortgage, Assignment of Leases and Rents and Security Agreement from
Mortgagor to Mortgagee dated as of December 28, 2001 and recorded in the Office
of the Essex Registry of Deeds, Essex County, Massachusetts on January 3, 2002
in Book 6589 at page 1 (the "Original Mortgage");
WHEREAS, the mortgage amount of the Mortgage prior to the effect
of this Mortgage Modification Agreement is $23,000,000;
WHEREAS, Mortgagee, Mortgagor, RD Abington Associates Limited
Partnership ("Abington Mortgagor"), RD Branch Associates Limited Partnership
("Branch Mortgagor"), Heathcote Associates, L.P. ("Gateway Mortgagor") and
Acadia Town Line, LLC ("Town Line Mortgagor") have entered into that certain
Amended and Restated Term Loan Agreement Agreement dated as of the date hereof
(the "Amended and Restated Loan Agreement"), which Amended and Restated Loan
Agreement consolidates the Original Note with certain other notes and amends,
extends and restates the terms thereof in their entirety;
WHEREAS, the Mortgage is a first priority mortgage encumbering
the property described on SCHEDULE A attached hereto and made a part hereof (the
"Premises");
WHEREAS, Mortgagor is the lawful owner of the Premises; and
WHEREAS, Mortgagee and Mortgagor have agreed to modify the terms
of the Mortgage in the manner hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein expressed, the parties hereto covenant and agree as follows:
1. As used in the Original Mortgage, the term "Loan
Agreement" shall mean the Amended and Restated Loan Agreement, as the same may
be modified, amended or supplemented from time to time and the term "Loan Note"
shall mean the "Note" as defined in the Amended and Restated Loan Agreement.
Capitalized terms used in the Original Mortgage as modified hereby and not
otherwise defined shall have the meanings attributed to them in the Amended and
Restated Loan Agreement.
2. The definition of the term "Mortgage Amount" in the
Original Mortgage is hereby changed to $45,900,000 such that the principal
amount secured by the Original Mortgage as modified hereby is increased to
$45,900,000 or so much thereof as is advanced and outstanding pursuant to the
terms of the Amended and Restated Loan Agreement.
3. Mortgagor represents and warrants that there exist no
defenses, offsets or counterclaims with respect to its obligations under the
Original Mortgage, as modified hereby, or under the Note.
4. Except as modified hereby the Original Mortgage remains
unmodified and in full force and effect.
5. The terms and provisions hereof shall be binding upon
and inure to the benefit of the parties hereto and their heirs, representatives,
successors and assigns.
6. This Agreement may be executed in multiple counterparts,
each of which shall constitute an original and together which shall constitute
but one and the same instrument.
7. The information set forth on the cover hereof is
incorporated herein.
[Remainder of page intentionally left blank]
2
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by each of the parties hereto intending same to be effective as a
sealed instrument as of the day and year first above written.
RD METHUEN ASSOCIATES LIMITED
PARTNERSHIP, a Massachusetts limited
partnership
By: Acadia Property Holdings, LLC,
its general partner
By: Acadia Realty Limited
Partnership, a Delaware limited
partnership, its sole member
By: Acadia Realty Trust,
a Maryland real estate
investment trust, its
Attest: general partner
------------------------------ By
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Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
FLEET NATIONAL BANK, as Administrative
Attest: Agent
------------------------------ By
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Name: Xxxxxx X. Xxxxx
Title: Vice President
The undersigned joins in the execution and authorizes the
delivery of this Mortgage Modification Agreement for the purpose of confirming
and reaffirming its acceptance and agreement to the provisions of paragraph 3.17
of the Original Mortgage.
ACADIA REALTY LIMITED PARTNERSHIP
By: Acadia Realty Trust,
its general partner
By
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Xxxxxx Xxxxxxx
Senior Vice President
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 30th day of June in the year 2004, before me, the
undersigned, a notary public in and for said state, personally appeared Xxxxxx
Xxxxxxx, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity(ies), and that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
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Notary Public
My Commission Expires:
------------------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 30th day of June in the year 2004, before me, the
undersigned, a notary public in and for said state, personally appeared Xxxxxx
X. Xxxxx, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity(ies), and that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
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Notary Public
My Commission Expires:
------------------------------
SCHEDULE A
Parcel One:
Fee Parcel
Two certain parcels of land, together with the buildings and improvements
thereon, situated on the Northerly side of Pleasant Valley Street in Methuen,
Essex County, Massachusetts, being shown as Lots 6 and 11 on a plan entitled
"Plan of Property Owned By Town of Methuen [and] First Hartford Realty
Corporation, Xxxxxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx", dated August 29,
1975, and drawn by Xxxxxxxx Engineering Co., Inc., which plan is recorded with
the Essex North District Registry of Deeds as Plan #7289. Said Lots 6 and 11 are
together more particularly bounded and described, according to said plan, as
follows:
Beginning at the Southwesterly xxxxx thereof, on the Northerly side of said
Pleasant Valley Street, being on the Northeasterly sideline of Lot 8, said point
being S 37(degree) 18' 50" E 46.98 feet distance from a Stone Bound at the
Southeasterly corner of land now or formerly of Xxxxxxxxxxx;
thence running
N 37(Degree) 18' 50" W by said Lot 8 (now a portion of said Pleasant
Valley Street by virtue of a Taking made by the
Essex County Commissioners dated January 23, 1973,
and recorded with said Deeds in Book 1211, Page
646), 46.98 feet to said Stone Bound at land now
or formerly of Xxxxxxxxxxx; thence turning and
running
N 31(Degree) 52' 00" W by said land now or formerly of Xxxxxxxxxxx,
258.69 feet to a point at the intersection of land
which is part of Xxx Xxxxxxxx Xxxxxx Xxxxxx and
Lot 7 (now also a part of said Xxx Xxxxxxxx Xxxxxx
Xxxxxx by virtue of a deed from First Hartford
Realty Corporation to the Inhabitants of the Town
of Methuen, dated July 7, 1972, and recorded with
said Deeds in Book 1209, Page 226); thence turning
and running
SOUTHEASTERLY by said Lot 7, on a curve to the right having a
radius of 25.00 feet, a distance of 38.96 feet to
a point; thence turning and running
EASTERLY and NORTHERLY still by said Lot 7, and by the end
of said Old Pleasant Valley Street, on a curve to
the left having a radius of 75.00 feet, a distance
of 265.93 feet to a point; thence turning and
running
N 77(Degree) 54' 15" W still by the end of said Xxx Xxxxxxxx Xxxxxx
Xxxxxx, 64.48 feet to a Mass. Highway Bound on the
Southerly side of Route 213; thence turning and
running
N 57(Degree) 21' 27" E by said Route 213, 233.72 feet to a point; thence
turning and running
NORTHEASTERLY still by said Route 213, on a curve to the right
having a radius of 4900.00 feet, a distance of
520.54 feet to a point at Lot 2; thence turning
and running
S 29(Degree) 28' 17" E by said Lot 2, 60.08 feet to a point at Lot 1;
thence turning and running
N 69(Degree) 08' 21" E by said Lot 1, 126.41 feet to a point: thence
turning and running
S 43(Degree) 51' 11" E still by said Lot 1, 242.14 feet to a point;
thence turning and running
S 09(Degree) 49' 09" E still by said Lot 1, 377.11 feet to a point on the
Northerly side of said Pleasant Valley Street
(formerly Lot 9 prior to the aforesaid Taking by
the Essex County Commissioners); thence turning
and running
SOUTHWESTERLY by said Pleasant Valley Street, on a curve to the
left having a radius of 3100.00 feet, a distance
of 929.76 feet to the point of beginning.
The respective areas of said Lots 6 and 11 are as follows:
Xxx 0 - 00.000 Xxxxx x/-
Xxx 00 - 0.000 Xxxxx +/-
Parcel Two:
Leasehold Parcel
A certain parcel of land situated on the Northerly side of Pleasant Valley
Street in Methuen, Essex County Massachusetts, being a portion of Lots 1 and 2
on a plan entitled "Plan of Property Owned By Town of Methuen [and] First
Hartford Realty Corporation, Xxxxxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx",
dated August 29, 1975, and drawn by Xxxxxxxx Engineering Co., Inc., which plan
is recorded with the Essex North District Registry of Deeds as Plan #7289. Said
Leasehold Parcel is more particularly bounded and described, according to said
plan, as follows:
Beginning at the Southwesterly corner thereof, on the Northerly side of said
Pleasant Valley Street and at the Southeasterly corner of Lot 6, thence running
N 09(Degree) 49' 09" W by said Lot 6, 377.11 feet to a point; thence
turning and running
N 43(Degree) 51' 11" W still by said Lot 6, 242.14 feet to a point at
Lot 1; thence turning and running
N 73(Degree) 39' 58" E in part through said Lot 1 and continuing on the
same course into said Lot 2, 218.16 feet to a
point; thence turning and running
S 61(Degree) 28' 24" E through said Lot 2, 22.63 feet to a point; thence
turning and running
S 16(Degree) 28' 27" E through said Lot 2 and through said Lot 1, 557.20
feet to a point; thence turning and running
S 26(Degree) 59' 53" W through said Lot 1, 56.70 feet to a point on the
Northerly side of said Xxxxxxxx Xxxxxx Xxxxxx;
thence turning and running
SOUTHWESTERLY by said Pleasant Valley Street, on a curve to the
left having a radius of 3100.00 feet, a distance
of 130.00 feet to the point of beginning.
Said Leasehold Parcel contains, according to said plan, 2.160 Acres+/-.
The Leasehold Estate in the above-described premises was created pursuant to the
terms of a Lease between Carlyle Real Estate Limited Partnership-72, as Lessor,
and First Hartford Realty Corporation, as Lessee, dated as of June 21, 1974,
recorded with said Deeds in Book 1245, Page 523, as amended by instrument dated
July 18, 1974, and recorded in said Deeds, in Book 1245, Page 548, the Lessee's
interest therein having been assigned to JMB Income Properties, Ltd.-1973 by
instrument recorded with said Deeds in Book 1251, Page 688, and further assigned
by JMB Income Properties, Ltd.-1973 to Metropolitan Life Insurance Company by a
Quitclaim Deed and Assignment and Assumption of Ground Lease dated May 30, 1984,
and recorded with said Deeds in Book 1815, Page 97.
Parcel Three:
Easement Parcel
The non-exclusive perpetual easement, rights, privileges of use, ingress and
egress and all other purposes created and granted as appurtenant to Parcel One
described above, in and by that certain Easement Grant dated June 21, 1974 from
Carlyle Real Estate Limited Partnership-72 to First Hartford Realty Corporation
recorded with Essex North District Registry of Deeds in Book 1245, page 551.
