Exhibit 10.49b
Section: 004.00
Block: 02.00
Lots: 003.000 and 004.000
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Dated as of June 30, 2004
MORTGAGE MODIFICATION AGREEMENT
between
RD BRANCH ASSOCIATES, L.P.,
a New York limited partnership,
Mortgagor,
and
FLEET NATIONAL BANK, as
Administrative Agent for Lenders (as hereinafter defined)
(together with its successors in such capacity, "Mortgagee")
This instrument affects real and personal property situated at 000 Xxxx Xxxx
Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000.
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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 BRANCH ASSOCIATES, L.P. ("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 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
Suffolk County Clerk, New York on January 14, 2002 in Liber M00020006 at page
819 (the "Original Mortgage");
WHEREAS, the maximum principal amount which is or under any
contingency may be secured by the Mortgage prior to the effect of this Mortgage
Modification Agreement is $15,000,000, plus interest thereon and all additional
interest and late payment and prepayment charges in respect thereof, plus all
amounts expended by Mortgagee following a default thereunder in respect of
insurance premiums and real estate taxes, and all legal costs or expenses of
collection of the note(s) secured thereby or of the defense or prosecution of
the rights and lien created thereby;
WHEREAS, Mortgagee, Mortgagor, RD Abington Associates Limited
Partnership ("Abington Mortgagor"), RD Methuen Associates Limited Partnership
("Methuen 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 and not otherwise defined shall have the meanings
attributed to them in the Amended and Restated Loan Agreement.
2. Anything to the contrary contained herein
notwithstanding, the maximum principal amount which is or under any contingency
may be secured by the Mortgage is $15,000,000.00, plus interest thereon and all
additional interest and late payment and prepayment charges in respect thereof,
plus all amounts expended by Mortgagee following a default thereunder in respect
of insurance premiums and real estate taxes, and all legal costs or expenses of
collection of the note(s) secured thereby or of the defense or prosecution of
the rights and lien created thereby.
3. Mortgagor hereby certifies that the Original Mortgage,
as modified by this Agreement, secures the same portion of the indebtedness
evidenced by the Original Note which is secured by the Original Mortgage, as
modified hereby, and secures no new or further indebtedness.
4. 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.
5. Except as modified hereby the Original Mortgage remains
unmodified and in full force and effect.
6. 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.
7. This Agreement and the rights and obligations of the
parties hereto shall in all respects be governed by, and construed and enforced
in accordance with, the laws of the State of New York (without giving effect to
New York's choice of law principles).
8. 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.
9. The information set forth on the cover hereof is
incorporated herein.
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2
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by each of the parties hereto as of the day and year first above
written.
RD BRANCH ASSOCIATES, L.P., a New York
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 general partner
By
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Xxxxxx Xxxxxxx
Senior Vice President
FLEET NATIONAL BANK, as Administrative
Agent
By
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Xxxxxx X. Xxxxx
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:
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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:
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SCHEDULE A
