This Instrument Prepared By:
Xxxxxx X. Xxxxx, P.A.
Steel Xxxxxx & Xxxxx
0000 Xxxxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
MORTGAGE MODIFICATION AGREEMENT
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THIS MORTGAGE MODIFICATION AGREEMENT ("Agreement"), made this 1ST day
of NOVEMBER, 1995 by and between Xxxx Xxxxxxx Properties Limited
Partnership, a Massachusetts limited partnership (the "Mortgagor") and Xxxx
Xxxxxxx Realty Equities, Inc., a Delaware corporation (the "Mortgagee"),
whose mailing address is 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
WITNESSETH:
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WHEREAS, Pacific Mutual Life Insurance Company, a California
corporation ("PMLIC") and the Mortgagor entered into that certain loan
transaction (the "Loan") wherein PMLIC loaned to Mortgagor the original
principal amount of Eight Million Eight Hundred Fifty Thousand and No/100
Dollars ($8,850,000.00) as evidenced by that certain Promissory Note dated
the 17th day of October, 1985 (the "Original Note"); and
WHEREAS, in connection with the Loan, the Mortgagor executed and
delivered that certain Mortgage and Security Agreement dated the 16th day
of October, 1985, in favor of PMLIC recorded in Official Records Book 3703,
Page 226, Public Records of Orange County, Florida and modified by that
certain Promissory Note and Mortgage Renewal and Modification Agreement
dated November 1, 1992 and recorded in Official Records Book 4505, Page
962, Public Records of Orange County, Florida (collectively, the
"Mortgage"), as well as other loan documents more particularly described in
Exhibit A attached hereto and made a part hereof (the Mortgage and said
loan documents are hereinafter sometimes collectively referred to as the
"Loan Documents"); and
WHEREAS, the Loan Documents were assigned by PMLIC to the Mortgagee
pursuant to that certain Assignment of Mortgage and Assignment of Mortgage
Loan Documents dated the 1ST day of NOVEMBER, 1995 and recorded in Official
Records Book 4971, Page 2841, Public Records of Orange County, Florida; and
WHEREAS, the Mortgage encumbers the real property located in Orange
County, Florida, and described in Exhibit B attached hereto and made a part
hereof, as well as personal property more particularly described in the
Mortgage (said real property and personal property hereinafter collectively
referred to as the "Property"); and
WHEREAS, the Mortgagor and Mortgagee have agreed to modify the
Mortgage in the manner hereinafter set forth;
NOW THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, and in further consideration of
the agreements hereinafter set forth, the Mortgagor and Mortgagee hereby
agree as follows:
1. That each and every of the above recitals is true and correct,
and are incorporated by reference herein.
2. Mortgagor acknowledges that the unpaid balance due on the
original obligation secured by the Loan Documents at the time of the
assignment of the Loan Documents to the Mortgagee was a sum in the amount
of Eight Million Six Hundred Ninety-Three Thousand Seven Hundred Seventy-
Four and 44/100 Dollars ($8,693,774.44) as of the first day of November,
1995, plus any interest owed thereon, and that said unpaid principal
balance has been further reduced by Mortgagor paying to Mortgagee of even
date herewith a sum in the amount of Five Hundred Thousand and 00/100
Dollars ($500,000.00), and as a result of said payment, the unpaid
principal balance owed to Mortgagee is a sum in the amount of Eight Million
One Hundred Ninety-Three Thousand Seven Hundred Seventy-Four and 44/100
Dollars ($8,193,774.44).
3. Mortgagee continues to own the Mortgage which is a first lien on
the Property.
4. The principal due Mortgagee and interest thereon shall be paid
pursuant to the terms and conditions of the Renewal Note in the principal
amount of Eight Million One Hundred Ninety-Three Thousand Seven Hundred
Seventy-Four and 44/100 Dollars ($8,193,774.44) given by Mortgagor in favor
of Mortgagee, and dated the 1st day of November, 1995 (the "Renewal Note"),
which provides, in part, for monthly payments of interest in the amount of
Fifty-Nine Thousand Seven Hundred Forty-Six and 27/100 Dollars ($59,746.27)
which shall be due and payable on the first day of December, 1995 and on
the first day of each month thereafter; provided, however, that on the
first day of November, 1996, the entire unpaid principal balance, plus
interest thereon shall be due and payable in full, if not sooner paid.
5. The Mortgagor has no defense or right to offset with respect to
the indebtedness evidenced by the Renewal Note and secured by the Loan
Documents.
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6. The Mortgagor ratifies and confirms that the maturity date of the
Renewal Note is November 1, 1996 (the "Maturity Date"), and that, unless
sooner due, all unpaid principal and all accrued and unpaid interest shall
be due and payable on the Maturity Date. The Mortgagor further ratifies
and confirms the lien and security interest of the Loan Documents upon or
in any and all property, real, personal, or mixed, tangible or intangible,
now encumbered by the Loan Documents, and grants to the Mortgagee the
benefit of a lien upon and security interest in all such property, as
security for the indebtedness as evidenced by the Renewal Note all with the
same force and effect as if the provisions of this Agreement originally had
been incorporated into the Original Note and Loan Documents. The foregoing
grant is a supplemental further assurance of title as nothing contained in
this document alters, discharges or impairs the lien and security interest
of the Loan Documents, or their respective priorities. Except as herein
modified and amended, the terms and conditions of the Loan Documents, and
all of the documents recited herein or executed with respect to the
foregoing are hereby ratified and affirmed and will remain in full force
and effect.
7. The Mortgagor acknowledges by its execution hereof that, as of
the date hereof, (A) all principal and interest evidenced by the Renewal
Note to the date of this Agreement are unconditionally due and owing to the
Mortgagee as provided in the Renewal Note and that the Mortgagor has no
actions, defenses, demands and/or claims of set-off or deduction
whatsoever, against (i) the Mortgagee, (ii) the indebtedness evidenced by
the Renewal Note and owed to the Mortgagee, or (iii) the Loan Documents,
and (B) to the best of Mortgagor's knowledge, the Mortgagee has in no way
defaulted or performed any act or omission under the Renewal Note or the
Loan Documents or any other agreements between the Mortgagor and the
Mortgagee (including Mortgagee's predecessor-in-interest), which would or
could give rise to any action or actions, cause or causes of actions,
suits, debts, sums of money, damages, claims, costs, expenses and/or
demands whatsoever, in law or in equity or otherwise, by the Mortgagor
against the Mortgagee. Furthermore, the Mortgagor for itself, its
partners, officers and directors, affiliates, successors and assigns, and
all others claiming by or through them, hereby fully remises, releases and
forever discharges the Mortgagee, its officers, directors, agents and
employees, affiliates, predecessors-in-interest, successors and assigns of
and from any and all manner of action and actions, cause and causes of
action, whether sounding in contract or in tort, or otherwise, suits,
debts, dues, sums of money, accounts, reckonings, covenants, contracts,
controversies, claims and demands of every kind and nature whatsoever, in
law or in equity, accrued or unaccrued, known or unknown, fixed or
contingent, which against it can, shall or may have for, on, or by reason
of any matters, causes or things whatsoever which, as of the date hereof,
may arise out of or in any way relate to the Loan or the Renewal Note
and/or the Loan Documents or arising out of any negotiations or
communications entertained in connection with this Agreement.
8. The Mortgagor hereby represents and warrants to the Mortgagee
that the execution and delivery of this Agreement has been authorized by
all necessary partnership action required pursuant to the Mortgagor's
partnership agreement and that the same constitutes a valid and binding
obligation of the Mortgagor, fully enforceable against the Mortgagor in
accordance with its terms.
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9. It is the intent of the parties that this Agreement shall not
constitute a novation of the Loan Documents and will in no way adversely
affect the lien priority of any of the Loan Documents.
10. The Mortgagor represents and warrants to the Mortgagee that: (i)
it has thoroughly read and reviewed the terms and provisions of this
Agreement, and the terms and provisions are clearly understood and have
been fully and unconditionally consented to by it; (ii) it has had a full
and complete opportunity for advice of counsel of its own selection in
regard to understanding the terms, meaning and effect of this Agreement;
(iii) it has freely and voluntarily executed this Agreement with full
knowledge of the consequences thereof and without duress or undue
influence; (iv) it has not relied on representations, either written or
oral, express or implied, made to it by the Mortgagee or an attorney or
agent acting on behalf of the Mortgagee, except as expressly set forth in
this Agreement; and (v) it has received actual and adequate consideration
to support this Agreement.
11. The first "WHEREAS clause" on page 1 of the Mortgage is hereby
amended to read as follows:
"THAT, WHEREAS, Mortgagor is justly indebted to the
Mortgagee in the principal sum of Eight Million One Hundred
Ninety-Three Thousand Seven Hundred Seventy-Four and
44/100ths Dollars ($8,193,774.44), evidenced by a certain
Renewal Note of Mortgagor of even date herewith (the
"Note"), made payable to the order of Mortgagee, whereby
Mortgagor promises to pay the said principal sum, late
charges, and other sums and interest at the rate or rates
and in installments, all as provided in the Note. The final
payment of principal and interest, if not sooner paid
pursuant to the terms of the Note, shall be due and payable
on or before November 1, 1996. All such payments on account
of the Indebtedness (as the term "Indebtedness" is
hereinafter defined) secured hereby shall be applied first
to interest on the unpaid principal balance, secondly to any
other sums due thereunder, thirdly to all other advances and
sums secured hereby, and the remainder to principal, all of
said principal and interest being made payable at such place
as the holder of the Note may from time to time in writing
appoint; and"
12. In the event that the Mortgagee resorts to litigation to enforce
this Agreement, all costs of such litigation, to include reasonable
attorneys' fees through all trials, appeals and proceedings, to include,
without limitation, any proceedings pursuant to the bankruptcy laws of the
Untied States, shall be paid by the Mortgagor.
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13. Except as herein specifically modified, the terms, covenants and
conditions of the Loan Documents shall remain in full force and effect
without any further modifications. Nothing contained herein shall in any
way impair the Mortgage or any other Loan Documents which evidence or
secure the loan, nor alter, waive, annul, vary or effect any provision,
condition or covenant therein contained (except as herein expressly
provided) nor affect nor impair any rights, powers or remedies, under the
Mortgage or any other Loan Documents now or hereafter held by the
Mortgagee, it being the intent of the parties hereto that all of the terms
and provisions of the Mortgage and all other Loan Documents shall continue
in full force and effect except as expressly modified hereby or by any
other instrument executed by and between the parties hereto. In the event
of a conflict between the terms of the Mortgage, any other Loan Documents
and the terms of this Agreement, the terms of this Agreement shall prevail.
14. This Agreement shall be governed and construed in accordance with
the laws of the State of Florida or applicable federal laws, if the
Mortgagee shall elect the benefit thereof. In case any one or more of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision hereof,
and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. Time is of the
essence of this Agreement. As used herein, the neuter gender shall include
the masculine and feminine genders, and vice versa, and the singular number
includes the plural, and vice versa, as the context demands.
15. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original instrument, but all such
counterparts together shall constitute one and the same instrument.
16. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their heirs, personal representatives,
successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have hereunto caused these
presents to be duly executed as of the day and year first above written.
Signed, Sealed and MORTGAGOR:
Delivered
in the Presence of: XXXX XXXXXXX PROPERTIES LIMITED
PARTNERSHIP, A Massachusetts limited
AVIA X. XXXXXXXX partnership, by its Managing General
------------------------- Partner:
NAME: Avia X. Xxxxxxxx
---------------- XXXX XXXXXXX REALTY EQUITIES, INC.
a Delaware corporation
XXXXX X. XXXXXX
------------------------- BY: XXXXXXX X. XXXXX
NAME: Xxxxx X. Xxxxxx ----------------
---------------- NAME: Xxxxxxx X. Xxxxx
----------------
TITLE: Treasurer
----------------
(CORPORATE SEAL)
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COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK
The foregoing instrument was acknowledged before me this 8TH day of
NOVEMBER, 1995 by XXXXXXX X. XXXXX, as TREASURER of XXXX XXXXXXX REALTY
EQUITIES, INC., a Delaware corporation, the managing general partner of
XXXX XXXXXXX PROPERTIES LIMITED PARTNERSHIP, a Massachusetts limited
partnership, on behalf of the partnership, as the free act and deed of said
corporation.
XXXX X. XXXXXX
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(Print Name of Notary) Xxxx X. Xxxxxx
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Notary Public
State of Massachusetts
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Commission or Serial No.: N/A
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My commission expires: June 28, 1996
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[Notary Seal]
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Signed, Sealed and MORTGAGEE:
Delivered
in the Presence of: XXXX XXXXXXX REALTY EQUITIES, INC.
a Delaware corporation
XXXXXXX X. XXXXXX
-------------------------- BY: XXXXXXX X. XXXXX
NAME: Xxxxxxx X. Xxxxxx ----------------
----------------- NAME: Xxxxxxx X. Xxxxx
----------------
XXXXXX X XXXXXXX TITLE: Treasurer
-------------------------- ----------------
NAME: Xxxxxx X. Xxxxxxx
-----------------
(CORPORATE SEAL)
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK
The foregoing instrument was acknowledged before me this 8TH day of
NOVEMBER, 1995 by XXXXXXX X. XXXXX, as TREASURER of XXXX XXXXXXX REALTY
EQUITIES, INC., a Delaware corporation, as the free act and deed of said
corporation.
XXXX X. XXXXXX
---------------------------------------
(Print Name of Notary) Xxxx X. Xxxxxx
--------------
Notary Public
State of Massachusetts
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Commission or Serial No.: N/A
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My commission expires: June 28, 1996
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[Notary Seal]
8K1195X3.DOC
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