EXHIBIT 10.16
MODIFICATION AGREEMENT
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This MODIFICATION AGREEMENT ("Agreement") is entered into effective as of
the 15th day of December, 2001, by and between SOUTHWEST BANK OF TEXAS, N.A., a
national banking association ("Lender"), and GREATER HOUSTON GULF PARTNERS,
LTD., a Texas limited partnership ("Borrower").
W I T N E S S E T H
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WHEREAS, Lender made a loan (the "Loan") to Borrower on December 15, 1999,
in the maximum principal amount of TWO MILLION NINE HUNDRED FIFTY-FIVE THOUSAND
AND NO/100 DOLLARS ($2,955,000.00); and
WHEREAS, Lender and Borrower executed that certain Construction Loan
Agreement ("Loan Agreement") dated December 15, 1999, pertaining to the Loan;
and
WHEREAS, the Borrower executed and delivered to Lender that certain
Promissory Note (as same may have been heretofore amended, the "Note"), dated
December 15, 1999, payable to the order of Lender in the amount of and
evidencing the Loan; and
WHEREAS, the Borrower executed and delivered to Lender (i) that certain
Deed of Trust, Security Agreement and Assignment of Rents (as same may have been
heretofore amended, the "Deed of Trust") dated of even date with the Note to
Xxxxxx X. Xxxxxxxx, as trustee ("Trustee"), for the benefit of the Lender,
recorded in the Official Public Records of Real Property of Xxxxxx County, Texas
under Clerk's File No. U168686, covering certain real property located in Xxxxxx
County, Texas, and more particularly described in the Deed of Trust, together
with all improvements, appurtenances, other properties (whether real or
personal), rights and interests described in and encumbered by the Deed of Trust
(the "Property"), to secure the payment of the Note and performance by Borrower
of the other obligations set forth in the Security Documents (as herein
defined), and (ii) that certain Deed of Trust, Security Agreement and Assignment
of Rents (as same may have been heretofore amended, the "Second Deed of Trust,"
and together with the Deed of Trust, sometimes referred to collectively herein
as the "Deed of Trust"), dated March 10, 2000, to Xxxxxx X. Xxxxxxxx, as
trustee, for the benefit of the Lender, recorded in the Official Public Records
of Real Property of Xxxxxx County, Texas under Clerk's File No. U303929,
covering certain additional real property located in Xxxxxx County, Texas, and
more particularly described in the Second Deed of Trust, together with all
improvements, appurtenances, other properties (whether real or personal), rights
and interests described in and encumbered by the Second Deed of Trust (the
"Additional Property," and together with the Property, sometimes referred to
herein collectively as the "Property"), to further secure the payment of the
Note and performance by Borrower of the other obligations set forth in the
Security Documents (as herein defined); and
MODIFICATION AGREEMENT - PAGE 1
WHEREAS, the Borrower executed and delivered to Lender that certain
Assignment of Rents and Leases (as same may have been heretofore amended, the
"Assignment"), dated of even date with the Note, recorded in the Official Public
Records of Real Property of Xxxxxx County, Texas under Clerk's File No. U168687,
assigning to Lender all rents, leases, income, revenues, issues and profits
which may arise from the operation or ownership of the Property, to secure the
payment of the Note and performance by Borrower of the other obligations set
forth in the Security Documents; and
WHEREAS, the Borrower caused to be issued by First American Title Insurance
Company of Texas (the "Title Company") that certain Mortgagee Policy of Title
Insurance (the "Policy") Xx. X000000, dated January 10, 2000, in the amount of
the Note, insuring the dignity and priority of the lien created and evidenced by
the Deed of Trust; and
WHEREAS, the Borrower caused Xxxxx Xxxxxxx and Xxxxxxxx Xxxxxxx (whether
one or more, the "Guarantor") to execute and deliver to Lender that certain
Guaranty Agreement ("Guaranty") dated of even date with the Note guaranteeing
payment of the Note and all the other monetary obligations contained in the
Security Documents and performance by Borrower of the other obligations as set
forth in the Security Documents; and
WHEREAS, in connection with a partial casualty of the Property, a portion
of the indebtedness under the Note has been repaid, and Borrower has requested
that Lender readvance a portion of such funds to Borrower in connection with the
continued renovation of the Property by Borrower; and
WHEREAS, the Lender and Borrower now propose to modify certain of the terms
and provisions of the Loan Agreement, the Assignment, the Note, the Deed of
Trust and the other related documents executed by Borrower or third parties
pertaining to, evidencing or securing the Loan (collectively, the "Security
Documents").
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Lender and Borrower hereby agree as follows:
1. Current Note Balance. As of the effective date hereof, after
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crediting the amount of any insurance proceeds received by Lender in connection
with the Property, the current outstanding principal balance of the Note is ONE
MILLION TWO HUNDRED THIRTY-SEVEN THOUSAND FOUR HUNDRED EIGHTY-ONE AND 40/100
DOLLARS ($1,237,481.40).
MODIFICATION AGREEMENT - PAGE 2
2. Extension of Maturity. The maturity date of the Note is hereby
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extended until December 15, 2002, when the unpaid principal balance of the Note,
together with all accrued but unpaid interest thereon, shall be due and payable.
The Borrower hereby renews, but does not extinguish, the Note and the liens,
security interests and assignments created and evidenced by the Deed of Trust
and other Security Documents, and in this regard all of the Security Documents
are hereby renewed and modified by extending the maturity date thereof as set
forth above. Borrower covenants to observe, comply with and perform each of the
terms and provisions of the Security Documents, as modified hereby.
3. Payment of Extension and Renewal Fee. Contemporaneously with the
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execution and delivery of this Agreement, Borrower shall remit to Lender cash
funds in the amount of NINE THOUSAND AND NO/100 DOLLARS ($9,000.00), which sum
shall be in payment of an extension and renewal fee due to Lender as additional
consideration for the extension of the maturity date of the Note as set forth
herein.
4. Interest Rate. Commencing on December 15, 2001, and continuing
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until the Maturity Date, interest on the principal balance of the Note, as
modified hereby, from time to time remaining unpaid prior to maturity shall
accrue and be payable at a rate equal to the lesser of (a) the Maximum Rate (as
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defined in the Note), or (b) the greater of (x) seven percent (7.0%) or (y) the
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Prime Rate (as defined in the Note) plus two percent (2.0%). Interest on the
Note shall be calculated at a daily rate based on a 360-day year, but never in
excess of the Maximum Rate.
5. Modification of Terms of Payment of the Note. From and after the
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date hereof, the Note shall due and payable as follows:
Interest shall be calculated on a daily basis and shall be payable
monthly on each Interest Payment Date (as defined in the Note) until and
including November 15, 2002. On the Maturity Date, all accrued and unpaid
interest hereon and the entire unpaid principal balance hereof shall be due
and payable in full.
6. Acknowledgment By Borrower. Except as otherwise specified herein,
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the terms and provisions hereof shall in no manner impair, limit, restrict or
otherwise affect the obligations of Borrower or any third party to Lender, as
evidenced by the Security Documents. Borrower hereby acknowledges, agrees and
represents that (i) Borrower is indebted to Lender pursuant to the terms of the
Note as modified hereby; (ii) the liens, security interests and assignments
created and evidenced by the Security Documents are, respectively, valid and
subsisting liens, security interests and assignments of the respective dignity
and priority recited in the Security Documents; (iii) there are no claims or
offsets against, or defenses or counterclaims to, the terms or provisions of the
Security Documents, and the other obligations created or evidenced by the
Security Documents; (iv) Borrower has no claims, offsets, defenses or
counterclaims arising from any of Lender's acts or omissions with respect to the
Property, the Security Documents or Lender's performance under the Security
Documents or with respect to the Property; (v) the representations and
MODIFICATION AGREEMENT - PAGE 3
warranties contained in the Security Documents are true and correct
representations and warranties of Borrower and third parties, as of the date
hereof; and (vi) Lender is not in default and no event has occurred which, with
the passage of time, giving of notice, or both, would constitute a default by
Lender of Lender's obligations under the terms and provisions of the Security
Documents. To the extent Borrower now has, or in the future possesses, any
claims, offsets, defenses or counterclaims against Lender or the repayment of
all or a portion of the Loan, whether known or unknown, fixed or contingent,
relating to matters occurring prior to the date hereof, the same are hereby
forever irrevocably waived and released in their entirety.
7. Joinder of Guarantors. Each of the Guarantors joins in the
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execution hereof for the purpose of (i) acknowledging and consenting to the
terms and provisions hereof, (ii) ratifying, confirming and agreeing that the
Guaranty is and shall remain in full force and effect, (iii) acknowledging that
there are no claims or offsets against, or defenses or counterclaims to, the
terms and provisions of and the obligations created and evidenced by the
Guaranty, as amended, and (iv) certifying that the representations and
warranties contained in the Guaranty remain true and correct representations and
warranties of Guarantor as of the date hereof.
8. Joinder of Subordinate Lienholder. Lender previously consented to
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the creation of a lien on all or a portion of the Property, which lien, in favor
of RAMPART PROPERTIES CORPORATION, a Nevada corporation ("Rampart"), is
expressly subordinate and inferior in all respects to the liens and security
interests of the Deed of Trust, the Second Deed of Trust and the Security
Documents. RAMPART PROPERTIES, LLC, a Nevada limited liability company
("Subordinate Lienholder"), is the successor by merger to Rampart. Subordinate
Lienholder joins herein for the purpose of (i) acknowledging and consenting to
the modification of the Loan and the Security Documents in accordance with the
terms hereof, and (ii) agreeing that, notwithstanding anything contained herein
or in any of the Security Documents to the contrary, the liens and security
interests of the Deed of Trust, the Second Deed of Trust and the Security
Documents as modified hereby are and shall remain in all respects superior and
prior to the liens and security interests held by the Subordinate Lienholder.
9. No Waiver of Remedies. Except as may be expressly set forth herein,
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nothing contained in this Agreement shall prejudice, act as, or be deemed to be
a waiver of any right or remedy available to Lender by reason of the occurrence
or existence of any fact, circumstance or event constituting a default under
either of the Note or any of the other Security Documents.
10. Costs and Expenses. Contemporaneously with the execution and
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delivery hereof, Borrower shall pay, or cause to be paid, all reasonable costs
and expenses incident to the preparation, execution and recordation hereof and
the consummation of the transaction contemplated hereby, including, but not
limited to, recording fees, title insurance policy or endorsement premiums or
other charges of the Title Company, and reasonable fees and expenses of legal
counsel to Lender.
MODIFICATION AGREEMENT - PAGE 4
11. Additional Documentation. From time to time, Borrower shall
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execute or procure and deliver to Lender such other and further documents and
instruments evidencing, securing or pertaining to the Loan or the Security
Documents as shall be reasonably requested by Lender so as to evidence or effect
the terms and provisions hereof.
12. Effectiveness of the Security Documents. Except as expressly
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modified by the terms and provisions hereof, each of the terms and provisions of
the Security Documents are hereby ratified and shall remain in full force and
effect; provided, however, that any reference in any of the Security Documents
to the Loan, the amount constituting the Loan, any defined terms, or to any of
the other Security Documents shall be deemed, from and after the date hereof, to
refer to the Loan, the amount constituting the Loan, defined terms and to such
other Security Documents, as modified hereby.
13. GOVERNING LAW. THE TERMS AND PROVISIONS HEREOF SHALL BE GOVERNED
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BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED HEREIN.
14. Time. Time is of the essence in the performance of the covenants
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contained herein and in the Security Documents.
15. Binding Agreement. This Agreement shall be binding upon the
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successors and assigns of the parties hereto; provided, however, the foregoing
shall not be deemed or construed to (i) permit, sanction, authorize or condone
the assignment of all or any part of the Property or any of Borrower's rights,
titles or interests in and to the Property, except as expressly authorized in
the Security Documents, or (ii) confer any right, title, benefit, cause of
action or remedy upon any person or entity not a party hereto, which such party
would not or did not otherwise possess.
16. Headings. The section headings hereof are inserted for convenience
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of reference only and shall in no way alter, amend, define or be used in the
construction or interpretation of the text of such section.
17. Construction. Whenever the context hereof so requires, reference
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to the singular shall include the plural and likewise, the plural shall include
the singular; words denoting gender shall be construed to mean the masculine,
feminine or neuter, as appropriate; and specific enumeration shall not exclude
the general, but shall be construed as cumulative of the general recitation.
18. Severability. If any clause or provision of this Agreement is or
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should ever be held to be illegal, invalid or unenforceable under any present or
future law applicable to the terms hereof, then and in that event, it is the
intention of the parties hereto that the remainder of this Agreement shall not
be affected thereby, and that in lieu of each such clause or provision of this
Agreement that is illegal, invalid or unenforceable, such clause or provision
shall be judicially construed and interpreted to be as similar in substance and
content to such illegal, invalid or unenforceable clause or provision, as the
MODIFICATION AGREEMENT - PAGE 5
context thereof would reasonably suggest, so as to thereafter be legal, valid
and enforceable.
19. Counterparts. To facilitate execution, this Agreement may be
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executed in as many counterparts as may be convenient or required. It shall not
be necessary that the signature and acknowledgment of, or on behalf of, each
party, or that the signature and acknowledgment of all persons required to bind
any party, appear on each counterpart. All counterparts shall collectively
constitute a single instrument. It shall not be necessary in making proof of
this Agreement to produce or account for more than a single counterpart
containing the respective signatures and acknowledgment of, or on behalf of,
each of the parties hereto. Any signature and acknowledgment page to any
counterpart may be detached from such counterpart without impairing the legal
effect of the signatures and acknowledgments thereon and thereafter attached to
another counterpart identical thereto except having attached to it additional
signature and acknowledgment pages.
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[SIGNATURES ON FOLLOWING PAGES]
MODIFICATION AGREEMENT - PAGE 6
EXECUTED effective as of the date first above written.
LENDER:
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SOUTHWEST BANK OF TEXAS, N.A., a national
banking association
By:
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Xxxx X. Xxxxx
Senior Vice President
BORROWER:
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GREATER HOUSTON GULF PARTNERS, LTD., a Texas
limited partnership
By: Greater Houston Gulf Partners, G.P., Inc., a
Texas corporation
By:
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Xxxxx Xxxxxxx, Vice President
GUARANTORS:
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XXXXX XXXXXXX
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XXXXXXXX XXXXXXX
MODIFICATION AGREEMENT - PAGE 7
SUBORDINATE LIEN HOLDER:
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RAMPART PROPERTIES, LLC, a Nevada limited
liability company
By:
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Xxxxxxx X. Xxxxx, Chief Executive Officer
THE STATE OF TEXAS Sec.
Sec.
COUNTY OF XXXXXX Sec.
This instrument was acknowledged before me on this the ___ day of December,
2001, by Xxxx X. Xxxxx, Senior Vice President of SOUTHWEST BANK OF TEXAS, N.A.,
a national banking association, on its behalf.
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Notary Public in and for
The State of T E X A S
THE STATE OF TEXAS Sec.
Sec.
COUNTY OF XXXXXX Sec.
This instrument was acknowledged before me on this the ____ day of
December, 2001, by Xxxxx Xxxxxxx, Vice President of Greater Houston Gulf
Partners, G.P., Inc., a Texas corporation, general partner of GREATER HOUSTON
GULF PARTNERS, LTD., a Texas limited partnership, on behalf of said corporation,
as general partner of said limited partnership.
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Notary Public in and for
The State of T E X A S
MODIFICATION AGREEMENT - PAGE 8
THE STATE OF TEXAS Sec.
Sec.
COUNTY OF XXXXXX Sec.
This instrument was acknowledged before me on this the ___ day of December,
2001, by XXXXX XXXXXXX.
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Notary Public in and for
The State of T E X A S
THE STATE OF TEXAS Sec.
Sec.
COUNTY OF XXXXXX Sec.
This instrument was acknowledged before me on this the ___ day of December,
2001, by XXXXXXXX XXXXXXX.
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Notary Public in and for
The State of T E X A S
THE STATE OF TEXAS Sec.
Sec.
COUNTY OF XXXXXX Sec.
This instrument was acknowledged before me on this the ____ day of
December, 2001, by Xxxxxxx X. Xxxxx, Chief Executive Officer of RAMPART
PROPERTIES, LLC, a Nevada limited liability company, on behalf of said limited
liability company.
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Notary Public in and for
The State of T E X A S
MODIFICATION AGREEMENT - PAGE 9
