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EXHIBIT 99.5
NOTE MODIFICATION AGREEMENT
THIS NOTE MODIFICATION AGREEMENT (the "AGREEMENT") made this
13th day of October, 1998, between NOMURA ASSET CAPITAL CORPORATION, a Delaware
corporation, having an address at Two World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx
Xxxx, Xxx Xxxx 00000 ("PAYEE"), and MEI HOLDINGS, L.P., a Delaware limited
partnership, having an address at c/o The Hampstead Group, Texas Commerce Tower,
0000 Xxxx Xxxxxx, Xxxxx 0000-X, Xxxxxx, Xxxxx 00000 ("MAKER").
W I T N E S S E T H
WHEREAS, Maker and Payee entered into that certain Loan
Agreement in the amount of $10,000,000, dated as of June 5, 1997, between Maker,
as borrower, and Payee, as lender, as further amended by that certain Letter
Agreement dated as of June 27, 1997, as amended by that certain Letter Agreement
dated as of March 30, 1998 (the "LETTER AGREEMENT"), as amended and restated by
that certain Amended and Restated Loan Agreement dated as of May 8, 1998 whereby
the Loan was increased to $20,000,000 (the "LOAN") as further amended by that
certain side letter between Maker and Payee dated the date hereof (the "LOAN
AGREEMENT"); and
WHEREAS, the Loan is evidenced by that certain Note dated June
5, 1997 (the "ORIGINAL NOTE"), as amended and restated by that certain Amended
and Restated Promissory Note (the "AMENDED NOTE") dated May 8, 1998 (the
Original Note as amended and restated by the Amended Note are hereinafter
referred to as the "NOTE");
WHEREAS, the Note is secured, in part, by that certain
Guaranty dated as of June 27, 1997 (the "ORIGINAL GUARANTY") between Malibu
Centers, Inc. ("MCI") and Payee, as reaffirmed by that certain Reaffirmation and
Ratification of Guaranty dated as of May 8, 1998 (the "REAFFIRMATION"), as
further reaffirmed by that certain Second Reaffirmation and Ratification of
Guaranty dated the date hereof (the "SECOND REAFFIRMATION", the Original
Guaranty as reaffirmed by the Reaffirmation, as further reaffirmed by the Second
Reaffirmation, hereinafter referred to as the "GUARANTY").
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WHEREAS, the Guaranty is secured by, among other things, that
certain Deed of Trust, Assignment of Leases and Rents and Security Agreement,
dated June 27, 1997 among MCI, Payee and Xxxxxxx Title of California, Inc., as
trustee, recorded in Los Angeles County, California as instrument number 97
988989 (the "ORIGINAL CALIFORNIA DEED OF TRUST") as amended by the First
Amendment to Deed of Trust, Assignment of Leases and Rents and Security
Agreement dated as of May 8, 1998 (the "FIRST CALIFORNIA AMENDMENT"), as further
amended by that Second Amendment to Deed of Trust, Assignment of Leases and
Rents and Security Agreement dated the date hereof (the "SECOND CALIFORNIA
AMENDMENT", the Original California Deed of Trust as amended by the First
California Amendment as further amended by the Second California Amendment
hereinafter referred to as the "CALIFORNIA DEED OF TRUST");
WHEREAS, the Guaranty is also secured by, among other things,
that certain Deed of Trust, Assignment of Leases and Rents and Security
Agreement, dated June 27, 1997 among MCI, Lender and Xxxxxxx Title of North
Texas, as trustee, recorded in Xxxxxx County, Texas at Clerks File number S
526094 (the "ORIGINAL TEXAS DEED OF TRUST") as amended by the First Amendment to
Deed of Trust, Assignment of Leases and Rents and Security Agreement dated as of
May 8, 1998 (the "FIRST TEXAS AMENDMENT") as further amended by that certain
Second Amendment to Deed of Trust, Assignment of Leases and Rents and Security
Agreement dated the date hereof (the "SECOND TEXAS AMENDMENT", the Original Deed
of Trust as amended by the First Amendment as further amended by the Second
Texas Amendment hereinafter referred to as the "CALIFORNIA DEED OF TRUST", the
California Deed of Trust and the Texas Deed of Trust hereinafter collectively
referred to as the "MORTGAGE"); and
WHEREAS, Maker and Payee have agreed in the manner hereinafter
set forth to modify the terms of the Note.
NOW, THEREFORE, by Maker's and Payee's execution and delivery
hereof, and in consideration of the foregoing and the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Maker and Payee agree as follows:
1. All capitalized terms not defined herein shall have
the meaning ascribed to them in the Note.
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2. The definition of "Maturity Date" in the Note is
hereby modified to January 20, 1999.
3. The principal sum of the Note is hereby increased to
TWENTY ONE MILLION THIRTY FOUR THOUSAND SEVEN HUNDRED
FIFTY NINE AND NO/100 DOLLARS ($21,034,759.00). All
references in the Note to the principal sum of the
Note shall from and after the date hereof until
repaid mean $21,034,759.
4. Borrower represents and warrants that the current
outstanding principal sum on the Note, as modified by
this Agreement, is the principal sum of $21,034,759.
5. From and after the date hereof, all references in the
Note to the "Loan Agreement", the "Note", the
"Pledge", the "Guaranty" and the other "Loan
Documents" shall mean such documents as modified,
amended or supplemented from time to time.
6. In addition to other all amounts secured by the lien
of the Mortgage, the lien of the Mortgage shall
secure the increased principal amount. Except as
modified by the Second Texas Amendment and the Second
California Amendment, the Mortgage remains unmodified
and in full force and effect and shall continue to
constitute a lien on the California Property and the
Texas Property.
7. The Maker and Payee hereby agree that the Pledge, the
Guaranty and the other Loan Documents (as defined in
the Loan Agreement) shall continue to secure or
guaranty, as the case may be, the Note, as modified
hereby.
8. The Maker represents that there are no present
defenses, offsets or counterclaims with respect to
the Mortgage and the Note, as modified hereby.
9. This Agreement may be executed in any number of
separate counterparts, each of which shall,
collectively and separately, constitute one
agreement.
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IN WITNESS WHEREOF, Maker and Payee have duly executed this
Agreement as of the day and year first written above written.
MAKER:
MEI HOLDINGS, L.P., a Delaware limited partnership
By: MEI GENPAR, L.P.
its general partner
By: HH GenPar Partners, its general
partner
By: Hampstead Associates, Inc.,
a managing general partner
By: /s/ XXX XXXXX
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Name: Xxx Xxxxx
Title: Authorized Representative
PAYEE:
NOMURA ASSET CAPITAL CORPORATION, a
Delaware corporation
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
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