Exhibit 10.8
MODIFICATION AGREEMENT
THIS AGREEMENT, made as of the 1st day of August, 1997, by and between
XXXXXX-XXXXX PROPERTIES, INC., a Maryland corporation ("Borrower") and
SOUTHTRUST BANK, NATIONAL ASSOCIATION, a national banking association (formerly
known as SouthTrust Bank of Alabama, National Association) ("Lender").
RECITALS:
Borrower and Lender entered into a Loan Agreement dated December 27,
1995 (the "Loan Agreement") pursuant to which Lender made a loan to Borrower in
the principal sum of $25,500,000 (the "Loan"). The Loan is evidenced by
Borrowers' Promissory Note to Lender of even date therewith (the "Note") in the
stated principal sum of the Loan. Borrower has requested that the maturity of
the Note and Loan be extended, and Lender is willing to do so on the terms and
conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the Recitals, the Borrower agrees
with and represents and warrants to Lender, and Lender agrees with Borrower, as
follows:
1. The Recitals herein are true and correct. All capitalized terms
used herein and not otherwise defined shall have the meanings set forth in the
Loan Agreement.
2. The term "Maturity Date" as used in the Note, Loan Agreement and
any other Loan Documents is modified and extended to December 27, 1999. Prior to
the Maturity Date, as so extended, Borrower will continue to pay all accrued and
unpaid interest on the Loan on the 27th day
of each calendar month. Nothing herein and no prior course of dealing shall
obligate Lender to further extend the Maturity Date.
3. The Note is modified to provide that the outstanding principal
balance, or any part thereof, may be prepaid without premium or penalty,
provided Borrower shall provide Lender thirty (30) days prior written notice of
any partial prepayment.
4. In consideration of the agreements of Lender herein, Borrower agrees
to pay to Lender an extension fee of $42,496.
5. Nothing herein shall constitute a novation. If this Agreement
adversely affects the priority or enforceability of any of the Loan Documents,
this Agreement shall be null and void ab initio.
6. Notwithstanding anything to the contrary herein, in the event that
Lessee fails to achieve a net income (calculated in accordance with generally
accepted accounting principles consistently applied) for the calendar year 1997
and provide evidence thereof satisfactory to Lender on or before 180 days
following the end of such year, then the extension provided in paragraph 2
hereof shall not be effective and in lieu thereof the extension of the Maturity
Date shall be to May 27, 1999, on which date the outstanding principal balance
and all accrued and unpaid interest on the Loan will be immediately due and
payable in full, without demand. This agreement shall constitute an additional
covenant pursuant to the Loan Documents.
7. Except as herein modified, the Loan Documents shall remain in full
force and effect, and the Loan Documents, as so modified, are hereby ratified
and affirmed in all respects. Borrower confirms that it has no offsets or
defenses with respect to its obligations pursuant to the Loan
Documents, as herein modified. Borrower represents and warrants to Lender that
this Agreement has been duly authorized, executed and delivered pursuant to all
requisite corporate action.
IN WITNESS WHEREOF, the Borrower and Lender have caused this Agreement
to be executed by their duly authorized officers as of the day and year first
above written.
XXXXXX-XXXXX PROPERTIES, INC.,
a Maryland corporation
BY: /s/ D. Xxxxx Xxxxxxxxx
Its: President / CEO
STATE OF NC
COUNTY OF MECKLENBURG
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that D. Xxxxx Xxxxxxxxx whose name as President, CEO of
Xxxxxx-Xxxxx Properties, Inc., a Maryland corporation, is signed to the
foregoing instrument, and who is known to me, acknowledged before me on this day
that, being informed of the contents of the instrument, s/he, as such officer
and with fully authority, executed the same voluntarily for and as the act of
the corporation.
Give under my hand and official seal, this 27 day of October ,1997.
/s/ Xxxxxx X. Xxxxxxxx
Notary Public
My commission expires: 1-19-99
SOUTHTRUST BANK, NATIONAL ASSOCIATION,
a national banking association
BY: /s/ Xxxx X. Xxxxxx
Its: Group Vice President
STATE OF North Carolina
COUNTY OF Mecklenburg
1, Xxxxx Xxxxxxxxx Xxxxxxxx , a Notary Public in and for said County in
said State, hereby certify that Xxxx X. Xxxxxx, whose name as Group Vice
President of SouthTrust Bank, National Association, a national banking
association, is signed to the foregoing instrument, and who is known to me,
acknowledged before me on this day that, being informed of the contents of said
instrument, s/he, as such officer and with full authority, executed the same
voluntarily for and as the act of said national banking association.
Given under my hand and seal, this 27 day of October, 1997.
/s/ Xxxxx Xxxxxxxxx Xxxxxxxx
Notary Public
My commission expires: April 28, 2001
