Exhibit 10.40d
MORTGAGE LOAN MODIFICATION AGREEMENT
THIS MORTGAGE LOAN MODIFICATION AGREEMENT (the "Agreement") is entered into
as of the ______ day of August, 2002 by and between THE PROVIDENT BANK, an Ohio
banking corporation, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000 (the
"Lender") and JAGI MONTROSE-WEST, LLC, a Delaware limited liability company (the
"Borrower").
RECITALS:
V. Amresco Capital, L.P., a Delaware limited partnership ("ACLP") made as
of August 14, 1998, a mortgage loan in the principal amount of $3,500,000.00,
which has a current outstanding principal balance in the amount of Two Million
Four Hundred Twenty-Two Thousand Nine Hundred Fourteen and 81/100 Dollars
($2,422,914.81) ("Loan") to JAGI Montrose-West, LLC, a Delaware limited
liability company ("Borrower"). The Loan is evidenced by Promissory Notes in the
aggregate principal amount of Forty-Four Million and 00/100 Dollars
($44,000,000.00) ("Notes") which are secured by (a) certain Mortgage in the
original amount of $3,500,000 to Amresco Capital, L.P. of record in Instrument
No. 54179385, Recorders Office, Summit County, Ohio (the "Mortgage") and (b)
certain Assignment of Leases and Rents ("Assignment of Leases") executed by
Borrower on August 14, 1998 and recorded in Instrument No. 54179386, Recorders
Office, Summit County, Ohio.
W. ACLP assigned, transferred and conveyed all of its right, title and
interest in and to the Loan, the Mortgage, the Assignment of Leases and all
other documents evidencing, governing or securing the Loan a listing of which is
fully set forth in Exhibit B (collectively, the "Loan Documents") to Amresco
Capital Limited, Inc., a Delaware corporation ("Amresco Capital Limited") by
virtue of that certain Assignment of Mortgage and Assignment of Leases and Rents
dated August 14, 1998 and recorded in Instrument No. 54179389, Recorders Office,
Summit County, Ohio.
X. Amresco Capital Limited assigned, transferred, and conveyed all of its
right, title and interest in and to the Loan, the Mortgage, the Assignment of
Leases and the Loan Documents to LaSalle National Bank ("LaSalle"), a national
banking association, as custodian or trustee by virtue of that certain
Assignment of Mortgage and Assignment of Leases and Rents dated August 14, 1998
and recorded in Instrument No. 541792390, Recorders Office, Summit County, Ohio.
X. XxXxxxx assigned, transferred and conveyed all of its right, title and
interest in and to the Loan, the Mortgage, the Assignment and the Loan Documents
to The Provident Bank by virtue of that certain Assignment of Mortgage and
Assignment of Leases and Rents dated August 2, 2002 and recorded in Instrument
No. _________, Recorders Office, Summit County, Ohio.
Z. The Notes were additionally secured by a certain Mortgage from Borrower
to ACLP dated August 14, 1998 in the amount of Forty-Four Million and 00/100
Dollars ($44,000,000.00) of record in Instrument No. 54179387 Recorders Office,
Summit County, Ohio ("Second Mortgage"), which was assigned by ACLP to Amresco
Capital Limited by Assignment filed in Instrument No. 54179391 Recorders Office,
Summit County, Ohio, which was further assigned by Amresco Capital Limited to
LaSalle by Assignment filed in Instrument No. 54179392 Recorder's Office, Summit
County, Ohio and was further assigned by LaSalle to Lender by Assignor filed in
Instrument No. _______, Recorder's Office, Summit County, Ohio.
AA. The real estate encumbered by the Mortgage, Second Mortgage and
Assignment of Leases is described in the attached Exhibit A ("Premises").
BB. The above described indebtedness, as evidenced by the Notes, and all
additional sums due under the Mortgage, Assignment of Leases, Second Mortgage
and other Loan Documents, if any, remains unpaid and Borrower has requested and
Lender has agreed to the rearrangement of the terms of such indebtedness (the
"Indebtedness") to adjust the interest rate of the Notes, to provide for the
monthly payment of principal and interest payments, to adjust the maturity date
of the Loan and to amend certain provisions of the Loan Documents, upon
Borrower's compliance with the provisions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises made herein, the
benefits accruing to the parties herein and the obligations assumed hereunder,
the parties agree that the Indebtedness shall remain outstanding and the terms
of such Indebtedness shall be amended as follows:
1. Amendment to the Loan. The Loan, which has a current outstanding
principal balance in the amount of Two Million Four Hundred Twenty-Two Thousand
Nine Hundred Fourteen and 81/100 Dollars ($2,422,914.81), shall be amended so
that: (i) the "Interest Rate" is a variable rate which shall be the Prime Rate,
as defined herein, plus One-Half of One Percent (.50%) charged by the Lender,
computed daily for the actual number of days elapsed over a year of 360 days;
(ii) payment of principal shall be due and payable in arrears in equal monthly
principal installments of Four Thousand Eight Hundred Three and 00/100 Dollars
($4,803.00), together with all accrued but unpaid interest commencing on
September 1, 2002, which payments Borrower shall continue to make on the first
day of each month thereafter until the Maturity Date; and (iii) the Maturity
Date shall be adjusted to August 1, 2003. The amendment to the Notes shall not
constitute a repayment or satisfaction of the Indebtedness evidenced by the
Notes, which for all purposes hereunder shall remain outstanding from August 14,
1998.
Prime Rate is that percentage rate of interest calculated on the basis of a
360 day year which is established and announced by Lender from time to time as
its Prime Rate, which is in effect until a new rate is established and announced
and which provides a base to which loan rates may be referenced; it is not
necessarily the Lender's lowest loan rate. In the event of a change in such
Prime Rate, the interest rate hereunder shall be adjusted accordingly, and such
adjustment shall become effective on the date such Prime Rate changes.
2. Amendment to Mortgage, Second Mortgage and Other Loan Documents. The
Mortgage, Second Mortgage and other Loan Documents shall be amended to reflect
the adjustment of the Maturity Date to August 1, 2003. The Mortgage and Second
Mortgage shall now secure the Notes, which evidence an aggregate maximum
outstanding principal balance of Thirty-Three Million Five Hundred Thousand and
00/100 Dollars ($33,500,000.00). In accordance with the foregoing, Borrower
hereby grants, conveys and mortgages to Lender the Premises as described in
Exhibit A as collateral security for the Notes subject in all respects to the
terms of the Mortgage, Second Mortgage, Assignment of Leases and other Loan
Documents.
3. Additional Loan Documents. Concurrently with the execution of this
Agreement and as an inducement to Lender to acquire the Loans from LaSalle and
to agree to the terms and conditions contained herein, Xxxxx X. Xxxx and Xxxxx
X. Xxxxxx shall jointly and severally grant to Lender an Unconditional Guaranty
("Guaranty") which Guaranty shall guaranty the obligations payable by Borrower
to the Lender under the Notes, the Mortgage, Second Mortgage and the other Loan
Documents. In addition, Borrower shall grant to Lender a Pledge/Assignment/Cash
Collateral Agreement between Borrower and Lender dated of even date herewith
granting to Lender an interest in that account with a current balance of
Twenty-Two Thousand Three Hundred Dollars ($22,300.) established as a reserve
for furniture, fixtures and equipment on the Premises as required under the
Mortgage ("Pledge Agreement"). Said Guaranty and Pledge Agreement shall now
become part of the Loan Documents and shall secure the obligations of the
Borrower under the Notes and the Loan Documents.
4. Borrower Certification. Borrower hereby certifies that the
representations, warranties and covenants set forth in the Settlement Agreement
Regarding Loans between Borrower and LaSalle dated August ___, 2002 pertaining
to the Loans and operation of the Premises are true and correct and run to the
benefit of Lender.
5. Amendment to Notes, Mortgage, Assignment of Leases and the other Loan
Documents. Borrower agrees that all provisions regarding release prices for any
of the hotel property are hereby deleted in their entirety.
6. Conditions Precedent. As a condition to the effectiveness of this
Agreement, Borrower shall deliver to Lender the following items:
(a) Lender's reasonable legal fees, title examination and insurance
fees and other out-of-pocket expenses.
(b) executed copies of the Guaranty and Pledge Agreement;
(c) evidence of certificates of insurance for the Premises naming
Lender as a mortgagee;
(d) tax identification numbers for Borrower and for both Guarantors;
(e) title examination update or title endorsement evidencing that the
Mortgage, as assigned to Lender and as amended herein, is a first and best
lien on the Premises; and
(f) authorizing resolutions authorizing the amendments to the Notes
and the modification as set forth herein.
7. No Other Changes. All of the terms and conditions contained in the
original Notes, Mortgage, Second Mortgage and all other Loan Documents, except
as modified by this Agreement shall remain unchanged, unimpaired and in full
force and effect. This Agreement is hereby made a part of the original documents
evidencing and securing the Indebtedness as completely as if incorporated
verbatim therein.
8. Covenants and Representations.
(a) Borrower acknowledges and unconditionally promises to pay the
entire Indebtedness as set forth in the Notes and in the original and
amended instruments evidencing and securing the Indebtedness, as required.
(b) Borrower and Lender agree that the entire Indebtedness, as
evidenced by Notes, shall be secured by the Mortgage and Second Mortgage
and the parties agree and acknowledge that this Agreement is made in
reliance upon the security of such Mortgage and Second Mortgage.
(c) Borrower represents and warrants that it is the true and lawful
owner of the Premises subject to the Mortgage and Second Mortgage and that
the Mortgage and Second Mortgage will be maintained as a valid first lien
and second on the Premises subject only to Permitted Encumbrances as
described in such Mortgage and Second Mortgage.
(d) Borrower reaffirms all covenants and representations set forth in
the Notes and Mortgage, Second Mortgage, Assignment of Leases and other
Loan Documents as if such covenants and representations were made as of the
date hereof.
9. Miscellaneous. This Agreement and the rights and obligations of the
parties hereunder shall be governed by and construed under the laws of the State
of Ohio. This Agreement shall inure to the benefit of and be binding on the
respective heirs, executors, administrators, successors and assigns of the
parties hereto.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date
first above written.
LENDER:
THE PROVIDENT BANK
By:____________________________
Xxxxx X. Xxxx,
Vice President
BORROWER:
JAGI MONTROSE-WEST, LLC,
a Delaware limited liability company
By:___________________________
Name:
Title:
STATE OF OHIO )
) SS:
COUNTY OF XXXXXXXX )
The foregoing instrument was acknowledged before me this ____ day of
August, 2002 by Xxxxx X. Xxxx, Vice President of The Provident Bank, an Ohio
banking corporation on behalf of the corporation.
------------------------------
Notary Public
STATE OF OHIO )
) SS:
COUNTY OF _________ )
The foregoing instrument was acknowledged before me this ____ day of
August, 2002 by Xxxxxxx X. Xxxxxx, Vice President of Janus Hotels & Resorts,
Inc., Managing Member of JAGI Montrose-West, LLC, a Delaware limited liability
company, on behalf of the limited liability company and Managing Member.
------------------------------
Notary Public
This Instrument Prepared by:
Xxxx X. Xxxxx
Xxxxxxx, Xxxxxxxx & Xxxxxxx, P.L.L.
1400 Provident Tower
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
