Exhibit Number 10.1
RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
IMPERIAL BANK
0000 Xxxxx Xx Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attn: Real Estate Loan Services #4405
UREP/Loan #167
Space above this line for Recorder's use only
______________________________________________________________________________
MODIFICATION AND/OR EXTENSION AGREEMENT
This agreement ("Agreement") is made as of March 27, 1995, by and between
Imperial Bank, ("Bank") and UNIVERSITY REAL ESTATE PARTNERSHIP V, A CALIFORNIA
LIMITED PARTNERSHIP ("Borrower").
Bank has made a loan ("Loan") evidenced by a promissory note dated November 29,
1989 in the original amount of $7,650,000.00 (the "Original Note"), which is
secured by a deed of trust dated November 29, 1989, recorded on December 1,
1989, as Instrument No. 89-650874, in the Office of the Recorder of San Diego
County, California (the "Deed of Trust"). The Original Note has a current
maturity date of December 2, 2004. Borrower desires to modify the terms of the
Original Note and to obtain an additional advance evidenced by the Additional
Advance Note (as hereinafter defined) which shall be secured by the Deed of
Trust and to cure defaults, if any, under the Original Note and Deed of Trust.
As used herein, the Original Note and the Additional Advance Note shall
hereinafter be collectively referred to as the "Note".
In consideration of the mutual covenants herein contained, Bank and Borrower
agree as follows:
1. That the new maturity of the Note is December 1, 2000.
2. Additional provisions are contained in the Addendum attached hereto
and by this referenced made a part hereof.
3. This Agreement is an extension and/or modification only and not a
novation, and will be in full force and effect only upon receipt by
Bank of the following:
(a) This Agreement executed by all parties;
(b) Payment of delinquent interest, if any;
(c) The modification and/or extension fee of $N/A
(d) Payment for any and all recording fees and title company fees for
title company services or endorsements as may be required by Bank,
including, without limitation, a CLTA Endorsement No. 110.6 or ALTA
Endorsement No. 110.5;
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(e) Verification that record and legal title to the property encumbered by
the Deed of Trust is vested in Borrower and that there are no
encumbrances or liens on the property senior to said Deed of Trust
other than taxes and assessments, and that any or all delinquent taxes
and assessments which are a lien on the property have been paid or
will be paid as of recordation of this Agreement, except:
(X) No exceptions
(_) Items shown in the Addendum attached hereto and by
this reference made a part hereof.
(f) Documentation Fee of $0.
4. Bank agrees to the amendment of the terms of the Note only to the
extent herein specifically set forth on the condition that such
amendment shall not prejudice any other existing or future rights,
remedies, benefits or powers belonging or accruing to Bank under the
terms of the Note as hereby amended, or of the Deed of Trust.
Further, in consideration of this Agreement, Borrower hereby waives
the provisions of Section 2832 of the Civil Code of California, the
presentment of the Note to the maker, demand of payment, protest,
notice of dishonor and notice of non-payment are hereby waived.
5. Should default be made in the payment of principal or interest when
due, or in the performance or observance when due, of any term,
covenant or condition of any deed of trust, security agreement or
other agreement (including amendments, or extensions thereof) securing
or pertaining to the Note, and in each cash all applicable grace or
cure periods shall have expired, at the option of the holder thereof
and without notice or demand, the entire balance of principal and
interest than remaining unpaid shall (a) become immediately due and
payable, and (b) thereafter bear interest, until paid in full, at the
increased rate of 5% per year in excess of the interest rate provided
for in the Note, as it may vary from time to time.
6. In all other respects, not inconsistent herewith, the terms of the
Note shall remain in full force and effect, and the Deed of Trust
shall otherwise remain unaffected, unchanged, and unimpaired.
7. Borrower represents that it is in good standing in the state of its
formation, and is qualified to do business in the state in which the
property is located. Borrower represents that the performance of any
obligations contemplated hereunder will not conflict with any
provision of law, any of its formation documents or any other
agreement binding upon it. Except as disclosed in writing to Bank,
Borrower represents that it is not a party to any pending or, to its
knowledge, threatened litigation or tax assessment proceedings, and
that it knows of no contingent liabilities not previously disclosed in
writing to Bank.
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8. Any and all security held by Bank as collateral for the payment of the
Note, including the Deed of Trust, may be enforced by Bank
concurrently, independently, in such order as Bank may determine; and
with reference to any such security, in addition to the Deed of Trust,
Bank may, without consent of or notice to any maker or guarantor,
exchange, substitute or release such security without affecting the
liability of any maker or guarantor or any of them, and Bank may
release any one or more parties thereto or permit the liability of any
such party to terminate without affecting the liability of any party
or parties liable thereon.
BANK: BORROWER:
IMPERIAL BANK, UNIVERSITY REAL ESTATE PARTNERSHIP V,
a California corporation A CALIFORNIA LIMITED PARTNERSHIP
See attached Signature Page
By: /s/ Xxxxx Xxxxx
----------------------
Xxxxx Xxxxx,
Xx. Vice President
ALL SIGNATURES MUST BE ACKNOWLEDGED BEFORE A NOTARY PUBLIC
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State of California )
) SS
County of Los Angeles )
On March 29, 1995, before me, Xxxx Xxxxx Xxxxxx, Notary Public, personally
appeared Xxxxx Xxxxx, personally known to me (or proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity
upon which the person acted, executed the instrument.
WITNESS my hand and official seal.
/s/Xxxx Xxxxx Xxxxxx /s/Seal
--------------------
Xxxx Xxxxx Xxxxxx (Seal)
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SIGNATURE PAGE ATTACHED TO THAT CERTAIN MODIFICATION AND/OR EXTENSION AGREEMENT
DATED MARCH 27, 1995, EXECUTED BY UNIVERSITY REAL ESTATE PARTNERSHIP V, A
CALIFORNIA LIMITED PARTNERSHIP.
UNIVERSITY REAL ESTATE PARTNERSHIP V,
a California limited partnership
By: University Advisory Company,
a California general partnership, general partner
By: Southmark Investors, Inc.,
a Nevada corporation, general partner
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx, Executive Vice President
By: Southmark Commercial Management, Inc.,
a Georgia corporation, general partner
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx, Executive Vice President
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STATE OF TEXAS (S)
(S)
COUNTY OF DALLAS (S)
On March 30, 1995, before me, a Notary Public, personally appeared Xxxxxxx X.
Xxxxxx, personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity which the
person acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxx X. Xxxxxxx
----------------------------
Notary Public in and for the
State of Texas
/s/ Seal
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ADDENDUM ATTACHED TO THAT CERTAIN MODIFICATION AND/OR EXTENSION AGREEMENT DATED
MARCH 27, 1995 EXECUTED BY UNIVERSITY REAL ESTATE PARTNERSHIP V, A CALIFORNIA
LIMITED PARTNERSHIP, IN FAVOR OF IMPERIAL BANK, A CALIFORNIA CORPORATION.
ADDITIONAL PROVISIONS
1. The Loan amount shall be increased by $400,000.00. Concurrently with the
execution hereof, Borrower shall execute and deliver to Bank an additional
advance promissory note ("Additional Advance Note") in the amount of
$400,000.00 of even date herewith in form and content acceptable to Bank.
Said Additional Advance Note shall be secured by the Deed of Trust dated
November 29, 1989, recorded on December 1, 1989 as Instrument #89-650874 in
the office of the county recorder of San Diego County, California.
2. Commencing March 1, 1995 and continuing through December 1, 2000 when the
unpaid principal balance and any other amount due under the Loan documents
shall be due and payable in full, interest shall accrue and pay on the
unpaid principal balance of the Note and Additional Advance Note at the
rate of nine and one-half percent (9.5%) per annum.
3. Commencing with the payment due April 1, 1995, and continuing on the first
day of each calendar month thereafter, Borrower shall make monthly payments
of principal and interest under the Note and Additional Advance Note based
on a twenty-five (25) year amortization and the interest rate set forth in
paragraph 2 above until December 1, 2000, when the unpaid principal
balance, plus any accrued but unpaid interest and any other amount due
under the Loan documents, shall be due and payable in full.
4. The following Cross Default Provision shall by this reference be
incorporated in the Deed of Trust:
"Default in the performance or observance of any of the terms and
provisions: (i) of any documents, including without limitation the
Deed of Trust, ("Loan Documents") executed by Borrower or any entity
guaranteeing any of Borrower's obligations to Beneficiary
("Guarantor") in connection with the obligations secured hereby; or
(ii) of any documents executed by Borrower or Guarantor in connection
with any other obligations of Borrower or Guarantor to Beneficiary,
including but not limited to Beneficiary's Loan No. 197 ("Other
Documents") shall constitute a default under the terms of each of the
Loan Documents or Other Loan Documents at Beneficiary's option,
thereby making available to Beneficiary any and all of the remedies
set forth therein."
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ADDITIONAL PROVISIONS - PAGE 2
5. Bank and Borrower have, or will shortly, execute a certain note dated March
31, 1995, in the original principal amount of $250,000, and certain
documents securing such note, such security documents relating to the
property commonly known as Washington Towne Apartments, East Pint, Georgia
(such note, security documents and all related documents being collectively
referred to herein as the "Georgia Loan Documents"). Notwithstanding
anything to the contrary contained in (i) the Georgia Loan Documents, (ii)
the Note, (iii) the Deed of Trust, (iv) that certain Note made by Borrower
payable to Bank dated September 9, 1993, in the original principal sum of
$1,500,000 (the "Junior Note"), (v) and the deed of trust securing the
Junior Note (such deed of trust, the Junior Note, the Note and the Deed of
Trust and all related documents being collectively referred to herein as
the "California Loan Documents"), a default in the performance or
observance of any the terms and provisions of the Georgia Loan Documents,
and a default in the performance or observance of any of the terms and
provisions of the California Loan Documents shall not constitute a default
under any provision of the Georgia Loan Documents, and Bank agrees that it
shall not look to the property securing or secured by the California Loan
Documents to satisfy any obligation of Borrower under the Georgia Loan
Documents and shall not look to the property securing or secured by the
California Loan Documents to satisfy any obligation of Borrower under the
Georgia Loan Documents and shall not look to the property securing or
secured by the Georgia Loan Documents to satisfy any obligation of Borrower
under the California Loan Documents.
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