South Burlington Outlet Center
THIS MORTGAGE NOTE MODIFICATION AGREEMENT (this "Agreement") is made as
of the 5th day of May, 1999, by and between HEATHCOTE ASSOCIATES, a New York
limited partnership with an office at 00 Xxxxxxxxx Xxxxxxxxxxx, Xxxx Xxxxxxxxxx,
Xxx Xxxx 00000 (the "Borrower"), and XXXXXXX XXXXXXXX CAPITAL CORP., a Delaware
corporation with an office at 0 Xxx Xxxxx Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxx
00000 (the "Lender").
WITNESSETH:
WHEREAS, on August 3, 1995, Borrower executed and delivered to the
Lender, among other documents, a Mortgage Note evidencing an indebtedness to the
Lender in the principal amount of $6,100,000.00, which Mortgage Note was
heretofore supplemented pursuant to an Addendum to the Mortgage Note (the
"Addendum") dated as of August 3, 1995, and which Mortgage Note as so
supplemented by the Addendum is herein referred to as the "Note"; and
WHEREAS, the Note is secured by a certain Mortgage, Assignment of Rents
and Security Agreement dated August 3, 1995, made by Borrower to the Lender,
which was recorded in the City Clerk's Office in South Burlington, Vermont on
August 7, 1995, in Volume 380 at Pages 629-660 and is herein referred to as the
"Mortgage"; and
WHEREAS, Borrower has filed a Petition under Chapter 11 of the United
States Bankruptcy Code (Case No. 97B 44045) in the United State Bankruptcy Court
for the Southern District of New York (the Bankruptcy Case"); and
WHEREAS, as of the date hereof, the total principal amount of the
indebtedness of the Borrower to the Lender under the Note (the "Principal Sum")
is $5,897,847.79 (the Principal Sum, together with accrued and unpaid interest,
as provided in the Note and as allowed by law, as of the date hereof, is
hereinafter collectively referred to as the "Indebtedness"); and
WHEREAS, Lender has been requested to consent to certain modifications
of the Note and the Mortgage in connection with the confirmation of a certain
Plan of Reorganization for Heathcote Associates (the "Plan") proposed by the
Official Committee of Unsecured Creditors in the Bankruptcy Case (the
"Committee");
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, it is agreed by and between Borrower and the
Lender as follows:
1. Indebtedness. (a) The current outstanding principal amount of the
Indebtedness due under the Note and secured by the Mortgage is SIX MILLION TWO
HUNDRED TWENTY ONE THOUSAND EIGHT HUNDRED NINETY FIVE AND 85/100 DOLLARS
($6,221,895.85) in lawful money of the United States of America, consisting of
the Principal Sum and accrued and unpaid interest thereon, which, as of the date
hereof, totals $324,048.06 and continues to accrue and which the Lender is
willing to permit the Borrower to amortize pursuant to paragraph 2 of this
Agreement.
(b) The Indebtedness does not include any administrative premiums owed
by the Borrower to the Lender on account of the Borrower's failure to make
certain payments under the Note which were due and payable prior to the date
hereof. Any such administrative premiums owed by the Borrower to the Lender with
respect to payments due through and including the date hereof are hereby waived
by the Lender; provided, however, that nothing contained herein shall be
construed to constitute a waiver of any administrative premiums which may become
due to the holder of the Note from and after the date hereof by reason of the
Borrower's failure to make payments due under the Note within fifteen (15) days
of the date such payments are due.
2. Interest and Payment Adjustments. The manner of payment of the
unpaid principal evidenced by the Note and the interest thereon will be modified
as follows during, and only during, the period (the "Adjustment Period")
commencing on the date of this Agreement (the effective date of the Plan
following its confirmation by the Court in the Bankruptcy Case; the "Effective
Date") and ending on the earlier to occur of (i) the second anniversary of the
Effective Date and (ii) the date upon which the first payment is made by the
Borrower to the holders of the Preferred Return Interest (as defined and set
forth in the Amended Plan of Reorganization for Heathcote Associates Proposed by
the Official Committee of Unsecured Creditors dated October 9, 1998 (Case No.
97B 44045 (JLG))) (such date being hereinafter referred to as the " Preferred
Return Interest Commencement Date"):
a. Interest Rate. Interest shall accrue on the unpaid
Indebtedness at the rate of seven and one-half percent (7.5 %) per annum.
b. Payment Adjustment. The monthly installment payment shall
consist of interest only and shall be in the amount of THIRTY EIGHT THOUSAND
EIGHT HUNDRED EIGHTY SIX AND 85/100 Dollars ($38,886.85). No portion of any such
payment shall be applied to reduce the Principal Sum of the Note.
3. Restoration of Payment Terms. Immediately upon the expiration of the
Adjustment Period, without any notice to Borrower of any kind, interest on the
unpaid Principal Sum shall again accrue at the rate of nine and seven-eighths
percent (9.875 %) per annum and Borrower's monthly installment payments under
the Note shall equal Fifty Four Thousand Eight Hundred Ninety Four and 14/100
($54,894.14) each, until the entire Indebtedness, if not sooner paid, becomes
due and payable on September 1, 2002.
4. Prepayment Provisions. Anything in the Note to the contrary
notwithstanding, the Note may not be prepaid, in whole or in part until the date
that is the first anniversary of the expiration of the Adjustment Period (i.e.
the earlier to occur of (i) the third anniversary of the Effective Date and (ii)
the first anniversary of the Preferred Return Interest Commencement Date,
following which date the Note may be prepaid in accordance with the provisions
of section 1 of the Addendum, but without penalty or premium.
5. Representations and Warranties. In order to induce the Lender to
consent to the modification herein contained, Borrower hereby represents,
warrants and covenants that (i) there are no offsets, counterclaims or defenses
against any sums owed under the Note, the Mortgage, any other documents which
wholly or partially secure or guarantee payment of the Note (all of which
documents, if any, together with the Note and the Mortgage are collectively
referred to herein as the "Loan Documents") or this Agreement (ii) Borrower has
full power, authority and legal right to execute this Agreement and to keep and
observe all of the terms of this Agreement on Borrower's part to be observed or
performed, (iii) Borrower has duly authorized the execution and delivery of this
Agreement; (iv) the Loan Documents and this Agreement constitute valid and
binding obligations of Borrower, enforceable in accordance with their respective
terms, and (v) the Lender has performed any and all obligations to be performed
on the part of the Lender pursuant to the Loan Documents to and including the
date hereof.
6. Construction. Except as expressly modified by the provisions of this
Agreement, all terms, provisions and conditions of the Note are hereby ratified
and confirmed and remain in full force and effect. The modifications contained
herein shall not constitute a novation, shall not discharge, satisfy,
extinguish, terminate, impair or, except as expressly modified in or this
Agreement, otherwise affect Borrower's obligations under the Note and shall not
discharge, satisfy, extinguish, terminate, impair or otherwise affect the lien,
security interest and encumbrance of the Mortgage or the priority thereof.
7. Miscellaneous. This Agreement shall inure to the benefit of and
shall be binding upon Borrower and the Lender, and their respective successors
and assigns. This Agreement and any provision hereof may not be modified,
waived, amended, extended, changed, discharged or terminated orally or by any
act or failure to act on the part of Borrower or the Lender, but only by an
agreement in writing and signed by the party against whom enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is
sought. This Agreement may be executed in counterparts, each of which is an
original, but all of which together shall constitute one and the same
instrument. If any term, covenant or condition of this Agreement shall be held
to be invalid, illegal, or unenforceable in any respect, this Agreement shall be
construed without such provision. This Agreement shall be governed by and
construed in accordance with the laws of the State of Vermont and the applicable
laws of the United States of America.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the
parties on the day and year first written above.
WITNESS OR ATTEST BORROWER:
--------------------- HEATHCOTE ASSOCIATES, L.P.
By: Acadia Heathcote LLC
Its general partner
By: Acadia Realty Limited Partnership
Its sole member
By: Acadia Realty Trust Its general partner
By:______________________________
Xxxxxxx X. Xxxxxxxxx
President
LENDER:
XXXXXXX XXXXXXXX XXX?ITAL CORP.
By:__________________________
Xxxx X. Xxxxxxxxx
Vice President
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On the _ day of April, 1999, before me personally came Xxxxxxx X.
Xxxxxxxxx, to me known to be the person who executed the foregoing instrument,
and who, being duly sworn by me, did depose and say he is the President of
ACADIA REALTY TRUST, a New York corporation, and Borrower herein, and that he
executed the foregoing instrument its name, and that he had authority to sign
the same, and he acknowledged to me that he executed the same as the act and
deed of said corporation for the uses and purposes therein mentioned.
----------------------
Notary Public
STATE OF CONNECTICUT )
): SS: Darien
COUNTY OF FAIRFIELD )
On the day of April, 1999, before me personally came Xxxx X. Xxxxxxxxx
to me known, who, being by me duly sworn, did depose and say that he is the Vice
President of XXXXXXX XXXXXXXX CAPITAL CORP., and that he executed the foregoing
instrument in its name, and that he had authority to sign the same, and he
acknowledged to me that he executed the same as the act and deed of said
corporation for the uses and purposes therein mentioned.
-------------------------
Notary Public
STATE OF NEWYORK )
)SS:
COUNTY OF NASSAU )
On this 20th day of April, 1999, before me personally came
Xxxxxxx X. Xxxxxxxxx, to me known, who, being by me duly sworn, did depose and
say that he resides in New York; that he is the President of Acadia Realty
Trust, the Trust described in and which executed the foregoing instrument, which
is the general partner of Acadia Realty Limited Partnership, the sole member of
Acadia Heathcote LLC, the general partner of Heathcote Associates, L.P., and
that he signed his name thereto by like order and he acknowledged to me that
said instrument was executed by said Trust for and in behalf of said limited
partnership.
-----------------------
Notary Public
