AGREEMENT OF MODIFICATION OF MORTGAGE NOTE
THIS AGREEMENT OF MODIFICATION OF MORTGAGE NOTE ("Agreement") made
as of the 1st day of April, 1994, between HUNTERS XXXX (PHASE I) AP XII LIMITED
PARTNERSHIP, a South Carolina limited partnership (hereinafter referred to as
"Maker"), and LEXINGTON MORTGAGE COMPANY, a Virginia corporation (hereinafter
referred to as "Payee"),
W I T N E S S E T H :
WHEREAS Payee is the owner and holder of the mortgage (hereinafter
referred to as the "Mortgage") and of the note, bond or other obligation secured
thereby (hereinafter referred to as the "Note") each more fully described in
EXHIBIT A attached hereto;
WHEREAS there is now owing on the Note and the Mortgage the unpaid
principal sum of $8,500,000.00 and interest (said principal sum, interest and
all other sums which may or shall become due under the Note and/or the Mortgage,
as modified and amended pursuant to the provisions hereof, being hereinafter
collectively referred to as the "Debt"); and
WHEREAS Maker and Payee have by that certain Agreement of
Modification of Mortgage and Security Agreement dated as of even date herewith
agreed in the manner set forth therein to modify certain terms and provisions of
the Mortgage;
WHEREAS Maker and Payee have agreed in the manner hereinafter set
forth to modify the time and manner of payment and the terms and provisions of
the Note;
NOW, THEREFORE, in pursuance of said agreement and in consideration
of one dollar and other good and valuable consideration, Maker hereby represents
and warrants to and covenants and agrees with Payee as follows:
A. All capitalized words or phrases not otherwise defined herein
shall have the meanings ascribed to them in the Note.
B. Section A of the Note entitled "PAYMENT TERMS" is deleted in
its and entirety and the manner of and the time for the payment of the unpaid
principal sum of $8,500,000.00, evidenced by the Note and secured by the
Mortgage (the Note and the Mortgage, as modified and amended pursuant to the
provisions of this Agreement hereinafter set forth, being hereinafter
respectively referred to as the "Note" and the "Mortgage") are hereby modified
as follows:
From the date hereof through the Extended Maturity Date
(hereinafter defined), Maker shall pay to Payee:
(i) a payment of interest only on April 1, 1994 and on the
first day of each calendar month thereafter to and
including the first day of September, 1995;
(ii) a Constant Monthly Payment (hereinafter defined) on
October 1, 1995 and on the first day of each calendar
month thereafter to and including the first day of
October, 2003;
(iii) the balance of the principal sum then outstanding and
all interest thereon shall be due and payable on the
fifteenth day of October 15, 2003 (the "Extended
Maturity Date").
Each of such payments shall be applied as follows:
(i) First to the payment of interest computed at the
Applicable Interest Rate; and
(ii) The balance applied toward the reduction of the
principal sum.
The term "Constant Monthly Payment" as used in this Note shall
mean a payment equal to $64,936.44.
C. The first paragraph of Section B of the Note entitled
"INTEREST" is deleted in its entirety and the following is substituted therefor:
The term "Applicable Interest Rate" shall mean (a) during the
period beginning on April 1, 1994 up to and including August 9, 1995, a rate
equal to the Initial Interest Rate, and (b) from and including August 10, 1995
to the Extended Maturity Date, a rate equal to 8.43%.
D. The first sentence and the beginning of the second sentence up
to and including the words "at any time thereafter," of Section D of the Note
entitled "PREPAYMENT" are deleted in their entirety.
E. Maker waives presentment and demand for payment, notice of
dishonor, protest and notice of protest of the Note.
F. Maker represents, warrants and covenants that there are no
offsets, counterclaims or defenses against the Debt, this Agreement, the
Mortgage or the Note and that Maker (and the undersigned representative of
Maker, if any) has full power, authority and legal right to execute this
Agreement and to keep and observe all of the terms of this Agreement on Maker's
part to be observed or performed.
G. Except as expressly modified pursuant to this Agreement, all
of the terms, covenants and provisions of the Note shall continue in full force
and effect. In the event of any conflict or ambiguity between the terms,
covenants and provisions of this Agreement and those of the Note, the terms,
covenants and provisions of this Agreement shall control.
H. This Agreement may not be modified, amended, waived, changed
or terminated orally, but only by an agreement in writing signed by the party
against whom the enforcement of the modification, amendment, waiver, change or
termination is sought.
I. This Agreement shall be binding upon and inure to the benefit
of Maker and Payee and their respective successors and assigns.
J. This Agreement may be executed in any number of duplicate
originals and each such duplicate original shall be deemed to constitute but one
and the same instrument.
K. 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.
L. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York and the applicable laws of the
United States of America.
IN WITNESS WHEREOF, Maker and Payee have duly executed this
Agreement as of the day and year first above written.
HUNTERS XXXX (PHASE I) AP XII LIMITED PARTNERSHIP
By: HUNTERS XXXX GP LIMITED PARTNERSHIP, General
Partner
By: GP SERVICES V, INC., General Partner
By: Xxxxxx X. Xxxx, Xx.
Name: Xxxxxx X. Xxxx, Xx.
Title: CAO/Controller
LEXINGTON MORTGAGE COMPANY
By: Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
STATE OF Virginia )
) SS:
COUNTY OF Fairfax )
On this 7th day of August, 1995, in the County and State aforesaid, before
me, the subscriber, a Notary Public authorized to take acknowledgements and
proofs in said County and State, personally appeared Xxxxx Xxxxxxxx, the Senior
Vice President of LEXINGTON MORTGAGE COMPANY, a Virginia corporation, who, I am
satisfied, is the person who, as such Senior Vice President, signed and
delivered the within instrument, and he did acknowledge that he is duly
authorized to sign and deliver the within instrument on behalf of said
corporation and that he signed and delivered the same as the act and deed of
said corporation for the uses and purposes set forth therein.
Xxxxxx Xxx DiBriezo
Notary Public
STATE OF SC )
) SS:
COUNTY OF Greenville )
On this 1st day of August, 1995, in the County and State aforesaid, before
me, the subscriber, a Notary Public authorized to take acknowledgements and
proofs in said County and State, personally appeared Xxxxxx X. Xxxx, Xx., the
CAO/Controller of GP SERVICES V, INC., a South Carolina corporation and the
general partner of HUNTERS XXXX GP LIMITED PARTNERSHIP, a South Carolina limited
partnership and the general partner of HUNTERS XXXX (PHASE I) AP XII LIMITED
PARTNERSHIP, a South Carolina limited partnership, who I am satisfied, is the
person who, as such CAO/Controller, signed and delivered the within instrument,
and he did acknowledge that he is duly authorized to sign and deliver the within
instrument on behalf of said corporation and that he signed and delivered the
same as the act and deed of said corporation and said partnerships for the uses
and purposes set forth therein.
Xxxxxxxxxx X. Xxxx
Notary Public
EXHIBIT A
1. The Mortgage:
Mortgage and Security Agreement dated as of September 30, 1993 given
by Maker to Payee, in the principal sum of $8,500,000.00 and recorded on October
26, 1993, in the Middlesex County Clerk's Office, in Book 4566, page 22.
2. The Note:
Mortgage Note dated as of September 30, 1993 given by Maker to
Payee, in the original principal sum $8,500,000.00.
