Exhibit 10.23
1. MODIFICATION AND CONSENT AGREEMENT
THIS MODIFICATION and CONSENT AGREEMENT ("this Agreement")
is executed as of November 29, 2004, by and between Xxxxxx
Xxxxx ("Xxxxx"), whose address for purposes of this
Agreement is 0000 Xxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxx, XX
00000; 000 Xxxxxx Xxxxxx Property Development, LLC, a New
York limited liability company (the "Owner"), whose address
for purposes of this Agreement is 000 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx 00000; 000 Xxxxxx Xxxxxx, XXX, x Xxx Xxxx
limited liability company ("the LLC Member"), whose address
for purposes of this Agreement is 000 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx 00000; DCI USA, Inc., a Delaware
corporation ("DCI"), whose address for purposes of this
Agreement is 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000;
Xxxxx Xxxxxxxxxx ("Yerushalmi"), Xxxxxxxx Xxxx Xxxx ("Ofir")
and Xxxxxxxx Xxxxx ("Rigbi"), whose addresses for purposes
of this Agreement shall be c/o Xxxxx Xxxxxxxxxx, 000 Xxxxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000.
RECITALS
A. Owner entered into a loan agreement ("the Loan
Agreement") with Xxxxx dated October 28, 2004, and into
various other collateral loan documents with Xxxxx including
but not limited to a mortgage note and mortgage
(collectively referred to as "the Loan Agreement
Documents"), all of which were dated October 28, 2004.
X. Xxxxxxxxxx entered into a guaranty agreement ("the
Additional Loan Agreement Documents") dated October 28,
2004, to further secure and guaranty repayment of the Loan
Agreement.
C. Due to a change in the membership of the Owner not
reflected in the Loan Agreement, the Loan Agreement
Documents, and the Additional Loan Agreement Documents, all
of which collectively shall be referred to as "the Xxxxx
Loan Documents," the parties undersigned hereby desire to
modify the Xxxxx Loan Documents pursuant to the
modifications set forth below.
NOW, THEREFORE, for good and valuable consideration, all of
the parties agree as follows:
1. Modification of the Xxxxx Loan Documents. The parties
hereby agree that the membership of the Owner for purposes
of the Xxxxx Loan Documents is and shall be until otherwise
modified and agreed to by all of the parties as follows:
- The LLC Member, a single asset New York limited
liability company, whose sole asset is a 60% membership
interest in the Owner. The LLC Member is wholly owned by
Yerushalmi and Ofir. Yerushalmi is the managing member of
the LLC Member.
- Ofir, who owns a 10% membership interest in the
Owner.
- Rigbi, who owns a 30% membership interest in the
Owner.
The sole members of the LLC Member, who collectively own
100% of the total membership interests of the LLC Member,
are Yerushalmi and Ofir.
Furthermore, the parties hereby agree that the LLC Member
shall be permitted to transfer all or part of its membership
interest in the Owner to DCI USA, Inc.
2. Consent: Use of Loan Proceeds. Xxxxx hereby consents and
the parties mutually agree that the Owner shall be free to
use the Loan Proceeds for purposes it deems fit and may
enter into an agreement with another entity for the
repayment of the Loan Proceeds for and on behalf of Owner,
as long as the Xxxxx Loan Documents and the obligations of
Owner, the LLC Member, Xxxxxxxxxx, Xxxx, and Rigbi,
including but not limited to the obligations of repayment to
Hypothecators, are not affected or altered in any way not
expressly set forth herein.
4. Nothing contained hereinabove, shall be deemed to affect
in any way any other term or condition of the Xxxxx Loan
Documents not explicitly set forth herein, including but not
limited to, the rights granted to Xxxxx in the event of
default under any of the Xxxxx Loan Documents. Furthermore,
the LLC Member, Xxxxxxxxxx, Xxxx, Rigbi and DCI hereby agree
that each of them individually and collectively shall
indemnify and hold harmless Xxxxx from any and all damages
arising from any event of default under the Xxxxx Loan
Documents.
The remainder of this page left blank intentionally.
IN WITNESS WHEREOF, the parties undersigned have executed
this Agreement as of the date appearing on the first page of
this Agreement.
000 Xxxxxx Xxxxxx Property
Development, LLC
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx
Managing Member
000 Xxxxxx Xxxxxx, LLC
By:/s/ Xxxxx Xxxxxxxxxx By:/s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx Name: Xxxxx
Xxxxxxxxxx
Title: Managing Member Title:
Individual Capacity
By:/s Jonathann Xxxx Xxxx By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxx Xxxx Name:
Xxxxxxxx Xxxxx
Title: Individual Capacity and as
Title: Individual Capacity and as
Member of 231 Norman Member of 000 Xxxxxx
Xxxxxx
Xxxxxx Property Development, LLC Property
Development, LLC
and as Member of 000 Xxxxxx
Xxxxxx, LLC
DCI USA, Inc.
By: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx
Title: Chairman
