1
EXHIBIT 10.50
STATE OF SOUTH CAROLINA )
) MODIFICATION AGREEMENT
COUNTY OF AIKEN ) RELATING INTER ALIA TO THE
) FOLLOWING:
)
) MORTGAGE, ASSIGNMENT OF
) LEASES AND RENTS AND
) SECURITY AGREEMENT
) DATED JUNE 6, 1998 TO
) BE EFFECTIVE JUNE 8, 1988
) AND RECORDED WITH THE
) REGISTER OF DEEDS
) FOR AIKEN COUNTY,
) SOUTH CAROLINA IN MORTGAGE
) BOOK 1052 AT PAGE 198
THIS MODIFICATION AGREEMENT (the "Agreement") executed this 21st Day of
December, 1998 to be effective as of the 10th day of October, 1988 by and
between XXXXXXX COMPANIES INCOME PROPERTIES, L.P., I, as successor in interest
to MBB DEVELOPMENT ASSOCIATES, ("Borrower") and NEW YORK LIFE INSURANCE
COMPANY, whose address is 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
("NYLIC").
WITNESSETH
WHEREAS, NYLIC previously made a loan available to the Borrower in the original
principal amount of Eleven Million Four Hundred Thousand and No/100 Dollars
($11,400,000.00)(the "Loan");
WHEREAS, the Loan was evidenced by that certain promissory note in the original
amount of $11,400,000.00 from Borrower for the benefit of NYLIC (the "Note") and
secured inter alia by a lien on that certain parcel of real property and
improvements thereon pursuant to that certain Mortgage, Assignment of Leases and
Rents and Security Agreement from Borrower dated June 6, 1988 to be effective
June 8, 1988 and recorded with the Register of Deeds for Aiken County, South
Carolina in Mortgage Book 1052 at Page 198 as amended by that certain Loan
Modification and Extension Agreement and Mortgage Amendment, effective as of
June 10, 1993 recorded in Mortgage Book 718, page 337, as further amended by
that certain Second Loan Modification and Extension Agreement and Mortgage
Amendment, effective as of June 10, 1994, recorded in Mortgage Book 777, Page
324 and further amended by that certain Third Loan Modification and Extension
Agreement, Cross Pledge and Default Agreement, and Mortgage Amendment Agreement,
effective September 29, 1995 recorded in Mortgage Book 805, Page 48 (as amended,
modified or assigned, the "Mortgage").
WHEREAS, the Note and the Mortgage and any and all other documents related to
the Loan are collectively referred to as the "Loan Documents".
2
WHEREAS, except as otherwise provided, all terms herein shall have the
meanings ascribed thereto in the Loan Documents;
WHEREAS, the Loan became due and payable in full on October 10, 1998, which
was the maturity date of the Loan, NYLIC has notified Borrower of the same and
Borrower desires NYLIC to waive the event of default and modify the terms of
the Loan Documents; and
WHEREAS, Borrower and NYLIC have agreed to amend certain terms of the Loan
and the Loan Documents to inter alia change the maturity date of the Loan to May
10, 1999, to provide a new repayment schedule and to modify the interest rate.
NOW, THEREFORE, in consideration of the mutual promises contained
hereinbelow, the sum of Five and No/100 Dollars ($5.00) and other good and
valuable consideration, the receipt, sufficiency and adequacy of which the
parties do hereby acknowledge, the parties do hereby agree as follows:
1. The Note, and Loan Documents as applicable, are amended as follows:
(a) From and after October 10, 1998 through May 10, 1999 (the
"Extended Maturity Date"), the Loan will accrue interest at a
fixed rate per annum equal to seven (7%) percent;
(b) Commencing November 10, 1998 and continuing on the tenth day of
December 1998, January 1999, February 1999, March 1999 and April
1999, interest only payments in the amount of $58,524.22 will be
due and payable;
(c) Commencing November 10, 1998 and continuing on the tenth day of
December 1998, January 1999, February 1999, March 1999 and April
1999, Borrower will deposit into escrow with NYLIC payments for
insurance and ad valorem taxes as required under the Loan
Documents (such monthly payments currently being equal to
$5,758.00);
(d) Unless sooner demanded as provided herein, all outstanding
principal together with accrued unpaid interest due under the Loan
shall be due and payable in full on May 10, 1999;
(e) The Borrower shall be entitled to prepay the Note in full at par
without fee or premium on a date which is designated by Borrower
in writing given to NYLIC at least ten (10) days prior to such
date; and,
(f) Notwithstanding anything to the contrary in the Note or Loan
Documents, NYLIC shall have the right, at its sole option, upon
fifteen (15) days prior written notice to Borrower, with or
without cause and irregardless of
2
3
whether an event of default shall exist or not, to accelerate
repayment of the Loan in full and demand Borrower repay the Loan
in full.
2. The Loan Documents are amended by deleting all references to the
maturity date of "October 10, 1998" and substituting in lieu thereof the
maturity date of May 10, 1999.
3. The principal balance due and owing under the Loan Documents as of the
date hereof, after giving effect to Borrower's payment of all principal
payments required to be paid hereunder, is $10,032,724.12.
4. The Borrower represents and warrants that, at the time of the execution
and delivery of this Agreement, Borrower has good and absolute title to the
real property encumbered by the Loan Documents, and has full power and
authority to subject the same to the lien of the Loan Documents and the same is
free and clear of all liens, charges and encumbrances whatsoever, except those
created by the Loan Documents or those known to NYLIC and those set forth in
NYLIC's existing title insurance policy for the Loan (the "Title Policy").
5. Except as otherwise modified hereby, the terms and provisions of the
Loan Documents shall remain in full force and effect.
6. As a condition precedent to NYLIC's agreement herein:
(a) Upon the execution of this Agreement, Borrower shall pay all
costs and expenses, including but not limited to attorney's fees,
recording fees and title charges incurred in connection with this
Agreement and/or the consummation of the transaction contemplated
hereby together with all costs and expenses of NYLIC, including
without limitation, all attorney's fees and expenses incurred as
a result of Borrower's failure to pay the amounts due under the
Loan on or before October 10, 1998; provided, however, Borrower
shall not be required to pay any amounts in excess of those
limits agreed to by Borrower and NYLIC in that certain letter
agreement dated November 24, 1998.
(b) no default shall exist under the Loan Documents as of the date
hereof nor shall any event have occurred which with the passage
of time or the giving of notice, or both, would constitute such a
default;
(c) on or before November 30, 1998, NYLIC shall have received (i) a
payment in the amount of $107,517 representing the installment of
principal and accrued interest due on October 10, 1998 and late
charges in the amount of $563.70; and, (ii) an additional payment
of $64,282.22 representing accrued interest through November 10,
1998 and the required escrow deposit due for such date;
3
4
(d) on or before December 31, 1998, Borrower shall provide or cause
to be provided to NYLIC an independent title report opining that
there are no matters of record filed subsequent to the effective
date of Lender's Title Policy except for such matters as are
expressly approved by NYLIC in its discretion.
7. Borrower and NYLIC agree that it is the intent of the parties that the
execution of this Agreement or any documents as contemplated by this Agreement
or the consummation of any transactions contemplated by this Agreement shall
constitute a modification, restatement and renewal under the Loan and shall not
be construed as a novation.
8. By executing this Agreement, Borrower is reconfirming the accuracy and
correctness of all representations contained in the Loan Documents.
9. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same instrument, and in making proof of this Agreement, it shall not be
necessary to produce or account for more than one such counterpart.
10. Borrower hereby agrees that NYLIC, and its officers, directors,
employees and agents are irrevocably and unconditionally released and
discharged of any and all claims, demands, obligations, liabilities, costs and
expenses, now existing (including, without limitation, any obligations or
commitment of NYLIC to provide any financial accommodations to Borrower under
the Loan Documents) arising out of or related to the Loan Documents.
[THE REST OF THIS PAGE HAS BEEN LEFT BLANK]
4
5
IN WITNESS WHEREOF, the parties have executed this Agreement as of this
21st Day of December, 1998 to be effective as of October 10, 1998.
WITNESSES AS TO BORROWER: BORROWER:
XXXXXXX COMPANIES INCOME
PROPERTIES, L.P.I., as successor in
interest to MBB DEVELOPMENT
ASSOCIATES (SEAL)
By: Xxxxxxx Management, LP
----------------------------------------
As Its: General Partner
----------------------------------------
By: /s/
----------------------------------------
/s/ Name: Xxxxx X. Xxxxxx, Xx.
---------------------------------- ----------------------------------------
/s/ Xxxxxx X. Xxxxx Its: Authorized Agent
---------------------------------- ----------------------------------------
Xxxxxx X. Xxxxx
5
6
IN WITNESS WHEREOF, the parties have executed this Agreement this 21st Day
of December, 1998 to be effective as of October 10, 1998.
WITNESS AS TO NYLIC: NYLIC:
NEW YORK LIFE INSURANCE COMPANY (SEAL)
By: /S/
----------------------------------------
/S/ Name: /S/ Xxxxxxx X. Xxxxxxxxx
----------------------------------- ----------------------------------------
/S/ Its: Real Estate Vice President
----------------------------------- ----------------------------------------
6
7
STATE OF GEORGIA )
) PROBATE
COUNTY OF RICHMOND )
PERSONALLY appeared before me the undersigned witness and made oath that
s/he saw the within-written Xxxxxxx Companies Income Properties, L.P.I., as
successor in interest to MBB Development Associates by Xxxxx X. Xxxxxx, Xx.,
its Authorized Agent, sign, seal, and as its act and deed, deliver the
within-written instrument for the uses and purposes therein mentioned, and
that s/he with the other witness whose signature appears above, witnessed the
execution thereof.
/s/
----------------------------------------
Witness
SWORN TO BEFORE me this
17th day of December, 1998.
/s/ Xxxxxx X. Xxxxx (L.S.)
--------------------
Notary Public for Georgia
My Commission Expires: 8/20/02
7
8
STATE OF NEW YORK )
) PROBATE
COUNTY OF NEW YORK )
PERSONALLY appeared before me the undersigned witness and made oath
that s/he saw the within-written New York Life Insurance Company, by Xxxxxxx X.
Xxxxxxxxx, its Real Estate Vice President, sign, seal, and as its act
and deed, deliver the within-written instrument for the uses and purposes
therein mentioned, and that s/he with the other witness whose signature appears
above, witnessed the execution thereof.
/s/ __________________
Witness
SWORN TO before me this
21st day of December, 1998.
/s/ ______________________(L.S.)
Notary Public for New York
My Commission Expires:
8
