EXHIBIT NO. 10.133
LOAN MODIFICATION AND ASSUMPTION AGREEMENT
This Loan Modification and Assumption Agreement is made this 30th day
of January, 1998 by and among XXXX X. XXXXXXXX and XXXXXX X. XXXXXXXX
(collectively, "McGarveys"), XXXX-XXXX REALTY, L.P., a Delaware limited
partnership ("MCR"), and SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.), a Delaware
corporation ("Lender").
Background
Lender is the holder of a Mortgage Note dated September 1, 1993
("Note") in the original principal amount of $1,241,477.04
("Loan") made by the McGarveys. The Note is secured by, inter alia, a Mortgage
and Security Agreement dated September 1, 1993 and recorded in the Office of the
County Clerk of Burlington County Records on September 8, 1993 in Mortgage Book
5189 page 164 ("Mortgage"), encumbering a certain parcel of real property and
the improvements thereon located at 000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxx
Xxxxxx, Xxx Xxxxxx, as more particu larly described on Exhibit A ("Mortgaged
Property"), and by an Assignment of Leases and Agreement dated September 1, 1993
and recorded in the Office of the County Clerk of Burlington County Records on
September 8, 1993 in Deed Book 4605 page 237 ("Assignment of Leases") (the Note,
the Mortgage, the Assignment of Leases and the other documents listed on Exhibit
B attached hereto which were executed by McGarveys and delivered to Lender in
connection with the Loan are hereinafter referred to collectively as the "Loan
Documents").
The Mortgaged Property is being acquired by MCR from the McGarveys on
the date hereof. Lender and MCR have now agreed to modify certain provisions of
the Loan Documents and that MCR will assume the obligations of the McGarveys
under the Loan Documents as modified hereby.
Now, Therefore, in consideration of the mutual covenants and
undertakings herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to
be legally bound hereby, the parties hereto covenant and agree as follows:
1. Modification of Loan Documents.
(a) The Note is hereby modified to insert the following at
the end of Section 13:
"Notwithstanding the foregoing, Maker's obligations hereunder shall be
limited as set forth in Section 37 of the Mortgage."
(b) The Note is hereby modified to delete the last sentence of
Section 6.
(c) The Mortgage is hereby modified to insert the following at
the end of Section 28:
"Notwithstanding the foregoing, Mortgagor's recourse liability under
this Section 28 shall not exceed $3,585,000.00 ("Liability Cap")."
(d) The Mortgage is hereby modified to insert the following at
the end of Section 7:
"Notwithstanding the foregoing, (i) transfers of interests in Xxxx-Xxxx
Realty, L.P. and its general partner shall not require the consent of
Mortgagee (provided that no such transfers shall limit in any way
Mortgagor's obligations hereunder), and (ii) with advance written
notice to Mortgagee (but without requiring Mortgagee's consent), the
Mortgaged Property may be conveyed to an affiliate of Mortgagor or
following a merger or consolidation of Mortgagor (provided that no such
transfers shall limit in any way Mortgagor's obligations hereunder)."
(e) The Mortgage is hereby modified to delete the phrase "and
certified by Xxxx XxXxxxxx" in Section 12.
(f) The Mortgage is hereby modified to add the phrase "except
as expressly permitted by the Assignment of Leases" at the end of Section
18(a)(iii).
(g) The Mortgage is hereby modified to delete Section 14(f).
(h) The Assignment of Leases is hereby modified to add the
following at the end of Section 1(a):
"Notwithstanding the foregoing, no consent from Mortgagee shall be
required for Leases if such Leases require a net rental of at least
$4.50 per square foot."
2. Assumption of Loan Documents; Representations and Warranties.
(a) MCR hereby assumes the obligations of the McGarveys under
the Note and the Mortgage (as modified herein) and the other Loan Documents as
if each and every Loan Document had been originally executed by MCR, provided
that MCR is not assuming any obligations under the Guaranty. MCR shall fully
comply with each and every covenant and condition of the Loan Documents and
shall be fully bound thereby.
(b) Lender hereby approves the transfer of the Mortgaged
Property by the McGarveys to MCR.
(c) MCR acknowledges and agrees that the unpaid principal
balance of the Note as of the date hereof is $1,117,507.40. MCR represents and
warrants to Lender that MCR presently possesses an unencumbered fee simple title
to the Mortgaged Property, except for those title objections not removed from
Title Commitments No. TS-11344 issued to Lender by Title Services of New Jersey,
Inc. as policy issuing agent for First American Title
Insurance Company, and that the Mortgage is a valid and enforceable first lien
on the Mortgaged Property, subject only to the aforesaid title objections.
(d) MCR represents and warrants to Lender as follows: (i) MCR
is a limited partnership duly formed and validly existing in the State of
Delaware; (ii) MCR has supplied Lender with true, correct and complete copies of
MCR's Limited Partnership Agreement and Limited Partnership Certificate, and all
amendments thereto, none of which has been further amended, modified or revised,
together with a current Good Standing Certificate from the State of Delaware;
and (iii) MCR has full power and authority to engage in business and own
property in the State of New Jersey and to enter into and undertake and perform
its obligations under the Note, the Mortgage and the other Loan Documents.
3. Confirmation of Loan Documents. MCR covenants and confirms that,
except as specifically modified by this Agreement, all of the terms and
conditions of the Note, the Mortgage and the other Loan Documents shall be
unmodified and remain in full force and effect and are hereby ratified and
confirmed by MCR. MCR acknowledges and agrees that it has no defense, set-off,
recoupment or claim against Lender of any kind whatsoever as of the date hereof.
Lender acknowledges that all principal, accrued interest and other charges for
the Loan have been paid through the installment payment due on January 1, 1998.
Lender has not declared an Event of Default under the Note, the Mortgage or any
of the other Loan Documents and has no knowledge of any state of facts which,
but for the passage of time or the giving of notice, would constitute an Event
of Default under the Note, the Mortgage or the other Loan Documents.
4. No Novation. The parties to this Agreement acknowledge and confirm
that this Agreement shall not be construed as a novation of the Note, the
Mortgage or the other Loan Documents, and shall not prejudice any present or
future rights, remedies, benefits or powers belonging to or accruing to Lender
under the terms of the Note, the Mortgage or the other Loan Documents. It is the
intent of the parties hereto that this Agreement shall in no way adversely
affect or impair the lien priority of the Mortgage. In the event this Agreement
or any part hereof, or any instrument executed in connection herewith, shall be
construed or shall operate to affect the lien priority of the Mortgage, then to
the extent such instrument creates a charge upon the Mortgaged Property, and to
the extent third parties acquiring an interest or lien upon the Mortgaged
Property between the time the Mortgage was recorded and the time this Agreement
is executed are prejudiced thereby, this Agreement shall be void and of no
further force or effect. Notwithstanding the foregoing, the parties hereto, as
between themselves, shall be bound by all the terms and conditions of this
Agreement until the Loan and all interest thereon has been paid in full.
5. No Further Commitment. Nothing in this Agreement shall be construed
to commit Lender to any further modification or amendments of the Note, the
Mortgage or the other Loan Documents, nor as a waiver by Lender of any rights or
remedies to which Lender may be entitled under the Loan Documents.
6. Releases.
(a) MCR, its partners, employees and agents, for themselves,
their respective heirs, personal representatives, successors and assigns, hereby
release Lender, its shareholders,
officers, directors, employees, agents and attorneys and each of their
respective heirs, personal representatives, successors and assigns and
affiliates, of and from any and all actions, causes of action, proceedings,
claims, demands, damages, costs, liabilities, losses, agreements and obligations
as of the date hereof, of any nature whatsoever, whether contingent or matured,
known or unknown, at law or in equity arising out of, or in any way related to,
the Loan, the Note, the Mortgage, the other Loan Documents or the Mortgaged
Property. MCR and its partners acknowledge and agree that Lender is relying on
the foregoing representations and covenants as a material inducement to Lender
to execute this Agreement.
(b) Lender, its shareholders, officers, directors, employees,
agents and attorneys and each of their respective heirs, personal
representatives, successors, assigns and affiliates, hereby release McGarveys,
Guarantors, and their respective partners, employees, agents and attorneys and
each of their respective heirs, personal representatives, successors and
assigns, of and from any and all actions, causes of action, proceedings, claims,
demands, damages, costs, liabilities, losses, agreements and obligations, of any
nature whatsoever, whether contingent or material, known or unknown, at law or
in equity arising from any act, thing, omission or failure to act occurring
after the date hereof and arising out of, or in any way related to, the Loan,
the Mortgage, the Guaranty, the other Loan Documents or the Mortgaged Property,
including, without limitation, any failure of MCR to perform any of its
obligation under the Loan Documents. Lender acknowledges and agrees that
McGarveys and Guarantors relied on the foregoing representations and covenants
as a material inducement to McGarveys and Guarantors to execute this Assumption
Agreement.
7. Notices. Section 25 of the Mortgage is hereby amended to provide
that all notices, requests and demands upon the respective parties hereto shall
be effective when hand delivered to such party at the address set forth below,
or if sent by overnight delivery service, on the next business day, or if sent
by United States mail, postage prepaid, certified mail, on the third business
day after the day on which mailed or sent, addressed to such party as follows:
To Lender: Sun Life Assurance Company
of Canada (U.S.)
One Sun Life Executive Park
Xxxxxxxxx Xxxxx, XX 00000
Attention: Xx. Xxxxxxxxx Xxxxxx
With copies to: Xxxxxxx X'Xxxxxx, Vice President
GMAC Mortgage Corporation
000 Xxxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
Xxxxxxx Xxxxxxx, Esquire
Fox, Rothschild, O'Brien & Xxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
To MCR: Xxxx-Xxxx Realty, L.P.
00 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq., Vice President and General
Counsel
With a copy to: Xxxxxxx Xxxxxxxx, Esq.
Cole, Schotz, Meisel, Xxxxxx &
Xxxxxxx
00 Xxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
or to such other address as may be furnished in writing for such purpose.
8. Lender's Costs. MCR agrees to pay on demand all costs and expenses
of Lender in connection with the preparation, execution and delivery of this
Agreement (including the fees and out of pocket costs of counsel with respect
thereto). The agreement set forth in this Section shall survive payment of the
Note.
9. Subordination, Non-Disturbance and Attornment Agreements. Subject to
the conditions set forth below, Lender shall execute Subordination,
Non-Disturbance and Attornment Agreements ("SNDA") with new tenants of the
Mortgaged Property from time to time upon written request from MCR. Each such
request shall be accompanied by a written certification from MCR confirming that
the SNDA as presented is in the form attached hereto as Exhibit C with no
changes or alterations other than completions of blanks. Lender shall use its
best efforts to execute and return an SNDA within thirty (30) days after receipt
of the completed SNDA and the certification, each of which must conform to the
requirements of the previous sentence. Lender shall have no obligation to review
or execute any SNDAs that do not conform to such requirements or are not so
certified.
10. General. This Agreement shall be governed by and construed under
the laws of the State of New Jersey. This Agreement represents the entire
agreement between the parties hereto respecting the subject matter hereof, and
neither party shall be bound by any prior discussions, proposals or oral
agreements. The parties agree that this Agreement may be amended only in a
writing signed and approved by both parties. The parties agree that each and
every provision of this Agreement has been mutually negotiated, prepared and
drafted, and each party has been represented by counsel, so that in connection
with the construction of any provision hereof, no consideration shall be given
to the issue of which party actually prepared, drafted, requested or negotiated
any provision or deletion. The headings of each Section hereof form no part of
the content hereof.
In Witness Whereof, the parties hereto have executed this Agreement on
the day and year first set forth above.
LENDER:
SUN LIFE ASSURANCE COMPANY OF CANADA
(U.S.)
By:
MCGARVEYS:
--------------------------------
Xxxx X. XxXxxxxx
--------------------------------
Xxxxxx X. XxXxxxxx
MCR:
Xxxx-Xxxx Realty, L.P.
By: Xxxx-Xxxx Realty Corporation
By: ________________________________
