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Exhibit 10.49d
THE MORTGAGE MODIFIED HEREBY IS AN OPEN-END
MORTGAGE AND SECURES FUTURE ADVANCES
(All notices to be given to Mortgagee
pursuant to 42 Pa. C.S.A. Section 8143
shall be given as set forth in Section 4.2
of this Mortgage.)
Pennsylvania
Tax Parcel Identification Nos.
Abington Towne Center
30-00-49884-00-9
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Date: As of June 30, 2004
MORTGAGE MODIFICATION AGREEMENT
FROM
RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP,
a Delaware limited partnership
("Mortgagor")
Address of Mortgagor: c/o Acadia Realty
Trust
20 Soundview Marketplace
Port Washington, New York 11050
TO
FLEET NATIONAL BANK, as
Administrative Agent for Lenders (as hereinafter defined)
(together with its successors in such capacity, "Mortgagee")
Address of Mortgagee: 1185 Avenue of the
Americas, 16th Floor
New York, New York 10036
Mortgage Amount: $45,900,000
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RECORD AND RETURN TO:
Schiff Hardin LLP
623 Fifth Avenue, 28th Floor
New York, New York 10022
Attention: Paul G. Mackey, Esq.
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MORTGAGE MODIFICATION AGREEMENT
MORTGAGE MODIFICATION AGREEMENT dated this 30th day of June,
2004 between RD ABINGTON ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited
partnership ("Mortgagor") and FLEET
NATIONAL BANK, as Administrative Agent
("Mortgagee").
W I T N E S S E T H:
WHEREAS, Mortgagee is now the lawful owner and holder of the
note (collectively, the "Original Note")
secured by that certain Mortgage,
Assignment of Leases and Rents and Security
Agreement from Mortgagor to
Mortgagee dated as of December 28, 2001 and
recorded in the Office of the
Suffolk County Clerk, New York on January
14, 2002 in Liber M00020006 at page
819 (the "Original Mortgage");
WHEREAS, the mortgage amount of the Mortgage prior to the
effect
of this Mortgage Modification Agreement is
$23,000,000;
WHEREAS, Mortgagee, Mortgagor, RD Branch Associates, L.P.
("Branch Mortgagor"), RD Methuen Associates
Limited Partnership ("Methuen
Mortgagor"), Heathcote Associates, L.P.
("Gateway Mortgagor") and Acadia Town
Line, LLC ("Town Line Mortgagor") have
entered into that certain Amended and
Restated Term Loan Agreement dated as of
the date hereof (the "Amended and
Restated Loan Agreement"), which Amended
and Restated Loan Agreement
consolidates the Original Note with certain
other notes and amends, extends and
restates the terms thereof in their
entirety;
WHEREAS, the Mortgage is a first priority mortgage encumbering
the property described on SCHEDULE A
attached hereto and made a part hereof (the
"Premises");
WHEREAS, Mortgagor is the lawful owner of the Premises; and
WHEREAS, Mortgagee and Mortgagor have agreed to modify the
terms
of the Mortgage in the manner hereinafter
set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein expressed, the parties
hereto covenant and agree as follows:
1. As used in
the Original Mortgage, the term "Loan
Agreement" shall mean the Amended and
Restated Loan Agreement, as the same may
be modified, amended or supplemented from
time to time and the term "Loan Note"
shall mean the "Note" as defined in the
Amended and Restated Loan Agreement.
Capitalized terms used in the Original
Mortgage as modified hereby and not
otherwise defined shall have the meanings
attributed to them in the Amended and
Restated Loan Agreement.
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2. The definition
of the term "Mortgage Amount" in the
Original Mortgage is hereby changed to
$45,900,000 such that the principal
amount secured by the Original Mortgage as
modified hereby is increased to
$45,900,000 or so much thereof as is
advanced and outstanding pursuant to the
terms of the Amended and Restated Loan
Agreement.
3. The
original Mortgage, as modified hereby (this
"Mortgage"), is an "Open-End Mortgage" as
set forth in 42 Pa. C.S.A. Section
8143 and secures obligations up to a
maximum amount of principal indebtedness
outstanding at any time of $91,800,000,
plus accrued and unpaid interest and
other sums thereon, including, but not
limited to, Additional Interest,
advances, whenever made, for the payment of
taxes, assessments, maintenance
charges, insurance premiums, costs incurred
for the protection of the Premises
or the lien of this Mortgage, expenses
incurred by Mortgagee by reason of any
default by Mortgagor under this Mortgage,
including, without limitation, legal
fees and costs incurred by Mortgagee in
connection therewith, and advances for
alteration or renovation on the Premises,
together with all other sums due
hereunder or under the Note or the Loan
Agreement and other Loan Documents (as
defined in the Loan Agreement) or secured
hereby.
4. Without
limiting the effectiveness of each provision of
the Original Mortgage, as modified hereby,
Section 3.22 of the Original Mortgage
is restated below and Mortgagor has set
forth its initials immediately below
such Section for the purposes of
specifically reaffirming the provisions
thereof:
"Section 3.22. CONFESSION OF JUDGMENT. THE FOLLOWING SECTION
SETS FORTH WARRANTS OF ATTORNEY FOR ANY ATTORNEY TO CONFESS
JUDGMENTS
AGAINST MORTGAGOR. IN GRANTING THESE WARRANTS OF ATTORNEY TO
CONFESS
JUDGMENTS AGAINST MORTGAGOR, MORTGAGOR HEREBY KNOWINGLY,
INTENTIONALLY,
VOLUNTARILY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS MORTGAGOR
MAY
HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE
RESPECTIVE
CONSTITUTIONS AND LAWS OF THE COMMONWEALTH OF PENNSYLVANIA AND
THE
UNITED STATES OF AMERICA.
FOR THE PURPOSES OF OBTAINING POSSESSION OF THE MORTGAGED
PROPERTY, OR ANY PORTION(S) THEREOF, AFTER THE OCCURRENCE OF AN
EVENT OF
DEFAULT, MORTGAGOR HEREBY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF
ANY
COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE,
AS
ATTORNEY FOR MORTGAGOR AND ALL PERSONS CLAIMING UNDER OR
THROUGH
MORTGAGOR, BY COMPLAINT OR OTHERWISE, TO APPEAR FOR AND ENTER
AND
CONFESS JUDGMENT AGAINST MORTGAGOR, AND AGAINST ALL PERSONS
CLAIMING
UNDER OR THROUGH MORTGAGOR, IN FAVOR OF MORTGAGEE, FOR
2
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RECOVERY BY MORTGAGEE OF POSSESSION OF THE MORTGAGED PROPERTY, OR
ANY
PORTION(S) THEREOF, FOR WHICH THIS MORTGAGE, OR A COPY THEREOF
VERIFIED
BY AFFIDAVIT, SHALL BE A SUFFICIENT WARRANT; AND THEREUPON A WRIT
OF
POSSESSION MAY IMMEDIATELY ISSUE FOR POSSESSION OF THE
MORTGAGED
PROPERTY, OR SUCH PORTION(S) THEREOF, WITHOUT ANY PRIOR WRIT OR
PROCEEDING WHATSOEVER AND WITHOUT ANY STAY OF EXECUTION. IF FOR
ANY
REASON AFTER SUCH ACTION HAS BEEN COMMENCED IT SHALL BE
DISCONTINUED, OR
POSSESSION OF THE MORTGAGED PROPERTY, OR SUCH PORTION(S) THEREOF,
SHALL
REMAIN IN OR BE RESTORED TO MORTGAGOR, MORTGAGEE SHALL HAVE THE
RIGHT
FOR THE SAME EVENT OF DEFAULT OR ANY SUBSEQUENT EVENT OF DEFAULT
TO
BRING ONE OR MORE FURTHER ACTIONS OR ENTER AND CONFESS JUDGMENT ONE
OR
MORE TIMES AS ABOVE PROVIDED TO RECOVER POSSESSION OF THE
MORTGAGED
PROPERTY, OR ANY PORTION(S) THEREOF. MORTGAGEE MAY BRING AN ACTION
IN
EJECTMENT AND CONFESS JUDGMENT THEREIN BEFORE OR AFTER THE
INSTITUTION
OF PROCEEDINGS TO FORECLOSE THIS MORTGAGE OR TO ENFORCE THE NOTE,
OR
AFTER ENTRY OF JUDGMENT THEREIN OR ON THE NOTE, OR AFTER A
SHERIFF'S
SALE OR JUDICIAL SALE OR OTHER FORECLOSURE SALE OF THE
MORTGAGED
PROPERTY, OR ANY PORTION(S) THEREOF, IN WHICH MORTGAGEE IS THE
SUCCESSFUL BIDDER, IT BEING THE UNDERSTANDING OF THE PARTIES THAT
THE
AUTHORIZATION TO PURSUE SUCH PROCEEDINGS FOR OBTAINING POSSESSION
AND
CONFESSION OF JUDGMENT THEREIN IS AN ESSENTIAL PART OF THE REMEDIES
FOR
ENFORCEMENT OF THIS MORTGAGE AND THE NOTE, THE LOAN AGREEMENT AND
OTHER
LOAN DOCUMENTS, AND SHALL SURVIVE ANY EXECUTION SALE TO
MORTGAGEE.
MORTGAGOR (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF MORTGAGEE HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH
PARTY WOULD NOT SEEK TO EXERCISE OR ENFORCE THE FOREGOING
PROVISIONS
CONCERNING CONFESSION OF JUDGMENTS AND (II) ACKNOWLEDGES THAT
THE
ENTERING INTO BY MORTGAGEE OF THE LOAN SECURED BY THIS MORTGAGE HAS
BEEN
INDUCED BY, AMONG OTHER THINGS, THE INCLUSION HEREIN OF SAID
PROVISIONS.
MORTGAGOR FURTHER ACKNOWLEDGES THAT IT HAS HAD THE ASSISTANCE
OF
INDEPENDENT LEGAL COUNSEL, SELECTED OF MORTGAGOR'S OWN FREE WILL,
IN THE
REVIEW AND EXECUTION OF THIS MORTGAGE AND IN THE MAKING OF SAID
PROVISIONS, THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS SAID
PROVISIONS
WITH SAID COUNSEL AND THAT THE MEANING AND EFFECT THEREOF HAVE
BEEN
FULLY EXPLAINED TO MORTGAGOR
3
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BY SUCH COUNSEL, AND AS EVIDENCE OF SUCH FACT AN AUTHORIZED OFFICER
OF
MORTGAGOR SIGNS HIS/HER INITIALS.
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(initials)
5. Mortgagor
re
