EFTA00603779.pdf

Ooel 2069603'303 Pisces 14 85/13/809 2:59PS Official Records of ST PrOriSiST a.; tell.A4 0. ART SWATH ROMER OF %EDS Fees $41.58 MODIFICATION OF MORTGAGE AND THIRD MODIFICATION AGREEMENT This Third Modification Agreement ("Agreement") is entered into as of the 1st day of December, 2008 ("Effective Date'), by and among LIBERTY BANKERS LIFE LNSURANCE COMPANY, an Oklahoma life insurance company, successor by merger to AMERICAN RESERVE LIFE INSURANCE COMPANY, an Oklahoma life insurance company ("Lender"), HANS LOLLICK LAND COMPANY, LIMITED LIABILITY LIMITED PARTNERSHIP, a U. S. Virgin Islands limited liability limited partnership ("Borrower"), BRUCE RANDOLPH TIZES ("Guarantor"), PETER R. MORRIS ("Additional Guarantor"), PRM DEVELOPMENT, LLC, a Delaware limited liability company ("Pledger 1"), REARDEN CAPITAL, LLC, a U. S. Virgin Islands limited liability company (("Pledger 2"), BRUCE R. TIZES ("Pledger 3") and RICHARD P. BLUMBERG ("Pledger 4", and Borrower, Guarantor, Additional Guarantor, Pledger 1, Pledger 2, Pledger 3 and Pledger 4 are collectively referred to as "Obligors"). Recitals A. Pursuant to a Promissory Note, dated September 17, 2004 ("Note"), Lender made a loan ("than") in the principal amount of 'Three Million Seven Hundred Fifty Thousand and No/100ths Dollars ($3,750,000.00). B. The Loan was evidenced by the Note and secured by a (I) Mortgage, executed by Borrower for the benefit of Lender, dated September 17, 2004, filed September 17, 2004, recorded as Document No. 2004008258 in the Office of the Recorder of Deeds for the District of St. Thomas and St. John, United States Virgin Islands ("Mortgage') encumbering property described on Exhibit "A" attached hereto; (ii) Loan Agreement, dated September 17, 2004, by and between Borrower and Lender ("Loan Agreement"); and (iii) Profits Participation Agreement, dated September 17, 2004, by and between Lender and Borrower ("Profits Participation", and the Note, Mortgage, Loan Agreement and Profits Participation and any other documents given in connection with the Loan, including, but not limited to, the First Modification and Second Modification described below, arc collectively referred to as the "Loan Documents"). C. The Note was modified by a Loan Modification Agreement, entered into as of September 30, 2007 ("First Modification"). D. The Note was furthermodified by a Second Loan Modification Agreement, altered into as of 0 0 October 31, 2007 ("Second Modification"), which, among other things, increased the face sa amount of the Note to Four Million Six Hundred Ninety Thousand and No/100ths Dollars ro ($4,690,000.00) and changed the Maturity Date (as such temp is defined in the Note and other 6 Loan Documents) to October 31, 2009. 6 in , m E. The parties desire to further modify the than Documents, including, without limitation, the t.4 Mortgage, as more fully described below. ti)6, ta THIRD MODIFICATION AGREEMENT - Page 294013.) -ARIJC - Hans LoOck - Big Ham - 3Modl - :22.6.2 EFTA00603779 Agreements NOW THEREFORE, for and in consideration of Ten and No/ I °Cabs Dollars (S10.00), the mutual covenants described below and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. As of the Effective Date, the outstanding principal balance of the Note is $4,696,000.00 and the accrued and unpaid interest is $40,386.11. 2. The Maturity Date as such term is defined in the Note and Loan Documents is changed to December I, 2009. 3. The payment terms of the Note arc hereby amended to provide that, commencing with the December 1, 2008 monthly payment, Borrower shall only be required to pay fifty percent (50%) of the interest payment per month for a period of twelve (12) months, with the last such 50% payment due on November 1, 2009. After November 1, 2009, the fully monthly interest payments shall resume and continue until final maturity. The unpaid fifty percent (50%) of each monthly interest payment shall accrue interest at the rate often percent (10%) per annum. If the Maturity Date is not extended pursuant to the terms of this Agreement, then the unpaid principal balance of the Note, together with all accrued and unpaid interest thereon, unpaid late charges and the Exit Fee (as such term is defined in the Second Modification) shall be duc and payable on December 1, 2009. 4 Simultaneously with the execution of this Agreement, Borrower shall pay: (i) all past-due payments to Lender, (ii) all unpaid late charges to Lender; and (iii) all filing and recording fees, closing costs, title insurance premiums and Lender's legal fees related to this Third Modification Agreement. 5. The Extension of Maturity provisions as set forth in the Loan Agreement and Loan Documents, as amended by the Second Modification, are further amended to provide that, so long as no event of default has occurred under any of the Loan Documents, Borrower may extend the Maturity Date until December 1, 2010 (the "Extended Maturity Date") if Borrower: (a) requests such extension from Lender in writing at least one hundred twenty (120) days prior to the Maturity Date, (b) tenders with Borrower's request a written, agreement stating, among other things, that Borrower agrees to pay to Lender an extension fee in the amount of One Hundred Forty-Seven Thousand Four Hundred and No/100ths Dollars (S147,400.00) ("Extension Fee"), which Extension Fee shall be added to the principal amount of the Note, (c) pays all accrued and unpaid interest and any other amounts (other than principal and the unpaid 50% monthly interest amounts accruing interest at the rate of 10% per annumpursuant to Section 3, above, which shall be due and payable on the Extended Maturity Date) due as of the Maturity Date under the Note or any of the other Loan Documents, (d) pays any and all attorney's fees of Lender's counsel, loan servicing fees, filing and recording fees, title insurance premiums and closing costs incurred in connection with documenting the extension of the Maturity Date, and (e) executes such documents as THIRD MODIFICATION AGREES/ENT - Pact 2 ISsCS3J - ARLC - ?Ism LcUltk - Dip Harm - 3Mca - 2I22 6 EFTA00603780 Lender may reasonably request in order to evidence the extension of the Maturity Date and the continued effectiveness of all of the Loan Documents. 6. The Note and other Lean Documents will be additionally secured by property owned by Bearden Capital, LLC, a U. S. Virgia Islands limited liability company ("Estate Peterborg Parcel Owner"), described on Exhibit "B" attached hereto ("Estate Peterborg Parcel"). By execution of this Agreement, Obligors and Estate Peterborg Parcel Owner agree to execute any and all documents that may be required by Lender in order to perfect Lender's first list on and security interest in and to the Estate Pcterborg Parcel. Said document shall include, but not be limited to, a grant by Estate Peterborg Parcel Owner of a Mortgage to Lender on the Estate Peterborg Parcel. 7. Limited Guaranty: Simultaneously with the execution of this Agreement, Additional Guarantor hereby covenants and agrees to execute a Limited Guaranty, acceptable to Lender in form and substance, solely to secure payment of the unpaid 50% monthly interest amounts accruing interest at the rate of 10% per annum pursuant to Section 3, above. 8. Title lastatince: Simultaneously with the execution of this Agreement, Borrower shall cause Lawyers Title Insurance Corporation to issue to Lender either (1) a Loan Policy of Title Insurance, insuring the lien of Mortgage which secures the Loan as amended by this Agreement (including, but not limited to, the addition of the Estate Peterborg Parcel as additional collateral), or (ii) endorsements to Loan Policy No. G47-2523953, issued by Lawyers Title Insurance Corporation and reflecting that the terms contained in this Agreement (including, but not limited to, the addition of the Estate ?etchers Parcel) shall not constitute a defense to such loan policy, as well as such other endorsements as Leader may request. The terms and provisions of such Loan Policy of Title LIMIT pce, or endorsements thereto, including, but not limited to, the title exceptions thereto, shalt be satisfactoryto Lender. All costs and expenses relating to the issuance of such loan policy or endorsements shall be borne by Borrower. 9. This Agreement shall be deemed to have been executed and shall be performed in the State of Texas, and this Agreement and the Loan Documents shall be governed by its laws except to the extera the laws of the State or U.S. Territory in which the collateral granted under:the Loan Documents ("Collateral") are located affect enforceability of the liens granted in:the Loan Documents. Borrower irrevocably agrees that subject to Lendia's sole and absolute election, Lender may bring suit, action, or other legal proceedings arising out of the Loan Documents in courts located in Texas or the State or U. S. Territory in which the Collateral are located, whether local, state, or federal. Borrower hereby submits to the jurisdiction of such courts) and waives any right Borrower may have to request a change of venue or a removal to another court. 10. Each Obligor hereby represents and warrants that there are no offsets, claims, counterclaims or defenses which such Obligor has against payment and enthrueman of the Loan Documents, as modified herein. THIRD MODIFICATION AGREDIFANT - Pan 3 294033_1 - ARIJC - nor Lolbck - Big our - 3M - 7 I 22.62 EFTA00603781 II. Except as expressly modified and extended hereby, all terms and provisions of the Loan Documents are and shall remain unchanged, and the Loan Documents are hereby ratified and confirmed and shall be and shall remain in full force and effect. 12. Borrower hereby agrees end acknowledges that it is well, justly and truly indebted to Lender pursuant to the terms of the Loan Documents, as modified and extended hereby. Borrower hereby promises to pay to Lender or its order the Note in accordance with the terms thereof, as modified and extended hereby, and Obligors hereby agree to observe, comply with and perform all other obligations, terms and conditions under or in connection with the other Loan Documents, all as modified and extended hereby. 13. Obligors hereby acknowledge and agree that the liens and security interests of the Loan Documents, all as modified and extended hereby, are valid and subsisting liens and security interests, subject only to the exceptions set forth therein. Nothing contained herein shall affect or impair the validity or priority of the liens and security interests under any or all of the Loan Documents. 14. Any reference to the Note or any of the other Loan Documents shall mean the Note and the other Loan Documents as singularly and collectively modified and extended hereby. 15. Borrows hereby expressly acknowledges that Borrower remains one hundred percent (100%) liable for all of the indebtedness evidenced by the Note and that nothing contained herein shall be construed to amend or waive Borrower's full personal liabilityunder the Note or any of the other Loan Documents. 16. Each Obligor, by its execution of this Agreement, hereby waives any Claims (hereinafter defined), set-offs, defenses or other causes of action (whether known or unknown) which, as of the date hereof, it may have against Lender arising out of the Note and/or any or all of the other Loan Documents or otherwise. As used in this Agreement, the term "Claims" MODS any and all claims now existing or hereafter arising which could, might, or may be claimed to exist of whatever kind or name, whother known or unknown, 17. Borrower hereby agrees to pay to Lender, upon demand, title charges and other reasonable expenses incurred by Lender in connection with this Agreement. Simultaneously with the execution of this Agreement, Borrower shall pay Lender's legal fees. Borrower also agrees to provide to Lender such other documents and instruments as Lender reasonably may request in connection with the modification effected hereby. I8. The parties hereby shall execute such other documents to be filed for record as reasonably may be necessary or may be required to effect the transactions contemplated hereby and to protect the liens and security interest of the Loan Documents. 19. Notwithstanding anything to the contrary in this Agreement or in any or all of the Loan Documents, whether now existing or hereafter arising and whether written or oral, it is agreed that the aggregate of all interest and other charges constituting interest and contracted THIRD MODIFICATION AGREEMENT Pao 4 294C53_1 - ARLIC - LolLock - Big Hans - 3Ivica - 7 ] 22 62 EFTA00603782 for, chargeable or receivable under the Note or otherwise in connection thereof shall, under no circumstances, shall exceed the maximum rate of interest permitted by applicable law. In the event the maturity of the Note is accelerated by reason of an election by the holder thereof resulting from a default under the Loan Documents, or by voluntary prepayment by the maker, or otherwise, then earned interest never may include more than the maximum rate of interest permitted by applicable law. If for any circumstance any holder of the Note ever shall receive interest or any other charges constituting interest, or adjudicated as constituting interest, the amount, if any, which would exceed the maximum rate of interest permitted by applicable law shall be applied to the reduction of the principal amount owing on the Note or on account of any other principal indebtedness of the maker to the holder of the Note, and not to the payment of interest, or if such excessive interest exceeds the unpaid balance of principal thereof and such other indebtedness, the amount of such excessive interest that exceeds the unpaid balance of principal thereof and such other indebtedness shall be refunded to the maker. All sums paid or agreed to be paid to the holder of the Note for the use, forbearance or detention of the indebtedness of the maker to the holder of such Note shall be amortized, prorated, allocated and spread throughout the full term of such indebtedness until payment in full so that the actual rate on such indebtedness is uniform through the term thereof. 20. Guarantor hereby approves and accepts the changes made to the Note and the other Loan Documents pursuant to this Agreement and hereby agrees that the changes and modifications made thereby shall have no effect on its obligations under the Guaranty and shall remain, in hill force and effect, unchanged by this Agreement. 21. This Agreement shall be binding upon, and shall inure to the benefit of, the parties' respective heirs, ieprcsentadves, successors and assigns. 22. This Agreement represents the final agreement between the parties herein and may nor be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties. [Signature pages to follow] THIRD MODIFICATION AGREEMENT' • Pao 3 294051_1 — ARLtC —Ilene eoWck — Biz Has,. — 3Moct2 — 7122.62 EFTA00603783 IN WITNESS WHEREOF, the undersigned have executed this Agreement in one or more counterparts, each of which shall be deemed an original and all of which together will constituteone and the same instrument, as of the day first above written. BORROWER: HANS LOLLICK LAND COMPANY, LIMITED LIABILITY LIMITED PARTNERSHIP, a U. S. Virgin Islands limited liability limited partnership By: Rearden Capital, LLC, a U. S. Virgin Islands limited liability company, General Partner By: WIT STATE OF COUNTY OF et.:00.1 This instrument was acknowledged before me on this day of 2001, by BRUCE I fZES, Managing Member of Rearden Capital, LLC, a U. S. Virgin ands limited liability company, General Partner of MANS LOLLICK LAND COMPANY, LL /TED LIABILITY LIMITED PARTNERSHIP, a U. S. Virgin Islands limited liability limited partnership, on behalf of said partnership. roFtZIAL SEAT? DEMERETTE KEE NOTARY PUBLIC; ".37.0"E OF IWNOIS MY COMMISS'CN EX.-;RES 11-19-2009 HID MOD f F1CATTON AGREEMENT Page 6 .194c33_1 - AR 1C - Hans Lock - Hig Haas - 3Mcal2 - 7122.62 EFTA00603784 GUARANTOR/ PLEDGOR 3: STATE OF dana -"2 COUNTY OF &Le I Before me, the undersigned authority, on this day personally appeared BRUCE RANDOLPH 'EWES, known to me to be the person whose signed the foregoing instrument, and acknowledged to me that he executed the instrument for the ses therein expressed. Given under my hand and seal of office on dna day of , 200/. St PublicState of -Pc-#1427fr-a 'OFFICIAL DEMERETTE NOTARY Plate, STATE MY COMMISSION EMES41. THIRD MODIFICATION AGREF.I51EN r • Page 7 194053_1 - ARUC - II ane [cilia- His Harts- 254042 -7122.62 EFTA00603785 ADDITIONAL GUARANTOR: STATE OF clactrar COUNTY OF la Before me, the undersigned authority, on this day personally appeared PETER R. MORRIS, known to me to be the person whose signed the foregoing instrument, and acknowledged to me that he executed the instrument for the purposes therein expressed. Given under my hand and seal of office on thiagAgay ofireigci, 2002. THIRD MODIFICATION AGREEMENT - Batt I 294031_ I - ARLIC Hem Lack - Big Ha - 712162 EFTA00603786 PLEDGOR 4: WITNESSES: STATE OF talk COUNTY OF y4,561 Refire me, the undersigned authority, on this day personally appeared RICHARD P. BLUMBERG, known to me to be the person whose signed the foregoing instrument, and acknowledged to me that he executed the instrument for the purposes therein expressed. Given under my hand and seal of office on this 12:: day of Ti-ris t— , 200 j g 4f ..+•‘',:ii 4.J .4;14% -;i, 140 TA 4 ? ems,; - • : a tt IC ‘ 7 4 , 7. *Ile %/fel, 14. .10‘. . • A0 .7.7: Op. • • • • o't WAStk*,0`' ' • ; 0 MODIFICATION AGRI/MEW - Pre 9 3 "LI - ARLIC - Ram tallith - Big Kan - 3Mactl -7172.0 Notary Public, State of AM EFTA00603787 ESTATE PF.TERBORG PARCEL OWNER/ PLEDGOR 2: REARDEN CAPITAL, LLC, a U. S. Virgin Islands limited liability company By: WITNESSES: ce Tizes, Managing Member STATE OF § COUNTY OF &a § This instrument was acknowledged before me tia this o'ficaday of BRUCE TIZES, Managing Member of REARDEN CAPITAL, LLC, a U. S liability company, on behalf of said company. THIRD MODIFICATION AGFIEFIMENT - Pagt 294053 I ARL1C - Her Lolhck B18 Has - 3Mail - 7122.62 Notary Public, State of 'OF/laLS DEW- 771-E KEE NOTARY ATE OF ILLwas wvridISSC:c Ei,xp•I q, 7 I 49-2039 , 2001_, by irgin Islands limited EFTA00603788 PLEDGOR 1: PRM DEVELOPMENT, LLC, a Delaware limited liability company By: By: WITNESSES: STATE OF Zaagfro t COUNTY OF gn% PRM Management of Illinois, Inc., an Illinois co don, Manager / Peter R. Morris, President This instrument instrument was acknowledged before me on day of 200Z, by PETER R. MORRIS, President of PRM Management of Illinois, Inc., an mi ois corporation, the Manager of PRIM DEVELOPMENT, LLC, a Delaware limited liability company, on bobalfofsaid company. THIRD MODIFICATION AGREEMENT - Papp; II 294037i - Hans LpIlick - Big Hans - 3McatI2 - 7 I 2.162 of y Public, State of [.......... 160iCIAC'SEAL° DEMERETTE KEE NOTARY PU91.1C, STATE Cf 'LUNGS MY cr..),AMSS;M: aPAES 11.19-2009 EFTA00603789 LENDER: LIBERTY BANKERS LIFE INSURANCE COMPANY, an Oklahoma life insurance company, successor by merger to AMERICAN RESERVE LIFE INSURANCE COMPANY, an Oklahoma life insurance company By: WITNESSES: c io STATE OF TEXAS COUNTY OF DALLAS This instrument was acknowledged before me on thiS 1/4"day o r 1, 200c% Bradford A. Phillips, CEO/Prcsidimt ofLIBERTY BANKERS LIFE INSURANCECOMPANY, an Oklahoma life insurance company, successor by merger to AMERICAN RESERVE LIFE INSURANCE COMPANY, an Oklahoma life insurance company, on be of sai •mpany. Klotiry of Texas BradfolA. Phil s, CEO/President Docil 2009003303 I Pain 14 t5/11/2935 2.:59Pt Official Records of ST IttOltilS/ST ;OW YEN 0. WERT S4ITl1 REatifft Cf DrIsr'S Fees 441.59 JENNIFER FARTECial No:arY Pubir:,Ste.to ot Texas My Cornmitor E2xpeas 0clocer05,2011 --aNNESPalsraunra•rtaancammenle• THIRD MODIFICATION MIREEMESI - Par 12 294053_i - ARUC - Hew Loath - 91 Harm - 364(052 - 7122.62 0 re S EFTA00603790 85/11/28€19 2:SIPS Cfficial Records of THOIRS/ST JUIIS WILM O. HART BATH REMOOFDEEDS EXHIBIT "A" Big Hans Lollik Island, also known as Great Hans Lollik Island No. 10 Great Northside Quarter St. Thomas, U. S. Virgin Islands 0 EeE£e06o0Z THIRD MODIFICATION AGREEMENT Page U 2Q4053_: - ARIJC - Ham fnpfck - Big Ham - 3Mod2 - 7122 62 EFTA00603791 43/13/2A89 Official Recot-di of ST THOPMSIST JOHN HMO 0. KIT SMITH RECORDER OF DEEDS EXHIBIT "B" Parcel No. 11-59 Estate Peterborg No. 12 Great Northside Quarter St. Thomas, Virgin Islands As shown on PWD No. A9-370-T89 THIRD MODIFICATION AGREEMENT Page 74 294C33_1 - ARLIC - Huy Lc,ak - Big Hans - 364011- 7122.62 EFTA00603792