EX-10 12 ex10-49b.txt EX10-49B.TXT Exhibit 10.49b Section: 004.00 Block: 02.00 Lots: 003.000 and 004.000 ================================================================================ Dated as of June 30, 2004 MORTGAGE MODIFICATION AGREEMENT between RD BRANCH ASSOCIATES, L.P., a New York limited partnership, Mortgagor, and FLEET NATIONAL BANK, as Administrative Agent for Lenders (as hereinafter defined) (together with its successors in such capacity, "Mortgagee") This instrument affects real and personal property situated at 126 East Main Street, Smithtown, New York 11787. ================================================================================ RECORD AND RETURN TO: Schiff Hardin LLP 623 Fifth Avenue, 28th Floor New York, New York 10022 Attention: Paul G. Mackey, Esq. MORTGAGE MODIFICATION AGREEMENT MORTGAGE MODIFICATION AGREEMENT dated this 30th day of June, 2004 between RD BRANCH ASSOCIATES, L.P. ("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 Leasehold 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 maximum principal amount which is or under any contingency may be secured by the Mortgage prior to the effect of this Mortgage Modification Agreement is $15,000,000, plus interest thereon and all additional interest and late payment and prepayment charges in respect thereof, plus all amounts expended by Mortgagee following a default thereunder in respect of insurance premiums and real estate taxes, and all legal costs or expenses of collection of the note(s) secured thereby or of the defense or prosecution of the rights and lien created thereby; WHEREAS, Mortgagee, Mortgagor, RD Abington Associates Limited Partnership ("Abington 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 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 and not otherwise defined shall have the meanings attributed to them in the Amended and Restated Loan Agreement. 2. Anything to the contrary contained herein notwithstanding, the maximum principal amount which is or under any contingency may be secured by the Mortgage is $15,000,000.00, plus interest thereon and all additional interest and late payment and prepayment charges in respect thereof, plus all amounts expended by Mortgagee following a default thereunder in respect of insurance premiums and real estate taxes, and all legal costs or expenses of collection of the note(s) secured thereby or of the defense or prosecution of the rights and lien created thereby. 3. Mortgagor hereby certifies that the Original Mortgage, as modified by this Agreement, secures the same portion of the indebtedness evidenced by the Original Note which is secured by the Original Mortgage, as modified hereby, and secures no new or further indebtedness. 4. Mortgagor represents and warrants that there exist no defenses, offsets or counterclaims with respect to its obligations under the Original Mortgage, as modified hereby, or under the Note. 5. Except as modified hereby the Original Mortgage remains unmodified and in full force and effect. 6. The terms and provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their heirs, representatives, successors and assigns. 7. This Agreement and the rights and obligations of the parties hereto shall in all respects be governed by, and construed and enforced in accordance with, the laws of the State of New York (without giving effect to New York's choice of law principles). 8. This Agreement may be executed in multiple counterparts, each of which shall constitute an original and together which shall constitute but one and the same instrument. 9. The information set forth on the cover hereof is incorporated herein. [Remainder of page intentionally left blank] 2 IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by each of the parties hereto as of the day and year first above written. RD BRANCH ASSOCIATES, L.P., a New York limited partnership By: Acadia Property Holdings, LLC, its general partner By: Acadia Realty Limited Partnership, a Delaware limited partnership, its sole member By: Acadia Realty Trust, a Maryland real estate investment trust, its general partner By ------------------------- Robert Masters Senior Vice President FLEET NATIONAL BANK, as Administrative Agent By ------------------------------------ Denise M. Smyth Vice President The undersigned joins in the execution and authorizes the delivery of this Mortgage Modification Agreement for the purpose of confirming and reaffirming its acceptance and agreement to the provisions of paragraph 3.17 of the Original Mortgage. ACADIA REALTY LIMITED PARTNERSHIP By: Acadia Realty Trust, its general partner By --------------------------------- Robert Masters Senior Vice President STATE OF NEW YORK ) : ss.: COUNTY OF NEW YORK ) On the 30th day of June in the year 2004, before me, the undersigned, a notary public in and for said state, personally appeared Robert Masters, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. ---------------------------------------- Notary Public My Commission Expires: ------------------------------ STATE OF NEW YORK ) : ss.: COUNTY OF NEW YORK ) On the 30th day of June in the year 2004, before me, the undersigned, a notary public in and for said state, personally appeared Denise M. Smyth, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. ---------------------------------------- Notary Public My Commission Expires: ------------------------------ SCHEDULE A