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Home My WebLink AboutC2009-591 - 11/17/2009 - NA3 When Recorded, Retum To: Shackelford, Melton & McKinley, LLP Attn: John C. Shackelford 3333 Lee Parkway, Tenth Floor Dallas, Texas 75219 MODIFICATION AGREEMENT THIS MODIFICATION AGREEMENT {the "Modification"} is entered into effective this ~~day of November, 2009 {the "Effectiv_e Date', by and between Corpus Christi Community Improvement Corporation, a Texas nonprofit corporation {"Lender"} and TX LULAC West Park Housing, L.P., a Texas limited partnership ("Borrower"). RECITALS: CCCIC A. Lender is the sole owner and holder of that one certain Real Estate Lien Nate #A (the "Nate") dated October 3I, 2007, executed by Borrower and payable to the order of Lender in the stated principal amount of $334,124.00. B. The Note is secured by, among other things, a Deed of Trust ("Mort~a~e"}, dated of even date with the Note, executed by Borrower to Lender, filed for record in the Real Property Records of Nueces County, Texas, under File Number 200705712$, covering certain real property located in said county as more particularly described in Exhibit "A" attached hereto (the "Property"). The Note, Mortgage, and all other documents evidencing or securing the Note, and all modifications described below are hereafter collectively referred to as the "Loan Documents." C. Borrower has requested that Lender modify certain provisions of the Note, all as hereinafter provided, and in consideration thereof Borrower has xrxade certain agreements with Lender as hereinafter more fully set forth. D. Lender has agreed to such requests, subj ect to the terms, provisions and conditions set forth herein. All undefined terms in this Modification shall have the meaning subscribed to such term in the Note. NOW, THEREFORE, for and in consideration of Ten Dollars {$10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed, Borrower and Lender hereby agree as follows: 1. Acknowledgment of Outstanding Balance. The parties hereto acknowledge and agree that the unpaid principal balance of the Note as of the Effective Date is $334,124.00. 2. Modi acation o Amount o Note. The Note is hereby modified to increase the principal amni3n4 of {ha 11~n}P -E'rnm $334,124.00 to $634,124.00 (the "Revised Amount"}. 2009-591 11/17/09 AND MODIFICATION AGREEMENT SAGE i -11TemplXPgrpwiselModification Agreement.c[ean2_Ldoc jj e~~~ 3. Modi rcation o Tertns o Pa went Prtnci al and Interest .The principal and interest due and owing under the Note shall be due and payable and only to the extent of Net Cash Flow {as defined below), as follows: (a} Commencing on December 31, 2009 and continuing on the same day of each month thereafter through and including October 31, 2037 monthly installments of principal and interest shall be due and payable in an amount suff dent to fully amortize the then unpaid principal balance hereof together with interest to accrue, as provided for in the Note, as modified, over a term of thirty (30) years, commencing on the date of October 31, 2007 and ending on the date which is thirty (30) years thereafter. In the event that Maker is unable to make said payments of principal and interest due to the unavailability of Net Cash Flow, all principal and interest payments not made shall be due and payable on maturity date herein; said payments shall be capitalized and added to the outstanding principal balance of the Note and shall accrue interest at the rate of the greater of Five (5) and 501100ths percent (5.50%) per annum or the AFR as of October 31, 2007; provided, however, Maker's failure to make a payment under the Note due to lack of Net Cash Flow shall not constitute a Default under the Nate or any other Loan Document, {b) Net Cash Flow shall be defined herein as the excess of Cash Receipts (which shall mean, all cash receipts of Maker from whatever source derived) including, without limitation, cash from operations, any amounts attributable to constzuction or development savings, interest earned on and released from reserves held by or for the benefit of the Project andlor the Maker, and net insurance recoveries (other than the proceeds from title insurance recoveries and other than condemnation or casualty proceeds} (in addition, the net reduction in any year in the amount of any escrow account or reserve maintained by or for Maker shall be considered a cash receipt of Maker far such year) aver Cash Expenditures, (which shall mean, all disbursements of cash during the year, including, without limitation, payment of operating expenses), but excluding amounts paid from reserves established in a prior year. In addition, the net increase during the year in any escrow account or reserve maintained by or for Maker shall be considered Cash Expenditure during the year. Cash Expenditure shall not include expenses incurred in connection with a Capital Transaction. Net Cash Flow shall be determined separately for each fiscal year or portion thereof. (c) Notwithstanding the foregoing, the entire principal balance of the Note, together' with all unpaid, accrued interest thereon, shall be due and payable in full on October 31, 2037 (the "Maturity Date"). 4. U_ sure. No provisions of this Modification or the Loan Documents shall require the payment or permit the collection, application or receipt of interest in excess of the maximum permitted by applicable state or federal law. If any excess of interest in such respect is herein or in any such other instrument provided for, or shall be adjudicated to be so provided for herein or in any such instrument, the provisions of this paragraph shall govern, and neither Borrower nor any endorsers of the Note nor their respective successors, assigns or personal representatives shall be obligated to pay the amount of such interest to the extent it is in excess of the amount permitted by applicable law. It is expressly stipulated and agreed to be the intent of Borrower and Lender to at all times comply with the usury and other laws relating to the Loan Documents and any subsequent revisions, repeals or judicial interpretations thereof, to the extent applicable thereto. In the event RENEWAL, EXTENSION AND MODIFICATION AGREEMENT PAGE 2 C:IDOCUME--IIELIZA&-11LOCALS--11TemplXPgrpwiselModification Agreement.clean2_l.doc Lender or other holder of the Note ever receives, collects or applies as interest any such excess, such amount which would be excessive interest shall be applied to the reduction of the unpaid principal balance of the Note and, if upon such application the principal balance of the Note is paid in full, any remaining excess shall be forthwith paid to Borrower and the provisions of the Loan Documents shall immediately be deemed reformed and the amounts thereafter collectible thereunder reduced, without the necessity of execution of any new document, so as to comply with the then applicable law, but so as to permit the recovery of the fullest amount otherwise called for thereunder. lrl determining whethex or not the interest paid ar payable under any specific contingency exceeds the maximum interest allowed to be charged by applicable law, Borrower and Lender or other holder hereof shall, to the maximum extent permitted under applicable law, amortize, prorate, allocate and spread the total amount of interest throughout the entire term of the Note so that the amount or rate of interest charged for any and all periods of time during the term of the Note is to the greatest extent possible Iess than the maximum amount or rate of interest allowed to be charged by law during the relevant period of time. Notwithstanding any of the foregoing, if at any time applicable laws shall be changed so as to permit a higher rate or amount of interest to be charged than that permitted prior to such change, then unless prohibited by law, references in the Note to "applicable law" for purposes of determining the maximum interest or rate of interest that can be charged shall be deemed to refer to such applicable law as so amended to allow the greater amount or rate of interest. 5 . No Release a f Liens. This Modification in no way acts as a release or relinquishment of the liens, security interests and rights {the "Liens"} created or evidenced by the Mortgage and the other Loan Documents. The Liens are hereby ratified and confirmed by Borrower in all respects and are extended to secure {i} the principal amount of the Nate, (ii) all interest, charges and other sums payable with respect thereto, and {iii) the performance of all other obligations under the Mortgage and the other Loan Documents. 6. Miscellaneous. (a) As modified hereby, the provisions of the Note, the Mortgage and the Loan Documents shall continue in full force and effect, and Borrower acknowledges and reaffirms its liability to Lender thereunder. In the event of any inconsistency between this Modification and the terms of the Loan Documents, this Modif cation shall govern. J (b} Any default by Borrower in the performance of its obligations herein contained shall constitute a default under the Loan Documents and shall allow Lender to exercise all of its rights and remedies set forth in the Loan Documents. (c) In case any of the provisions of this Modif cation shall for any reason be held to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any otklex provision hereof, and this Modification shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. {d} This Modification and the Loan Documents shall be governed and construed according to the laws of the State of Texas (without regard to any conflict of laws principles) and the applicable laws of the United States. RENEWAL, EXTENSION AND MODIFICATION AGREEMENT PAGE 3 C:IDOCUME--IIELIZAB--IILOCALS~11TemplXPgrpwisellvfodifcation Agreement.clean2_].doc (e) This Modification shall be binding upon and inure to the benefit of Lender, Borrower and their respective successors, assigns and legal representatives. (f) This Modification may be executed in multiple counterparts, each of which shall constitute an original instrument, but all of which shall constitute one and the same agreement. [signature Page Follows] RENEWAL, EXTENSION AND MODIFICATION AGREEMENT PAGE 4 C:IDOCUME--IIELIZAB~IILOCALS--11TemplXPgrpwiselModification Agreement.clean2_].doc BORROWER: TX LULAC WEST PARK HOUSING, L,P a Texas limited partnership By: TX LULAC West Park Development, L.L.C., a Texas limited liability company, its general partner Narrre.~ ~ ~'/~_~~ Tirtle: ~~ ~~s~ ACKNOWLEDGEMENT THE STATE OF TEXAS COUNTY OF ~~ ~ e ~ s This instrument was acknowledged before me on the day of November, 2009, by .~.,,, n,r~ iV1~,.~,•- of TX LULAC West Park Development, L.L.C., Texas limited liability company, as general partner of TX LULAC West Paris Housing, L.P., a Texas limited partnership, on behalf of partnershi Notary ublic in and for the State s ~.~p;;rn'y8a, NOf~MI PEREZ ~ ~-a','L.~' ~~• r~ Printed Name: ~a-~--°~. Notary Public, Stata of Texas 4~;. •~.,~ My Commission Expires Seal] %:;;;;,;; ° June 2C+, 2010 RENEWAL, EXTENSION AND MODIFICATION AGREEMENT PAGE 5 C:1boCUME~-11ELIZAB~IILOCALB~[1TemplXPgrpwiselModification Agreement.ciean2_].doc LENDER: ~.~~. r~utsiils;r~. s~~~~~r~~.: THE STATE OF TEXAS COUNTY OF "~' i~ S CORPUS CHRISTI COMMUNITY IMPROVEMENT CORPORATION, a Texas nonprofit corporation By. -.~. Name: ~ ~..1 cQ.1a- (Y1 fPry'~°i`1.1~. Z Title: ~!"~~i~+~~ ~ ACKNOWLEDGEMENT This instrument was acknowledged before me on the ~ day of r.~~~~e 2009, by of Corpus Christi Community Improvement Corporation, a Texas nonprofit corporation, on behalf of said corporation. ~,~, Notary Public in and for the State of Texas ~Y AFB ~ TAMERA l.. R1~.EY Printed Name: ''1-~rn ~~r,.~,- 1-~- ~i ~ ~~ }rrplf.... ..,. i''4 f " ~atary Public [Seal] `_• ~ s' ~ 5TATE OF TEXAS ~~ra ~~'*+Po~~:~y{ My Camm. Exp. 45-26.2412 RENEWAL, EXTENSION AND MODIFICATION AGREEMENT PAGE 6 C:1QOCi1ME~11EL{~AB~IILOCALS--11TemplXFgrpwiselModification Agreement.clean2_1.doc EXHIBIT "A" TO MODIFICATION AGREEMENT Legal Description Lot 3, Riverview Estates, being 10.223 acres, more or less, as shown by the map or plat of record filed Volume 35, Page 74, of the Map Records of Nueces County, Texas, and in the official real property deed records of Nueces County, Texas, and commonly known by its street address of 10702 Interstate Highway 37, Corpus Christi, Nueces County, Texas. RENEWAL, EXTENSION AND MODIFICATION AGREEMENT PAGE 7 C:IDOCUME~IIELIZAB~IILOCALS--11TemplXPgrpwiselModification Agreement.clean2_l.doc