RECORD AND RETURN TO: CROSS-REFERENCE TO: Holt, Ney, Zatcoff & Wasserman, LLP Deed Book 48485, Page 74 100 Galleria Parkway Deed Book 48835, Page 217 Suite 600 Deed Book 49606, Page 272 Atlanta, Georgia 30339-5947 Deed Book 50136, Page 609
Exhibit 10.1
RECORD AND RETURN TO:
|
CROSS-REFERENCE TO: | |
Xxxxxxxxx X. Xxxxx
|
Deed Book 47335, Page 0739 | |
Holt, Ney, Zatcoff & Xxxxxxxxx, LLP
|
Deed Book 48485, Page 74 | |
000 Xxxxxxxx Xxxxxxx
|
Deed Book 48835, Page 217 | |
Suite 600
|
Deed Book 49606, Page 272 | |
Xxxxxxx, Xxxxxxx 00000-0000
|
Deed Book 50136, Page 609 |
Note to Clerk of Court: This agreement, which is entered into at the indulgence of the
creditor, amends, renews and extends a note evidencing short-term indebtedness and the security
instrument securing such note. All principal of the note as amended, renewed and extended by this
agreement is due within three (3) years from the date of this agreement. Accordingly, no
intangible recording tax is due in connection with the recording of this agreement. See O.C.G.A.
§ 48-6-65(a) and Intangible Recording Tax Rules/Regulations 560-11-8-.03(4), 560-11-8-.03(4)(b),
560-11-8-.03(4)(c) and 560-11-8-.04.
($8,175,000 Loan)
THIS FIFTH CONSOLIDATED AMENDATORY AGREEMENT (this “Agreement”) made and entered into as of
the 23rd day of June, 2011 (the “Effective Date”), by and among XXXXXXX PROPERTIES RESIDENTIAL,
L.P., a Georgia limited partnership (hereinafter referred to as “Borrower”), XXXXXXX REALTY
INVESTORS, INC., a Georgia corporation (hereinafter referred to as “Guarantor”) and XXXXX FARGO
BANK, N.A., a national banking association, successor by merger to Wachovia Bank, National
Association (hereinafter referred to as “Lender”).
W I T N E S S E T H:
WHEREAS, Borrower has heretofore executed and delivered to Lender that certain Promissory Note
dated as of December 6, 2006, in the face amount of EIGHT MILLION ONE HUNDRED SEVENTY-FIVE THOUSAND
AND NO/100 DOLLARS ($8,175,000.00) with interest thereon (hereinafter referred to as the “Note”);
and
WHEREAS, Guarantor has heretofore executed and delivered to Lender that certain Guaranty
Agreement dated December 6, 2006 (herein referred to as the “Guaranty”), which guarantees the full
and prompt payment and performance of all obligations of Borrower under the Note, the Security Deed
(as defined below), the Property Rights Assignment (as defined below), that certain Deed to Secure
Debt and Assignment of Rents dated April 28, 2008 from Borrower to Lender, recorded in Deed Book
46751, Page 654, Xxxxxx County, Georgia records (as
amended, the “Xxxxxx Security Deed”) and all other documents evidencing, securing or pertaining to
the Note (collectively the “Loan Documents”) and all other indebtedness of Borrower to Lender; and
WHEREAS, Borrower has heretofore executed and delivered to Lender that certain Deed to Secure
Debt and Assignment of Rents dated as of December 6, 2006, recorded in Deed Book 47355, page 0739,
Records of the Clerk of Superior Court of Gwinnett County, Georgia (herein referred to as the
“Security Deed”) for the purpose of securing the payment of the indebtedness evidenced by the Note
and any and all other indebtedness of Borrower to Lender; and
WHEREAS, Borrower has heretofore executed and delivered to Lender that certain Assignment of
Permits, Licenses, Sewer and Water Rights, Agreements, Approvals, Fees and Deposits dated as of
December 6, 2006 (herein referred to as the “Property Rights Assignment “) for the purpose of
further securing the payment of the indebtedness evidenced by the Note and any and all other
indebtedness of Borrower to Lender; and
WHEREAS, the parties hereto did amend the Note, the Security Deed, and the other Loan
Documents by First Consolidated Amendatory Agreement dated as of December 6, 2007, recorded in Deed
Book 48485, page 74, aforesaid records (the “First Amendment”); and
WHEREAS, the parties hereto did amend the Note, the Security Deed, and the other Loan
Documents by Second Consolidated Amendatory Agreement and Agreement Regarding Cross-Default and
Cross-Collateralization of Loans dated as of April 28, 2008, but effective as of March 31, 2008,
recorded in Deed Book 48835, Page 217, aforesaid records (the “Second Amendment”); and
WHEREAS, the parties hereto did amend the Note, the Security Deed, and the other Loan
Documents by Third Consolidated Amendatory Agreement dated as of July 17, 2009, recorded in Deed
Book 49606, Page 272, aforesaid records (the “Third Amendment”); and
WHEREAS, the parties hereto did amend the Note, the Security Deed, and the other Loan
Documents by Fourth Consolidated Amendatory Agreement dated as of June 21, 2010, recorded in Deed
Book 50136, Page 609, aforesaid records (the “Fourth Amendment”; as used in this Agreement, the
terms “Note”, “Security Deed”, “Property Rights Assignment”, “Guaranty” and “Loan Documents” means
each of such documents as amended by the First Amendment, the Second Amendment, the Third Amendment
and the Fourth Amendment); and
WHEREAS, Borrower has asked Lender to extend the term of the Note and to amend the Note, the
Security Deed, the Property Rights Assignment and the other Loan Documents accordingly (and to
provide for other terms and conditions); and
WHEREAS, Lender desires that Guarantor acknowledge and consent to the foregoing and the
modification of the documents described herein and that Guarantor ratify and confirm its obligation
as a guarantor of Borrower’s obligations and liabilities under the Note and the other Loan
Documents.
2
NOW THEREFORE, for and in consideration of the premises and the sum of TEN AND NO/100 DOLLARS
($10.00) in hand paid, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties hereto, Borrower, Guarantor and Lender hereby agree as
follows:
1. Acknowledgment and Modification of Note.
| 1.1 | Borrower acknowledges that the loan evidenced by the Note (the
“Loan”) has been fully funded and that the amount of the Loan remaining to be
disbursed is $0.00. Borrower further acknowledges that as of the date of this
Agreement the outstanding principal balance of the Note is Eight Million One
Hundred Seventy-Five Thousand and 00/100 Dollars ($8,175,000.00). |
| 1.2 | Borrower acknowledges that the maturity date of the Note is
July 31, 2011. Borrower and Lender have agreed that the maturity date of the
Note is extended to July 31, 2012. In consideration for this extension,
Borrower is herewith paying to Lender a fully earned, non-refundable loan
extension fee in the amount of $20,437.50. |
| 1.3 | For the period from and after the Effective Date, the eighth
paragraphs on the first page of the Note entitled REPAYMENT TERMS shall be
restated in its entirety to read as follows: |
REPAYMENT TERMS. This Note shall be due and payable in
consecutive monthly payments of accrued interest only,
commencing on July 6, 2011, and continuing on the same day of
each month thereafter (each, a “Payment Date”) until fully
paid. In any event, all principal and accrued interest shall
be due and payable on July 31, 2012.”
| 1.4 | The Note may be prepaid at any time, in whole or in part,
without penalty or premium. |
| 1.5 | Except as specifically modified and amended, all of the terms,
conditions and provisions of the Note shall remain in full force and effect. |
2. Modification of Security Deed. The Security Deed is hereby modified and amended as
follows:
| 2.1 | All references in the Security Deed to July 31, 2011 as the
maturity date of the Note are hereby deleted and substituted in lieu thereof
shall be the date July 31, 2012. |
| 2.2 | Except as specifically modified and amended, all of the terms,
conditions and provisions of the Security Deed shall remain in full force and
effect. |
3
3. Modification of Loan Documents. The Loan Documents are hereby modified and amended
as follows:
| 3.1 | The terms “Note” and “Security Deed”, as such terms may be used
in the Loan Documents, shall mean the Note or the Security Deed as modified and
amended hereby. |
| 3.2 | The Loan Documents are hereby further amended by substituting
for the Lender’s address for notices wherever such address appears the
following address: “Xxxxx Fargo Bank, National Association, Middle Market Real
Estate, 0000 Xxxxxxx Xxxxxxx, Xxxxx 000, Mail Code G0185-060, Xxxxxxx, Xxxxxxx
00000, Attention: Xxxxx X. Xxxxxx.” |
| 3.3 | Except as specifically modified and amended, all of the terms,
conditions and provisions of the Loan Documents shall remain in full force and
effect. |
4. Modification of Guaranty. The Guaranty is hereby modified and amended as follows:
| 4.1 | The terms “Note” and “Loan Documents” as such terms may be used
in the Guaranty shall mean the Note and the Loan Documents, as modified and
amended hereby. |
| 4.2 | Except as specifically modified and amended, all of the terms,
conditions and provisions of the Guaranty shall remain in full force and
effect. |
| 4.3 | The Loan Documents are hereby further amended by substituting
for the Lender’s address for notices wherever such address appears the
following address: “Xxxxx Fargo Bank, National Association, Middle Markets Real
Estate, 0000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attention:
Xxxxx X. Xxxxxx.” |
5. Limitations on Transfers Involving Borrower and Guarantor. Borrower and Guarantor
hereby acknowledge and agree that notwithstanding anything to the contrary contained in the
Guaranty, the Security Deed, or the other Loan Documents, Lender may, in its sole discretion,
declare the Obligations (as defined in the Security Deed) immediately due and payable if at any
time prior to final repayment of the Obligations, (i) Guarantor ceases to be the sole general
partner of Borrower or (ii) if a sale or transfer of a majority or controlling interest of the
partnership interests or corporate stock of Borrower or Guarantor occurs (whether in one
transaction or a series of transactions).
4
6. Reporting Requirements. From the date of this Agreement, in addition to any other
financial statements or reports required pursuant to the Loan Documents, Borrower and Guarantor
will provide to Lender the following information:
| a. | Financial statements, including a balance sheet, income
statement, current debt summary, statement of cash flow and supporting
schedules, and supplementary supporting financial data on Guarantor’s
portfolio, for the Borrower and Guarantor, annually, within 90 days of the end
of the fiscal year, certified as being true and correct in all material
respects; |
||
| b. | Upon request by Lender, annual tax returns for Guarantor; and |
||
| c. | Such other information as Lender may reasonably require. |
7. Subordinate Financing. Borrower covenants with Lender that, notwithstanding
anything to the contrary contained in the Loan Documents, until the Loan is repaid in full it will
not create, place or permit to be created or placed, or through any act or failure to act,
acquiesce in the placing of, or allow to remain, any mortgage, deed to secure debt, deed of trust,
pledge, lien (statutory, constitutional or contractual), security interest, encumbrance or charge
on, or conditional sale or other title retention agreement, with respect to the property described
in the Security Deed or the property described in the Xxxxxx Security Deed (said properties
collectively referred to herein as the “Property”) except for the liens created by the Loan
Documents.
8. Interest Reserve Account. In connection with and as a condition precedent to the
closing of the modification of the Loan contemplated by this Agreement, Borrower shall deposit Four
Hundred Eight Thousand Seven Hundred Fifty and 00/100 Dollars ($408,750.00) in the Interest Reserve
Account (as defined in the Third Amendment). Such funds, together with the funds described in
Section 9 below, shall be held, disbursed and otherwise dealt with pursuant to Section 7 of the
Third Amendment and Section 9 below. The “Interest Reserve Account” shall henceforth also be known
as the “Interest and Tax Reserve Account”.
9. Tax Reserve. In connection with the closing of the modification of the Loan
contemplated by this Agreement and, as a condition precedent to the effectiveness of this
Agreement, Borrower is depositing Fifty Thousand and No/100 Dollars ($50,000.00) in the Interest
and Tax Reserve Account. Borrower will use such funds solely to pay the real estate taxes,
assessments and charges against the Property as said taxes come due. Borrower will submit to
Lender an invoice evidencing the amount of any payment for real estate taxes, assessments or
charges due with respect to the Property and the purpose of such payment not less than ten (10)
business days prior to date such real estate taxes, assessments or charges are due. Upon Lender’s
written consent, Borrower may withdraw funds from the Interest and Tax Reserve Account to be used
solely for payment of such taxes, assessments, charges, or, in its sole discretion, Lender may use
funds from the Interest and Tax Reserve Account to pay the applicable taxing authority directly.
Borrower will pay prior to any delinquency date thereof all real estate taxes, assessments and
charges against the Property regardless of the timing or amount of funds in the Interest and Tax
Reserve Account, and it is understood and agreed that Borrower shall be obligated to pay, from its
own funds, all real estate taxes, assessments and charges against the Property in the event that
the assessed amounts of such taxes or charges exceed the amount available in the Interest and Tax
Reserve Account. All interest earned on the funds deposited in the Interest and Tax Reserve
Account shall become part of Borrower’s deposit. Borrower agrees that it shall include all
interest and
5
earnings
on any such deposit as its income (and, if Borrower is a partnership or other pass-through entity, the income of its partners,
members or beneficiaries, as the case may be), and shall be the owner of all funds on deposit in
the Interest and Tax Reserve Account for federal and applicable state and local tax purposes.
Lender shall have the exclusive right to manage and control all funds in the Interest and Tax
Reserve Account, and Borrower shall not have any right to withdraw funds from the Interest and Tax
Reserve Account without Lender’s consent, which may be withheld in Lender’s sole and complete
discretion. Lender shall have no fiduciary duty with respect to such funds and will not be liable
to Borrower for any expense, claim, loss, damage or cost (“Damages”) arising out of or relating to
its holding of any funds held in the Interest and Tax Reserve Account other than those Damages
which result directly from its Lender’s gross negligence or willful misconduct. Any account fees
and charges may be deducted from the balance, if any, in the Interest and Tax Reserve Account.
Borrower has previously granted, and does hereby grant, to Lender a security interest in the
Interest and Tax Reserve Account and all such funds deposited at any time into such deposit
account, and any proceeds thereof, as security for the Obligations (as defined in the Security
Deed). Such security interest shall be governed by the Uniform Commercial Code of the State of
Georgia, and Lender shall have available to it all of the rights and remedies available to a
secured party thereunder. The Interest and Tax Reserve Account may be established and held in such
name or names as Lender shall deem appropriate, including in the name of Lender. Borrower hereby
constitutes and appoints Lender and any officer or agent of Lender its true and lawful
attorneys-in-fact with full power of substitution to open the Interest and Tax Reserve Account and
to do any and every act that Borrower might do on its own behalf to fulfill the terms of this
Section 9. Borrower hereby ratifies all that said attorneys shall lawfully do or cause to be done
by virtue hereof. It is understood and agreed that this power of attorney, which shall be deemed
to be a power coupled with an interest, cannot be revoked.
10. Acknowledgement and Representations. To induce Lender to execute, deliver and
perform this Agreement, Borrower and Guarantor acknowledge, represent and warrant to Lender (a)
that the Note and other Loan Documents, as amended hereby, are in full force and effect and
constitute valid and enforceable obligations of Borrower and Guarantor, as of this date, free from
any defenses, set-off, claims, counterclaims or causes of action of any kind or nature whatsoever
by Borrower against Lender or any of Lender’s directors, officers, employees, agents or attorneys;
(b) that, after giving effect to this modification, no Default (as defined in the Security Deed) or
event that with the passage of time or giving of notice would constitute a Default under the Loan
Documents has occurred; (c) that all representations and warranties contained in the Loan Documents
are true and correct in all material respects as of this date, all necessary action to authorize
the execution and delivery of this Agreement and the other documents executed in connection with
the modification of the Loan (collectively, the “Loan Modification Documents”) have been taken, and
this Agreement is a modification of an existing obligation and is not a novation; (d) that this
Agreement is not being made or entered into with the actual intent to hinder, delay or defraud any
entity or person, and after giving effect to the indebtedness and obligations, direct and
contingent, represented by the Loan Documents, as amended by this Agreement and the other Loan
Modification Documents, and the consummation of the transactions contemplated thereby and hereby,
and Borrower and Guarantor are able to, and anticipate that they will be able to, meet their debts
as they mature and have adequate capital to conduct the business in which they are or propose to be
6
engaged;
(e) that the financial statements of Borrower and Guarantor delivered to Lender in connection herewith are true, correct and
complete in all material respects, have been prepared in accordance with sound accounting
principles consistently applied, fairly present the respective financial conditions of the subjects
thereof as of the respective dates thereof, and to the best of Borrower’s and Guarantor’s
knowledge, there has been no material change of Borrower’s or Guarantor’s financial condition from
the financial condition of Borrower or Guarantor (as the case may be) indicated in such financial
statements; (f) no action or proceeding, including, without limitation, a voluntary or involuntary
petition in bankruptcy under any chapter of the Federal Bankruptcy Code or an attempt to take
advantage of any other debtor relief law, has been instituted or threatened by or against Borrower
or Guarantor; (g) the execution, delivery and performance by Borrower and Guarantor of their
obligations under this Agreement and the other Loan Modification Documents will not violate or
result in a breach or constitute a default under any agreements to which Borrower or Guarantor is a
party, under any organizational or governing documents, or under any law, regulation or order or
decree of any court or other governmental instrumentality; (h) the Note, as amended by this
Agreement, is not subject to any credits, charges, claims or rights of offset or deduction of any
kind or character whatsoever; and (i) this Agreement and the other Loan Modification Documents
constitute the legal, valid and binding obligations of Borrower and Guarantor enforceable in
accordance with their terms, free from any defenses and claims of offset.
11. Ratification by Borrower. Borrower ratifies and affirms all of its obligations
under the Note, the Security Deed, the Property Rights Assignment and the other Loan Documents, as
modified and amended by this Agreement and the other Loan Modification Documents.
12. Ratification and Consent by Guarantor. Guarantor hereby (i) ratifies and affirms
all its obligations under the Guaranty; (ii) acknowledges, represents and warrants that its
Guaranty constitutes the valid and enforceable obligation of Guarantor, as of this date, free from
any defenses and claims of offset; and (iii) consents to the execution by Borrower of the
modification and amendment of the Note, Security Deed, the Property Rights Assignment and Loan
Documents as set forth herein.
13. Binding Agreement. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, successors and assigns.
14. Entire Agreement. This Agreement constitutes the entire understanding and
agreement of the parties hereto with respect to the modification and amendment of the Note,
Security Deed and Loan Documents and supersedes all prior agreements, understandings or
negotiations with respect thereto.
15. Georgia Law; Time. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Georgia. Time is of the essence of this Agreement.
7
16. No Novation. Borrower, Lender and Guarantor hereby agree that this Agreement is
not, and shall not be construed as, a novation of the Note or Security Deed, or the other Loan
Documents.
17. No Setoffs or Defenses; Release.
(a) Borrower and Guarantor, for themselves and their respective partners, shareholders,
officers, members, directors, and for their respective heirs, personal representatives, successors
and assigns (collectively, the “Releasors”), acknowledge, agree and represent to Lender that none
of them has any setoff, defense, claim or counterclaim under or with respect to the Loan Documents.
(b) Borrower and Guarantor, for themselves and the other Releasors, for and in consideration
of the sum of Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are herby acknowledged, hereby fully release and discharge Lender,
its affiliates, subsidiaries and parent corporations, the respective partners, officers, directors,
shareholders, agents and employees of each of the foregoing, and their successors and assigns
(collectively, the “Released Parties”), of and from any and all claims, counterclaims, defenses,
setoffs, demands, actions, causes of action and damages that Borrower, Guarantor or any other
Releasor may have had, may now have or may hereafter have against any one or more of the Released
Parties arising under, by reason of, or in connection with any conduct, course of dealing,
statement, act or omission on the part of any of the Released Parties that arose, occurred or
accrued at any time prior to and through the time of delivery of this Agreement, including without
limitation any such conduct, course of dealing, statement, act or omission related to (i) any of
the Loan Documents, (ii) any of the indebtedness or obligations evidenced or secured thereby, or
(iii) the administration or funding of the indebtedness or obligations evidenced or secured by the
Note or other Loan Documents.
18. Renewal and Extension; Intangible Recording Tax. This Agreement, which is entered
into at the indulgence of Lender, amends, renews and extends the Note, which is a note evidencing
short-term indebtedness, and the Security Deed, which secures the Note. The Note originally
evidenced short-term indebtedness, so no intangible recording tax was due or paid when the Security
Deed was recorded. The Note and the Security Deed have been previously amended, renewed and
extended by written agreement at the indulgence of Lender, and in connection with each such
agreement all principal of the Note as amended, renewed and extended by such agreement has been due
within three (3) years from the date of such agreement. Accordingly, no intangible recording tax
has been due or paid in connection with any such agreement. All principal of the Note as amended,
renewed and extended by this Agreement is due within three years from the date of this Agreement.
For the foregoing reasons, no intangible recording tax is due in connection with the recording of
this Agreement. See O.C.G.A. § 48-6-65(a) and Intangible Recording Tax Rules/Regulations
560-11-8-.03(4), 560-11-8-.03(4)(b), 560-11-8-.03(4)(c) and 560-11-8-.04.
8
19. Miscellaneous. Time is of the essence of this Agreement and all of the terms and
provisions hereof. This Agreement shall be construed in accordance with and governed by the laws
of the applicable state as originally provided in the Loan Documents, without reference to that
state’s conflicts of law principles. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, successors and assigns. This Agreement
and the other Loan Documents constitute the sole agreement of the parties with
respect to the subject matter thereof and supersede all oral negotiations and prior writings
with respect to the subject matter thereof. No amendment of this Agreement, and no waiver of any
one or more of the provisions hereof shall be effective unless set forth in writing and signed by
the parties hereto. The illegality, unenforceability or inconsistency of any provision of this
Agreement shall not in any way affect or impair the legality, enforceability or consistency of the
remaining provisions of this Agreement or the other Loan Documents, as amended hereby. This
Agreement may be executed in any number of counterparts and by the different parties on separate
counterparts. Each such counterpart shall be deemed an original, but all such counterparts shall
together constitute one and the same agreement. LIMITATION ON LIABILITY; WAIVER OF PUNITIVE
DAMAGES. EACH OF THE PARTIES HERETO, INCLUDING LENDER BY ACCEPTANCE HEREOF, AGREES THAT IN ANY
JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY CLAIM OR CONTROVERSY BETWEEN OR AMONG THEM
THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE LOAN MODIFICATION
DOCUMENTS, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR AMONG THEM OR THE
OBLIGATIONS EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENT SHALL ANY PARTY HAVE A REMEDY OF, OR BE
LIABLE TO THE OTHER FOR, (1) INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR (2) PUNITIVE OR
EXEMPLARY DAMAGES. EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO PUNITIVE OR
EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN THE FUTURE IN CONNECTION WITH ANY SUCH
PROCEEDING, CLAIM OR CONTROVERSY, WHETHER THE SAME IS RESOLVED BY ARBITRATION, MEDIATION,
JUDICIALLY OR OTHERWISE. FINAL AGREEMENT. This Agreement and the other Loan Documents, as amended
hereby, represent the final agreement between the parties and may not be contradicted by evidence
of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral
agreements between the parties. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF BORROWER BY EXECUTION HEREOF AND LENDER BY ACCEPTANCE HEREOF, KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE LOAN DOCUMENTS OR ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONNECTION WITH THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT HERETO. THIS
PROVISION IS A MATERIAL INDUCEMENT TO LENDER TO ENTER INTO THIS AGREEMENT. EACH OF THE PARTIES
AGREES THAT THE TERMS HEREOF SHALL SUPERSEDE AND REPLACE ANY PRIOR AGREEMENT RELATED TO ARBITRATION
OF DISPUTES BETWEEN THE PARTIES CONTAINED IN ANY LOAN DOCUMENT OR ANY OTHER DOCUMENT OR AGREEMENT
HERETOFORE EXECUTED IN CONNECTION WITH, RELATED TO OR BEING REPLACED, SUPPLEMENTED, EXTENDED OR
MODIFIED BY, THIS AGREEMENT.
[Signatures commence on following page]
9
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed under seal as
of the date first above written.
| Signed, sealed and delivered | “BORROWER” | |||||
| in the presence of: | ||||||
| XXXXXXX PROPERTIES RESIDENTIAL, | ||||||
| /s/ Xxxxxxx Xxxxxx | L.P., a Georgia limited partnership | |||||
| Witness | ||||||
| By: | Xxxxxxx Realty Investors, Inc., a | |||||
| Georgia corporation, its general partner | ||||||
/s/ Xxxxxxxxx Xxxxxxxx
|
By: | /s/ Xxxxxxx X. Xxxxxxx | ||||
Notary Public
|
Name: Xxxxxxx X. Xxxxxxx | |||||
| Title: President and CEO | ||||||
My commission expires:
|
||||||
(NOTARIAL SEAL) |
||||||
[Signatures continued on following page]
10
| Signed, sealed and delivered | “GUARANTOR” | |||||
| in the presence of: | ||||||
| XXXXXXX REALTY INVESTORS, INC., a | ||||||
| Georgia corporation | ||||||
/s/ Xxxxxxx Xxxxxx
|
By: | /s/ Xxxxxxx X. Xxxxxxx
|
||||
| Title: President and CEO | ||||||
/s/ Xxxxxxxxx Xxxxxxxx
|
||||||
My commission expires:
|
(CORPORATE SEAL) | |||||
(NOTARIAL SEAL) |
||||||
[Signatures continued on following page]
11
| Signed, sealed and delivered | “LENDER” | |||||
in the presence of: |
||||||
| XXXXX FARGO BANK, N.A., a national | ||||||
| /s/ Xxxxx Xxxxxxxx | banking association, successor by merger | |||||
Witness |
to Wachovia Bank, National Association | |||||
/s/ Xxxxxx XxXxxxxxxx
|
By: | /s/ Xxxxx X. Xxxxxx
|
||||
| Vice President | ||||||
My commission expires:
|
(BANK SEAL) | |||||
(NOTARIAL SEAL)
|
||||||
12
