REAL ESTATE NOTE
----------------
August 6, 1987 Atlanta, Georgia
FOR VALUE RECEIVED, the undersigned, WEST STEWARTS MILL
ASSOCIATES, LTD., a Georgia limited partnership whose sole general partner
is Xxxxxxx X. Xxxxxx (hereinafter referred to as "Maker"), promises to pay
to the order of CONFEDERATION LIFE INSURANCE COMPANY, a mutual insurance
company incorporated in Canada (hereinafter referred to as "Payee"; Payee,
and any subsequent holder(s) hereof, are hereinafter referred to
collectively as "Holder"), without grace, at the office of Standard
Mortgage Company, 0000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000, or at such
other place as Holder may designate to Maker in writing from time to time,
the principal sum of THREE MILLION SEVEN HUNDRED TWENTY-FIVE THOUSAND AND
NO/100 DOLLARS ($3,725,000.00), together with interest thereon at the rate
of nine and seven-eighths percent (9.875%) per annum (hereinafter referred
to as the "Interest Rate") in lawful money of the United States of America.
Payments of principal and interest are to be made in consecutive monthly
installments of THIRTY-TWO THOUSAND THREE HUNDRED FORTY-SIX AND NO/100
DOLLARS ($32,346.00) each (such payments being based on a 30-year
amortization schedule), beginning on the first day of October, 1987, and
continuing on the same day of each succeeding month thereafter up to and
including the first day of September, 2001 (hereinafter referred to as the
"Final Maturity Date"). The outstanding principal balance of this Note and
all accrued interest thereon shall be due and payable on the Final Maturity
Date. Interest accruing from and including the date hereof through and
including August 31, 1987, shall be due and payable on the date hereof.
Interest on this Note shall be computed on a 360-day-per-year basis times
the actual number of days outstanding. The Interest Rate expressed in
simple interest terms as of the date hereof is nine and seven eighths
percent (9.875%) per annum.
Maker further agrees as follows:
1. Interest Adjustment.
-------------------
Holder shall have the right to adjust the Interest Rate
commencing on September 1, 1994 (hereinafter referred to as the "Early
Maturity Date") as follows:
(a) Holder shall deliver to Maker a notice in the manner
described for notices in the hereinafter defined Security Deed not less
than ninety (90) days nor more than one hundred twenty (120) days prior to
the Early Maturity Date (hereinafter referred to as the "Adjustment
Notice") which notice shall specify a rate of interest (hereinafter
referred to as the "Adjusted Interest Rate") other than the Interest Rate
specified above, which shall be effective as of the Early Maturity Date,
and the new monthly payments (hereinafter referred to as "Adjusted Monthly
Payments") to be due and payable as a result of such Adjusted Interest
Rate. The Adjusted Interest Rate shall be Holder's then-current seven (7)
year term rate for similar quality neighborhood retail center loans.
(b) Holder and Maker shall, within sixty (60) days after receipt
of the Adjustment Notice by Maker, enter into an amendment to this Note, in
form and content satisfactory to Holder, setting forth the Adjusted
Interest Rate and the Adjusted Monthly Payments.
If the Adjustment Notice has been timely made by Holder and if
the event described in clause (b) immediately above has not been timely
accomplished, then Holder, at its option and without notice, may declare
the amount of the total unpaid balance hereof to be due and forthwith
payable, whereupon it shall be so due and payable.
In the event Holder does not elect to adjust the interest rate
upon the Early Maturity Date, this Note shall continue and remain in full
force and effect upon all other terms stated therein.
Notwithstanding paragraph 2 below and provided no default exists
under the terms of this Note, the Security Deed or any other Loan Documents
(as hereinafter defined) and whether or not Holder delivers the Adjustment
Notice described above, the Maker may prepay on the Early Maturity Date the
entire balance of principal and interest then remaining unpaid hereon
without premium or penalty, and provided, further, that the Maker notifies
the Holder of its intent to prepay this Note on the Early Maturity Date by
written notice delivered to Holder not less than sixty (60) days nor more
than ninety (90) days prior to the Early Maturity Date.
2. Prepayment.
----------
Except as provided in paragraph 1 above and in this paragraph 2,
the Maker shall have no right to prepay this Note, in whole or in part,
voluntarily or involuntarily (including, specifically, as a result of
foreclosure) during the term of this Note. Provided no default exists
under the terms of this Note, the Security Deed or any other Loan
Documents, the Maker may prepay the entire unpaid principal balance of this
Note at any time upon giving the Holder written notice of its intent to
prepay, delivered to Holder not less than sixty (60) days prior to the
intended date of prepayment. In the event the Maker so elects to prepay
this Note, then in addition to the prepaid principal and all accrued
interest thereon and all other sums which may be due Holder under the
Security Deed or any other Loan Document, the Maker shall pay a premium
(hereinafter referred to as the "Prepayment Premium") if, at the time of
said prepayment, the "Treasury Yield" (as hereinafter defined) is less than
the then-effective annual yield hereunder, in order to provide the Holder
with a yield equal to the yield provided for herein until the Early
Maturity Date, if such prepayment occurs prior to the Early Maturity Date,
or the Final Maturity Date, if such prepayment occurs after the Early
Maturity Date. The Prepayment Premium shall be determined as follows: the
outstanding principal balance due hereunder (including accrued interest) at
the time of prepayment shall be multiplied by the "Monthly Interest Payment
Differential" (as hereinafter defined), which is then discounted at the
Treasury Yield over the number of months then remaining until the Early
Maturity Date or Final Maturity Date, as the case may be. The "Monthly
Interest Payment Differential" equals one-twelfth (1/12) of the amount (if
any) by which the effective annual interest rate set forth herein at such
time (as adjusted, if applicable) exceeds the Treasury Yield for the period
of time that most nearly equals the period of time until the Early Maturity
Date, if prepayment occurs prior to the Early Maturity Date, or the Final
Maturity Date, if prepayment occurs after the Early Maturity Date.
"Treasury Yield" shall mean the yield in percent per annum of the Treasury
Constant Maturities for the length of time specified in this Note as
published in document H.15(519) (presently published by the Board of
Governors of the Federal Reserve System titled "Federal Reserve Statistical
Release") for the calendar week immediately preceding the calendar week in
which the prepayment occurs. If the yield of the Treasury Constant
Maturities for the calendar week in question is not published on or before
the business day preceding the date the Treasury Yield in question is to
become effective, then the Treasury Yield shall be based upon the yield of
the Treasury Constant Maturities for the length of time specified in this
Note for the most recent calendar week for which such publication has
occurred. If no yield for Treasury Constant Maturities is published for
the specific length of time specified in this Note, the Treasury Yield for
such length of time shall be the weighted average of the yields of the
Treasury Constant Maturities most nearly corresponding to the length of the
applicable period specified in this Note. If the publishing of the yield
of Treasury Constant Maturities is ever discontinued, then the Treasury
Yield shall be based upon the index which is published by the Board of
Governors of the Federal Reserve System in replacement thereof or, if no
such replacement index is published, the index which, in Holder's
reasonable determination, most nearly corresponds to the yield of the
Treasury Constant Maturities. Exhibit "A" to this Note, attached hereto
and made a part hereof, is an example of the calculation of the Prepayment
Premium.
No Prepayment Premium will be applicable to any amount paid on
the Early Maturity Date (if in accord with the foregoing provisions of this
Note) or the Final Maturity Date; provided, however, in the event Holder in
accordance with Paragraph 5 below, accelerates the maturity date of any
installment of principal and/or interest upon the occurrence of an event of
default hereunder or under the Security Deed or any other Loan Document, a
Prepayment Premium shall be due and payable.
No prepayment penalty will be applicable to any payments received
by Xxxxxx from (a) proceeds of casualty insurance, (b) condemnation
proceeds or (c) proceeds paid to Holder pursuant to the terms of that
certain $285,000.00 Escrow Agreement of even date among Maker, Payee and
Chicago Title Insurance Company that are applied by Holder to payment of
any part of the loan evidenced hereby.
3. Excess Interest.
In no event shall the amount of interest due or payable hereunder
exceed the maximum rate of interest allowed by applicable law, and in the
event any such payment is inadvertently paid by Maker or inadvertently
received by Xxxxxx, then such excess sum shall be credited as a payment of
principal, unless the Maker shall notify the Holder, in writing, that the
Maker elects to have such excess sum returned to it forthwith. It is the
express intent hereof that the Maker not pay and the Holder not receive,
directly or indirectly in any manner whatsoever, interest in excess of that
which may be legally paid by the Maker under applicable law.
4. Late Charges, Default Interest.
In the event that any payment of principal and/or interest is not
made when due, as herein provided, then all principal, including the past-
due principal and interest, shall bear interest at the greater of (i) the
highest lawful rate or (ii) if there is no such rate, then a rate of five
percent (5%) above the Interest Rate or Adjusted Interest Rate, whichever
is then in effect, until paid.
In the event any installment required to be paid by the terms of
this Note is not paid in full when due to the Holder of this Note, the
Holder, at its option and without the waiver on its part of any other
rights, privileges and options it may have or be entitled to by the terms
of this Note or any instrument given to ensure payment of same, but in lieu
of interest at the default rate specified therein, may collect from Maker a
late charge to cover the extra expenses in handling delinquent payments,
which late charge shall be the greater of an amount equal to 5% of the
installment required to be paid or $1,000.00.
5. Acceleration.
The Holder shall have the optional right to declare the amount of
the total unpaid balance hereof to be due and forthwith payable in advance
of the maturity date of any installment of principal and/or interest, as
fixed herein, upon the failure of the Maker to pay, when due, any one of
the installments of principal and/or interest hereon, or upon the
occurrence of any event of default, or failure to perform in accordance
with any of the terms and conditions in the Security Deed, or any other
instrument securing this Note or relating hereto.
6. Application of Payments.
Each payment when paid shall be applied first to the payment of
interest accrued on the unpaid principal, next to expenses reimbursable to
Holder and the residue thereof shall be credited on the principal.
7. Exculpation and Limitation.
Notwithstanding anything to the contrary in this Note, in the
Security Deed or in any other Loan Document, the Holder expressly agrees
that the personal liability of the Maker under this Note, under the
Security Deed and under the other Loan Documents shall be strictly and
absolutely limited to the Premises, as that term is defined in the Security
Deed, and the leases, rents, profits and issues thereof and any other
collateral securing the indebtedness evidenced hereby except as limited in
this Note.
Without regard to and notwithstanding any contrary provision in
this Note, Maker shall be fully and personally liable for:
(a) Its failure to comply completely and on a timely basis with
any covenant or warranty contained in the Loan Documents relating to
security deposits;
(b) Any rents (i) collected by the Maker during any period in
which Maker is in default under the loan evidenced hereby after Maker
receives written notice of such default from Holder and (ii) not applied by
Maker to the payment of legitimate expenses of owning, operating and
maintaining the property owed to third parties unrelated to Maker.
8. Presentation and Demand.
Presentment for payment, demand, protest and notice of demand,
protest and non-payment and all other notices are hereby waived by Maker.
No failure to accelerate the debt evidenced hereby by reason of default
hereunder, acceptance of a past due installment or indulgences granted from
time to time shall be construed (i) as a novation of this Note or as a
waiver of such right of acceleration or of the right of Holder thereafter
to insist upon strict compliance with the terms of this Note, or (ii) to
prevent the exercise of such right of acceleration or any other right
granted hereunder or by the laws of the State of Georgia; and Maker nereby
expressly waives the benefit of any statute or rule of law or equity now
provided, or which may hereafter be provided, which would produce a result
contrary to or in conflict with the foregoing. No extension of the time
for the payment of this Note or any installment due hereunder, made by
agreement with any person now or hereafter liable for the payment of this
Note, shall operate to release, discharge, modify, change or affect the
original liability of Maker under this Note, either in whole or in part,
unless Xxxxxx agrees otherwise in writing. This Note may not be changed
orally, but only by an agreement in writing signed by the party against
whom enforcement of any waiver, change, modification or discharge is
sought.
9. Waiver.
Maker hereby waives and renounces for itself, its heirs,
successors and assigns, all rights to the benefit of any statute of
limitations and any moratorium, reinstatement, marshalling, forbearance,
valuation, stay, extension, redemption, appraisement, exemption and
homestead now provided, or which may hereafter be provided by the
Constitution and laws of the United States of America and of any state
thereof, both as to itself and in and to all of its property, real and
personal, against the enforcement and collection of the obligations
evidenced by this Note. Maker hereby transfers, conveys and assigns to
Holder a sufficient amount of such homestead or exemption as may be set
apart in bankruptcy, to pay this Note in full, with all costs of
collection, and does hereby direct any trustee in bankruptcy having
possession of such homestead or exemption to deliver to Holder a sufficient
amount of property or money set apart as exempt to pay the indebtedness
evidenced hereby, or any renewal thereof, and does hereby appoint Holder
the attorney-in-fact for Maker to claim any and all homestead exemptions
allowed by law.
10. Loan Documents.
The indebtedness evidenced by this Note and the obligations
created hereby are secured by that certain Deed to Secure Debt and Security
Agreement ("Security Deed") (together with all other documents evidencing
or securing or in any way relating to the indebtedness evidenced hereby,
herein referred to collectively as the "Loan Documents") entered into this
day between Maker and Payee concerning property located in Xxxxxxx County,
Georgia; some of which Loan Documents are to be filed for record on or
about the date hereof in the appropriate public records.
11. Notices.
Any notices required or permitted hereunder must be served in the
manner prescribed in the Security Deed.
12. Applicable Law.
This Note is intended as a contract under and shall be construed
and enforceable in accordance with the laws of the State of Georgia.
13. Successors and Assigns.
As used herein, the terms "Maker" and "Holder" shall be deemed to
include their respective heirs, successors, legal representatives and
assigns, whether by voluntary action of the parties or by operation of law.
In the event that more than one person, firm or entity is a Maker
hereunder, then all references to "Maker" shall be deemed to refer equally
to each of said persons, firms, or entities, all of whom shall be jointly
and severally liable for all of the obligations of Maker hereunder.
14. Terminology. Titles of paragraphs are for convenience only
and neither limit nor amplify the provisions of this Note.
15. Time of Essence. Time is of the essence of this Note.
16. Right to Notice and Cure. Notwithstanding anthing contained
herein to the contrary, in the event Maker fails to make any payment of
principal or interest required hereunder, or upon any payment of principal
or interest required hereunder, or upon the occurrence of any default or
Event of Default under any of the Loan Documents, Holder shall not be
entitled to accelerate the indebteness evidenced hereby or exercise any
other right or remedy hereunder or under the Loan Documents until Holder
has given notice of such default or Event of Default to Maker and a right
to cure as prescribed in the Security Deed. As used in the preceding
sentence, the term "cure" shall include not only payment of the principal
and interest due, but also the payment of any additional interest or late
charges which may be due under this Note or under the Loan Documents
because of late payment.
IN WITNESS WHEREOF, Xxxxx has executed this Note under seal on
the date first above written.
MAKER:
WEST STEWARTS MILL ASSOCIATES, LTD., a
Georgia limited partnership by its sole
general partner
By:/s/ Xxxxxxx X. Xxxxxx (SEAL)
-------------------------
Xxxxxxx X. Xxxxxx
EXHIBIT "A"
-----------
Example of calculation of Prepayment Premium:
Assume (1) $1,000,000 loan at 10%, 30 year amortization, 5 year term
(2) At end of 3 years borrower exercises option to prepay
subject to the "Prepayment Premium" (i.e. 2 years to go to
maturity date).
(3) Loan balance at end of 3 years equals $981,505
(4) Treasury Yield at end of 3 years as per H.15 (519) equals
8.25% for 2 years.
Prepayment Premium = (Loan balance x Monthly Interest Differential)
discounted at the Treasury Yield rate over the time
period
(A) Monthly Interest Differential:
Mortgage Rate = 10.00%
Treasury Yield = 8.25%
Annual Interest Differential 1.75%
divided by 12 =
Monthly Interest Differential = 0.145833% = 0.00145833
(B) Loan Balance x Monthly Interest Differential =
$981,505 x .00145833 = $1,431.36
(C) $1,431.36 per month discounted at 8.25% p.a. (0.6875% per month) over
24 months = $31,568.50
Therefore, Prepayment Premium equals $31,568.50
THIS IS A SAMPLE CALCULATION ONLY.
FIRST AMENDMENT TO REAL ESTATE NOTE
-----------------------------------
THIS FIRST AMENDMENT, made and entered into this 27th day of
November, 1987, by and between WEST STEWARTS MILL ASSOCIATES, LTD., a
Georgia limited partnership (hereinafter referred to as "Borrower"), and
CONFEDERATION LIFE INSURANCE COMPANY, a mutual insurance company
incorporated in Canada (hereinafter referred to as "Lender"),
W I T N E S S E T H:
WHEREAS, on August 6, 1987, Xxxxxxxx and Xxxxxx entered into that
certain Real Estate Note (hereinafter referred to as the "Note");
WHEREAS, Xxxxxxxx has requested, and Xxxxxx has agreed, to change
the due date of monthly installments of principal and interest payable
under the Note; and
WHEREAS, simultaneously with delivery of this First Amendment,
Xxxxxxxx has paid to Xxxxxx accrued interest under the Note for the period
commencing on December 1, 1987, and ending on December 10, 1987.
NOW, THEREFORE, for and in consideration of the sum of Ten and
No/100 Dollars ($10.00), each paid to the other, and other good and
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. The "Final Maturity Date", as that term is defined in the
Note, is changed from the first day of September, 2001, to
the tenth day of September, 2001. In addition, the "Early
Maturity Date", as that term is defined in the Note, is
changed from the first day of September, 1994, to the tenth
day of September, 1994.
2. The monthly installment of principal and interest stated in
the Note to be due on the first of December, 1987, shall
instead be due on the tenth of December, 1987, and monthly
installments of principal and interest shall be due on the
same day of each succeeding month thereafter up to and
including the 10th day of September, 2001.
3. Except as specifically amended by Paragraphs 1 and 2 above,
all other terms and conditions of the Note shall remain in
full force and effect. Borrower and Lender ratify and
confirm the terms of the Note as amended hereby.
IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have executed this First
Amendment to Real Estate Note, under seal, as of the day and year first
above written.
BORROWER
WEST STEWARTS MILL ASSOCIATES, LTD., a
Georgia limited partnership
By:/s/ Xxxxxxx X. Xxxxxx (SEAL)
--------------------
Xxxxxxx X. Xxxxxx,
General Partner
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
LENDER
CONFEDERATION LIFE INSURANCE COMPANY, a
mutual insurance company incorporated in
Canada
By:/s/ Xxxxxxx X.X. Hunter By:/s/ X.X. Xxxxxx
---------------------------- --------------------------
H.A.T. XXXXXX Title: X.X. XXXXXX
ASS'T. V.P.-U.S. INVESTMENTS INV. V.P.-INSURANCE INV. [CORPORATE
SEAL]
MODIFICATION OF REAL ESTATE NOTE
THIS MODIFICATION OF REAL ESTATE NOTE is made this 21st day of
November, 1988, by and between WEST STEWARTS MILL ASSOCIATES, LTD., a
Georgia limited partnership whose sole general partner is Xxxxxxx X. Xxxxxx
("Borrower") and CONFEDERATION LIFE INSURANCE COMPANY, a Canadian mutual
company ("Lender").
STATEMENT OF FACTS
On August 6, 1987, Xxxxxx made a loan to Borrower in the
principal amount of $3,725,000.00 (the "Loan"), which Loan is evidenced by
a certain Real Estate Note ("Note") dated August 6, 1987, executed by
Xxxxxxxx in favor of Xxxxxx. Pursuant to the Escrow Agreement executed in
connection with the Loan, Xxxxxx has received $285,000.00 from the Escrow
Agent as a principal reduction of the Loan. Further pursuant to the Escrow
Agreement, Xxxxxxxx has now requested and Xxxxxx has agreed to reamortize
the payments due under the Note to reflect the principal reduction.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the premises and the sum of
Ten Dollars ($10.00) in hand paid by Borrower to Lender, and other good an
valuable consideration, the receipt and sufficiency of which hare hereby
acknowledged, Borrower and Lender hereby agree and the Note is hereby
modified as follows:
(i) The principal balance of the Note as of October 10, 1988, is
$3,416,895.78.
(ii) Payments of principal and interest due under the Note shall
be made to Lender on the tenth (10th) day of each month
commencing on November 10, 1988, in the amount of
$29,895.78.
(iii) Except as modified herein, all terms and conditions of
the Note remain in full force and effect and unamended.
IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have executed this
Modification under seal as of the day and year first above written.
BORROWER:
WEST STEWARTS MILL ASSOCIATES, LTD., as
Georgia limited partnership, by its sole General Partner
By: /s/ Xxxxxxx X. Xxxxxx (SEAL)
--------------------------------
LENDER:
CONFEDERATION LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Title: Xxxxxxx X. Xxxxxx
Assistant Vice President
U.S. Mortgage
Investments
Attest: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Title: Xxxxxxx X. Xxxxxxx
Legal Vice-President
(CORPORATE SEAL)
THIRD AMENDMENT TO REAL ESTATE NOTE
THIS THIRD AMENDMENT TO REAL ESTATE NOTE ("Third Amendment") is made
and entered into as of this 1st day of November, 1993, by and between WEST
STEWARTS MILL ASSOCIATES, L.P. (successor by name change to West Stewarts
Mill Associates, Ltd.), a Georgia limited partnership whose sole general
partner is Xxxxxxx X. Xxxxxx ("Borrower") and CONFEDERATION LIFE INSURANCE
COMPANY, a Canadian mutual insurance company ("Lender").
W I T N E S S E T H:
WHEREAS, Xxxxxxxx executed that certain Real Estate Note dated August
6, 1987 in favor of Xxxxxx in the original principal amount of Three
Million Seven Hundred Twenty-Five Thousand and No/100 Dollars
($3,725,000.00), as amended by that certain First Amendment to Real Estate
Note ("First Amendment") dated November 27, 1987 by and between Xxxxxx and
Xxxxxxxx, and as further amended by that certain Modification of Real
Estate Note ("Second Amendment") dated November 21, 1988 by and between
Xxxxxx and Xxxxxxxx (as so amended, the "Note"); and
WHEREAS, the Note is secured by (among other things) that certain Deed
to Secure Debt and Security Agreement dated August 6, 1987, executed by
Xxxxxxxx in favor of Xxxxxx and recorded at Deed Book 571, Page 388 of the
Xxxxxxx County, Georgia records, as amended by that certain First Amendment
to Deed to Secure Debt and Security Agreement dated November 27, 1987 by
and between Xxxxxxxx and Xxxxxx and recorded at Deed Book 589, Page 208,
aforesaid records (as so amended, the "Security Deed"), which Security Deed
encumbers certain improved commercial real estate located in Xxxxxxx
County, Georgia described on Exhibit A attached hereto and made a part
hereof (the "Property"), which Property is generally known as Park Plaza
Shopping Center.
WHEREAS, Xxxxxxxx has requested and Xxxxxx has agreed to revise the
Note in the manner contemplated by that certain Letter Agreement dated
August 13, 1993 by and between Xxxxxxxx and Xxxxxx (the "Modification
Letter"), as more particularly hereinafter set forth.
NOW THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00), the mutual covenants and agreements contained herein and
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by Xxxxxx and Xxxxxxxx, Lender and Borrower hereby
agree as follows:
1. EARLY MATURITY DATE. The Early Maturity Date referenced in
paragraph 1 of the First Amendment is hereby extended from September 10,
1994 to September 10, 1996.
2. PRINCIPAL BALANCE. Xxxxxx and Xxxxxxxx hereby acknowledge and
agree that the interest portion of Xxxxxxxx's scheduled monthly payments
under the Note for August 10, 1993 and September 10, 1993 totalling
Fifty-Four Thousand Three Hundred Ninety and No/100 Dollars ($54,390.00)
(the "Interest Amount"), have been paid to and are being held by
Xxxxxxx-Xxxxx, Inc. ("Escrow Agent") under the Escrow Agreement (as that
term is defined in Section 6 hereof). As Lender has not applied the
Interest Amount against accrued and unpaid interest under the Note, the
Interest Amount has been and is hereby added to the outstanding principal
balance of the Note. Xxxxxx and Xxxxxxxx hereby acknowledge and agree that
as a result of the capitalization of the Interest Amount, the outstanding
principal balance of the Note as of September 10, 1993 was Three Million
Three Hundred Forty-Five Thousand Five Hundred Fifty-Six and 86/100 Dollars
($3,345,556.86).
3. INTEREST RATE/PAYMENTS. Notwithstanding anything contained in
the Note to the contrary, the following shall determine the interest rate
and payment requirements applicable under the Note.
3.1 Floating Interest Rate. Xxxxxx and Xxxxxxxx hereby agree
that commencing on September 10, 1993 through September 9, 1994, the
interest rate accruing on the outstanding principal balance under the Note
shall be 7.688% per annum, making the monthly interest only payments of
Borrower during such time $21,433.87 per month. Thereafter, on September
10, 1994 and each succeeding September 10 thereafter (each herein referred
to as an "Adjustment Date") the annual interest rate accruing on the
outstanding principal balance under the Note shall be adjusted to equal the
sum of (i) four percent (4%), and (ii) the one (1) year LIBOR interest rate
as published by the British Banker's Association two (2) business days
prior to such Adjustment Date. If the British Banker's Association shall
cease to publish such rate, Lender shall designate a substitute publication
or rate as Lender shall deem appropriate. Except as hereinafter set forth,
commencing on October 10, 1993 and continuing on the same day of each
succeeding calendar month thereafter, monthly installments of interest only
on the outstanding principal balance under the Note shall be due and
payable to Lender.
3.2 First Fixed Rate Option. Lender shall adjust the interest
rate under the Note on the Early Maturity Date by delivering to Borrower a
notice in the manner provided for notices in the Security Deed not less
than ninety (90) days nor more than one hundred twenty (120) days prior to
the Early Maturity Date (the "Adjustment Notice") which notice shall
specify an annual fixed rate of interest (the "Adjusted Interest Rate")
which shall be effective as of the Early Maturity Date, and the new monthly
payments (the "Adjusted Monthly Payments") of principal and interest to be
due and payable as a result of the Adjusted Interest Rate and revised
repayment schedule. The Adjusted Interest Rate and Adjusted Monthly
Payments shall be based on a twenty-five (25) year amortization rate and
shall otherwise conform to Lender's then current five (5) year term fixed
rate and payment schedule for loans secured by similar quality neighborhood
retail shopping center loans.
Xxxxxx and Borrower shall, within sixty (60) days after receipt
of the Adjustment Notice by Borrower, enter into an amendment to the Note,
in form and content reasonably satisfactory to Lender, setting forth the
Adjusted Interest Rate and the Adjusted Monthly Payments. If the
Adjustment Notice has been timely sent by Xxxxxx, and thereafter Borrower
shall fail or refuse to (i) accept such Adjusted Interest Rate and Adjusted
Monthly Payments, or (ii) execute an amendment to the Note evidencing same,
then Lender, at its option and without notice may declare the amounts of
the total unpaid balance of the Note to be immediately due and payable,
whereupon it shall be so due and payable.
3.3 Principal Payments from Escrow Funds. In addition to any
and all payments of principal and interest from time to time contemplated
by the Note (as modified hereby), in the event the Escrow Funds (as that
term is defined in Section 6.5 hereof) shall exceed One Hundred Thousand
and No/100 Dollars ($100,000.00) at the end of any calendar quarter, the
amount of Escrow Funds in excess of One Hundred Thousand and No/100 Dollars
($100,000.00) shall be paid to Lender and applied to outstanding principal
under the Note. Such principal payments shall not reduce or otherwise
affect any other payments of principal or interest payable under the Note
as modified hereby.
3.4 Interest Accrual. All interest accruing under the Note
shall be computed on a 360 day year basis and on the actual number of days
in each month.
4. PREPAYMENT PREMIUM. Notwithstanding anything contained in
paragraph 2 of the Note to the contrary, from and after the date hereof,
the Prepayment Premium referenced in paragraph 2 of the Note shall be
calculated as follows:
4.1 Premium Prior to Xxxxxx's Exercise of First Fixed Rate
Option. Provided no default exists under the terms of the Note, the
Security Deed or any other Loan Documents, Borrower may prepay the entire
principal balance of the Note at any time prior to the Early Maturity Date,
upon giving Xxxxxx written notice of its intent to prepay, delivered to
Lender not less than sixty (60) days prior to the intended date of
prepayment. In the event Borrower so elects to prepay the Note prior to
the Early Maturity Date, then in addition to the outstanding principal and
all accrued interest thereon and all other sums which may be due to Lender
under the Note, Security Deed and the other Loan Documents (including,
without limitation, Lender's equity participation described in Section 5
hereof), Borrower shall pay a Prepayment Premium equal to the amount, if
any, by which the interest which would accrue on the outstanding principal
balance under the Note at the rate of eight and one-half percent (8.5%) per
annum from the date of such prepayment through the Early Maturity Date
would exceed the interest which would accrue on the outstanding principal
balance under the Note at the rate in effect on the date of such prepayment
through the Early Maturity Date assuming such rate remained constant
through such date.
4.2 Premium Subsequent to Xxxxxx's Exercise of First Fixed Rate
Option. Provided no default exists under the terms of the Note, the
Security Deed or any other Loan Documents, Borrower may prepay the entire
principal balance of the Note at any time subsequent to the Early Maturity
Date, upon giving Xxxxxx written notice of its intent to prepay, delivered
to Lender not less than sixty (60) days prior to the intended date of
prepayment. In the event Borrower so elects to prepay the Note, then in
addition to the outstanding principal and all accrued interest thereon and
all other sums which may be due to Lender under the Note, Security Deed and
the other Loan Documents (including, without limitation, Lender's equity
participation described in Section 5 hereof), Borrower shall pay a
Prepayment Premium equal to the amount, if any, by which the interest which
would accrue on the outstanding principal balance under the Note at an
interest rate equal to the sum of (i) four percent (4%), and (ii) the Swap
Rate obtainable through Confederation Treasury Services Limited on a like
amount for a term approximating the period commencing on the date of such
prepayment and continuing through September 10, 2001 would exceed the
interest which would accrue on the outstanding principal balance under the
Note at the rate in effect on the date of such prepayment through September
10, 2001 assuming such rate remained constant through such date.
5. XXXXXX'S PARTICIPATION. In addition to interest and other
amounts payable by Borrower to Lender under the Note and Security Deed, and
the Other Loan Documents, Borrower hereby agrees to pay to Lender the
following on the same date all principal and interest is due:
5.1 Participation in Sale Proceeds. If Borrower shall sell the
Property, then, in addition to the outstanding principal and all accrued
interest thereon and all other sums which may be due to Lender under the
Note, Security Deed and the Other Loan Documents, Borrower shall pay to
Lender an amount equal to twenty-five percent (25%) of the Net Sale
Proceeds. "Net Sale Proceeds" as used herein shall mean the gross sale
price of the Property less (i) the outstanding principal balance of the
Note, (ii) all accrued and unpaid interest under the Note, (iii) any
Prepayment Premium required by Section 4 of this Third Amendment, (iv)
customary closing costs incident to the sale and closing actually incurred
by Borrowers, and (v) an amount equal to the capital contributions actually
made by the partners of Borrower prior to the date hereof to fund capital
expenses of Borrower for tenant improvement costs and leasing commissions
related solely to the Property; provided, however, Borrower shall provide
to Lender such documentation and back up information as Lender shall
reasonably request to verify such contributions and expenses, which
documentation and information shall be in form and substance reasonably
satisfactory to Lender, and in no event shall the total amount expended
under this subsection 5.1(v) exceed $120,000 for the purposes of
calculating Net Sale Proceeds. Closing costs shall include only the
following: (a) actual amounts paid by Borrower as a sales or brokerage
commission or other like fee to real estate agents (in no event shall any
such commission or fee be payable to Borrower or any partners of Borrower
or any affiliate of Borrower or its partner if the total commission would
exceed the normal sales commission by a third party broker), (b) normal
adjustments between Borrower and the purchaser such as taxes (including any
transfer tax paid by Borrower), rents, security deposits, utilities and
other similar Property expenses, (c) actual and reasonable attorneys' fees
incurred by Borrower for the negotiation of the contract for sale and
consummation of the sale, and (d) any other costs approved by Lender prior
to sale in Lender's reasonable discretion. "Gross Sale Price" shall mean
total consideration in whatever form paid for the Property (including,
e.g., the value of sums to be received by Borrower or any related party
pursuant to a long term management agreement, leasing commissions or
similar devices to the extent the consideration received pursuant to or in
the form of such management agreements, leasing commissions or similar
devices exceeds the commercially reasonable amount such purchaser would pay
an independent third party in an arm's length transaction for such
services). Borrower shall be permitted to sell the Property only with the
written consent of Lender, which consent shall be granted or withheld
subject to the satisfaction of the following conditions in Xxxxxx's
reasonable discretion:
(x) the sale shall be to a party unrelated to Borrower or
any partner of Borrower or any affiliate of Borrower or any of
its partners;
(y) the terms of the sale shall be for cash and shall be
arm's length and bona fide in all respects and Borrower shall
provide Lender with copies of all documents relative to such
transaction; and
(z) in the event Lender determines, in its reasonable
judgment, that the Gross Sale Price for the Property is less than
the fair market value of the Property, the amount to be paid to
Lender pursuant to this provision shall be computed on the basis
of the fair market value of the Property as determined pursuant
to Section 5.4 hereof. For the purposes of this Section 5.1, a
sale shall include any conveyance of the Property, including, but
not limited to conveyance of the fee, or conveyance of any
partnership interest in Borrower (except a transfer of such
interest by will or intestate succession or as permitted under
the Security Deed); or a lease of all or substantially all of the
Property.
5.2 Participation in Refinance Proceeds. If Borrower shall
refinance or otherwise prepay the loan, then, in addition to the
outstanding principal and all accrued interest thereon and all other sums
which may be due to Lender under the Note, Security Deed and the Other Loan
Documents, Borrower shall pay to Lender an amount equal to twenty-five
percent (25%) of the "Net Refinance Proceeds" as hereinafter defined. "Net
Refinance Proceeds" shall mean an amount equal to the proceeds of the
refinancing loan obtained less (i) the outstanding principal balance of the
Note, (ii) all accrued and unpaid interest under the Note, (iii) any
Prepayment Premium required by Section 4 of this Third Amendment, (iv) all
normal closing costs incident to the refinancing actually incurred by
Xxxxxxxx, and (v) an amount equal to the capital contributions actually
made by the partners of Borrower prior to the date hereof to fund capital
expenses of Borrower for tenant improvement costs and leasing commissions
related solely to the Property; provided, however, Borrower shall provide
to Lender such documentation and back up information as Lender shall
reasonably request to verify such contributions and expenses, which
documentation and information shall be in form and substance reasonably
satisfactory to Lender, and in no event shall the total amount expended
under this subsection 5.2(v) exceed $120,000 for the purposes of
calculating Net Refinance Proceeds. Closing costs shall include only (a)
commitment fees or points payable to such lender, which shall not exceed
commitment fees or points customarily charged in similar loan transactions
in the area in which the Property is located, (b) title insurance policy
premiums, (c) intangible taxes, (d) survey and property inspection costs,
(e) lender required escrows, and (f) such lender's and Borrower's actual
attorneys' fees and expenses incurred in connection with such transaction,
and (f) any other costs approved by Lender prior to such transaction in
Xxxxxx's reasonable discretion. Borrower shall be permitted to refinance
the Property only with the written consent of Lender, which consent shall
be granted or withheld subject to the satisfaction of the following
conditions in Xxxxxx's reasonable discretion:
(x) The refinance loan shall be from a party unrelated to
Borrower or any partner of Borrower or any affiliate of Borrower
or any of its partners;
(y) The terms of refinance loan shall be arm's length and
bona fide in all respects, shall be in the maximum amount
obtainable from an institutional lender based upon underwriting
standards considered in the market in which the Property is
located at the time of such refinancing and Borrower shall
provide Lender with copies of all documentation relative to such
transaction; and
(z) Borrower shall agree in writing at the time of such
refinancing that in the event there is a sale of the Property (as
the term sale is used in Section 5.1 hereof) within one (1) year
of the closing date of such refinancing loan, Lender shall
participate in the sale proceeds from such sale in the manner
contemplated by Section 5.1 hereof; provided, however, that the
Net Sale Proceeds shall be calculated based on the outstanding
principal balance of the Note on the date of the initial
prepayment of the Note. Lender's percentage shall be net of any
Net Refinance Proceeds it received in connection with the initial
prepayment of the Note, and any closing costs or expenses
relating to the preceding refinance transaction approved by
Lender at the time of such refinance transaction.
5.3 Participation Upon Maturity. In the event no sale,
refinance, or other prepayment shall have occurred on or before the earlier
to occur of (i) September 10, 2001, or (ii) the date the entire outstanding
principal and interest under the Note shall become due and payable through
acceleration after a default or otherwise, Borrower shall pay to Lender,
together with and in addition to all other sums payable to Lender under the
Note, Security Deed and any other Loan Documents, an amount equal to
twenty-five percent (25%) of the amount which would be payable to Lender
pursuant to Section 5.1 above, assuming the Property were sold on such date
for fair market value as determined pursuant to Section 5.4 below.
5.4 Fair Market Value Determination. For the purposes of this
Section 5, the term "fair market value" of the Property shall be determined
as follows: Lender and Borrower may agree upon the fair market value of
the Property. If Lender and Borrower are unwilling or unable to agree on
the fair market value of the Property within ten (10) days after (i) all
principal and interest shall become due and payable under the Note, or (ii)
Borrower shall have submitted a written request for Lender to agree upon
the fair market value of the Property or consent to a sale transaction,
Lender and Borrower shall submit such dispute to the following independent
appraisal process, which process shall be performed by appraisers in
accordance with the procedures hereinafter described. Lender and Borrower
shall, within ten (10) days after the expiration of the earlier of such ten
(10) day period or the date Lender or Borrower shall determine that the
dispute shall be submitted to this appraisal process, attempt to select an
appraiser mutually acceptable to Lender and Borrower whose determination of
fair market value shall be final and binding. If Xxxxxx and Borrower are
unable to mutually agree upon an acceptable appraiser within said ten (10)
day period, Lender and Borrower shall within ten (10) days after the
expiration of such ten (10) day period, each select an appraiser. The two
appraisers shall within thirty (30) days thereafter submit their written
appraisals of the fair market value of the Property to each other and
attempt to reach an agreement within five (5) days thereafter if there is
any discrepancy with respect to the fair market value of the Property. If
the appraisers reach an agreement as to the fair market value, then such
fair market value shall be final and binding. If no agreement can be
reached, then the appraisers shall select a third appraiser within five (5)
days who shall within thirty (30) days thereafter select either one or the
other of the first two appraisers' determinations of fair market value (it
being agreed that the third appraiser shall not have the right to
independently determine fair market value of the item in question, it shall
instead select the fair market value as determined by one of the two
appraisers). If the appraisers fail or are unable to agree upon a third
appraiser, either party may seek appointment of such third appraiser by any
court of competent jurisdiction. Notwithstanding anything contained herein
to the contrary, Borrower shall have the right to request Xxxxxx's
agreement on the fair market value of the Property at any tune by providing
Lender with written notice. Once the fair market value of the Property is
determined pursuant to this subparagraph 5.4, such valuation shall be
binding upon the parties hereto for a period of ninety (90) days after the
date of determination. If a sale transaction as contemplated by
subparagraph 5.1 hereof shall not be completed, including without
limitation, the payment to Lender of all amounts payable under the Note as
amended hereby within ninety (90) days of such determination, such
determination of fair market value shall be null and void and of no force
or effect for the purposes of this Third Amendment.
Each appraiser shall be an MAI appraiser with at least ten (10)
years experience appraising similar properties as the Property in the area
where the Property is located. The appraisers shall be entitled to be paid
reasonable compensation for their services; such compensation shall be paid
by Borrower. Both Xxxxxx and Xxxxxxxx agree that the determination of
exact fair market value of any item is not subject to mathematical
certainty and agree that the appraisal mechanism provided herein is a
reasonable method of estimating such values. In the event that either
party fails to timely select an appraiser, then the party timely selecting
an appraiser may go forward with the appraisal process. In such event, the
amount determined by the sole appraiser shall be final and binding upon the
parties. The final appraised fair market value shall be utilized by Lender
and Borrower in determining the Net Sale Proceeds, and Xxxxxx's
participation therein. Any failure or refusal by Borrower to repay the
amount so determined when due, in addition to all sums due under the Note,
shall constitute a default under the Note. At any time during the
appraisal process, Xxxxxx and Borrower may mutually agree upon the fair
market value of the Property. The cost of any appraisal obtained by Lender
or Borrower pursuant to this subparagraph 5.4 shall be a closing cost for
the purposes of calculating Net Sale Proceeds.
6. NET OPERATING INCOME/SECURITY DEPOSIT ESCROW. Except as
hereinafter specifically set forth, from and after the date hereof,
Borrower shall not distribute to any of its general or limited partners or
any other persons or entities, any portion of the Net Operating Income from
the Property. All Net Operating Income and all present Security Deposits
(as hereinafter defined) which have not previously been returned to or
forfeited by Tenants (as hereinafter defined) at the Property and all
future Security Deposits related to any of the Leases (as hereinafter
defined) at the Property shall be paid to Escrow Agent to be held and
disbursed by Escrow Agent as required by that certain Escrow Agreement
between and among Lender, Borrower and Escrow Agent of even date (the
"Escrow Agreement"). The Escrow Agreement shall contain or reference,
among other things, the following covenants and agreements.
6.1 Net Operating Income. As used herein, the phrase "Net
Operating Income" for a particular period shall mean:
(a) The gross income, rentals, consideration and other
revenues of every kind or nature received during such period by or for the
account of Borrower or any affiliate of Borrower, and attributable to the
ownership, operation, leasing or occupancy of the Property ("Revenues"),
including fixed, percentage and additional rentals received from tenants,
concessionaires, licensees, and other persons and entities making use of
the Property (a "Tenant"), reimbursements, sundry income, parking fees,
fees received from concessions, vending machines and similar items, amounts
received under any claim (whether a claim of warranty, contract, tort or
otherwise), and capital proceeds and other extraordinary receipts,
determined on a sound cash basis, consistently applied. Revenues shall
exclude (1) proceeds from any condemnation or taking for public or
quasi-public purposes of any portion of the Property or any interest
therein, or amounts received from claims to insurance proceeds or other
compensatory amounts, in either case only to the extent applied to the
repair or restoration of the Property or reduction of the amounts due under
the Note; (2) any Security Deposits, unless and until the same are
forfeited by a Tenant; minus
(b) All actual, reasonable expenses which are customary in
the market in which the Property is located paid during such period by
Borrower with respect to the ownership, operation, leasing or occupancy of
the Property ("Expenditures"), determined on a sound cash basis
consistently applied, including: property taxes and assessments; management
fees; ordinary maintenance and repair costs; utility, heating and air
conditioning costs; hazard and liability insurance premiums; landscaping
expenses; debt service payable under the Note, reasonable advertising and
promotion costs related to the Property and customary and reasonable
accounting costs and expenditures relating solely to the Property,
including costs and expenses incurred by Borrower internally for accounting
personnel, and in connection with retaining an independent accounting firm.
However, Expenditures shall not include (1) depreciation, amortization, or
cost recovery of other noncash items; (2) management fees and salaries in
excess of five percent (5%) of gross Revenues; (3) amounts paid to
affiliates of Borrower other than (i) leasing commissions and (ii) the
management fees referenced in Section 6.1(b)(2) hereof to the extent
commercially reasonable and paid for services actually performed (Lender
hereby acknowledges that management fees and leasing commissions shall be
paid to Charter Properties, which entity is an affiliate of Borrower or
such other affiliate of Borrower as Lender shall reasonably approve during
the term of the Note); (4) any interest, principal, default interest, late
charges, attorneys' fees, appraisers' fees or other amounts paid in
connection with any secured or unsecured loan (excluding such amounts
payable under the Note); (5) payment of attorneys' fees; (6) payments
relating to forming, administering or operating Borrower, including office
and other overhead, travel and lodging expenses, and income or franchise
taxes; (7) costs, expenses or fees incurred in connection with the actual
or prospective sale or refinancing of the Property; (8) reserves of any
kind; (9) amounts which would not have been incurred but for a default in
Borrower's obligations with respect to the Property; (10) a payment, or a
series of related payments other than payments for Expenditures which are
permitted under this Section 6.1(b), that exceeds $5,000 in any one month
(other than as is necessary to avoid immediate disruption in the operations
of the Property or personal injury or property damage) that is not
specifically approved in writing by Xxxxxx; provided, however, the $5,000
cap shall not apply to expenses which fall within the definition of the
word "Expenses"; (11) tenant improvements, major repairs and replacements,
and other capital expenditures (as determined under generally accepted
accounting principles) other than payments for replacements reasonably
required for the continued operation of the Property; (12) payments made
with proceeds that are not Revenues; and (13) any other amounts expressly
excluded by any provision of this Third Amendment.
6.2 Security Deposits. As used herein, the phrase "Security
Deposits" shall mean all prepaid rents, damage deposits, security deposits,
and other amounts which have been or which may hereafter be paid by any
tenant, licensee, concessionaire or other persons or entities making use of
the Property (a "Tenant") to Borrower as security for the performance of a
Tenant's obligations under its lease, license or other agreement for use of
any portion of the Property (a "Lease"). On or before the date hereof,
Xxxxxxxx has delivered to Escrow Agent $9,717.83, which amount Borrower
hereby represents and warrants to Lender constitutes all Security Deposits
paid by any Tenant under any Lease through the date hereof which have not
previously been returned to or forfeited by such Tenant.
6.3 Payments to Escrow Agent. Except as hereinafter set forth
in Section 6.6 hereof, Xxxxxxxx hereby agrees to deliver the Net Operating
Income and all Security Deposits to Escrow Agent on a monthly basis within
twenty (20) days of the end of each calendar month from and after the date
hereof through the date on which all amounts evidenced or secured by the
Note and Security Deed are paid in full.
6.4 Books, Records and Financial Statements. In addition to the
annual financial statements required by Section 1.13 of the Security Deed,
Borrower will furnish to Lender and Escrow Agent within twenty (20) days of
the end of each calendar month financial statements related to the
operation of the Property in form and substance satisfactory to Lender,
which financial statements shall consist of a balance sheet, a rent roll
indicating each Tenant and any Security Deposits held by such Tenant and
such other information as Lender shall request, an operating statement, a
statement of sources and uses of funds and a detailed accounting of the
computation of Net Operating Income for the prior month, including a
detailed itemization of all Expenditures and Revenues during such period.
Said monthly financial statement shall be certified by the managing general
partner of Borrower. As set forth in Section 1.13 of the Security Deed,
Xxxxxx shall have the right to audit the books, records and accounts of
Borrower from time to time as it shall deem necessary.
6.5 Disbursement of Escrow Funds. The funds paid to Escrow
Agent and held under the Escrow Agreement and any interest earned thereon
shall be referred to as the "Escrow Funds." The Escrow Funds shall be held
in an interest bearing account in a national bank located in the
metropolitan Atlanta, Georgia area, and shall be used for the payment of
(i) such tenant improvement costs, leasing commissions paid to third
parties and Charter Properties, Xxxxxxxx's legal fees pertaining to the
leasing of space at the Property or Property management, and major repairs
and replacements which are reasonable and customary in the market in which
the Property is located (the "Capital Expenditures") and which have been
approved by Lender in writing in Xxxxxx's reasonable discretion, and (ii)
improvements to the Property which are approved by Xxxxxx as hereinabove
set forth.
(a) Security Deposits. Security Deposits shall be retained
by Escrow Agent until such time as Borrower, as landlord, is required to
refund any of the Security Deposits to a Tenant. Borrower shall provide
such documentation and evidence as Lender shall request to establish that
the Tenant in question is entitled to a return of all or a portion of its
Security Deposit. Upon receipt and approval of such evidence, Lender shall
instruct Escrow Agent to release to such Tenant the refundable portion of
its Security Deposit. Any Security Deposit or portion thereof which is
forfeited by a Tenant for any reason shall be considered Revenue for the
purpose of calculating Net Operating Income.
(b) Principal Reduction from Escrow Funds. If the Escrow
Funds (excluding Security Deposits which have not been forfeited by any
Tenant) shall exceed One Hundred Thousand Dollars ($100,000.00) at the end
of any calendar quarter, the amount in excess of said One Hundred Thousand
Dollars ($100,000.00) shall be paid to Lender and applied quarterly against
the outstanding principal balance under the Note. The quarterly principal
payments contemplated by this paragraph 6.5(b) shall not alter, diminish or
in any manner modify Borrower's obligations with respect to monthly
payments of principal and/or interest under the Note or any other amounts
payable to Lender under the Note, Security Deed and the Other Loan
Documents.
(c) Other Disbursement of Escrow Funds. Disbursements
under the Escrow Agreement shall be made at the direction of Lender no more
than once in any calendar month; provided, however, Lender shall also
request disbursements under the Escrow Agreement within five (5) days of a
written request by Borrower containing a fully executed Lease for space at
the Property. Escrow Agent shall be entitled to rely solely upon
instructions from Lender with respect to the disposition of the Escrow
Funds held pursuant to the Escrow Agreement. Borrower shall provide Lender
with such documentation and evidence as Lender shall request with respect
to any request for a disbursement of Escrow Funds for tenant improvement
costs, leasing commissions, legal fees and items of major repair or
replacement including all Capital Expenditures. Lender shall have the
right to approve or disapprove all or any portion of any request for a
disbursement from the Escrow Funds in its sole discretion.
6.6 Reduction of Escrow Funds Balance. In the event that (i)
ninety percent (90%) of the rentable square feet contained in the
improvements on the Property shall be leased for a period of six (6)
consecutive months, and (ii) during such time the Revenues from the
Property shall have been adequate to cover all Expenditures and Capital
Expenditures and other costs related to the operation of the Property, (a)
Lender shall no longer be authorized to request Escrow Agent to pay to
Lender, the quarterly principal payments contemplated by Section 6.5(b)
above, and (b) so long as the Escrow Funds (excluding Security Deposits
which have not been forfeited by any Tenant) shall not be less than Fifty
Thousand Dollars ($50,000.00), Borrower shall be entitled to retain Net
Operating Income in excess of the amount necessary to maintain the Escrow
Funds at said level.
6.7 Borrower Contribution to Expenses. In the event the Escrow
Funds (excluding Security Deposits which have not been forfeited by any
Tenant) shall be inadequate to cover any Capital Expenditures or other
costs it is designed to cover, Borrower shall promptly fund any and all
deficits. Borrower's failure to fund any such deficit as and when the same
shall be due and payable shall constitute a default under the Note.
6.8 Escrow Funds as Security for Loan. The Escrow Funds shall
constitute additional collateral for the indebtedness evidenced by the
Note. Upon any default by Borrower under the Note or the Security Deed
which extends beyond any applicable grace or cure period provided under the
Note or Security Deed, Lender may, at its option, notify Escrow Agent that
such default has occurred and direct Escrow Agent to pay all of the Escrow
Funds to Lender, and Lender may apply such amounts to the indebtedness
under the Note and the Security Deed in any manner it deems appropriate.
Borrower hereby agrees to execute and deliver to Lender such documents and
agreements as Lender shall require to perfect Lender's security interest in
and to the Escrow Funds, including, without limitation, security
agreements, UCC financing statements and such other documentation as Lender
shall deem appropriate.
7. TAX ESCROW. In addition to the Escrow Funds, to secure the
future payment of the taxes and assessments payable in connection with the
ownership, operation and management of the Property, Borrower shall deposit
with Xxxxxx's servicer, ShoptawJames, Inc., or such other servicer as
Lender may designate in writing to Borrower ("Shoptaw") on the tenth (10th)
day of each and every month together with and in addition to the monthly
payments required under the Note, a sum which, in the reasonable estimation
of Xxxxxx, shall be equal to one-twelfth (1/12) of said annual taxes and
assessments related to the Property. Said deposit shall be held by Shoptaw
free of any interest (unless required by law) and free of any liens or
claims on the part of creditors of Borrower and as a part of the security
of Lender, and shall be used to pay current taxes and assessments on the
Property as the same accrue and are payable. Such deposits shall not be,
nor be deemed to be, trust funds but may be commingled with the general
funds of Shoptaw. If said deposits are insufficient to pay the taxes and
assessments in full as and when the same become payable, Borrower will
deposit with Shoptaw within ten (10) days after notice from Lender of said
deficiency, such additional sum or sums as may be required in order for
Lender to pay such taxes and assessments in full. Upon any default under
the Note or the Security Deed, which default extends beyond any applicable
grace or cure period, Lender may, at its option, apply any money in the
fund resulting from said deposit to the payment of the indebtedness under
the Note in such manner as it may elect. The collection of such deposits
by Lender shall not relieve Borrower of any of the obligations of Borrower
under the provisions of the Security Deed; and under no circumstances shall
Lender be liable for failure to make any payment on behalf of Borrower,
including, without limitation, payments of taxes and assessments.
Simultaneously with the execution of this Third Amendment, Xxxxxxxx has
delivered to Lender the sum of $-0- as a partial payment under this Section
7. Said amount, together with Xxxxxxxx's initial monthly escrow payments
of $3,411.12 shall be used to pay such taxes and assessments when due. The
escrow provisions relative to taxes and assessments set forth in this
Section 7 shall be a separate escrow arrangement, and shall not be
considered a part of the Escrow Funds held by Escrow Agent under the Escrow
Agreement.
8. ACKNOWLEDGEMENTS, AGREEMENTS AND WAIVERS OF BORROWER. Borrower
hereby acknowledges and agrees that it has no, and no events have occurred
which with the passage of time or notice would give Borrower any, rights of
setoff, counterclaims or any other defenses under the Note, the Security
Deed or any other Loan Documents or at law or in equity against Lender to
(i) the payment and performance of the obligations under the Note and the
Security Deed, (ii) the acceleration of the indebtedness evidenced or
secured by the Note and the Security Deed upon the occurrence of a default
under the Note or Security Deed which default extends beyond any applicable
grace or cure periods, all such defenses teeing hereby waived and
relinquished in all respects, or (iii) Lender's right to foreclose the
security title and security interest of the Security Deed subsequent to the
occurrence of a default under the Note or Security Deed which default
extends beyond any applicable grace or cure periods. Neither a default nor
any event which with the passage of time or notice would constitute a
default with respect to Borrower's obligations under the Note, the Security
Deed or any other Loan Documents exists or has occurred under the Note, the
Security Deed or any of the other Loan Documents, except such defaults or
events as will be cured upon the execution of this Third Amendment.
8.1 Bankruptcy Proceedings/Xxxxxx's Remedies. Xxxxxxxx hereby
acknowledges and agrees that the modifications to the interest rate and
repayment structure of the Note set forth herein have been made at the
request of and for the benefit of Borrower, and have been designed to avert
a potential default under the Note resulting from inadequate Revenues to
cover expenses related to the Property. In consideration of Xxxxxx's
agreement to modify the terms of the Note set forth herein, Xxxxxxxx hereby
agrees that in the event Borrower files for protection from creditors under
Title 11 of the United States Code, Lender shall thereupon be entitled to
relief from any automatic stay imposed by Section 362 of Title 11 of the
U.S. Code, as amended, or otherwise on or against the exercise of any
rights and remedies otherwise available to Lender under the Note, the
Security Deed and the other Loan Documents, including, without limitation,
the exercise of the power of sale contained in the Security Deed, and
Borrower hereby waives and voluntarily agrees not to exercise any right it
may have to object, oppose or otherwise respond to any motion filed by
Xxxxxx seeking relief from any automatic stay for the purpose of exercising
any such right(s). This provision was specifically negotiated by Xxxxxx
and Borrower for inclusion in this Third Amendment. Both Xxxxxxxx and
Xxxxxx have received independent legal advice from their attorneys with
respect to the effect, operation and importance of this provision and with
respect to the advisability of executing an agreement containing this
provision. Additionally, Xxxxxxxx hereby agrees that it will not otherwise
contest or resist the lawful and proper exercise of any of Xxxxxx's
remedies under the Note, the Security Deed and any other Loan Documents
subsequent to any default under such documents which default extends beyond
any applicable grace or cure period, and Borrower shall cooperate with
Lender in the exercise of any such remedies. Specifically, Borrower shall
not seek to enjoin, prohibit or otherwise delay Lender's lawful and proper
exercise of such remedies including, without limitation, the proper
exercise of the power of sale contained in the Security Deed or the
appointment of a receiver for the Property, and Borrower hereby consents to
any such action taken by Lender subsequent to such default.
9. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower does hereby
represent and warrant to and for the benefit of Xxxxxx as follows:
(a) Except as set forth on Exhibit A attached hereto and made a
part hereof, there are no actions, suits or proceedings pending or, to the
knowledge of Borrower or any of Borrower's partners (the "Partners"),
threatened against or affecting Borrower or any of the Partners, and
Borrower has no actual knowledge of any actions, suits, or proceedings
pending or threatened against the Property, or involving the validity or
enforceability of the Security Deed or the priority thereof at law or in
equity, or before or by any federal, state or local governmental agency,
department, commission, board, bureau, political subdivision or
instrumentality ("Governmental Authority"). And to Xxxxxxxx's knowledge,
neither Borrower nor any of the Partners are in default under any order,
writ, injunction, decree or demand of any court or any Governmental
Authority.
(b) The consummation of the transactions hereby contemplated,
and the performance of Xxxxxxxx's obligations under this Third Amendment
will not result in any breach of, or constitute a default under, any deed
to secure debt, mortgage, deed of trust, indenture, security agreement,
lease, loan or credit agreement, corporate charter, by-laws, partnership
agreement or other instruments to which Borrower or any of the Partners are
a party or by which any of them are bound or may be affected, and neither
Borrower nor any of its Partners is currently in default under any such
instruments in any manner which would adversely affect the ability of
Borrower to perform its obligations hereunder.
(c) Borrower is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Georgia,
having as its sole general partner, Xxxxxxx X. Xxxxxx. Borrower is duly
formed and validly existing and fully qualified to do business in the State
of Georgia, and Xxxxxxx X. Xxxxxx, as the sole general partner of
Xxxxxxxx, has full power and authority to execute and deliver this Third
Amendment on behalf of Xxxxxxxx and to consummate the transactions
contemplated hereby.
10. XXXXXX/BORROWER RELATIONSHIP. Borrower shall not in any event be
construed for any purpose to be a co-owner, joint venturer or partner of
Lender regardless of the provisions of the Note concerning the payment by
Xxxxxxxx and the acceptance by Lender of a portion of Net Sale Proceeds or
of Net Refinance Proceeds or reservations of additional interest on this
Note. Lender and Xxxxxxxx hereby agree and intend that when any such
amounts are received by Lender hereunder, such additional interest shall be
allocated on a per diem basis over the period of time which has transpired
from the date of this Third Amendment until the date such payment is
received. Xxxxxx and Xxxxxxxx intend that the relationship between them
shall be that of creditor and debtor. Lender shall not be in any way
responsible or liable for the debts, losses, obligations or duties of
Borrower with respect to the Property or otherwise. All obligations to pay
real property or other taxes, assessments, insurance premiums and all other
fees and charges arising from the ownership, operation or occupancy of the
Property and to perform all Leases and other agreements and contracts
relating to the Property shall solely be the responsibility of Borrower.
11. REAFFIRMATION. Except as modified by this Third Amendment, the
terms and conditions of the Note, as amended, shall remain in full force
and effect, the same being republished and confirmed hereby.
12. CAPITALIZED TERMS. The capitalized terms used in this Third
Amendment shall have the meaning attributed to them in the Note unless
otherwise specifically set forth herein.
13. AMENDMENTS CONTROLLING. Xxxxxx and Xxxxxxxx hereby acknowledge
and agree that to the extent there is any conflict or inconsistency between
the terms of the Modification Letter and this Third Amendment or any other
document executed in connection with this Third Amendment (the
"Amendments") the terms of the Amendments shall control.
IN WITNESS WHEREOF, the duly authorized representatives of Xxxxxx and
Xxxxxxxx have executed this Agreement under seal as of the day and year
first above written.
LENDER
CONFEDERATION LIFE INSURANCE COMPANY, a mutual
insurance company incorporated in Canada
By:/s/ Xxxx X. Friend
--------------------------------------
Name: Xxxx X. Friend
------------------------------------
Title: Legal Vice President
-----------------------------------
By:/s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
------------------------------------
Title: Manager Mortgage Investments
-----------------------------------
[SIGNATURES CONTINUED ON NEXT PAGE]
BORROWER:
WEST STEWARTS MILL ASSOCIATES, LP
(successor by name change to West Stewarts
Mill Associates, Ltd.),
a Georgia limited partnership
By:/s/ Xxxxxxx X. Xxxxxx (SEAL)
---------------------------------
Name: Xxxxxxx X. Xxxxxx
its sole general partner
Loan No. 93548-7
FOURTH MODIFICATION OF NOTE
THIS FOURTH MODIFICATION OF NOTE (this "Agreement") is made and
entered into as of February 21, 1995 by and between WEST STEWARTS MILL
ASSOCIATES, L.P. ("Borrower"), a Georgia limited partnership, and
CONFEDERATION LIFE INSURANCE COMPANY (U.S.) IN REHABILITATION ("Lender"), a
rehabilitation estate created pursuant to the laws of the State of Michigan
by that certain Xxxxxxx and Restated Order of Rehabilitation dated
September 27, 1994 entered nunc pro tunc as to August 12, 1994 by the
Circuit Court for the County of Xxxxxx, State of Michigan.
W I T N E S S E T H:
WHEREAS, on August 6, 1987, Xxxxxx made a loan (the "Loan") in the
original principal amount of Three Million Seven Hundred Twenty-Five
Thousand and No/100 Dollars ($3,725,000.00) to Borrower; and
WHEREAS, the Loan is evidenced by that certain note dated August 6,
1987 in the face principal amount of Three Million Seven Hundred Twenty-
Five Thousand and No/100 Dollars ($3,725,000.00) and payable to the order
of Lender (as renewed and modified, hereinafter referred to as the "Note";
the loan evidenced by the Note is herein referred to as the "Loan"), as
amended by that certain First Amendment to Real Estate Note dated November
27, 1987 by and between Xxxxxx and Xxxxxxxx, by that certain Modification
of Real Estate Note dated November 21, 1988 by and between Xxxxxx and
Xxxxxxxx and by that certain Third Amendment to Real Estate Note (the
"Third Amendment") dated November 1, 1993 by and between Xxxxxx and
Xxxxxxxx; and
WHEREAS, the Note is secured by that certain Deed to Secure Debt and
Security Agreement (as amended, hereinafter referred to as the "Mortgage")
dated August 6, 1987 executed by Xxxxxxxx in favor of Xxxxxx conveying and
encumbering certain property located in Xxxxxxx County, Georgia more
particularly described in the Mortgage (the "Property"), and which Mortgage
is recorded in Book 571, Page 388 of the Real Estate Records of Xxxxxxx
County, Georgia (hereinafter the "Public Records") as amended by that
certain First Amendment to Deed to Secure Debt and Security Agreement by
and between Xxxxxx and Xxxxxxxx dated November 27, 1987 and recorded in
Deed Book 589, Page 208 of the Public Records, as further amended by that
certain Second Amendment to Deed to Secure Debt and Security Agreement
dated November 1, 1993, recorded in Deed Book 851, Page 21 of the Public
Records; and
WHEREAS, the Loan is also secured by that certain Amendment of
Xxxxxx's Interest in Lease (the "Assignment") dated August 6, 1987 from
Borrower to Lender, recorded in Book 571, Page 417, aforesaid records; and
WHEREAS, Xxxxxxxx has requested that Lender modify the Note to modify
the interest rate due and payable under the Note, and Lender has agreed to
modify the interest rate due and payable under the Note to the rate set
forth below; and
WHEREAS, the Note, as amended hereby, shall continue to be secured by
all of the collateral which secures the Note, including, but not limited
to, the Mortgage, the Assignment and the other documents which evidence or
secure the indebtedness secured thereby (the "Loan Documents"); and
WHEREAS, the outstanding principal balance under the Note as of
November 10, 1994 is $3,345,557.41, and as of November 14, 1994, the
outstanding balance under the Escrow Fund (as defined in the Third
Amendment) is $66,604.47; and
WHEREAS, Xxxxxxxx and Lender desire to modify the Note as more
particularly hereinafter set forth;
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Xxxxxxxx and Xxxxxx have
agreed and do hereby agree as follows:
1. Recitals. The recitals set forth above are true and correct in
all material respects.
2. Interest Rate. Effective as of November 10, 1994, the rate of
interest due and payable under the Note (the "Interest Rate") shall be
eight and one quarter percent (8.25%) per annum, and subject to paragraph 3
below and so long as there is then no Event of Default (as defined in the
Loan Modification Agreement of even date herewith) hereunder or under any
other Loan Document, such rate of interest shall remain in effect so long
as any amounts remain outstanding under the Note.
3. Adjusted Interest Rate. Lender shall have the right, but not the
obligation, to adjust the Interest Rate as of November 10, 1997
(hereinafter referred to as the "Early Maturity Date") as follows:
a. Lender shall deliver to Borrower a notice in the manner described
for notices in the Mortgage not less than ninety (90) days nor more than
one hundred twenty (120) days prior to the Early Maturity Date (hereinafter
referred to as the "Adjustment Notice") which notice shall specify a rate
of interest (hereinafter referred to as the "Adjusted Interest Rate") other
than the Interest Rate specified above, which shall be effective as of the
Early Maturity Date, and the new monthly payments (hereinafter referred to
as "Adjusted Monthly Payments") to be due and payable as a result of such
Adjusted Interest Rate. The Adjusted Interest Rate shall be the then
current four (4) year term rather for similar quality neighborhood retail
center loans held by the then holder of the Note.
b. Xxxxxx and Borrower shall, within sixty (60) days after receipt
of the Adjustment Notice by Borrower, enter into an amendment to the Note,
in form and content satisfactory to Lender, setting forth the Adjusted
Interest Rate and the Adjusted Monthly Payments.
c. If the Adjustment Notice has been timely made by Lender and if
the event described in subparagraph b immediately above has not been timely
accomplished, then Lender, at its option and without notice, may declare
the amount of the total unpaid balance of the Note to be due and forthwith
payable, whereupon it shall be so due and payable.
d. In the event Lender does not elect to adjust the interest rate
upon the Early Maturity Date, the Note shall continue and remain in full
force and effect upon all other terms stated herein, and the interest rate
shall not be adjusted as of such Early Maturity Date.
e. Notwithstanding any other provisions of this Note and provided no
default exists under the terms of the Note or the other Loan Documents, and
whether or not Lender delivers the Adjustment Notice described above,
Borrower may prepay on the Early Maturity Date the entire balance of
principal and interest then remaining unpaid hereon without premium or
penalty, and provided, further, that Borrower notifies the Lender of its
intent to prepay the Note on the Early Maturity Date by a written notice
delivered to Lender not less than sixty (60) days nor more than ninety (90)
days prior to the Early Maturity Date.
4. Payments of Interest. Commencing on December 10, 1994 and
continuing on the same day of each calendar month thereafter to and
including the Maturity Date of the Note, monthly installments of interest
only at the Interest Rate shall be due and payable to Lender; and such
interest-only monthly payments shall be equal to $23,000.71 through
November 10, 1997, at which time the Interest Rate may be adjusted as set
forth above. Principal payment shall be made as set forth in the Note.
5. Maturity Date. The "Maturity Date", as that term if defined in
the Note, shall be amended from September 1, 2001 to September 10, 2001, on
which date the entire outstanding principal balance, together with all
interest accrued and unpaid thereon and all other sums due under the Note
and the Loan Documents, shall be due and payable.
6. Loan Documents. All references to the Mortgage, to the
Assignment of Rents or to the Loan Documents shall be amended to refer to
such instruments as amended hereby and by that certain Third Modification
of Deed to Secure Debt and Security Agreement as of Assignment of Lessor's
Interest in Lease of even date herewith executed by Xxxxxxxx and Lender.
7. Prepayment. The prepayment provisions of the Third Amendment
shall remain in effect. The interest rate which must be maintained as
outlined under the yield maintenance formula set forth in paragraph 4.1 of
the Third Amendment, shall be 8.25% from December 10, 1994 through November
10, 1997, and shall be adjusted thereafter (if an Adjusted Rate is put into
effect) to the Adjusted Rate from November 10,1 997 through September 10,
2001.
8. Limited Non-Recourse. In addition to the exculpatory and
recourse provisions (the "Non-Recourse Provisions") under the Existing Note
and original Loan Documents, the following provisions shall now govern
Borrower's liability under the Note and the other Loan Documents. The
agreement of Lender not to pursue recourse liability as provided in any
Non-Recourse Provisions shall become null and void and Lender shall have
the right to pursue recourse liability against Borrower to the extent of
all sums due to, and only to the extent that Lender actually suffers loss,
cost, expense or damage, by reason of any of the following events:
(i) fraud or misrepresentation made in connection with the Loan,
the Note, the Mortgage or any of the other Loan Documents;
(ii) the misapplication by Borrower, its partners or agents (or
any affiliate of Borrower, such partners or agents) of (a)
proceeds of insurance covering any portion of the Property
or (b) proceeds of the sale or condemnation of any portion
of the Property;
(iii) the failure to apply rents, issues or profits derived from
the Property received by or on behalf of Borrower subsequent
to the occurrence of an Event of Default under the Note or
the Mortgage (or, only as to non-monetary Events of Default
other than the failure of Borrower to procure insurance or
pay taxes, subsequent to Lender's delivery of notice of such
Event of Default to Borrower) toward the payment of taxes,
assessments, insurance, normal and usual maintenance and
operating costs of the Property, and principal and interest
payments to Lender; and
(iv) failure to deliver to Lender all unearned advance rents
under the leases with respect to the Property and security
deposits paid by tenants or other occupants of the Property
and not refunded to or forfeited by such tenants.
9. Reaffirmation. As amended hereby, the Note, the Mortgage, the
Assignment and the other Loan Documents shall remain in full force and
effect and all covenants, agreements, warranties, representations and other
terms and provisions thereof, as amended hereby, are hereby ratified,
confirmed, reaffirmed and republished, and are hereby incorporated by
reference.
10. Costs, Expenses and Taxes. Subject to any non-recourse provision
of the Note, Xxxxxxxx agrees to pay on or before ten (10) days after demand
from Lender all costs and expenses incurred by Xxxxxx, in connection with
the enforcement of the Loan Documents and the other documents delivered
under the Loan Documents, including, without limitation, reasonable
attorneys' fees if collection is by or through an attorney at law. In
addition, Xxxxxxxx shall pay and an all stamp and other taxes and fees
payable or determined to be payable in connection with the execution,
delivery, filing and recording of this Agreement, the Note and the other
documents delivered in connection therewith, and agrees to save Xxxxxx
harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes and fees.
11. No Novation. THE PARTIES DO NOT INTEND THIS MODIFICATION NOR THE
TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND THIS MODIFICATION AND THE
TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE, A NOVATION
OF ANY OF THE OBLIGATIONS OWING BY THE BORROWER UNDER OR IN CONNECTION WITH
THE NOTE, MORTGAGE, ASSIGNMENT AND OTHER LOAN DOCUMENTS. FURTHER THE
PARTIES DO NOT INTEND THIS MODIFICATION NOR THE TRANSACTIONS CONTEMPLATED
HEREBY TO AFFECT THE PRIORITY OF ANY OF THE LENDER'S LIENS IN ANY OF THE
COLLATERAL SECURING THE NOTE IN ANY WAY, INCLUDING, BUT NOT LIMITED TO, THE
LIENS, SECURITY INTERESTS AND ENCUMBRANCES CREATED BY THE MORTGAGE, THE
ASSIGNMENT AND THE OTHER LOAN DOCUMENTS.
12. No Offsets or Defenses. Xxxxxxxx neither has nor claims any
offset, defense, claim or counterclaim against Lender or with respect to
the Note, this Agreement, the Mortgage, the Assignment, the other Loan
Documents, the loans evidenced thereby or the Property as of the date of
this Agreement; and if any such offset, defense, claim or counterclaim
exists, Borrower hereby irrevocably waives the right to assert such matter.
13. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
GEORGIA.
14. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
legal representatives, successors, successors it title and assigns,
subject, however, to all restrictions on transfer and encumbrance set forth
in the Mortgage.
15. Trial By Jury Waiver. To the extent permitted by applicable law,
Borrower hereby irrevocably and unconditionally waives any and all right to
trial by jury in any action, suit or counterclaim arising in connection
with, out of or otherwise relating to the Loan, this Agreement or the Other
Loan Documents.
IN WITNESS WHEREOF, this Agreement has been duly executed and sealed
by the parties the day and year first above written.
BORROWER:
WEST STEWARTS MILL
ASSOCIATES, L.P., a Georgia limited
partnership
By:/s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
[BEING THE SOLE GENERAL PARTNER XXXXXXX]
LENDER:
CONFEDERATION LIFE INSURANCE COMPANY
(U.S.) IN REHABILITATION, a
rehabilitation estate created pursuant
to the laws of Michigan
By:/s/ Xxxxx Xxxxx
---------------------------
Name: Xxxxx Xxxxx
Title: Director Mortgage
Investments
By:/s/ Xxxxx Xxxxxxxx
---------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President &
Chief Investment
Officer
