EXHIBIT 10.9
AMENDMENT TO BANK NOTE A
THIS AMENDMENT TO BANK NOTE A ("Amendment" or "Agreement") is made and
entered into as of the 21st day of April, 2004, among METLIFE BANK, N.A., a
national banking association ("Bank" or "Holder"); and XXXXX ACP, LLC, a
Delaware limited liability company (the "Borrower" or "Grantor")
PRELIMINARY STATEMENTS
A. Reference is hereby made to the following documents:
(i) Promissory Note dated December 30, 2003, made by Atlantic
Center Plaza, LLC to the order of MetLife Bank, N.A. in the principal
face amount of $6,000,000.00, as assumed by Xxxxx ACP, LLC pursuant to
and amended by the Assumption Agreement (as assumed and amended, "Bank
Note A" or "Note");
(ii) Assumption and Modification Agreement dated as of January
27, 2004 among Metropolitan Life Insurance Company, MetLife Bank, N.A.,
Xxxxx ACP, LLC, Xxxxx Equity, Inc., Atlantic Center Plaza, LLC, and
Xxxxxxxx X. Xxxxx and X.X. Land, Jr. (the "Assumption Agreement")
recorded in the Real Estate Records of Xxxxxx County, Georgia in Book
36,957, Page 165.
B. The Holder and the Borrower now desire to modify and amend the
provisions of the Note in the manner hereinafter set forth, it being
specifically understood that except as herein modified and amended, the terms
and provisions of such Note shall remain unchanged and continue in full force
and effect as therein written.
AGREEMENT
NOW, THEREFORE, the Holder and Borrower, in consideration of the
Preliminary Statements and for the purposes stated therein, and for other
valuable consideration, receipt of which is hereby acknowledged, do hereby agree
as follows:
1. RECITALS. The Recitals are incorporated herein by reference and
shall be deemed a part of this Agreement.
2. DEFINITIONS. All capitalized terms appearing herein and not
otherwise defined herein shall have the meanings ascribed to such terms in the
Note.
3. MODIFICATION OF LOAN DOCUMENTS AND INDEMNITY AGREEMENT. The parties
acknowledge that the Loan Documents and Indemnity Agreement have been modified
and amended pursuant to that certain Modification Agreement dated of even date
herewith among the Borrower, Xxxxx Equity, Inc., Metropolitan Life Insurance
Company and MetLife Bank, N.A. (the "Modification Agreement"). In addition,
Metropolitan Note A has also been modified pursuant to that certain Amendment to
Metropolitan Note A dated of even date among Borrower and Metropolitan Life
Insurance Company (the "Other Note Amendment").
4. MODIFICATION OF NOTE. The Note is hereby amended as follows:
(a) FUTURE ADVANCES. The holders of Metropolitan Note A (face
amount of $74,000,000.00) and Bank Note A (face amount $6,000,000.00) have
agreed pursuant to this Amendment and the Other Note Amendment, as applicable,
to make future advances of principal under Note A in an amount sufficient to
cause the outstanding principal amount of Note A to be $80,000,000.00, subject
to the following conditions:
(i) No Event of Default nor an event or condition
which, with the passage of time or notice or both, would constitute an
Event of Default, shall exist at the time of the future advance;
(ii) The Borrower shall submit a written request to
lender for such disbursement at least ten (10) days prior to the
requested disbursement date;
(iii) The future disbursement will be made on or
after May 1, 2004, but on or before December 31, 2004 (but if any of
such dates are not a business day for Holder, such disbursement will be
made on the preceding business day);
(iv) The total amount of the future disbursement
under Note A will be up to, but not in excess of, $4,126,298.56. The
outstanding principal balance of Metropolitan Note A is $70,183,173.83
as of the date hereof, and the future advance under Metropolitan Note A
will be $3,816,826.17. The outstanding principal balance of Bank Note A
is $5,690,527.61 as of the date hereof and the future advance under
Bank Note A will be $309,472.39.
(v) The Borrower shall provide to Holder a title
endorsement to the Holder's title insurance policy which updates the
effective date of the title policy to the date of the disbursement,
acknowledges the amount of the disbursement, acknowledges liability
under the title policy for an aggregate amount of $80,000,000.00, and
containing no additional exceptions to title unless such additional
exceptions are first approved by Holder.
(b) MATURITY DATE. The Maturity Date of the Note is hereby
extended from December 1, 2006, to January 1, 2015.
(c) INTEREST RATE. The Interest Rate set forth in Section 1(a)
of the Note shall continue to apply until January 1, 2005. Effective January 1,
2005, the Interest Rate on the Note shall be a fixed rate as follows:
(i) Interest on the Note shall accrue from and after
January 1, 2005 at a fixed rate of 5.49% per annum and the defined term
"Interest Rate" appearing in the Note shall be deemed to mean the
aforesaid rate of 5.49% per annum from and after January 1, 2005.
(ii) Prior to January 1, 2005, interest shall be
calculated on the basis of the actual number of days elapsed over a
three hundred sixty (360) day year. From and after January 1, 2005,
interest shall be calculated on the basis of a thirty (30) day month
and a three hundred sixty (360) day year, except that the interest
portion of the payments for the first and last months of the term of
the Loan, if such payments pertain to partial months, shall be
calculated on the basis of the actual number of days that the Loan is
outstanding in such partial months over a 365 day or 366 day year, as
applicable.
(d) PAYMENT OF PRINCIPAL AND INTEREST. The parties acknowledge
and agree that the existing payment requirements for the Note as set forth in
Section 1(b) thereof shall continue to apply through the payment due on January
1, 2005, subject, however, to the suspension of principal payments as set forth
in Section 4(a) of the Assumption Agreement. In addition, any interest on the
future advance of principal shall be added to and included in the monthly
payments of interest required under the Note until and including January 1,
2005. From and after January 1, 2005, the following payments shall be made on
this Note, in lieu of the payments set forth in Section 1(b) of the Note:
(i) Interest only in the amount of $27,450.00 per
month shall be paid monthly in arrears on the first day of each month
beginning February 1, 2005 and continuing on the first day of each
month thereafter through and including January 1, 2010. Commencing
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February 1, 2010, the Borrower shall pay monthly installments of
principal and interest in the amount of $34,029.70 per month and
continuing on the first day of each month thereafter until the Maturity
Date.
(e) PREPAYMENT. Sections 8 and 9 of the Note are hereby
amended and restated to read as follows:
"8. PREPAYMENT. Borrower shall not have the right to
prepay all or any portion of the Loan amount at any time during the
term of this Note except as expressly set forth below or in the Deed To
Secure Debt. This Note shall be closed to prepayment until February 1,
2010. Commencing on February 1, 2010, the Loan may be prepaid in whole,
but not in part, with the payment of a Prepayment Fee (as defined
below). In addition, during the ninety (90) day period prior to the
Maturity Date, Borrower may prepay the entire outstanding principal
balance of the Loan, accrued interest and all other sums due and
payable under the Loan Documents without Prepayment Fee. The Borrower
must give at least thirty (30) days prior written notice of a
prepayment. If Borrower provides notice of its intention to prepay, the
Accelerated Loan Amount shall become due and payable on the date
specified in the prepayment notice. In addition to the above
limitations upon prepayment, this Note may not be prepaid without the
simultaneous prepayment of the Other Notes in accordance with their
terms.
9. DEFAULT; DEFAULT PREPAYMENT FEE; PREPAYMENT FEE.
(a) Any tender of payment by Borrower or any other
person or entity of the Aggregate Indebtedness, other than as expressly
provided in the Loan Documents, shall constitute a prohibited
prepayment. If a prepayment of all or any part of the Aggregate
Indebtedness is made (i) following an Event of Default and an
acceleration of the Maturity Date, (ii) following the application of
money to the principal of the Loan after a casualty or a condemnation,
or (iii) in connection with a purchase of the Property at foreclosure
or by deed in lieu of foreclosure or by power of sale or a repayment of
the Aggregate Indebtedness at any time before, during or after, a
judicial or non-judicial foreclosure or sale of the Property, then to
compensate Holder for the loss of the investment, Borrower shall pay an
amount equal to the Default Prepayment Fee (as hereinafter defined);
provided however, in the event of a casualty or condemnation, so long
as Borrower makes a good faith effort to obtain an amount equal to the
Default Prepayment Fee due as a result of the casualty or condemnation
as part of its damages from the insurer or condemning authority, the
Default Prepayment Fee due as a result of the casualty or condemnation
shall be waived in the event that such amount is not collected by
Borrower.
(b) The "Prepayment Fee" shall be the greater of (A)
the Prepayment Ratio (as hereinafter defined) multiplied by the
difference between (x) and (y), where (x) is the present value of all
remaining payments of principal and interest including the outstanding
principal due on the Maturity Date, discounted at the rate which, when
compounded monthly, is equivalent to the Treasury Rate plus twenty-five
hundredths percent (0.25%) compounded semi-annually, and (y) is the
amount of the principal then outstanding, or (B) one-half of one
percent (0.50%) of the amount of the principal being prepaid.
(c) The "TREASURY RATE" shall be the annualized yield
on securities issued by the United States Treasury having a maturity
equal to the remaining stated term of this Note, as quoted in the
FEDERAL RESERVE STATISTICAL RELEASE [H. 15 (519)] under the heading
"U.S. Government Securities - Treasury Constant Maturities" for the
date on which prepayment is being made. If this rate is not available
as of the date of prepayment, the Treasury Rate shall be determined by
interpolating between the yield on securities of the next longer and
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next shorter maturity. If the Treasury Rate is no longer published,
Holder shall select a comparable rate. Holder will, upon request,
provide an estimate of the amount of the Prepayment Fee two weeks
before the date of the scheduled prepayment.
(d) The "PREPAYMENT RATIO" shall be a fraction, the
numerator of which shall be the amount of principal being prepaid, and
the denominator of which shall be the principal then outstanding.
(e) Any reference to "Default Prepayment Fee" shall
be deemed to mean the "Prepayment Fee".
[End of Amended and Restated Paragraphs 8 and 9]
(f) INTEREST RATE PROTECTION. Effective January 1, 2005, the
Interest Rate Protection provisions of Section 21 of the Note shall no longer be
applicable to this Note, as a result of the change to a fixed rate of interest.
(g) REFERENCE TO LOAN DOCUMENTS. All references in the Note to
the terms "Deed to Secure Debt", "Guaranty", "Other Notes", "Loan Documents", or
"Indemnity Agreement" or to any individual document constituting a Loan
Document, shall be deemed to include the modifications thereto effected by the
Modification Agreement, together with any modifications, renewals or extensions
hereafter made with respect thereto.
5. LEASE ROLLOVER RESERVE. In the event Xxxxxx & Bird ("Xxxxxx & Bird")
either (x) does not renew the Xxxxxx & Bird Lease (as defined below) or (y)
reduces its then rentable square footage leased by Xxxxxx & Bird from that
currently leased under the Xxxxxx & Bird Lease, then Borrower shall within 10
business days following the earlier of (i) Xxxxxx & Bird's notification date
under the Xxxxxx & Bird Lease or (y) the date of such non-renewal or reduction,
provide the holders of the Notes (collectively, "Lender") with a letter of
credit, in form and substance acceptable to Lender, in an amount equal to the
reduced rentable square footage multiplied by $30.00 per rentable square foot.
To the extent Borrower subsequently re-leases a portion of the space which was
previously rented under the Xxxxxx & Bird lease to a tenant approved by Lender
(if such approval is required under the terms of the Loan Documents) under a
Lease approved by Lender (if such approval is required under the terms of the
Loan Documents), then the required Letter of Credit amount will be reduced by
the lesser of (i) the actual leasing costs (tenant improvements and leasing
commissions) for the re-leased space or (ii) $30.00 per rentable square foot of
the re-leased space.
6. NO IMPAIRMENT OF SECURITY, ETC. It is mutually agreed by and between
the parties hereto that this Agreement shall become a part of the Note by
reference and that nothing herein contained shall impair the security now held
for the indebtedness, nor shall waive, annul, vary or affect any provision,
condition, covenant or agreement contained in the Note, except as herein
amended, nor affect or impair any rights, powers or remedies under the Note, as
hereby amended. Furthermore, the Holder does hereby reserve all rights and
remedies it may have as against all parties who may hereafter become secondarily
liable for the repayment of the indebtedness evidenced by the Note.
7. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of any assignee or the respective heirs, executors,
administrators, successors and assigns of the parties hereto.
8. COUNTERPARTS. This Agreement may be executed in multiple
counterparts and/or by the use of multiple signature pages, each of which shall
constitute an original but all of which, taken together, shall constitute one
and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto under seal and delivered as of the day and year first above written.
BORROWER:
XXXXX ACP, LLC,
a Delaware limited liability company
By: /s/ Xxxxxxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President
[Seal]
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HOLDER:
METLIFE BANK, N.A.
By: METROPOLITAN LIFE INSURANCE COMPANY,
its Servicer
By: /s/ Xxxxxxx X. XxXxxxx Xx.
--------------------------------
Title: Commercial Loan Officer
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