Exhibit 10.10.4
(above space reserved for recording)
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This instrument prepared by and upon recording should be Cross-reference to document recorded at:
returned to:
Book 30621, Page 516
Xxxx & Xxxxxx LLP Xxxxxx County, Georgia records
One Georgia Center, Suite 0000
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
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FIRST AMENDMENT
TO SECURITY INSTRUMENT AND OTHER LOAN DOCUMENTS
THIS FIRST AMENDMENT TO SECURITY INSTRUMENT AND OTHER LOAN
DOCUMENTS (this "AMENDMENT") is entered into on this 25th day of June, 2002, by
and among XXXXXXX PROPERTIES RESIDENTIAL, L.P., a Georgia limited partnership
("BORROWER"), XXXXXXX REALTY INVESTORS, INC., a Georgia corporation
("GUARANTOR"), and SOUTHTRUST BANK, an Alabama banking corporation ("LENDER").
Recitals:
Borrower is indebted to Lender for a loan in the maximum
principal amount of $3,000,000.00 (the "LOAN") as evidenced by a Promissory
Note dated June 28, 2001, payable by Xxxxxxxx to the order of Lender (the
"NOTE"). The Note is secured by, among other things, a Deed to Secure Debt,
Assignment of Leases and Rents, and Security Agreement dated June 28, 2001,
from Borrower to Lender, which is recorded in the real estate records of Xxxxxx
County, Georgia, in Deed Book 30621 at Page 516 (the "SECURITY INSTRUMENT").
The Loan is guaranteed by Guarantor pursuant to a Guaranty Agreement dated June
28, 2001 (the "GUARANTY AGREEMENT").
Borrower, with the consent of Guarantor has requested that
Lender extend the Maturity Date (as defined in the Note) of the Loan to July
10, 2003. Xxxxxx has granted Xxxxxxxx's request subject to certain terms and
conditions. The parties named above have entered into this Amendment for the
purposes of evidencing their agreement, or granting their consent, pertaining
to the extension of the Maturity Date of the Loan.
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NOTE TO RECORDER: THE AMENDED NOTE SECURED BY THE SECURITY INSTRUMENT DESCRIBED
HEREIN MATURES NOT LATER THAN JULY 10, 2003, AND THEREFORE NO INTANGIBLES TAX
IS DUE UPON THE RECORDATION OF THIS AMENDMENT.
First Amendment to Security Instrument and Other Loan Documents - Page 1
Xxxxxxx Properties Residential, L.P.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used, but not defined, in this
Amendment shall have the meanings ascribed to them in the Security Instrument.
2. Amendments to Security Instrument. Xxxxxxxx, Guarantor and
Xxxxxx agree that the Security Instrument is hereby amended as follows:
(a) The date "July 10, 2002" on page one (1) of the
Security Instrument is hereby deleted in its entirety and replaced
with the date "July 10, 2003", reflecting that the date on which the
final installment is due under the Note has been extended to July 10,
2003.
(b) All references to the "Note" in the Security
Instrument shall hereafter refer to the Note as amended by the Allonge
(as defined herein), as the same may hereafter be amended, extended,
supplemented, replaced, or restated pursuant to the applicable
provisions thereof.
3. Amendments to Other Loan Documents. Borrower, Guarantor, and
Xxxxxx agree that the other Loan Documents (with the exception of the Security
Instrument and the Note, which are being separately amended hereby or by the
Allonge) are hereby amended and supplemented in the following respects:
(a) All references to the Security Instrument in the
other Loan Documents shall hereafter refer to the Security Instrument
as amended hereby, and as the same may hereafter be amended, extended,
supplemented, replaced, or restated pursuant to the applicable
provisions thereof.
(b) All references to the "Note" in the other Loan
Documents shall hereafter refer to the Note as amended by the Allonge,
and as the same may hereafter be amended, extended, supplemented,
replaced, or restated pursuant to the applicable provisions thereof.
4. Conditions Precedent. This Amendment shall not be effective
unless and until each of the following conditions precedent are satisfied (as
determined by Xxxxxx in its discretion) or are waived by Xxxxxx in its
discretion:
(a) To further evidence the extension of the Loan,
Borrower shall have duly executed and delivered to Lender, in form and
content satisfactory to Lender, an allonge to the Note (the
"ALLONGE"), pursuant to which the Note is amended consistent with the
terms of this Amendment and is otherwise amended as set forth in such
Allonge;
(b) Borrower shall have paid Lender a fee in the amount
of $11,250.00, and Xxxxxxxx shall have paid or reimbursed Lender for
all expenses incurred by Xxxxxx in connection with the negotiation,
preparation, execution, and
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First Amendment to Security Instrument and Other Loan Documents - Page 2
Xxxxxxx Properties Residential, L.P.
the recordation of this Amendment, including, without limitation, fees
and expenses of Xxxxxx's counsel, title insurance premiums, and
recording fees;
(c) Xxxxxx shall have received evidence of the due
authorization by Xxxxxxxx and Guarantor, as applicable, of the
execution and delivery of this Amendment and the Allonge and the
consummation of the transactions contemplated herein and therein; and
(d) Xxxxxx receives such additional reports,
certificates, opinions, and other items that Xxxxxx might reasonably
request.
4. Representations and Warranties. As a material inducement to
Lender to extend the Maturity Date of the Loan as aforesaid, each of Borrower
and Guarantor (each a "Borrower Party" and collectively "Borrower Parties")
represents and warrants to Lender that:
(a) This Amendment and the Allonge constitute the valid
and legally binding obligations of each Borrower Party enforceable in
accordance with their respective terms and do not violate, conflict
with, or constitute any default under any law or regulation binding on
or applicable to any Borrower Party, any Borrower Party's
organizational documents, or any mortgage, lease, credit, loan
agreement, contract, or other instrument binding upon or affecting any
Borrower Party;
(b) All representations and warranties of such Borrower
Party contained in the Loan Documents are true and complete as of the
date hereof, and each Borrower Party hereby makes and publishes such
representations and warranties in their entirety;
(c) No Event of Default or event that, with the passage
of time or the giving of notice (or both) would constitute an Event of
Default, under the Loan Documents has occurred and is continuing as of
the date hereof;
(d) No setoffs, defenses, claims, or counterclaims on
the part of such Borrower Party to payment or performance of the
obligations evidenced or created by the Loan Documents, as modified
and supplemented pursuant to this Amendment and the Allonge, exists as
of the date hereof.
Borrower Parties agree that the falsity or inaccuracy of any
of the foregoing representations and warranties in any material respect shall
constitute an Event of Default pursuant to the Loan Documents.
5. No Novation. The execution and delivery of this Amendment and
the Allonge shall not be interpreted or construed as, and in fact does not
constitute, a novation, payment, or satisfaction of all or any portion of the
Loan; rather, this Amendment and the Allonge are strictly amendatory in nature.
The Loan shall continue to be secured by the Security Instrument, as herein
amended, without change in nature, amount, or priority.
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First Amendment to Security Instrument and Other Loan Documents - Page 3
Xxxxxxx Properties Residential, L.P.
6. Document Protocols. This Amendment is governed by the
Document Protocols set forth in Article Eight of the Security Instrument, which
Document Protocols are incorporated by reference into this Amendment as if
fully set forth herein.
[Remainder of page intentionally left blank;
executions begin on following page]
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First Amendment to Security Instrument and Other Loan Documents - Page 4
Xxxxxxx Properties Residential, L.P.
IN WITNESS WHEREOF, Xxxxxxxx and Guarantor have executed this
Amendment on the day and year first above written, with the intention that this
Amendment take effect as an instrument under seal.
Borrower:
XXXXXXX PROPERTIES RESIDENTIAL, L.P.,
a Georgia limited partnership
By: Xxxxxxx Realty Investors, Inc.,
a Georgia corporation,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------------
Title: CFO
---------------------------------
[Affix corporate seal]
Signed, sealed, and delivered
in the presence of:
/s/ Xxxx Xxxxxx
--------------------------------
Unofficial Witness
/s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Notary Public
Commission expiry: June 17, 2005
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[Affix notarial seal]
Guarantor:
XXXXXXX REALTY INVESTORS, INC.,
a Georgia corporation
By: /s/ Xxxxxxx X.Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------------------------
Title: CFO
-------------------------------------
[affix corporate seal]
Signed, sealed, and delivered
in the presence of:
/s/ Xxxx Xxxxxx
--------------------------------
Unofficial Witness
/s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Notary Public
Commission expiry: June 17, 2005
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[Affix notarial seal]
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First Amendment to Security Instrument and Other Loan Documents - Page 5
Xxxxxxx Properties Residential, L.P.
IN WITNESS WHEREOF, Xxxxxx has executed this Amendment on the day and
year first above written, with the intention that this Amendment take effect as
an instrument under seal.
Lender:
SOUTHTRUST BANK,
an Alabama Banking corporation
By: /s/ Xxxxxxx X. Xxxxx (L.S.)
---------------------------------
Name: Xxxxxxx X. Xxxxx
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Title: Assistant Vice President
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Signed, sealed, and delivered
in the presence of:
/s/ Xxxx Xxxxxxxxx
---------------------------------
Unofficial Witness
/s/ Xxxxx Xxxxx Xxxxxx
---------------------------------
Notary Public
Commission expiry: March 11, 2005
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[Affix notarial seal]
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First Amendment to Security Instrument and Other Loan Documents - Page 6
Xxxxxxx Properties Residential, L.P.
ALLONGE TO PROMISSORY NOTE
Re: Promissory Note dated June 28, 2001, payable by XXXXXXX PROPERTIES
RESIDENTIAL, L.P., a Georgia limited partnership ("BORROWER"), to
order of SOUTHTRUST BANK, an Alabama banking corporation ("LENDER"),
in the principal amount of $3,000,000.00 (the "NOTE")
Pursuant to Section 4(a)of that certain First Amendment to
Security Instrument and Other Loan Documents of even date herewith among
Xxxxxxxx, Xxxxxxx Realty Investors, Inc., and Lender (the "AMENDMENT"),
Borrower hereby executes this Allonge for the purpose of amending the
above-referenced Note in the following respect:
The date "July 10, 2002" contained in Section 1(a)
of the Note is hereby deleted in its entirety and replaced
with "July 10, 2003" in lieu thereof such that the Maturity
Date as defined in said Section 1(a) is extended to July 10,
2003.
Except as herein amended, the Note shall remain in full force
and effect. The terms and conditions of the Amendment are hereby incorporated
by reference into this Allonge in their entirety. This Allonge shall be
attached to and constitute a part of the Note.
IN WITNESS WHEREOF, Xxxxxxxx has caused its duly authorized
representative to execute this Allonge under seal as of the 25th day of June,
2002.
XXXXXXX PROPERTIES RESIDENTIAL,
L.P., a Georgia limited partnership
By: Xxxxxxx Realty Investors, Inc.,
a Georgia corporation,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx (L.S.)
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------------
Title: CFO
---------------------------------
[affix corporate seal]
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Allonge to Promissory Note dated June 28, 2001
Xxxxxxx Properties Residential, L.P.
