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EXHIBIT 10.18
[Great-West Letterhead]
VIA AIRBORNE EXPRESS
October 24, 1995
Xxxxxxxxx Western Properties III Ltd.
c/x Xxxxxxxxx Properties, Ltd.
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xx. Xxxxx X. Xxxxxxxxxx, Vice President
Re: Xxxxxxxxx Western Properties III Ltd.,
a Colorado limited partnership (the "BORROWER")
Great-West Life & Annuity Insurance Company,
a Colorado corporation (the "LENDER")
0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx (the "PROPERTY")
Loan No: CA 59601 (the "LOAN")
Gentlemen:
The Lender hereby agrees to grant the Borrower a short-term extension of the
maturity date of the Loan from October 1, 1995 to October 1, 1997 (the
"EXTENDED MATURITY DATE") for the sole purpose of providing the Borrower with
additional time to effect a sale of the Property and repay the Loan.
This letter amends and supersedes in its entirety Xxxxxx's letter dated October
5, 1995.
This extension is subject to the following terms and conditions:
1. Loan Documents. The documents which evidence, secure and otherwise
relate to the Loan include, without limitation, the following: (a) that
certain Promissory Note dated September 4, 1979 executed by Venetian
Square, Ltd., a limited partnership ("VENETIAN"), payable to the order of
the Lender's predecessor in interest, The Great-West Life Assurance
Company, a Canadian corporation ("ASSURANCE"), in the original principal
amount of $4,450,000.00 as amended by that certain First Amendment to
Promissory Note dated January 26, 1995 (collectively, the "NOTE"); (b)
that certain Deed of Trust dated September 4, 1979 and recorded October 1,
1979 in the Official Records of San Xxxxxxx County, California as
Instrument No. 79073697, as amended by First Amendment to Deed of Trust
dated January 26, 1995 and recorded March 17, 1995 in the Official Records
of San Xxxxxxx County, California as Instrument No. 95022958
(collectively, the "DEED OF TRUST"); (c) that certain Assignment of Leases
dated September 4, 1979 and recorded October 1, 1979 in the Official
Records of San Xxxxxxx County, California as Instrument No. 79073699, and
that certain Assignment of Leases dated November 1, 1979 and recorded
November 16, 1979 in the Official Records of San Xxxxxxx County,
California as Instrument No. 7987290 (collectively, the "LEASES
ASSIGNMENT"); (d) that certain Assignment of Rents dated September 4, 1979
and recorded October 1, 1979 in the Official Records of San Xxxxxxx
County, California as Instrument No. 79073700 (the RENTS ASSIGNMENT");
(e) that certain "ENVIRONMENTAL INDEMNITY" dated January 26, 1995 (the
"Environmental Indemnity'); (f) that certain Security Agreement dated
January 26, 1995 (the "SECURITY AGREEMENT"), and (g) that certain
Environmental Undertaking dated January 26, 1995 and recorded March 17,
1995 in the Official Records of San Xxxxxxx
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Account Number: CA 59601
October 24, 1995
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County, California as Instrument No. 95022960 (the "ENVIRONMENTAL
UNDERTAKING"). The foregoing described documents and all other documents
and agreements evidencing, securing or otherwise relating to the Loan as
they may be modified, shall hereinafter be collectively referred to as the
"Loan Documents".
Venetian conveyed the Property to Xxxxxxxx and Xxxxxxxx has assumed the
payment and performance obligations of Venetian under the Loan Documents
pursuant to that certain First Modification and Assumption Agreement dated
January 26, 1995 and recorded March 17, 1995 in the Official Records of
San Xxxxxxx County, California as Instrument No. 95022957.
2. No Defaults. As of the date of Closing (as hereinafter defined) with
respect to the modifications described herein, no defaults shall have
occurred which are then continuing under the Loan.
3. Property Taxes, All real property taxes and any assessments shall be
current as of the date hereof and through Closing, and shall continue to
be paid or have been paid in full as they become due and payable.
4. Acknowledgment of Current Loan Balance. The Borrower hereby acknowledges
that the current outstanding principal balance of the Loan as of September
19, 1995, when the last payment was received and applied, is
$3,445,069.11.
5. Adjusted Monthly Payments: Adjusted Interest Rate and Amortization
Period. We are unable to calculate the amount of the revised monthly
payment at this time. The revised payment will be based upon the
outstanding principal balance after application of the last payment at the
current rate (which is due October 1, 1995) being amortized over the
revised fourteen (14) year amortization term at the adjusted rate of ten
and one-half percent (10.5%) per annum. You will be advised in writing,
of the precise amount of the revised payment soon after application of the
last such payment. The revised monthly payments shall be due on the first
day of each month commencing NOVEMBER 1, 1995, and continuing on the
first day of each month thereafter to and including October 1, 1997.
Unless sooner paid, the entire outstanding principal balance, together
with all accrued and unpaid interest thereon and any other charges in
connection therewith, shall be due and payable in full on October 1, 1997,
the Extended Maturity Date.
6. Prepayment Privilege. The privilege shall be granted to the Borrower to
prepay the principal balance of the Loan in whole, but not in part, at any
time upon the Borrower giving the Lender not less than ten (10) days'
prior written notice. Except as provided hereinbelow, a fee equal to the
Prepayment Fee, as hereinafter defined, shall be charged with respect to
any such prepayment. Receipt by the Lender of the monthly payments from
the Borrower prior to their due date shall not be construed or operate as
partial prepayments of the Loan, which are expressly prohibited.
If, at the time of any prepayment, the yield on a U.S. treasury bond with
the closest matching maturity date to the Extended Maturity Date of this
Loan plus one hundred (100) basis points (the "TREASURY BOND YIELD") is
less than the interest rate then in effect on this Loan, the prepayment
fee (the "PREPAYMENT FEE") shall be defined as the sum of one percent (1%)
of the anticipated outstanding principal balance of the Loan at the time
of prepayment, plus the Discounted Yield Maintenance Amount, as defined
and described below. The "DISCOUNTED YIELD MAINTENANCE AMOUNT" shall be
calculated and defined as follows:
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Account Number: CA 59601
October 24, 1995
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(1) The future expected contractual cash flow (interest and principal
payments) from the Loan shall be projected forward from the anticipated
date of prepayment to the Extended Maturity Date, as if the prepayment
were not to occur;
(2) The present value, computed on a monthly basis, of the said
projected contractual cash flow shall be calculated using the Treasury
Bond Yield as the discount rate;
(3) The present value of the anticipated amount of principal and
interest that is expected to be due on the Extended Maturity Date (the
"BALLOON") (assuming that all monthly payments are timely made when
due) shall be calculated using the Treasury Bond Yield as the discount
rate;
(4) The sum of the present value of the monthly cash flow derived under
subparagraph (2) above shall be added to the present value of the
Balloon derived under subparagraph (3) above, and the anticipated
outstanding principal balance of the Loan at the time of prepayment
shall be subtracted from that number;
(5) The number resulting from the calculation in subparagraph (4) above
shall be the Discounted Yield Maintenance Amount.
If at the time of any prepayment, the Treasury Bond Yield is equal to or
greater than the interest rate then in effect on this Loan, the Prepayment
Fee shall be defined as one percent (1.0%) of the anticipated outstanding
Loan balance at the time of prepayment.
An example illustrating the calculation of the Discounted Yield Maintenance
Amount and the Prepayment Fee is attached to this Renewal Commitment Letter
and incorporated herein as Exhibit A. The example is based on an
outstanding principal balance of $1,000,000 at the time of prepayment, a
two (2) year term to maturity (i.e., from October 1, 1994 through October
1, 1996), a contractual interest rate of nine percent (9.0%) per annum and
a discount rate of six and four-fifths percent (6.8%) per annum. Steps (1)
through (5) described hereinabove have been noted on Exhibit A.
Notwithstanding the foregoing, no Prepayment Fee shall be due with respect
to repayment in full made on the Extended Maturity Date or within fifteen
(15) months prior thereto, provided that the Borrower shall have given the
Lender not less than ten (10) days' prior written notice of its intention to
so prepay. Provided, further, that in the event that the Extended Maturity
Date shall have been accelerated for default, the full amount of the
Prepayment Fee shall be due and payable.
7. Modification of Environmental Undertaking. The Environmental Undertaking
shall be modified such that completion of Borrower's obligations
thereunder shall occur no later than October 1, 1997.
8. Subordinate Liens. Any parties holding liens or encumbrances against the
Property which were recorded subsequent to the lien of the Lender's Deed of
Trust shall be notified of, and consent in writing to, the extension of the
Loan described herein.
9. Title Endorsement: Tax Certificate. The existing Loan Policy of Title
Insurance No. 217405, issued by Chicago Title Insurance Company, successor
to Ticor Title Insurance Company of California by merger, shall be
down-dated by separate endorsement, which endorsement shall also insure
the continuing validity, enforceability and first lien priority of the
Lender's Deed of Trust, as modified. The Borrower hereby agrees
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Account Number CA 59601
October 24, 1995
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to promptly cooperate in the delivery of same, at the Borrower's sole
cost and expense. In addition, a current Certificate of Taxes Due
shall be provided to the Lender, at the Borrower's sole expense.
10. Closing. The term "CLOSING," as used herein, shall mean that date
when the parties execute all agreements and other documents modifying
the Loan in accordance with this letter agreement, which, unless
otherwise indicated, shall be when all conditions precedent set forth
herein have been satisfied. Notwithstanding the foregoing, the Closing
shall occur no later than NOVEMBER 30, 1995.
11. Documents. The parties hereto acknowledge that a modification
agreement and such other documents as the Lender or its local counsel
may require shall be executed by the parties. Such documents shall
evidence the terms and conditions of this letter agreement and shall
contain such other terms and conditions as the Lender or its local
counsel shall reasonably require.
12. Costs, Fees and Expenses. All costs, fees and expenses incurred in
connection with the modifications to the Loan described herein,
including, without limitation, the fees and expenses of the Lender's
local counsel, title costs and recording and filing fees, shall be
paid by the Borrower immediately when due. Any failure on the
Borrower's part to pay the foregoing when due shall constitute an
event of default under the Loan, whereupon the Lender shall be
entitled to exercise all remedies available to it at law, in equity,
and under the Loan Documents, as modified (including, without
limitation, the right of the Lender to add the amount of such
defaulted costs, fees and/or expenses to the indebtedness evidenced by
the Note).
13. Sale of Property. The parties hereto acknowledge and agree that the
Borrower is planning to sell the Property, and pursuant thereto, to
repay the Loan in full. It is anticipated that the closing with
respect to such sale shall occur on or before the Extended Maturity
Date. The Borrower hereby agrees to keep the Lender fully apprised
of the progress of any sale and to promptly furnish the Lender, upon
execution thereof, with a copy of the purchase and sale contract and
any accompanying materials for its review In return, the Lender hereby
agrees to cooperate with the Borrower by promptly providing a written
payoff statement with respect to the Loan upon the Borrowers request
therefor.
14. Additional Extensions. The parties hereby acknowledge and agree that
any agreement to extend the term of the Loan beyond the Extended
Maturity Date shall be binding only if and when it is memorialized by
a written agreement which is signed by the Borrower and the Lender.
15. Extension Fee. The Borrower shall promptly remit to the Lender a
non-refundable fee in the amount of $20,000.00 (the "EXTENSION FEE")
as consideration for this extension of the maturity date of the Loan.
16. Modifications in Writing. This letter agreement may be modified or
amended only in writing signed by the parties hereto. No oral
modification or amendment to this letter agreement shall be effective.
17. Ratification. Except as modified by this letter agreement, all other
terms and conditions of the Loan Documents shall remain in full force
and effect and are hereby ratified and affirmed by the Borrower,
including, without limitation, the limited recourse language contained
in the Note and Deed of Trust.
18. No Impairment of Xxxxxx's Rights. Nothing contained in this letter
agreement shall be deemed or shall operate to impair or affect in any
way whatsoever the Rights, remedies, powers and privileges
available to the Lender under the Loan Documents and otherwise
existing at law or in equity.
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Account Number: CA 59601
October 24, 1995
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19. Binding Effect. This letter agreement shall be binding upon and shall
inure to the benefit of the parties hereto and to the successors and
assigns of the Lender.
20. Survival. This letter agreement shall survive execution of the
modification agreements and documents arising herefrom; provided, however,
that to the extent that there are any inconsistencies between this letter
agreement and the modification agreements and documents arising herefrom,
the modification agreements and documents shall prevail and control.
21. Counterparts. This letter agreement may be executed in one or more
counterparts, which, when taken together, shall constitute one original
agreement.
22. Acceptance. Please indicate your acceptance of the foregoing terms and
conditions by signing in the space provided below on the duplicate
original of the letter agreement enclosed herewith and returning it,
together with the Extension Fee, to the attention of the undersigned on or
before October 27, 1995. If these items are not received by such date,
this letter agreement shall be null and void and the Loan shall be due
and payable in full on or before November 15, 1995.
Yours truly,
LENDER:
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY,
A COLORADO CORPORATION
By: X. XXXXXX
------------------------
X. Xxxxxx
Assistant Vice President
Mortgage Investments
By: XXXXXX X. XXXXXX
------------------------
X.X. Xxxxxx
Manager
Mortgage Investments
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Account Number: CA 59601
October 24, 1995
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Agreed to and Accepted by the Borrower this 27th day of October, 1995.
The undersigned Borrower hereby represents and warrants that its execution of
this letter agreement and performance of its obligations hereunder have been
duly authorized by the requisite partnership and corporate acts and that
performance of its obligations hereunder shall not violate applicable
provisions of any law or its Limited Partnership Agreement or the limited
partnership agreements of its general partners or the articles of incorporation
and bylaws of BPL Holdings, Inc..
BORROWER:
XXXXXXXXX WESTERN PROPERTIES III LTD.,
A COLORADO LIMITED PARTNERSHIP
By: Xxxxxxxxx Properties, Ltd., (SEAL)
a Colorado limited partnership
its Managing General Partner
By: BPL Holdings, Inc.,
a Delaware corporation
its General Partner
By:/s/ Xxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
By: Xxxxxxxxx 1983 Associates, Ltd.,
a Colorado limited partnership,
its General Partner
By: Xxxxxxxxx Properties, Ltd.,
a Colorado limited partnership,
its General Partner
By: BPL Holdings, Inc. (SEAL)
a Delaware corporation,
its General Partner
By:/s/ Xxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
BEING ALL OF THE GENERAL PARTNERS OF THE BORROWER
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Account Number: CA 59601
October 24, 1995
Page 7
pc: X.X. Xxxxx, X.X.X. and Associate Counsel, Investments-Legal, 2T2
X. Xxxxx Xxxxx, Associate Manager, Mortgage Administration, 2T2
X. Xxxxxxx, Associate Manager, Mortgage Closing, 3T2
X.X. Xxxx, Assistant Manager, Mortgage Administration, 2T2
Xxxxx Xxxx Esq., Xxxxxxxxxx, Xxxxx, Heinermann, Cook & Xxxxxxx,
Xxx Xxxxxx Xxxxx,
Xxxxxxx Xxxxxx Xxxxx, 00xx Xxxxx,
Xxx Xxxxxxxxx, XX 00000-1415 (via regular mail)
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EXHIBIT A
DISCOUNTED YIELD MAINTENANCE CALCULATION
6.800% Discount
Factor
EXISTING PROJECTED
INTEREST MONTHLY INTEREST PRINCIPAL PRINCIPAL NPV OF MONTHLY
RATE CASH FLOW BALANCE CASH FLOW
(1) (2)
0 01-Oct-94 9.000% 1,000,000 0
1 01-Nov-94 9.000% 8,392 7,500 892 999,108 8,345
2 01-Dec-94 9.000% 8,392 7,493 899 998,209 8,298
3 01-Jan-95 9.000% 8,392 7,487 905 997,304 8,251
4 01-Feb-95 9.000% 8,392 7,480 912 996,392 8,204
5 01-Mar-95 9.000% 8,392 7,473 919 995,473 8,158
6 01-Apr-95 9.000% 8,392 7,466 926 994,547 8,112
7 01-May-95 9.000% 8,392 7,459 933 993,614 8,067
8 01-Jun-95 9.000% 8,392 7,452 940 992,674 8,021
9 01-Jul-95 9.000% 8,392 7,445 947 991,727 7,976
10 01-Aug-95 9.000% 8,392 7,438 954 990,773 7,931 180,489
11 01-Sep-95 9.000% 8,392 7,431 961 989,812 7,886
12 01-Oct-95 9.000% 8,392 7,424 968 988,843 7,842
13 01-Nov-95 9.000% 8,392 7,416 976 987,868 7,798
14 01-Dec-95 9.000% 8,392 7,409 983 986,885 7,754
15 01-Jan-96 9.000% 8,392 7,402 990 985,894 7,710
16 01-Feb-96 9.000% 8,392 7,394 998 984,896 7,677
17 01-Mar-96 9.000% 8,392 7,387 1,005 983,891 7,623
18 01-Apr-96 9.000% 8,392 7,379 1,013 982,878 7,580
19 01-May-96 9.000% 8,392 7,372 1,020 981,858 7,538
20 01-Jun-96 9.000% 8,392 7,364 1,028 980,830 7,495
21 01-Jul-96 9.000% 8,392 7,356 1,036 979,794 7,453
22 01-Aug-96 9.000% 8,392 7,348 1,044 978,751 7,411
23 01-Sep-96 9.000% 8,392 7,341 1,051 977,699 7,369
24 01-Oct-96 9.000% 985,032 (Balloon) 7,333 977,699 (0) (3) 860,108 NPV of
Balloon
Formula NPV: 1,040,597 TOTAL NPV OF AGGREGATE MONTHLY (4) 1,040,597
CASH FLOW AND BALLOON
CURRENT PRINCIPAL 1,000,000
BALANCE ---------
DISCOUNTED YIELD
MAINTENANCE (5) 40,597
1% OF PRINCIPAL 10,000
---------
TOTAL PREPAYMENT FEE
DUE (ASSUMING TREASURY
BOND YIELD IS LESS THAN
EXISTING INTEREST RATE) 50,597
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