RECORD AND RETURN TO: CROSS-REFERENCE TO: Holt, Ney, Zatcoff & Wasserman, LLP Deed Book 48485, Page 74 100 Galleria Parkway Deed Book 48835, Page 217 Suite 600 Deed Book 49606, Page 272 Atlanta, Georgia 30339-5947
Exhibit 10.1
RECORD AND RETURN TO:
|
CROSS-REFERENCE TO: | |
Xxxxxxxxx X. Xxxxx
|
Deed Book 47335, Page 0739 | |
Holt, Ney, Zatcoff & Xxxxxxxxx, LLP
|
Deed Book 48485, Page 74 | |
000 Xxxxxxxx Xxxxxxx
|
Deed Book 48835, Page 217 | |
Suite 600
|
Deed Book 49606, Page 272 | |
Xxxxxxx, Xxxxxxx 00000-0000 |
Note to Clerk of Court: This agreement, which is entered into at the indulgence of the
creditor, amends, renews and extends a note evidencing short-term indebtedness and the security
instrument securing such note. All principal of the note as amended, renewed and extended by this
agreement is due within three (3) years from the date of this agreement. Accordingly, no
intangible recording tax is due in connection with the recording of this agreement. See O.C.G.A.
§ 48-6-65(a) and Intangible Recording Tax Rules/Regulations 560-11-8-.03(4), 560-11-8-.03(4)(b),
560-11-8-.03(4)(c) and 560-11-8-.04.
FOURTH CONSOLIDATED AMENDATORY AGREEMENT
($8,175,000 Loan)
THIS FOURTH CONSOLIDATED AMENDATORY AGREEMENT (this “Agreement”) made and entered into as of
the 21st day of June, 2010 (the “Effective Date”), by and among XXXXXXX PROPERTIES
RESIDENTIAL, L.P., a Georgia limited partnership (hereinafter referred to as “Borrower”), XXXXXXX
REALTY INVESTORS, INC., a Georgia corporation (hereinafter referred to as “Guarantor”) and XXXXX
FARGO BANK, N.A., a national banking association, successor by merger to Wachovia Bank, National
Association (hereinafter referred to as “Lender”).
W I T N E S S E T H:
WHEREAS, Borrower has heretofore executed and delivered to Lender that certain Promissory Note
dated as of December 6, 2006, in the face amount of EIGHT MILLION ONE HUNDRED SEVENTY-FIVE THOUSAND
AND NO/100 DOLLARS ($8,175,000.00) with interest thereon (hereinafter referred to as the “Note”);
and
WHEREAS, Guarantor has heretofore executed and delivered to Lender that certain Guaranty
Agreement dated December 6, 2006 (herein referred to as the “Guaranty”), which guarantees the full
and prompt payment and performance of all obligations of Borrower under the Note, the Security Deed
(as defined below), the Property Rights Assignment (as defined below) and all other documents
evidencing, securing or pertaining to the Note (collectively the “Loan Documents”) and all other
indebtedness of Borrower to Lender; and
WHEREAS, Borrower has heretofore executed and delivered to Lender that certain Deed to Secure
Debt and Assignment of Rents dated as of December 6, 2006, recorded in Deed Book 47355, page 0739,
Records of the Clerk of Superior Court of Gwinnett County, Georgia (herein referred to as the
“Security Deed”) for the purpose of securing the payment of the indebtedness evidenced by the Note
and any and all other indebtedness of Borrower to Lender; and
WHEREAS, Borrower has heretofore executed and delivered to Lender that certain Assignment of
Permits, Licenses, Sewer and Water Rights, Agreements, Approvals, Fees and Deposits dated as of
December 6, 2006 (herein referred to as the “Property Rights Assignment “) for the purpose of
further securing the payment of the indebtedness evidenced by the Note and any and all other
indebtedness of Borrower to Lender; and
WHEREAS, the parties hereto did amend the Note, the Security Deed, and the other Loan
Documents by First Consolidated Amendatory Agreement dated as of December 6, 2007, recorded in Deed
Book 48485, page 74, aforesaid records (the “First Amendment”); and
WHEREAS, the parties hereto did amend the Note, the Security Deed, and the other Loan
Documents by Second Consolidated Amendatory Agreement and Agreement Regarding Cross-Default and
Cross-Collateralization of Loans dated as of April 28, 2008, but effective as of March 31, 2008,
recorded in Deed Book 48835, Page 217, aforesaid records (the “Second Amendment); and
WHEREAS, the parties hereto did amend the Note, the Security Deed, and the other Loan
Documents by Third Consolidated Amendatory Agreement dated as of July 17, 2009, recorded in Deed
Book 49606, Page 272, aforesaid records (the “Third Amendment; as used in this Agreement, the terms
“Note”, “Security Deed”, “Property Rights Assignment”, “Guaranty” and “Loan Documents” means each
of such documents as amended by the First Amendment, the Second Amendment and the Third Amendment);
and
WHEREAS, Borrower has asked Lender to extend the term of the Note and to amend the Note, the
Security Deed, the Property Rights Assignment and the other Loan Documents accordingly (and to
provide for other terms and conditions); and
WHEREAS, Lender desires that Guarantor acknowledge and consent to the foregoing and the
modification of the documents described herein and that Guarantor ratify and confirm its obligation
as a guarantor of Borrower’s obligations and liabilities under the Note and the other Loan
Documents.
NOW THEREFORE, for and in consideration of the premises and the sum of TEN AND NO/100 DOLLARS
($10.00) in hand paid, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties hereto, Borrower, Guarantor and Lender hereby agree as
follows:
1. Acknowledgment and Modification of Note.
| 1.1 | Borrower acknowledges that the loan evidenced by the Note (the
“Loan”) has been fully funded and that the amount of the Loan remaining to be
disbursed is $0.00. Borrower further acknowledges that as of the date of
this Agreement the outstanding principal balance of the Note is Eight
Million One Hundred Seventy-Five Thousand and 00/100 Dollars
($8,175,000.00). |
2
| 1.2 | Borrower hereby acknowledges that Lender is closing the
modification of the Loan evidenced by this Agreement prior to receipt of an
updated written appraisal prepared in conformance with the requirements of the
Comptroller of the Currency covering the real property securing the Loan.
Lender has ordered such appraisal, and upon receipt, such appraisal must
confirm to the satisfaction of Lender that the outstanding principal balance of
the Note as a percentage of the fair market value of the real property securing
the Loan (after adjustment for senior liens and regular and special tax
assessments) as of the Effective Date does not exceed FIFTY PERCENT (50%)
(“Loan-to-Value Percentage”). In the event the outstanding principal balance
of the Note exceeds the Loan-to-Value Percentage, then within five (5) days of
written demand from Lender, Borrower shall pay down the outstanding principal
balance of the Note such that said Loan-to-Value Percentage is satisfied. The
valuation date of such appraisal shall be within thirty (30) days of the
Effective Date. |
||
| 1.3 | Borrower acknowledges that the maturity date of the Note is
July 31, 2010. Borrower and Lender have agreed that the maturity date of the
Note is extended to July 31, 2011. In consideration for this extension,
Borrower is herewith paying to Lender a fully earned, non-refundable loan
extension fee in the amount of $20,437.50. |
||
| 1.4 | For the period from and after the Effective Date, the fourth
and eighth paragraphs on the first page of the Note entitled INTEREST RATE and
REPAYMENT TERMS shall be restated in their entirety to read as follows: |
INTEREST RATE. Interest shall be charged on the outstanding principal
balance (as applicable, “Interest Rate”), as determined by Bank prior to the
commencement of each Interest Period (defined below), at a rate equal to the
greater of (x) three percent (3.00%) per annum plus the
Monthly LIBOR Index Rate (defined below) or (y) the LIBOR Floor (defined
below).
Interest shall be calculated daily on the basis of the actual number of
days elapsed over a 360 day year. The applicable Interest Rate shall remain
in effect, subject to the provisions hereof, from and including the first
day of the Interest Period to and excluding the last day of the Interest
Period for which it is determined. For purposes hereof, the following terms
shall have the following meanings:
3
“Interest Period” means, initially, the period commencing on (and
including) June 21, 2010, and ending on (but excluding) the first Payment
Date (as hereinafter defined), and thereafter, each period commencing on
(and including) the last day of the immediately preceding Interest Period
and ending on (but excluding) the next Payment Date, provided, (i) any
Interest Period that would otherwise end on (but exclude) a day which is not
a New York business day shall be extended to the next succeeding New York
business day, and (ii) any Interest Period that would otherwise extend past
the Maturity Date shall end on (but exclude) the Maturity Date.
“LIBOR Floor” shall mean a rate of five percent (5.00%).
“Monthly LIBOR Index Rate” means a rate per annum for U.S. dollar
deposits for a one (1) month maturity as reported on Telerate page 3750 as
of 11:00 a.m., London time, on the second London business day before the
relevant Interest Period begins (or if not so reported, then as determined
by the Bank from another recognized source or interbank quotation).
REPAYMENT TERMS. This Note shall be due and payable in consecutive monthly
payments of accrued interest only, commencing on July 6, 2010, and
continuing on the same day of each month thereafter (each, a “Payment Date”)
until fully paid. In any event, all principal and accrued interest shall be
due and payable on July 31, 2011.”
| 1.5 | The Note may be prepaid at any time, in whole or in part,
without penalty or premium. |
||
| 1.6 | Except as specifically modified and amended, all of the terms,
conditions and provisions of the Note shall remain in full force and effect. |
2. Modification of Security Deed. The Security Deed is hereby modified and amended as
follows:
| 2.1 | All references in the Security Deed to July 31, 2010 as the
maturity date of the Note are hereby deleted and substituted in lieu thereof
shall be the date July 31, 2011. |
||
| 2.2 | The Security Deed is hereby amended by adding to the property
described on Exhibit “A” thereof the property described on Exhibit
“A-1” attached hereto and made a part hereof by reference (the “Additional
Property”). Borrower’s grant of security title, a security interest and a lien
upon the Additional Property is made and intended to secure the payment of the
Obligations (as defined in the Security Deed). For the avoidance of doubt, all
terms, provisions, representations, warranties, indemnities and
covenants of the Security Deed made with respect to the property described
on Exhibit “A” thereof shall be deemed to apply to the Additional
Property as if the Additional Property had always been subject to the
Security Deed. |
4
Borrower hereby restates the granting language in the Security Deed for the
Additional Property, with all defined terms having the meaning ascribed to
them in the Security Deed:
To secure the Obligations, and in consideration of the premises and
other consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor does grant and convey unto Bank (for itself and its
affiliates), its successors and assigns, in fee simple, all of Grantor’s
right, title and interest now owned or hereafter acquired in and to each of
the following: (i) all those certain tracts of land in the County of
Gwinnett, State of Georgia described on Exhibit “A-1” attached
hereto and made part hereof (the “Additional Land”; the Additional Land
shall be deemed to be a part of the “Land”, as defined and described in the
Security Deed); (ii) all buildings and improvements now or hereafter erected
on the Additional Land; (iii) all fixtures attached to the Additional Land
or any buildings or improvements situated thereon; and (iv) all estates,
rights, tenements, hereditaments, privileges, rents, issues, profits,
easements, and appurtenances of any kind benefiting the Additional Land; all
means of access to and from the Additional Land, whether public or private;
and all water and mineral rights.
| 2.3 | The Security Deed is amended by adding the additional
covenants, agreements and provisions set forth in Exhibit “B” attached hereto
to the Security Deed. |
||
| 2.4 | Except as specifically modified and amended, all of the terms,
conditions and provisions of the Security Deed shall remain in full force and
effect. |
3. Modification of Property Rights Assignment. The Property Rights Assignment is
hereby modified and amended as follows:
| 3.1 | The Property Rights Assignment is hereby amended by adding to
the Land described on Exhibit “A” thereof the Additional Property.
Borrower’s grant and collateral assignment of all its right, title and interest
in and to all permits, agreements, approvals, deposits and rights of any kind
with respect to the Additional Property is made and intended to secure the
payment of the Obligations. For the avoidance of doubt, all terms, provisions,
representations, warranties, indemnities and covenants of the Property Rights
Assignment made with respect to the Land described on Exhibit “A”
thereof shall be deemed to apply to the Additional Property as
if the Additional Property had always been subject to the Property Rights
Assignment. |
5
Borrower hereby restates the granting language in the Property Rights
Assignment for the Additional Property, with all defined terms having the
meaning ascribed to them in the Property Rights Assignment:
Borrower hereby grants and collaterally assigns to Bank, its successors
and assigns, all of its right, title and interest in and to all permits,
agreements and approvals that Borrower has obtained or will obtain from all
Governmental Authorities with respect to all those certain tracts of land in
the County of Gwinnett, State of Georgia described on Exhibit “A-1”
attached hereto and made part hereof (the “Additional Land”; the Additional
Land shall be deemed to be a part of the “Land”, as defined and described in
the Property Rights Assignment) and all deposits deposited with or paid to
or to be deposited with or paid to such Governmental Authorities or to the
issuers of such permits and approvals, as security for the payment and
performance of Borrower’s obligations under the Loan Documents, including
but not limited to all Permits and Deposits.
| 3.2 | Except as specifically modified and amended, all of the terms,
conditions and provisions of the Property Rights Assignment shall remain in
full force and effect. |
4. Modification of Loan Documents. The Loan Documents are hereby modified and amended
as follows:
| 4.1 | The terms “Note” and “Security Deed” and any term referring to
the Property Rights Assignment, as such terms may be used in the Loan
Documents, shall mean the Note, the Security Deed or the Property Rights
Assignment, as modified and amended hereby. |
||
| 4.2 | The terms “Land”, “Property” and similar terms used in the Loan
Documents to refer to the property securing repayment of the Loan shall be
deemed to include the Additional Property. |
||
| 4.3 | The Loan Documents are hereby further amended by substituting
for the Lender’s address for notices wherever such address appears the
following address: “Xxxxx Fargo Bank, National Association, 000 00xx Xxxxxx,
XX, 100 Building, 6th Floor, Mail Code GA 4506, Xxxxxxx, Xxxxxxx 00000,
Attention: Xxxxxxxx Xxxxxxxxx.” |
||
| 4.4 | Except as specifically modified and amended, all of the terms,
conditions and provisions of the Loan Documents shall remain in full force and
effect. |
6
5. Modification of Guaranty. The Guaranty is hereby modified and amended as follows:
| 5.1 | The terms “Note” and “Loan Documents” as such terms may be used
in the Guaranty shall mean the Note and the Loan Documents, as modified and
amended hereby. |
||
| 5.2 | Except as specifically modified and amended, all of the terms,
conditions and provisions of the Guaranty shall remain in full force and
effect. |
6. Limitations on Transfers Involving Borrower and Guarantor. Borrower and Guarantor
hereby acknowledge and agree that notwithstanding anything to the contrary contained in the
Guaranty, the Security Deed or the other Loan Documents, Lender may, in its sole discretion,
declare the Obligations (as defined in the Security Deed) immediately due and payable if at any
time prior to final repayment of the Obligations, (i) Guarantor ceases to be the sole general
partner of Borrower or (ii) if a sale or transfer of a majority or controlling interest of the
partnership interests or corporate stock of Borrower or Guarantor occurs (whether in one
transaction or a series of transactions).
7. Interest Reserve Account. In connection with and as a condition precedent to the
closing of the modification of the Loan contemplated by this Agreement, Borrower shall deposit
Three Hundred Ninety-Six Thousand Six Hundred Eighty-Nine and 50/100 Dollars ($396,689.50) in the
Interest Reserve Account (as defined in the Third Amendment). All such funds shall be held,
disbursed and otherwise dealt with pursuant to Section 7 of the Third Amendment.
8. Acknowledgement and Representations. To induce Lender to execute, deliver and
perform this Agreement, Borrower and Guarantor acknowledge, represent and warrant to Lender (a)
that the Note and other Loan Documents, as amended hereby, are in full force and effect and
constitute valid and enforceable obligations of Borrower and Guarantor, as of this date, free from
any defenses, set-off, claims, counterclaims or causes of action of any kind or nature whatsoever
by Borrower against Lender or any of Lender’s directors, officers, employees, agents or attorneys;
(b) that, after giving effect to this modification, no Default (as defined in the Security Deed) or
event that with the passage of time or giving of notice would constitute a Default under the Loan
Documents has occurred; (c) that all representations and warranties contained in the Loan Documents
are true and correct in all material respects as of this date, all necessary action to authorize
the execution and delivery of this Agreement and the other documents executed in connection with
the modification of the Loan (collectively, the “Loan Modification Documents”) have been taken, and
this Agreement is a modification of an existing obligation and is not a novation; (d) that this
Agreement is not being made or entered into with the actual intent to hinder, delay or defraud any
entity or person, and after giving effect to the indebtedness and obligations, direct and
contingent, represented by the Loan Documents, as amended by this Agreement and the other Loan
Modification Documents, and the consummation of the transactions contemplated thereby and hereby,
and Borrower and Guarantor are able to, and anticipate that they will be able to, meet their debts
as they mature and have adequate capital to conduct the business in which they are or propose to be
engaged; (e) that the financial statements
7
of Borrower and Guarantor delivered to Lender in connection herewith are true, correct and
complete in all material respects, have been prepared in accordance with sound accounting
principles consistently applied, fairly present the respective financial conditions of the subjects
thereof as of the respective dates thereof, and to the best of Borrower’s and Guarantor’s
knowledge, there has been no material change of Borrower’s or Guarantor’s financial condition from
the financial condition of Borrower or Guarantor (as the case may be) indicated in such financial
statements; (f) no action or proceeding, including, without limitation, a voluntary or involuntary
petition in bankruptcy under any chapter of the Federal Bankruptcy Code or an attempt to take
advantage of any other debtor relief law, has been instituted or threatened by or against Borrower
or Guarantor; (g) the execution, delivery and performance by Borrower and Guarantor of their
obligations under this Agreement and the other Loan Modification Documents will not violate or
result in a breach or constitute a default under any agreements to which Borrower or Guarantor is a
party, under any organizational or governing documents, or under any law, regulation or order or
decree of any court or other governmental instrumentality; (h) the Note, as amended by this
Agreement, is not subject to any credits, charges, claims or rights of offset or deduction of any
kind or character whatsoever; and (i) this Agreement and the other Loan Modification Documents
constitute the legal, valid and binding obligations of Borrower and Guarantor enforceable in
accordance with their terms, free from any defenses and claims of offset.
9. Ratification by Borrower. Borrower ratifies and affirms all of its obligations
under the Note, the Security Deed, the Property Rights Assignment and the other Loan Documents, as
modified and amended by this Agreement and the other Loan Modification Documents (as defined
below).
10. Ratification and Consent by Guarantor. Guarantor hereby (i) ratifies and affirms
all its obligations under the Guaranty; (ii) acknowledges, represents and warrants that its
Guaranty constitutes the valid and enforceable obligation of Guarantor, as of this date, free from
any defenses and claims of offset; and (iii) consents to the execution by Borrower of the
modification and amendment of the Note, Security Deed, the Property Rights Assignment and Loan
Documents as set forth herein.
11. Binding Agreement. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, successors and assigns.
12. Entire Agreement. This Agreement constitutes the entire understanding and
agreement of the parties hereto with respect to the modification and amendment of the Note,
Security Deed and Loan Documents and supersedes all prior agreements, understandings or
negotiations with respect thereto.
13. Georgia Law; Time. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Georgia. Time is of the essence of this Agreement
14. No Novation. Borrower, Lender and Guarantor hereby agree that this Agreement is
not, and shall not be construed as, a novation of the Note or Security Deed, or the other Loan
Documents.
8
15. No Setoffs or Defenses; Release.
(a) Borrower and Guarantor, for themselves and their respective partners, shareholders,
officers, members, directors, and for their respective heirs, personal representatives, successors
and assigns (collectively, the “Releasors”), acknowledge, agree and represent to Lender that none
of them has any setoff, defense, claim or counterclaim under or with respect to the Loan Documents.
(b) Borrower and Guarantor, for themselves and the other Releasors, for and in consideration
of the sum of Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are herby acknowledged, hereby fully release and discharge Lender,
its affiliates, subsidiaries and parent corporations, the respective partners, officers, directors,
shareholders, agents and employees of each of the foregoing, and their successors and assigns
(collectively, the “Released Parties”), of and from any and all claims, counterclaims, defenses,
setoffs, demands, actions, causes of action and damages that Borrower, Guarantor or any other
Releasor may have had, may now have or may hereafter have against any one or more of the Released
Parties arising under, by reason of, or in connection with any conduct, course of dealing,
statement, act or omission on the part of any of the Released Parties that arose, occurred or
accrued at any time prior to and through the time of delivery of this Agreement, including without
limitation any such conduct, course of dealing, statement, act or omission related to (i) any of
the Loan Documents, (ii) any of the indebtedness or obligations evidenced or secured thereby, or
(iii) the administration or funding of the indebtedness or obligations evidenced or secured by the
Note or other Loan Documents.
16. Renewal and Extension; Intangible Recording Tax. This Agreement, which is entered
into at the indulgence of Lender, amends, renews and extends the Note, which is a note evidencing
short-term indebtedness, and the Security Deed, which secures the Note. The Note originally
evidenced short-term indebtedness, so no intangible recording tax was due or paid when the Security
Deed was recorded. The Note and the Security Deed have been previously amended, renewed and
extended by written agreement at the indulgence of Lender, and in connection with each such
agreement all principal of the Note as amended, renewed and extended by such agreement has been due
within three (3) years from the date of such agreement. Accordingly, no intangible recording tax
has been due or paid in connection with any such agreement. All principal of the Note as amended,
renewed and extended by this Agreement is due within three years from the date of this Agreement.
For the foregoing reasons, no intangible recording tax is due in connection with the recording of
this Agreement. See O.C.G.A. § 48-6-65(a) and Intangible Recording Tax Rules/Regulations
560-11-8-.03(4), 560-11-8-.03(4)(b), 560-11-8-.03(4)(c) and 560-11-8-.04.
9
17. Miscellaneous. Time is of the essence of this Agreement and all of the terms and
provisions hereof. This Agreement shall be construed in accordance with and governed by the laws
of the applicable state as originally provided in the Loan Documents, without reference to that
state’s conflicts of law principles. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, successors and assigns. This Agreement
and the other Loan Documents constitute the sole agreement of the parties with
respect to the subject matter thereof and supersede all oral negotiations and prior writings
with respect to the subject matter thereof. No amendment of this Agreement, and no waiver of any
one or more of the provisions hereof shall be effective unless set forth in writing and signed by
the parties hereto. The illegality, unenforceability or inconsistency of any provision of this
Agreement shall not in any way affect or impair the legality, enforceability or consistency of the
remaining provisions of this Agreement or the other Loan Documents, as amended hereby. This
Agreement may be executed in any number of counterparts and by the different parties on separate
counterparts. Each such counterpart shall be deemed an original, but all such counterparts shall
together constitute one and the same agreement. LIMITATION ON LIABILITY; WAIVER OF PUNITIVE
DAMAGES. EACH OF THE PARTIES HERETO, INCLUDING BANK BY ACCEPTANCE HEREOF, AGREES THAT IN ANY
JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY CLAIM OR CONTROVERSY BETWEEN OR AMONG THEM
THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE LOAN MODIFICATION
DOCUMENTS, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR AMONG THEM OR THE
OBLIGATIONS EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENT SHALL ANY PARTY HAVE A REMEDY OF, OR BE
LIABLE TO THE OTHER FOR, (1) INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR (2) PUNITIVE OR
EXEMPLARY DAMAGES. EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO PUNITIVE OR
EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN THE FUTURE IN CONNECTION WITH ANY SUCH
PROCEEDING, CLAIM OR CONTROVERSY, WHETHER THE SAME IS RESOLVED BY ARBITRATION, MEDIATION,
JUDICIALLY OR OTHERWISE. FINAL AGREEMENT. This Agreement and the other Loan Documents, as amended
hereby, represent the final agreement between the parties and may not be contradicted by evidence
of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral
agreements between the parties. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF BORROWER BY EXECUTION HEREOF AND BANK BY ACCEPTANCE HEREOF, KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE LOAN DOCUMENTS OR ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONNECTION WITH THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT HERETO. THIS
PROVISION IS A MATERIAL INDUCEMENT TO BANK TO ENTER INTO THIS AGREEMENT. EACH OF THE PARTIES AGREES
THAT THE TERMS HEREOF SHALL SUPERSEDE AND REPLACE ANY PRIOR AGREEMENT RELATED TO ARBITRATION OF
DISPUTES BETWEEN THE PARTIES CONTAINED IN ANY LOAN DOCUMENT OR ANY OTHER DOCUMENT OR AGREEMENT
HERETOFORE EXECUTED IN CONNECTION WITH, RELATED TO OR BEING REPLACED, SUPPLEMENTED, EXTENDED OR
MODIFIED BY, THIS AGREEMENT.
[Signatures commence on following page]
10
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed under seal as
of the date first above written.
| Signed, sealed and delivered | “BORROWER” | |||||
in the presence of: |
||||||
| XXXXXXX PROPERTIES RESIDENTIAL, L.P., | ||||||
| a Georgia limited partnership | ||||||
/s/ Xxxxxx Xxxxxxx |
||||||
| Witness | By: | Xxxxxxx Realty Investors, Inc., a | ||||
| Georgia corporation, its general partner | ||||||
/s/ Xxxxxxx Xxxxx |
||||||
Notary Public
|
By: | /s/ Xxxxxxx X. Xxxxxxx | ||||
| Name: | Xxxxxxx X. Xxxxxxx | |||||
My commission expires:
|
Title: | Chief Financial Officer | ||||
February 20, 2013 |
||||||
(NOTARIAL SEAL) |
||||||
[Signatures continued on following page]
11
| Signed, sealed and delivered | “GUARANTOR” | |||
in the presence of: |
||||
| XXXXXXX REALTY INVESTORS, INC., | ||||
| a Georgia corporation | ||||
/s/ Xxxxxx Xxxxxxx |
||||
Witness
|
By: | /s/ Xxxxxxx X. Xxxxxxx | ||
| Name: | Xxxxxxx X. Xxxxxxx | |||
/s/ Xxxxxxx Xxxxx
|
Title: | Chief Financial Officer | ||
Notary Public |
||||
| (CORPORATE SEAL) |
||||
My commission expires: |
||||
February 20, 2013 |
||||
(NOTARIAL SEAL) |
||||
[Signatures continued on following page]
12
| Signed, sealed and delivered | “LENDER” | |||
in the presence of: |
||||
| XXXXX FARGO BANK, N.A., a national | ||||
| banking association, successor by merger to | ||||
| /s/ Xxx Xxxxxxxxx | Wachovia Bank, National Association | |||
Witness |
||||
| By: | /s/ Xxxx Xxxx Xxxxxx | |||
/s/ Xxxxxxxx X. Xxxxx
|
Name: | Xxxx Xxxx Xxxxxx | ||
Notary Public
|
Title: | Director | ||
| My commission expires: | (BANK SEAL) |
|||
December 8, 2013 |
||||
(NOTARIAL SEAL) |
||||
13
EXHIBIT “A-1"
Legal Description of Additional Property
Tract Six — 0.442 acres (Xxxxx)
ALL THAT TRACT OF LAND in Land Xxx 000 xx xxx 0xx Xxxx Xxxxxxxx xx Xxxxxxxx Xxxxxx,
Xxxxxxx, described as follows:
TO FIND THE TRUE POINT OF BEGINNING, commence at the intersection of the northwest right-of-way
line of Peachtree Corners Circle (right-of-way varies) with the west right-of-way line of Xxxxxxx
Bridge Road (100 foot right-of-way) if such rights-of-way were extended to form a point; running
thence northwest along the west right-of-way line of Xxxxxxx Bridge Road 415.53 feet to an iron pin
set at the TRUE POINT OF BEGINNING; from the TRUE POINT OF
BEGINNING as thus established, thence, leaving the west right-of-way line of Xxxxxxx Xxxxxx Xxxx,
Xxxxx 00 degrees 29 minutes 55 seconds West 175.00 feet to an iron pin set; thence North 16 degrees
32 minutes 05 seconds West 99.48 feet to a 1/2-inch rebar found; thence North 60 degrees 52 minutes
04 seconds East 181.02 feet to a 5/8-inch rebar found on the west right-of-way line of said Xxxxxxx
Bridge Road; thence along the west right-of-way line of said Xxxxxxx Xxxxxx Xxxx Xxxxx 00 degrees
17 minutes 48 seconds East 120.80 feet to the TRUE POINT OF BEGINNING, said tract containing
approximately 0.442 acres and being designated Tract Six on that certain ALTA/ACSM Land Title
Survey for Xxxxxxx Properties Residential, L.P., Xxxxx Fargo Bank, N.A., successor by merger to
Wachovia Bank, National Association and Commonwealth Land Title Insurance Company prepared by
Precision Planning, Inc., bearing the seal and certification of Xxxxxxx X. Xxxxx, Georgia
Registered Land Surveyor No. 1678, dated June 1, 2010, last revised June 18, 2010.
Tract Seven — 1.004 acres (Peachtree Corners Circle)
ALL THAT TRACT of land in Land Xxx 000 xx xxx 0xx Xxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx,
described as follows:
TO FIND THE TRUE POINT OF BEGINNING, commence at the intersection of the north right-of-way line of
Peachtree Corners Circle (right-of-way varies) with the east right-of-way line of Peachtree Parkway
(right-of-way varies) if extended to form a point; thence along the north right-of-way line of
Peachtree Corners Circle the following courses and distances: (1) South 61 degrees 56 minutes 43
seconds East 12.13 feet to a point, (2) South 61 degrees 56 minutes 43 seconds East 69.28 feet to a
point, (3) along the arc of a curve to the left (which arc is subtended by a chord having a bearing
and distance of South 79 degrees 17 minutes 09 seconds East 404.16 feet and a radius of 678.00
feet) 410.40 feet to a point, (4) North 83 degrees 22 minutes 24 seconds East 329.56 feet to a
point, (5) North 83 degrees 22 minutes 24 seconds East 133.45 feet to a point, and (6) along the
arc of a curve to the left (which arc is subtended by a chord having a bearing and distance of
North 76 degrees 58 minutes 13 seconds East 136.61 feet and a radius of
14
612.50 feet) 136.89 feet to a point; thence leaving said right-of-way line, North 36 degrees 25
minutes 57 seconds West 6.68 feet to a point; thence North 63 degrees 50 minutes 31 seconds East
365.68 feet to the TRUE POINT OF BEGINNING; from the TRUE POINT OF BEGINNING as thus established,
thence North 26 degrees 16 minutes 43 seconds West 253.61 feet to a point; thence North 59 degrees
31 minutes 59 seconds East 191.10 feet to a point; thence South 30 degrees 14 minutes 46 seconds
East 166.99 feet to a point; thence South 59 degrees 45 minutes 48 seconds West 85.77 feet to a
point; thence South 30 degrees 13 minutes 45 seconds East 95.55 feet to an iron pin found; thence
South 63 degrees 50 minutes 31 seconds West 123.16 feet to the TRUE POINT OF BEGINNING, said tract
containing approximately 1.004 acres and being designated Tract Seven as shown on plat of ALTA/ACSM
Land Title Survey for Xxxxxxx Properties Residential, L.P., Xxxxx Fargo Bank, N.A., successor by
merger to Wachovia Bank, National Association and Commonwealth Land Title Insurance Company
prepared by Precision Planning, Inc., bearing the seal and certification of Xxxxxxx X. Xxxxx,
Georgia Registered Land Surveyor No. 1678, dated June 1, 2010, last revised June 18, 2010.
TOGETHER WITH a non-exclusive right, title and interest in and to the easements appurtenant to the
above described tract created in that certain Declaration of Reciprocal Easements dated April 30,
2003 by Xxxxx X. Xxxxxxxx, recorded in Deed Book 38341, page 236, Gwinnett County, Georgia records
(“Appurtenant Easement”).
Tract Eight — 0.154 acres (Peachtree Corners Circle)
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Xxx 000 xx xxx 0xx Xxxxxxxx xx
Xxxxxxxx Xxxxxx, Xxxxxxx, described as follows:
TO FIND THE TRUE POINT OF BEGINNING, commence at the intersection of the north right-of-way line of
Peachtree Corners Circle (right-of-way varies) with the west right-of-way line of Xxxxxxx Bridge
Road (100 foot right-of-way) if said rights-of-way were extended to form a point; running thence
South 63 degrees 35 minutes 41 seconds West 10.25 feet to a point on the south right-of-way line of
Peachtree Corners Circle and the TRUE POINT OF BEGINNING; from the TRUE POINT OF BEGINNING as thus
established, running thence along the south right-of-way line of Peachtree Corners Circle the
following courses and distances: (1) South 63 degrees 35 minutes 41 seconds West 653.83 feet to a
point, and (2) along the arc of a curve to the right (which arc is subtended by a chord having a
bearing and distance of South 65 degrees 42 minutes 50 seconds West 103.64 feet and a radius of
612.50 feet) 103.77 feet to an iron pin set; thence, leaving said right-of-way line, North 36
degrees 25 minutes 57 seconds West 6.68 feet to an iron pin set; thence North 63 degrees 50 minutes
31 seconds East 488.84 feet to a 1/2-inch rebar found; thence North 63 degrees 48 minutes 44 seconds
East 145.08 feet to a 1/2-inch rebar found; thence North 63 degrees 35 minutes 13 seconds East 136.14
feet to a 1/2-inch rebar found on the west right-of-way line of Xxxxxxx Bridge Road; thence along the
mitered intersection of the north right-of-way line of Peachtree Corners Circle with the west
right-of-way line of Xxxxxxx Bridge Road along the arc of a curve to the right (which arc is
subtended by a chord having a bearing and distance of South 29 degrees 30 minutes 35 seconds West
13.86 feet and a radius of 12.81 feet) 14.64 feet to the TRUE POINT OF BEGINNING, said tract
containing
approximately 0.154 acres and being designated Tract Eight on that certain ALTA/ACSM Land Title
Survey for Xxxxxxx Properties Residential, L.P., Xxxxx Fargo Bank, N.A., successor by merger to
Wachovia Bank, National Association and Commonwealth Land Title Insurance Company prepared by
Precision Planning, Inc., bearing the seal and certification of Xxxxxxx X. Xxxxx, Georgia
Registered Land Surveyor No. 1678, dated June 1, 2010, last revised June 18, 2010.
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EXHIBIT “B”
SUPPLEMENTAL TERMS
All capitalized terms used but not defined herein shall have the meaning assigned to such terms by
the Security Deed.
| (1) | SECURITY INTEREST. Grantor hereby grants and assigns to Bank a security interest, to secure
payment and performance of all of the Obligations, in all of the following described personal
property in which Grantor now or at any time hereafter has any interest (collectively, the
“Collateral”): |
All goods, building and other materials, supplies, inventory, work in process,
equipment, machinery, fixtures, furniture, furnishings, signs and other
personal property and embedded software included therein and supporting
information, wherever situated, which are or are to be incorporated into, used
in connection with, or appropriated for use on (i) the land described in
Exhibit “A-1” attached hereto or Exhibit “A” attached to the
Security Deed or (ii) any existing or future improvements on the real property
(which real property and improvements are collectively referred to herein as
the “Subject Property”); together with all rents and security deposits derived
from the Subject Property; all inventory, accounts, cash receipts, deposit
accounts, accounts receivable, contract rights, licenses, agreements, general
intangibles, payment intangibles, software, chattel paper (whether electronic
or tangible), instruments, documents, promissory notes, drafts, letters of
credit, letter of credit rights, supporting obligations, insurance policies,
insurance and condemnation awards and proceeds, proceeds of the sale of
promissory notes, any other rights to the payment of money, trade names,
trademarks and service marks arising from or related to the ownership,
management, leasing, operation, sale or disposition of the Subject Property or
any business now or hereafter conducted thereon by Grantor; all development
rights and credits, and any and all permits, consents, approvals, licenses,
authorizations and other rights granted by, given by or obtained from, any
governmental entity with respect to the Subject Property; all water and water
rights, xxxxx and well rights, canals and canal rights, ditches and ditch
rights, springs and spring rights, and reservoirs and reservoir rights
appurtenant to or associated with the Subject Property, whether decreed or
undecreed, tributary, non-tributary or not non-tributary, surface or
underground or appropriated or unappropriated, and all shares of stock in
water, ditch, lateral and canal companies, well permits and all other evidences
of any of such rights; all deposits or other security now or hereafter made
with or given to utility companies by Grantor with respect to the Subject
Property; all advance payments of insurance premiums made by Grantor with
respect to the Subject Property; all plans, drawings and specifications
relating to the Subject Property; all loan funds held by Bank relating to the
Subject Property, whether or not disbursed; all
funds deposited with Bank pursuant to any loan agreement relating to the
Subject Property; all reserves, deferred payments, deposits, accounts, refunds,
cost savings and payments of any kind related to the Subject Property or any
portion thereof; together with all replacements and proceeds of, and additions
and accessions to, any of the foregoing; together with all books, records and
files relating to any of the foregoing.
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| (2) | REPRESENTATIONS AND WARRANTIES. Grantor represents and warrants that: (a) Grantor has, or
will have, good title to the Collateral; (b) Grantor has not previously assigned or encumbered
the Collateral, and no financing statement covering any of the Collateral has been delivered
to any other person or entity; and (c) Grantor’s principal place of business is located in
Xxxxxx County, Georgia. |
|
| (3) | RIGHTS OF BANK. In addition to Bank’s rights as a “Secured Party” under the Georgia Uniform
Commercial Code, as amended or recodified from time to time (“UCC”), Bank may, but shall not
be obligated to, at any time without notice and at the expense of Grantor: (a) give notice to
any person of Bank’s rights hereunder and during the existence of any uncured Default under
the Security Deed enforce such rights at law or in equity; (b) insure, protect, defend and
preserve the Collateral or any rights or interests of Bank therein; (c) inspect the
Collateral; and (d) during the existence of any uncured Default under the Security Deed
endorse, collect and receive any right to payment of money owing to Grantor under or from the
Collateral. Notwithstanding the above, in no event shall Bank be deemed to have accepted any
property other than cash in satisfaction of any obligation of Grantor to Bank unless Bank
shall make an express written election of said remedy under UCC Section 11-9-620, or other
applicable law. |
|
| (4) | RIGHTS OF BANK ON DEFAULT. Upon the occurrence of a Default under the Security Deed, then in
addition to all of Bank’s rights as a “Secured Party” under the UCC or otherwise at law: |
| (A) | Bank may (i) upon written notice, require Grantor to assemble any or all of the
Collateral and make it available to Bank at a place designated by Bank; (ii) without
prior notice, enter upon the Subject Property or other place where any of the
Collateral may be located and take possession of, collect, sell, and dispose of any or
all of the Collateral, and store the same at locations acceptable to Bank at Grantor’s
expense; (iii) sell, assign and deliver at any place or in any lawful manner all or any
part of the Collateral and bid and become the purchaser at any such sales; and |
||
| (B) | Bank may, for the account of Grantor and at Grantor’s expense: (i) operate,
use, consume, sell or dispose of the Collateral as Bank deems appropriate for the
purpose of performing any or all of the Obligations; (ii) enter into any agreement,
compromise, or settlement, including insurance claims, which Bank may deem desirable or
proper with respect to any of the Collateral; and (iii) endorse and deliver evidences
of title for, and receive, enforce and collect by legal action or
otherwise, all indebtedness and obligations now or hereafter owing to Grantor in
connection with or on account of any or all of the Collateral. |
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| (C) | Notwithstanding any other provision hereof, Bank shall not be deemed to have
accepted any property other than cash in satisfaction of any obligation of Grantor to
Bank unless Grantor shall make an express written election of said remedy under UCC
Section 11-9-620, or other applicable law. |
| (5) | POWER OF ATTORNEY. Grantor hereby irrevocably appoints Bank as Grantor’s attorney-in-fact
(such agency being coupled with an interest), and as such attorney-in-fact Bank may, without
the obligation to do so, in Bank’s name, or in the name of Grantor, prepare, execute and file
or record financing statements, continuation statements, applications for registration and
like papers necessary to create, perfect or preserve any of Bank’s security interests and
rights in or to any of the Collateral, and, upon a Default under the Security Deed, take any
other action required of Grantor; provided, however, that Bank as such attorney-in-fact shall
be accountable only for such funds as are actually received by Bank. |
|
| (6) | POSSESSION AND USE OF COLLATERAL. Except as otherwise provided in the Security Deed or the
other Loan Documents, so long as no Default exists under the Security Deed or any of the Loan
Documents, Grantor may possess, use, move, transfer or dispose of any of the Collateral in the
ordinary course of Grantor’s business and in accordance with the Loan Documents. |
18
