Exhibit 10.93
MODIFIED AND RESTATED "B" NOTE
Modified and Restated "B" Note, made as of the 21st day of December,
1982 by and between CHARLOTTE OFFICE TOWER ASSOCIATES, a joint venture formed
pursuant to the partnership laws of the State of North Carolina, ("Maker"),
having an office at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, and
STICHTING PENSIOENFONDS VOOR DE GEZONDHEID, GEESTELIJKE EN MAATSCHAPPELIJKE
BELANGEN, a foundation formed according to the laws of the Netherlands,
("Payee"), having an office at Xxxxxxxxx Xxxxxx 000, Xxxxx, xxx Xxxxxxxxxxx.
Whereas, by virtue of Assignment dated as of the date hereof from
Dutch Institutional Finance Corporation, Inc. to Payee, Payee is the holder of
that certain "B" Construction Note dated October 22, 1980 from Maker to Dutch
Institutional Finance Corporation, Inc. in the principal amount of $7,500,000
(the "Original Note") on which is presently due and owing the sum of $7,140,000,
together with accrued interest in the amount of $1,056,549.27, aggregating
$8,196,549.27, and
Whereas, Maker and Payee have determined to extend the maturity date
and modify the terms of payment and certain other provisions of the Original
Note.
NOW THEREFORE, the Original Note is hereby modified effective as of
the date hereof and restated in its entirety as follows:
FOR VALUE RECEIVED, Maker promises to pay to Payee at its office
recited above, or order, or at such other place as may be designated in writing
by the holder hereof, the principal sum of EIGHT MILLION ONE HUNDRED NINETY-SIX
THOUSAND FIVE HUNDRED FORTY-NINE AND 27/100 DOLLARS ($8,196,549.27), in lawful
money of the
United States of America, with interest thereon from the date hereof as set
forth below, such principal and interest to be payable as follows:
Subject to the following provisions of this Notes, interest shall
accrue on the outstanding principal sum of EIGHT MILLION ONE HUNDRED NINETY-SIX
THOUSAND FIVE HUNDRED FORTY-NINE AND 27/100 DOLLARS ($8,196,549.27), and shall
be compounded quarterly, beginning with the date hereof at the rate of ten
percent (10%) per annum until December 31, 1992, and thereafter at the rate of
twelve percent (12%) per annum until the "Maturity Date" (as hereafter defined).
The entire unpaid principal balance, together with any accrued
interest thereon, shall be due and payable on December 31, 1997 (the "Maturity
Date").
Maker shall make quarterly payments (which shall be adjusted, to the
extent necessary, on a calendar year basis) on account of interest and principal
under this Note in an amount equal to, and only to the extent of, the "Available
Cash Flow", as such term is defined in the "B" Deed of Trust and Security
Agreement dated October 22, 1980 and recorded in the Office of the Register of
Deeds, Mecklenburg County, North Carolina in Book 4358 at Page 0763, as modified
by "B" Extension, Modification and Spreader Agreement dated concurrently
herewith (collectively, the "Deed of Trust") securing this Note.
Maker shall deliver to Payee, within thirty (30) days after the end
of each calendar quarter and within ninety (90) days after the end of each
calendar year, a detailed statement of the Net Cash Flow and the Available Cash
Flow (as such terms are defined in the Deed of Trust) for that calendar quarter
or calendar year, as the case may be, and the Available Cash Flow shown on that
statement shall then be immediately due and payable to Payee and shall be
applied first on
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account of accrued interest and any balance to reduction of principal under this
Note. In the event that Maker shall have made quarterly payments in excess of
the Available Cash Flow, as adjusted for any calendar year, Payee shall
reimburse Maker any such excess promptly upon receipt of the annual statement
together with request for such repayment. Each such statement shall be certified
by Maker (or a partner or officer of Maker) or by the then managing agent of the
property secured by the Deed of Trust. Such statements shall be deemed binding
and conclusive on Payee unless Payee gives Maker notice of any dispute or
disagreement regarding such statement within ninety (90) days after Payee's
receipt of any such statement. Failure to make any payment required above and
the continuance of such default for a period of ten (10) days after the due date
is an event of default which shall entitle Payee to declare the entire unpaid
balance of this Note immediately due and payable.
Any dispute between the parties concerning the computation of the
Net Cash Flow or the Available Cash Flow hereunder shall be determined by
arbitration in Charlotte, North Carolina by the American Arbitration Association
or any successor organization, in accordance with its rules then obtaining, and
the decision rendered in such arbitration shall be binding upon the parties and
may be entered in any court having jurisdiction. If the American Arbitration
Association is not then in existence or has no successor, any arbitration
hereunder shall be conducted in Charlotte, North Carolina before one arbitrator
appointed, on application of either party, by the Senior Resident Superior Court
Judge in Mecklenburg County.
If Crow-Charlotte Office Tower Associates (or any of its Affiliates)
exercises its option under the Joint Venture Agreement of Maker dated as of
October 22, 1980 to purchase
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the interest of Balsam Mountain, Inc. (or any of its Affiliates) in Maker, then
this Note, at the option of Payee, upon notice to Maker (the "Acceleration
Notice") given within sixty (60) days after the date Payee is notified of such
event, shall become due and payable in its entirety, together with all accrued
interest thereon, on the date which is ninety (90) days after the giving of the
Acceleration Notice.
Upon any default hereunder and the continuance of such default for a
period of ten (10) days after the due date or any non-monetary default under the
Deed of Trust and the continuance of such default for a period of twenty (20)
days after delivery of written notice of default by Payee, Maker promises to pay
the principal and interest remaining due and unpaid hereunder in accordance with
the terms of the Deed of Trust, together with all costs and expenses incurred in
connection with the collection or attempted collection hereof and the protection
of the security hereof or thereof, including reasonable attorney's fees, whether
or not suit is instituted. Interest shall accrue on such amounts from the date
of such default at the "Involuntary Rate" (as hereinafter defined) compounded
quarterly until the date such amounts are paid. The "Involuntary Rate" shall be
an annual rate equal to the greater of (i) 12% or (ii) two percent (2%) in
excess of the rate charged from time to time by The Chase Manhattan Bank, N. A.
on short term (90 day) unsecured loans to its preferred customers but in no
event in excess of the then maximum legal rate.
Maker agrees to be bound to the extent provided in the Deed of Trust
and waives and renounces any and all exemption rights and the benefit of all
valuation and appraisal privileges as against the indebtedness evidenced hereby
or any renewal or extension thereof except as set forth in the Deed of Trust,
waives demand, protest, notice of nonpayment, and any and all lack of
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diligence or delays in the collection or enforcement hereof, and expressly
consents to any extension of time, release of any party liable for the
indebtedness evidenced hereby, release of any of the security of this Note,
acceptance of other security therefor, or any other indulgence or forbearance
whatsoever by Payee, any one or all of which may be made without notice to Maker
or such released party or any other party.
This Note may be prepaid in whole or in part, at any time and from
time to time, without penalty on ninety (90) days prior written notice.
As used in this Note the term "Affiliate" shall mean a wholly owned
subsidiary of a party, the person or entity which controls such party, or any
other entity, the controlling interest in which is held by such party or which
is controlled by the same person or entity which controls such party.
The parties hereto have intended in good faith to comply with all
applicable usury laws. Notwithstanding anything to the contrary contained in
this Note or any other instrument evidencing, securing, or relating to this
Note, Maker shall not be obligated or required to pay interest at a rate which
would subject Payee to either criminal or civil liability. If, by the terms of
this Note or any other instrument evidencing, securing, or relating to this
Note, Maker at any time is required or obligated to pay interest on the
principal made available to Maker in an amount or at a rate in excess of the
applicable legal maximum, the interest due to Payee shall be immediately and
automatically reduced to such maximum, the interest payable shall be computed at
such maximum rate, and all prior interest payments in excess of such lawful
maximum shall be immediately and automatically applied, and shall be deemed to
have been treated as having been applied at the time of receipt, in reduction of
the principal balance due under this Note.
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The principal amount, plus accrued interest, shall become
immediately due and payable at the option of Payee upon the happening of any
event by which said balance shall or may become due and payable under the terms
of the Deed of Trust subject to any applicable grace period.
No delays on the part of Payee in exercising any right hereunder or
under the Deed of Trust or any other agreement further evidencing or securing
this Note shall operate as a waiver thereof or preclude the exercise thereof at
any time during the continuance of any default or during the continuance of a
subsequent default.
Maker shall pay the debt evidenced by this Note in full when due and
payable provided however that Payee shall not be entitled to enforce any
judgment against Maker or the mortgaged property or to retain any proceeds from
a foreclosure sale of the mortgaged property except to the extent of the then
"Percentage Interest of Developer in the Venture" (as such terms are used and
defined in the Joint Venture Agreement of Maker dated as of October 22, 1980).
This Note may not be modified or terminated orally.
This Note shall be construed and enforced in accordance with the law
of North Carolina.
The property encumbered by the Deed of Trust is located in
Mecklenburg County, North Carolina.
This Modified and Restated "B" Note may be signed in counterparts.
The signatures of the parties hereto on the several counterparts shall have the
same effect as if they had all signed the same counterpart.
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IN WITNESS WHEREOF, Maker has executed this Modified and Restated
"B" Note as of the 21st day of December, 1982, and Payee, by its
countersignature hereto acknowledges that the Original Note is superceded in its
entirety by the provisions hereof.
CHARLOTTE OFFICE TOWER ASSOCIATES,
a joint venture, Maker
WITNESS: By: CROW-CHARLOTTE OFFICE TOWER
ASSOCIATES, a joint venturer
/s/ (signature illegible) By /s/ Xxxx X. Xxxxx (SEAL)
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General Partner
ATTEST: By: BALSAM MOUNTAIN, INC.,
a joint venturer
/s/ (signature illegible) By /s/ Xxxxxx X. Xxxxxx
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President
STICHTING PENSIOENFONDS VOOR DE
GEZONDHEID, GEESTELIJKE EN
WITNESS: MAATSCHAPPELIJKE BELANGEN, Payee
(SEAL)
/s/ (signature illegible) By /s/ Anton F.L. Fiolet
------------------------- --------------------------
Attorney-in-Fact
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STATE OF GEORGIA )
: ss.:
COUNTY OF XXXXXX )
On this 22nd day of December, 1982, personally came before me, Xxx
X. Xxxxx, a Notary Public in and for the State of GEORGIA, Xxxxxx X. Xxxxxx,
who, being by me duly sworn, says that he is the President of BALSAM MOUNTAIN,
INC., a Georgia corporation, which executed the foregoing instrument as a
partner of CHARLOTTE OFFICE TOWER ASSOCIATES, a North Carolina joint venture,
that the seal affixed to the foregoing instrument in writing is the corporate
seal of the corporation, and that said writing was signed and sealed by him on
behalf of said joint venture.
And the said Xxxxxx X. Xxxxxx acknowledged the said writing to be
the act and deed of said corporation.
WITNESS my hand and notarial seal this 22nd day of December, 1982.
/s/ Xxx X. Xxxxx
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Notary Public
My Commission expires
November 6, 0000
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XXXXX XX XXXXX )
: ss.:
COUNTY OF DALLAS )
I, Xxxxxxxxx X. XxXxxxxx, a Notary Public in and for the State of
Texas do hereby certify that Xxxx X. Xxxxx, a general partner of CROW-CHARLOTTE
OFFICE TOWER ASSOCIATES, a Texas limited partnership, personally appeared before
me this day and acknowledged the due execution of the foregoing instrument on
behalf of said CROW-CHARLOTTE OFFICE TOWER ASSOCIATES as a general partner of
CHARLOTTE OFFICE TOWER ASSOCIATES, a North Carolina joint venture, on behalf of
said joint venture.
WITNESS my hand and notarial seal this 9th day of December, 1982.
/s/ Xxxxxxxxx X. XxXxxxxx
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Notary Public
My Commission expires
May 21, 1986
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COUNTRY OF THE NETHERLANDS )
: ss.:
CITY OF AMSTERDAM )
I hereby certify that on this day before me, a civil law notary,
officiating in Amsterdam, The Netherlands, duly authorized and qualified in the
Country and City aforesaid to take acknowledgments, personally appeared Anton
F.L. Fiolet, well known to me to be the authorized signature of STICHTING
PENSIOENFONDS VOOR DE GEZONDHEID, GEESTELIJKE EN MAATSCHAPPELIJKE BELANGEN, a
foundation formed according to the laws of The Netherlands, who executed the
foregoing instrument on behalf of said foundation in the presence of a
subscribing witness, freely and voluntarily, under authority duly vested in him
by said foundation, and that said foundation has no seal.
WITNESS my hand, in the Country and City aforesaid, this 21st day of
December, 1982.
/s/ X.X.X. Xxxxxx
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My Commission expires
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