Loan No.: 1700020088
Property: Town & Country Shopping Center
Searcy, Arkansas
FIXED RATE NOTE
$2,865,000 September 23, 1997
FOR VALUE RECEIVED, CONCORD MILESTONE PLUS, L.P., a Delaware limited
partnership (hereinafter referred to as "Maker"), promises to pay to the order
of WESTCO REAL ESTATE FINANCE CORP., a California corporation, its successors
and assigns (hereinafter referred to as "Payee"), at the office of Payee or its
agent, designee, or assignee at 1 Park Plaza, Suite 430, Irvine, California
92614, or at such place as Payee or its agent, designee, or assignee may from
time to time designate in writing, the principal sum of TWO MILLION EIGHT
HUNDRED SIXTY-FIVE THOUSAND AND NO/100 DOLLARS ($2,865,000), in lawful money of
the United States of America, with interest thereon to be computed on the unpaid
principal balance from time to time outstanding at the Applicable Interest Rate
(hereinafter defined) at all times prior to the occurrence of an Event of
Default (as defined in the Mortgage (hereinafter defined)), and to be paid in
installments as follows:
(1) A payment of interest only on the date hereof for the period
from the date of funding through September 30, 1997, both
inclusive;
(2) A constant payment of $21,640.09, on the first day of
November, 1997, and on the first day of each calendar month
thereafter up to and including the first day of September,
2007;
and the balance of said principal sum, together with accrued and unpaid interest
and any other amounts due under this Note shall be due and payable on the first
day of October, 2007, or upon earlier maturity hereof whether by acceleration or
otherwise (the "Maturity Date"). Interest on the principal sum of this Note
shall be calculated on a year of three hundred sixty (360) days and a month of
thirty (30) days but charged for the actual number of days elapsed. Payments
under this Note shall be applied first, to the payment of interest and other
costs and charges due in connection with this Note or the Debt (as hereinafter
defined), as Payee may determine in its sole discretion, and the balance shall
be applied toward the reduction of the principal sum. All amounts due under this
Note shall be payable without setoff, counterclaim or any other deduction
whatsoever.
1. Interest Rate. The term "Applicable Interest Rate" means from the date of
this Note through and including the Maturity Date, a rate of Eight and One
Hundred Twenty-Five
One Thousandths percent (8.125%) per annum.
2. Security.
(a) This Note is secured by, and Payee is entitled to the
benefits of, the Mortgage, the Assignment of Leases and Rents, the Environmental
Liabilities Agreement, and the other Loan Documents (hereinafter defined). The
term "Mortgage" means the Mortgage, Deed of Trust and Security Agreement dated
the date hereof given by Maker for the use and benefit of Payee covering the
estate of Maker in certain premises as more particularly described therein (the
"Mortgaged Property"). The term "Assignment" means the Assignment of Leases and
Rents of even date herewith executed by Maker in favor of Payee. The term
"Environmental Agreement" means the Environmental Liabilities Agreement of even
date herewith executed by Maker in favor of Payee. The term "Loan Documents"
refers collectively to this Note, the Mortgage, the Assignment, the
Environmental Agreement and any and all other documents executed in connection
with this Note or now or hereafter executed by Maker and/or others and by or in
favor of Payee, which wholly or partially secure or guarantee payment of this
Note or pertains to indebtedness evidenced by this Note.
(b) This Note is also secured by, and Payee is entitled to the
benefits of, the Loan Documents, as such term is defined in a Fixed Rate Note
dated concurrently herewith executed by Maker in favor of Payee in the original
principal amount of $5,400,000 evidencing a loan secured in part by a mortgage
encumbering property commonly known as Green Valley Mall located in Green
Valley, Arizona, as such property is more particularly described in such Loan
Documents.
(c) This Note is also secured by, and Payee is entitled to the
benefits of, the Loan Documents, as such term is defined in a Fixed Rate Note
dated concurrently herewith executed by Maker in favor of Payee in the original
principal amount of $8,445,000 evidencing a loan secured in part by a mortgage
encumbering property commonly known as Old Orchard Shopping Center located in
Santa Clarita (Valencia), California, as such property is more particularly
described in such Loan Documents.
3. Grace Period; Late Payments. If any installment payable under this
Note (including the final monthly installment due on the Maturity Date but
excluding the balance of the unpaid principal due thereon) is not received by
Payee within ten (10) days after the date on which it is due (without regard to
any applicable cure and/or notice period), Maker shall pay to Payee upon demand
an amount equal to the lesser of (a) five percent (5%) of such unpaid sum or (b)
the maximum amount permitted by applicable law to defray the expenses incurred
by Payee in handling and processing such delinquent payment and to compensate
Payee for the loss of the use of such delinquent payment, and such amount shall
be secured by the Loan Documents. The term "Debt" means, collectively, (i) the
unpaid principal balance of and the accrued but unpaid interest on this Note,
(ii) all other sums due, payable or reimbursable to Payee under the Loan
Documents (including, without limitation, sums due or payable by Maker for
deposit into the Tax and Insurance Escrow Fund [as defined in the Mortgage], the
Replacement Escrow Fund [as defined in the Mortgage], and any other escrows
established or required under the Loan
Documents), and (iii) any and all other liabilities and obligations of Maker
under this Note or the other Loan Documents.
4. Remedies Generally. So long as an Event of Default exists, Payee
may, at its option, without notice or demand to Maker except as may be required
under applicable law, declare the Debt immediately due and payable. All remedies
hereunder, under the Loan Documents and at law or in equity shall be cumulative.
In the event that it should become necessary to employ counsel to collect the
Debt or to protect or foreclose the security for the Debt or to defend against
any claims asserted by Maker arising from or related to the Loan Documents,
Maker also agrees to pay to Payee on demand all costs of collection or defense
incurred by Payee, including reasonable attorneys' fees for the services of
counsel whether or not suit be brought.
5. Default Interest. Upon the occurrence of an Event of Default Maker
shall pay interest on the entire unpaid principal sum and any other amounts due
under the Loan Documents until such default is cured at the rate equal to the
lesser of (a) the maximum rate permitted by applicable law, or (b) the greater
of (i) three percent (3%) plus the Applicable Interest Rate or (ii) four percent
(4%) plus the Prime Rate (hereinafter defined), in effect at the time of the
occurrence of the Event of Default (the "Default Rate"). The term "Prime Rate"
means the prime rate reported by Citibank, N.A. In the event that Citibank, N.A.
should cease or temporarily interrupt publication, the term "Prime Rate" shall
mean the daily average prime rate published in The Wall Street Journal or
business section of another newspaper of national standing and general
circulation chosen by Payee. In the event that a prime rate is no longer
generally published or is limited, regulated or administered by a governmental
or quasi-governmental body, then Payee shall select a comparable interest rate
index which is readily available and verifiable to Maker but is beyond Payee's
control. The Default Rate shall be computed from the occurrence of the Event of
Default until the actual receipt and collection of a sum of money determined by
Payee to be sufficient to cure the Event of Default. Amounts of interest accrued
at the Default Rate shall constitute a portion of the Debt, and shall be deemed
secured by the Loan Documents. This clause, however, shall not be construed as
an agreement or privilege to extend the date of the payment of the Debt, nor as
a waiver of any other right or remedy accruing to Payee by reason of the
occurrence of any Event of Default.
6. Lock-Out Period; Prepayment Terms. The principal balance of this
Note may not be prepaid in whole or in part (except with respect to the
application of casualty or condemnation proceeds) prior to the first day of the
Sixth Loan Year (as hereinafter defined). During the Sixth Loan Year or at
anytime thereafter, provided no Event of Default exists, the principal balance
of this Note may be prepaid, in whole but not in part (except with respect to
the application of casualty or condemnation proceeds), on any scheduled payment
date under this Note upon not less than thirty (30) days' prior written notice
to Payee specifying the scheduled payment date on which prepayment is to be made
(the "Prepayment Date") and upon payment of (a) interest accrued and unpaid on
the principal balance of this Note to and including the Prepayment Date, (b) all
other sums then due under this Note, and the other Loan Documents, and (c) a
prepayment consideration in an amount equal to the greater of (i) one percent
(1%) of the outstanding principal balance of this Note at the time of
prepayment, or (ii) the present value as of the
Prepayment Date of the remaining scheduled payments of principal and interest
from the Prepayment Date through the Maturity Date (including any balloon
payment) determined by discounting such payments at the Discount Rate (as
hereinafter defined) less the amount of principal being prepaid. The term
"Discount Rate" means the rate which, when compounded monthly, is equivalent to
the Treasury Rate (as hereinafter defined), when compounded semi-annually. The
term "Treasury Rate" means the yield calculated by the linear interpolation of
the yields, as reported in Federal Reserve Statistical Release H.15-Selected
Interest Rates under the heading "U.S. Government Securities/Treasury Constant
Maturities" for the week ending prior to the Prepayment Date, of U.S. Treasury
constant maturities with maturity dates (one longer and one shorter) most nearly
approximating the Maturity Date. (In the event Release H.15 is no longer
published, Payee shall select a comparable publication to determine the Treasury
Rate.) Payee shall notify Maker of the amount and the basis of determination of
the required prepayment consideration. Notwithstanding the foregoing, Maker
shall have the additional privilege to prepay the entire principal balance of
this Note (together with any other sums constituting the Debt) on any scheduled
payment date during the six (6) months preceding the Maturity Date without any
fee or consideration for such privilege. If any such notice of prepayment is
given, the principal balance of this Note and the other sums required under this
paragraph shall be due and payable on the Prepayment Date. Payee shall not be
obligated to accept any prepayment of the principal balance of this Note unless
it is accompanied by the prepayment consideration due in connection therewith.
The term "Loan Year" for purposes of this paragraph means each complete 365-day
period (366 days in a leap year) after the first scheduled payment date set
forth in section 2 on page 1 of this Note.
7. Post-Default Payment of Entire Debt: Prepayments Resulting From
Casualty or Condemnation. If following the occurrence of any Event of Default,
Maker shall tender payment of an amount sufficient to satisfy the Debt at any
time prior to a sale of the Mortgaged Property, either through foreclosure or
the exercise of the other remedies available to Payee under the Mortgage, such
tender by Maker shall be deemed to be a voluntary prepayment under this Note in
the amount tendered. If at the time of such tender, prepayment of the principal
balance of this Note is not permitted, Maker shall, in addition to the entire
Debt, also pay to Payee a sum equal to the interest which would have accrued on
the principal balance of this Note at the Applicable Interest Rate in effect on
the date which is five (5) days prior to the date of prepayment, from the date
of such tender to the first day of the period during which prepayment of the
principal balance of this Note would have been permitted, together with a
prepayment consideration equal to the prepayment consideration which would have
been payable as of the first day of the period during which prepayment would
have been permitted. If at the time of such tender, prepayment of the principal
balance of this Note is permitted, Maker shall, in addition to the entire Debt,
also pay to Payee the applicable prepayment consideration specified in this
Note. If the prepayment results from the application to the Debt of the casualty
or condemnation proceeds from the Mortgaged Property, no prepayment
consideration will be imposed. Partial prepayments of principal resulting from
the application of casualty or insurance proceeds to the Debt shall not change
the amounts of subsequent monthly installments nor change the dates on which
such installments are due, unless Payee shall otherwise agree in writing.
8. Usury Savings Provisions. It is expressly stipulated and agreed to be the
intent of
Maker and Payee at all times to comply with applicable state law or applicable
United States federal law (to the extent that it permits Payee to contract for,
charge, take, reserve or receive a greater amount of interest than under state
law) and that this section shall control every other covenant and agreement in
this Note and the other Loan Documents. If the applicable law (state or federal)
is ever judicially interpreted so as to render usurious any amount called for
under this Note or under any of the other Loan Documents, or contracted for,
charged, taken, reserved or received with respect to the indebtedness evidenced
by this Note and the other Loan Documents, or if Payee's exercise of the option
to accelerate the maturity of this Note, or if any prepayment by Maker results
in Maker having paid any interest in excess of that permitted by applicable law,
then it is Maker's and Payee's express intent that all excess amounts
theretofore collected by Payee be credited on the principal balance of this Note
(or, if this Note has been or would thereby be paid in full, refunded to Maker
within sixty (60) days after such determination), and the provisions of this
Note and the other Loan Documents immediately be deemed reformed and the amounts
thereafter collectible hereunder and thereunder reduced, without the necessity
of the execution of any new document, so as to comply with the applicable law,
but so as to permit the recovery of the fullest amount otherwise called for
hereunder and thereunder. All sums paid or agreed to be paid to Payee for the
use, forbearance and detention of the indebtedness evidenced hereby and by the
other Loan Documents shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full term of such
indebtedness until payment in full so that the rate or amount of interest on
account of such indebtedness does not exceed the maximum rate permitted under
applicable law from time to time in effect and applicable to the indebtedness
evidenced hereby for so long as such indebtedness remains outstanding.
Notwithstanding anything to the contrary contained herein or in any of the other
Loan Documents, it is not the intention of Payee to accelerate the maturity of
any interest that has not accrued at the time of such acceleration or to collect
unearned interest at the time of such acceleration.
9. Waivers. Except as specifically provided in the Loan Documents,
Maker and any endorsers, sureties or guarantors hereof jointly and severally
waive presentment and demand for payment, notice of intent to accelerate
maturity, notice of acceleration of maturity, protest and notice of protest and
non-payment, all applicable exemption rights, valuation and appraisement, notice
of demand, and all other notices in connection with the delivery, acceptance,
performance, default or enforcement of the payment of this Note and the bringing
of suit and diligence in taking any action to collect any sums owing hereunder
or in proceeding against any of the rights and collateral securing payment
hereof. Maker and any surety, endorser or guarantor hereof agree (i) that the
time for any payments hereunder may be extended from time to time without notice
and consent, (ii) to the acceptance of further collateral, (iii) the release of
any existing collateral for the payment of this Note, (iv) to any and all
renewals, waivers or modifications that may be granted by Payee with respect to
the payment or other provisions of this Note, and/or (v) that additional makers,
endorsers, guarantors or sureties may become parties hereto all without notice
to them and without in any manner affecting their liability under or with
respect to this Note. No extension of time for the payment of this Note or any
installment hereof shall affect the liability of Maker under this Note or any
endorser or guarantor hereof even though the Maker or such endorser or guarantor
is not a party to such agreement.
10. No Impairment of Remedies. Failure of Payee to exercise any of the
options granted herein to Payee upon the happening of one or more of the events
giving rise to such options shall not constitute a waiver of the right to
exercise the same or any other option at any subsequent time in respect to the
same or any other event. The acceptance by Payee of any payment hereunder that
is less than payment in full of all amounts due and payable at the time of such
payment shall not constitute a waiver of the right to exercise any of the
options granted herein to Payee at that time or at any subsequent time or
nullify any prior exercise of any such option without the express written
acknowledgment of the Payee.
11. Non-Recourse Provisions; Exceptions to Non-Recourse.
Notwithstanding anything in the Loan Documents to the contrary, but subject to
the qualifications below, Payee and Maker agree that:
(A) Except as hereinafter provided in this Section 11, no
judgment in the nature of a deficiency judgment for the payment of the
indebtedness or interest thereon or the collection of any amount due
under the Loan Documents will be enforced personally against Maker, its
general partner or any of its or their officers, directors, principals
or shareholders except to the full extent (but only to the extent) of
the security therefor, the same being all properties (whether real or
personal), rights, estates and interests now or at any time hereafter
securing the payment of the Debt and/or the other obligations of Maker
under the Loan Documents (collectively with the Mortgaged Property, the
"Security Property"), provided, however, in the event (i) of fraud or
material misrepresentation by Maker or guarantors in connection with
the loan evidenced by this Note, or (ii) the first full monthly payment
on the Note is not paid when due, the limitation on recourse set forth
in this section (A) will be null and void and completely inapplicable,
and this Note shall be with full recourse to Maker and its general
partner;
(B) if a default occurs in the timely and proper payment of
all or any part of the Debt, any judicial proceedings brought by Payee
against Maker and/or its general partner shall be limited to the
preservation, enforcement and foreclosure, or any thereof, of the
liens, security titles, estates, assignments, rights and security
interests now or at any time hereafter securing the payment of the Debt
and/or the other obligations of Maker under the Loan Documents, and no
attachment, execution or other writ of process shall be sought, issued
or levied upon any assets, properties or funds of Maker or its general
partner, or its or their officers, directors, principals or
shareholders other than the Security Property, except with respect to
the liability described below in this section; and
(C) in the event of a foreclosure of such liens, security
titles, estates, assignments, rights or security interests securing the
payment of the Debt, no judgment for any deficiency upon the Debt shall
be sought or obtained by Payee against Maker or its general partner, or
its or their officers, directors, principals or shareholders, except
with respect to the liability described below in this section (C);
provided that, notwithstanding the foregoing provisions of this
section, nothing contained therein shall in any manner or way release,
affect or impair the right of Payee to recover, from Maker and its
general partner any loss, cost, expense, damage, claim or other
obligation
(including without limitation reasonable attorneys' fees and court
costs) incurred or suffered by Payee arising out of or in connection
with the following:
(1) any breach of the Environmental Agreement, including the
indemnification provisions contained therein;
(2) Maker's failure to obtain Payee's prior written consent to (a)
any subordinate financing or any other encumbrance on the
Mortgaged Property, or (b) any transfer of the Mortgaged
Property or majority ownership in Maker in violation of the
Mortgage;
(3) any litigation or other legal proceeding related to the Debt
that delays or impairs Payee's ability to preserve, enforce or
foreclose its lien on the Security Property, including, but
not limited to, the filing of a voluntary or involuntary
petition concerning Maker under the U.S. Bankruptcy Code, in
which action a claim, counterclaim, or defense is asserted
against Payee, other than any litigation or other legal
proceeding in which a final, non-appealable judgment for money
damages or injunctive relief is entered against Payee;
(4) Maker's failure to pay required taxes, assessments, and
insurance premiums payable with respect to the Mortgaged
Property or to maintain the required escrows therefor, to the
extent that monies are not paid by Maker in escrow for the
payment of such amounts, except for any amounts applicable to
the period after foreclosure of Payee's lien on the Mortgaged
Property, or the delivery by Maker of a deed to the Mortgaged
Property in lieu of foreclosure (which deed has been accepted
by Payee in writing), or the appointment of a receiver for the
Mortgaged Property;
(5) the gross negligence or willful misconduct of Maker, its
agents, affiliates, officers or employees which causes or
results in a diminution, or loss of value, of the Security
Property that is not reimbursed by insurance or which gross
negligence or willful misconduct exposes Payee to claims,
liability or costs of defense in any litigation or other legal
proceeding;
(6) the seizure or forfeiture of the Security Property, or any
portion thereof, or Payee's interest therein, resulting from
criminal wrongdoing by any person or entity other than Payee
under any federal, state or local law;
(7) (a) any physical waste of the Mortgaged Property caused by the intentional
or grossly negligent act(s) or omission(s) of Maker, its agents,
affiliates, officers and employees, (b) the failure by Maker to maintain,
repair or restore any part of the Mortgaged Property as may be required by
the Mortgage or any of the other Loan Documents to the extent of all gross
revenues that have been generated by the Mortgaged Property following the
date which is eighteen (18) months' prior to notice to Maker from Payee of
such failure to maintain, repair or restore any part
of the Mortgaged Property and that have not been applied to
pay any portion of the Debt, reasonable and customary
operating expenses and capital expenditures for the Mortgaged
Property paid to third parties not affiliated (directly or
indirectly) with Maker, taxes and insurance premiums for the
Mortgaged Property and escrows deposited with Payee, or (c)
the removal or disposal of any portion of the Mortgaged
Property after an Event of Default under the Loan Documents to
the extent such Mortgaged Property is not replaced by Maker
with like property of equivalent value, function and design;
(8) Maker's misapplication or conversion of any insurance proceeds
paid by reason of any loss, damage or destruction to the
Mortgaged Property and any awards or amounts received in
connection with the condemnation of all or a portion of the
Mortgaged Property and not used by Maker for restoration or
repair of the Mortgaged Property;
(9) Maker's failure to pay in accordance with the terms of the
Mortgage any charges for labor or materials or other charges
for work performed or materials furnished prior to foreclosure
that can create liens on any portion of the Mortgaged
Property, to the extent of the amount rightfully claimed by
the lien claimant, or found in any legal proceeding to be owed
to the lien claimant, and not so paid;
(10) Maker's failure to deliver any security deposits collected
with respect to the Mortgaged Property to Payee or any other
party entitled to receive such security deposits under the
Loan Documents, following an Event of Default; and
(11) any rents (including advanced or prepaid rents), issues,
profits, accounts or other amounts generated by or related to
the Mortgaged Property attributable to, or accruing after an
Event of Default, which amounts were collected by Maker or its
property manager and not turned over to the Payee or used to
pay unaffiliated third parties for reasonable and customary
operating expenses and capital expenditures for the Mortgaged
Property, and taxes and insurance premiums with respect to the
Mortgaged Property.
12. References to Loan Documents. References to particular sections of
the Loan Documents shall be deemed references to such sections as affected by
other provisions of the Loan Documents relating thereto. Nothing contained in
this section shall (a) be deemed to be a release or impairment of the Debt or
the lien of the Loan Documents upon the Mortgaged Property, or (b) preclude
Payee from foreclosing under the Loan Documents in case of any default or from
enforcing any of the other rights of Payee, including naming Maker as a party
defendant in any action or suit for foreclosure and sale under the Mortgage, or
obtaining the appointment of a receiver, except as stated in this section, or
(c) limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even
date executed and delivered in connection with the indebtedness evidenced by
this Note or release, relieve, reduce, waive or impair in any way whatsoever,
any obligation of any party to the Guaranty.
13. No Waiver of Lender's Rights in Bankruptcy. Nothing herein shall be
deemed to be a waiver of any right which Payee may have under Sections 506(a),
506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a
claim for the full amount of the Debt secured by the Loan Documents or to
require that all collateral shall continue to secure all of the Debt owing to
Payee in accordance with this Note and the other Loan Documents.
14. Maker's Authority; Loan for Business Purposes. Maker (and the
undersigned representative of Maker, if any) represents that Maker has full
power, authority and legal right to execute, deliver and perform its obligations
pursuant to this Note and the other Loan Documents and that this Note and the
other Loan Documents constitute legal, valid and binding obligations of Maker.
Maker further represents that the loan evidenced by the Loan Documents was made
for business or commercial purposes and not for personal, family or household
use.
15. Notices. All notices or other communications required or permitted
to be given pursuant hereto shall be given in the manner and be effective as
specified in the Mortgage, directed to the parties at their respective addresses
as provided therein.
16. Transfer of Loan by Payee. Payee shall have the unrestricted right
at any time or from time to time to sell this Note and the loan evidenced by
this Note and the Loan Documents or participation interests therein. Maker shall
execute, acknowledge and deliver any and all instruments requested by Payee to
satisfy such purchasers or participants that the unpaid indebtedness evidenced
by this Note is outstanding upon the terms and provisions set out in this Note
and the other Loan Documents. To the extent, if any specified in such assignment
or participation, such assignee(s) or participant(s) shall have the rights and
benefits with respect to this Note and the other Loan Documents as such
assignee(s) or participant(s) would have if they were the Payee hereunder.
17. Waiver of Trial by Jury. MAKER HEREBY AGREES NOT TO ELECT A TRIAL
BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY
JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH
REGARD TO THIS NOTE OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR
OTHER ACTION ARISING IN CONNECTION THEREWITH INCLUDING, BUT NOT LIMITED TO THOSE
RELATING TO (A) ALLEGATIONS THAT A PARTNERSHIP EXISTS BETWEEN PAYEE AND MAKER;
(B) USURY OR PENALTIES OR DAMAGES THEREFOR; (C) ALLEGATIONS OF UNCONSCIONABLE
ACTS, DECEPTIVE TRADE PRACTICE, LACK OF GOOD FAITH OR FAIR DEALING, LACK OF
COMMERCIAL REASONABLENESS, OR SPECIAL RELATIONSHIPS (SUCH AS FIDUCIARY, TRUST OR
CONFIDENTIAL RELATIONSHIP); (D) ALLEGATIONS OF DOMINION, CONTROL, ALTER EGO,
INSTRUMENTALITY, FRAUD, REAL ESTATE FRAUD, MISREPRESENTATION, DURESS, COERCION,
UNDUE INFLUENCE, INTERFERENCE OR NEGLIGENCE; (E) ALLEGATIONS OF TORTIOUS
INTERFERENCE WITH PRESENT OR PROSPECTIVE BUSINESS RELATIONSHIPS OR OF ANTITRUST;
OR (F) SLANDER, LIBEL OR DAMAGE TO REPUTATION. THIS WAIVER OF RIGHT TO TRIAL BY
JURY IS GIVEN
KNOWINGLY AND VOLUNTARILY BY MAKER, PAYEE, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. PAYEE IS HEREBY AUTHORIZED TO FILE A COPY OF THIS
PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY MAKER.
18. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, EXCEPT TO THE EXTENT THAT
THE APPLICABILITY OF ANY OF SUCH LAWS MAY NOW OR HEREAFTER BE PREEMPTED BY
FEDERAL LAW, IN WHICH CASE SUCH FEDERAL LAW SHALL SO GOVERN AND BE
CONTROLLING.
MAKER, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL,
(A) SUBMITS TO PERSONAL JURISDICTION IN THE STATE OF CALIFORNIA OVER ANY SUIT,
ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS NOTE, (B)
AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN ORANGE COUNTY, CALIFORNIA,
(C) SUBMITS TO THE JURISDICTION OF SUCH COURTS, AND (D) TO THE FULLEST EXTENT
PERMITTED BY LAW, AGREES THAT MAKER WILL NOT BRING ANY ACTION, SUIT OR
PROCEEDING IN ANY OTHER FORUM (BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF
PAYEE TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM). MAKER FURTHER
CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS
IN ANY SUCH SUIT, ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL,
POSTAGE PREPAID, TO MAKER AT THE ADDRESS FOR NOTICES AS PROVIDED IN THE
MORTGAGE, AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY
RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE
VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY
LAW).
19. No Oral Modification. THE PROVISIONS OF THIS NOTE AND THE LOAN
DOCUMENTS MAY BE AMENDED OR REVISED ONLY BY AN INSTRUMENT IN WRITING SIGNED BY
THE MAKER AND PAYEE. THIS NOTE AND ALL THE OTHER LOAN DOCUMENTS EMBODY THE
FINAL, ENTIRE AGREEMENT OF MAKER AND PAYEE AND SUPERSEDE ANY AND ALL PRIOR
COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR
ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE
CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OF MAKER AND PAYEE. THERE ARE NO ORAL AGREEMENTS
BETWEEN MAKER AND PAYEE.
20. Due on Sale/Due on Encumbrance. Payment of the indebtedness
evidenced by this Note may be accelerated in the event that Maker transfers or
encumbers the Mortgaged Property in violation of Section 12 of the Deed of
Trust.
(Signature page follows)
Executed as of the day and year first above written.
MAKER:
CONCORD MILESTONE PLUS, L.P.,
a Delaware limited partnership
By: CM PLUS CORPORATION,
a Delaware corporation,
Its General Partner
By:
Name:
Title:
LEGAL DESCRIPTION
(For informational purposes only)
The land situated in the State of Arkansas, County of White and described as
follows:
PARCEL A
Commencing at an iron pipe at the intersection of the Southeast line of Survey
Number 2312 and the South line of Race Avenue; Thence North 89 degrees 54
minutes 23 seconds East 737.11 feet along the South line of Race Avenue to a
found concrete monument; Thence continue along the South line of Race Avenue
North 89 degrees 59 minutes 37 seconds East 306.00 feet to a found iron pin for
the pointy of beginning; Thence continue North 89 degrees 59 minutes 37 seconds
East 60.00 feet along the South line of Race Avenue to a found iron pin; Thence
South 00 degrees 05 minutes 42 seconds East 188.00 feet to a found iron pin;
Thence North 89 degrees 59 minutes 37 seconds East 158.74 feet to a found iron
pin on the Westerly right-of-way of Frontage Road; Thence South 45 degrees 03
minutes 24 seconds East 102.88 feet along said Westerly right-of-way of Frontage
Road to a found iron pin; Thence South 00 degrees 06 minutes 42 seconds East
273.84 feet to a found iron pin; Thence South 32 degrees 05 minutes 06 seconds
East 48.07 feet to a found iron pin; Thence North 89 degrees 54 minutes 54
seconds East 65.00 feet to a found iron pin on the Westerly right-of-way of
Frontage Road; Thence South 06 degrees 34 minutes 32 seconds West 60.41 feet
along said Westerly right-of-way; Thence South 89 degrees 54 minutes 54 seconds
West 115.0 feet; Thence South 18 degrees 04 minutes 12 seconds West 39.26 feet;
Thence South 04 degrees 54 minutes 54 seconds West 112.0 feet; Thence South 14
degrees 35 minutes 06 seconds East 94.0 feet; Thence South 29 degrees 35 minutes
06 seconds East 140.0 feet; Thence South 20 degrees 05 minutes 06 seconds East
48.0 to a found iron pin; Thence South 89 degrees 54 minutes 54 seconds West
307.89 feet to a found railroad spike; Thence North 00 degrees 06 minutes 42
seconds West 126.00 feet to a found railroad spike; Thence South 89 degrees 54
minutes 54 seconds West 345.00 feet to a found iron pin; Thence North 00 degrees
04 minutes 37 seconds West 367.08 feet along the East line of a tract recorded
in Volume 377, Page 359 of the White County Deed Records to a found 2 inch pipe
set in concrete; Thence North 00 degrees 04 minutes 46 seconds West 49.95 feet
along the East line of a street to a found 2 inch pipe set in concrete; Thence
North 00 degrees 05 minutes 42 seconds West 299.93 feet along the East line of a
tract recorded in Volume 360, Page 145 of the White County Deed Records to a
found iron pin; Thence North 89 degrees 59 minutes 37 seconds East 200.00 feet
to a found iron pin; Thence continue North 89 degrees 59 minutes 37 seconds East
106.00 feet to a found iron pin;
Thence North 00 degrees 05 minutes 42 seconds West 200.00 feet to a found iron
pin which is the point of beginning, containing 10.787 acres more or less,
subject to all easements of record.
PARCEL B
Appurtenant easements for roadways, walkways, ingress and egress, parking, and
loading and unloading of commercial and other vehicles created by that certain
agreement entitled "Easements With Covenants and Restrictions Affecting Land
(ECR)" dated May 16, 1984 by and between Wal-Mart Properties, Inc., and Bramalea
Limited filed for record on July 24, 1984, and recorded in Misc. Book 102 at
Page 419.
Property Address: Town & Country Shopping Center
U.S. Highway 67/167
at East Race Avenue
Searcy, Arkansas 72143