EXHIBIT 99.3
COOPER'S POINTE
AMENDED AND RESTATED NOTE
$5,388,360.35 As of September 1, 1994
WHEREAS, Century Properties Growth Fund XXII, a
California limited partnership ("Maker") entered into and
delivered to The Travelers Insurance Company ("Payee"), a
Mortgage Note dated November 27, 1985 from Maker to Payee in the
original principal sum of $5,600,000, which was modified by that
certain Modification of First Mortgage Real Estate Note, Mortgage
and Security Agreement, and Assignment of Leases, Rents and
Profits ("Modification Agreement") dated as of June 1, 1993
between Maker and Payee, and recorded in Book 229 at Page 272 in
the RMC Office of Charleston County, South Carolina collectively
(the "Mortgage Note");
WHEREAS, Maker desires to modify, amend and restate in
its entirety the terms and provisions of the Mortgage Note as
hereinafter set forth in this Amended and Restated Note (this
"Note");
NOW, THEREFORE, in consideration of the premises and
other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Maker hereby
represents, warrants and covenants as follows:
A. As of the date hereof, the aggregate outstanding
principal balance of this Note is $5,388,360.35 and accrued but
unpaid interest thereon is $0.
B. Maker (and the undersigned representatives of
Maker) has the full power, authority and legal right to execute
and deliver this Note and to observe and perform the terms and
provisions of this Note.
C. The indebtedness evidenced by this Note constitutes
a valid, binding and enforceable obligation of Maker subject only
to bankruptcy and equitable remedies.
D. There exist no offsets, counterclaims or defenses
to Maker's obligation to pay the indebtedness evidenced by this
Note.
E. This Note is given in replacement and substitution
of, and evidences the same indebtedness as the Mortgage Note and
does not evidence any new or additional indebtedness of Maker to
Payee and is not intended as a novation of the Mortgage Note.
F. The terms, covenants and provisions of this Note as
amended and restated in their entirety read as follows:
FOR VALUE RECEIVED, Maker promises to pay to Payee or
order, at Payee's office, or at such other place as may be
designated, from time to time, in writing by Payee, the principal
sum of Five Million Three Hundred Eighty-Eight Thousand Three
Hundred and Sixty and 35/100 Dollars ($5,388,360.35), with
interest thereon from the date of this Note to and including the
date this Note is paid in full calculated in the manner
hereinafter set forth.
I. DEFINITIONS
The following terms as used in this Note shall have the
following meanings:
1.1 "Debt" shall mean collectively the entire unpaid
Outstanding Principal Balance, together with all interest accrued
and outstanding thereon and all other sums owing under this Note
and the Mortgage.
1.2 "Default" shall have the meaning set forth in
Section 3.2 hereof.
1.3 "Default Rate" shall mean five (5) percent (5%)
per annum in excess of the Interest Rate but not in excess of the
maximum interest rate permitted by law.
1.4 "Dollars" shall mean dollars in lawful currency of
The United States of America.
1.5 "Escrow Agent" shall mean Old Republic National
Title Insurance Company.
1.6 "Interest Rate" shall mean eight and one-quarter
(8.25%) percent per annum.
1.7 "Loan" shall mean the loan evidenced by this Note
and secured by the other Loan Documents.
1.8 "Loan Documents" shall mean this Note, the
Mortgage, the Amended and Restated Assignment of Leases, Rents
and Profits dated the date hereof from Maker to Payee, the
Subordinate Deed of Trust, the Subordinate Assignment of Leases,
Rents and Profits dated the date hereof from Maker to Payee, the
Cash Management Letter dated the date hereof from Maker and
Manager to Payee, the Cooper's Pointe Reserve Agreement dated the
date hereof between Maker and Payee, the Cooper's Pointe
Manager's Liability Letter from Manager to Payee, the Cooper's
Pointe Guaranty of Payment dated the date hereof from Maker, Fox
Partners IV, Fox Capital Management Corporation, NPI Equity
Investments II, Inc. and Manager to Payee, the Cooper's Pointe
Hazardous Material Guaranty and Indemnification Agreement dated
the date hereof from Maker, Fox Partners IV, Fox Capital
Management Corporation, NPI Equity Investments II, Inc. and
Manager to Payee, the Release Letter from Payee to Maker and any
other documents or instruments now or hereafter executed in
connection therewith.
1.9 "Loan Year" shall mean the period of twelve (12)
consecutive calendar months commencing on September 1, 1994 and
ending on August 31, 1995 and each period of twelve (12)
consecutive calendar months thereafter to and including the
Maturity Date.
1.10 "Manager" shall mean NPI-AP Management, L.P., a
Delaware limited partnership.
1.11 "Maturity Date" shall mean August 31, 1999, or
such earlier date the entire Outstanding Principal Balance and
accrued and unpaid interest thereon, and any other sums which are
due and payable pursuant to the terms and provisions of this
Note, are due and payable by reason of the acceleration of the
maturity of this Note.
1.12 "Mortgage" shall mean (i) a certain Amended and
Restated Mortgage (the "First Mortgage") dated the date hereof by
Maker to Payee, intended to be recorded in the RMC office for
Charleston County, South Carolina and constituting a first
mortgage lien on a portion of the Premises described in Exhibit A
attached hereto, located at 2225 Greenridge Road, North
Charleston, South Carolina and known as Cooper's Pointe
Apartments, and (ii) a certain Subordinate Deed of Trust (the
"Subordinate Deed of Trust") dated the date hereof by Maker to
Douglas N. Beck and Virginia A. Davis, as trustees for Payee,
intended to be recorded in the clerk's office of the Circuit
Court, Henrico County, Virginia and constituting a second
mortgage lien on the Property described in Exhibit A attached
thereto, known as Copper Mill Apartments and located at 3400
Copper Mill Trace, Henrico County, Virginia.
1.13 "Original Principal Amount" shall mean Five
Million Three Hundred Eighty-Eight Thousand Three Hundred and
Sixty and 35/100 Dollars ($5,388,360.35).
1.14 "Outstanding Principal Balance" shall mean the
aggregate of all sums advanced by Payee to or for the benefit of
Maker hereunder and not repaid.
1.15 "Payment Date" shall mean the first day of
October, 1994 and the first day of each month thereafter during
the Term hereof.
1.16 "Premises" shall mean those certain parcels of
real estate and the improvements thereon (i) located on the real
property described in Exhibit A to the Mortgage, known as
Cooper's Pointe Apartments and located at 2225 Greenridge Road in
North Charleston, South Carolina, and (ii) located on the real
property described in Exhibit A to the Subordinate Deed of Trust,
and known as Copper Mill Apartments, and located at 3400 Copper
Mill Trace, Henrico County, Virginia.
1.17 "Rents" shall have the meaning set forth in the
First Mortgage.
1.18 "Responsible Entities" shall mean (i) Maker,
(ii) NPI Equity Investments II, Inc., a Florida corporation,
(iii) Fox Partners IV, a California general partnership, and (iv)
Fox Capital Management Corporation, a California corporation and
their successors and assigns.
1.19 "Term" shall mean the period commencing on
September 1, 1994 and ending on August 31, 1999.
II. PAYMENT OF INTEREST AND PRINCIPAL
2.1 Payment of Interest and Principal.
(a) Interest shall accrue on the Outstanding Principal
Balance at the Interest Rate, commencing on the date hereof.
(b) Interest and principal shall be payable in
constant monthly installments of $45,912.37 per month and shall
be paid on each Payment Date, and shall be applied first to the
payment of interest at the Interest Rate and the balance to
reduction of the Outstanding Principal Balance.
2.2 Prepayment. On any Payment Date and upon not less
than thirty (30) days' prior written notice to Payee, Maker may
prepay this Note in full or in part, without premium or penalty
upon payment of (a) all interest accrued and unpaid on the
Outstanding Principal Balance of this Note to and including the
date of prepayment, and (b) all other sums then due under this
Note, the Mortgage and the other Loan Documents (other than the
Subordinate Deed of Trust). Any partial prepayment of the
Outstanding Principal Balance of this Note shall not affect the
amount or times installment payments are due or payable as set
forth in Section 2.1 of this Note and all partial prepayments
shall be applied against the installment payments last coming due
under this Note, in inverse order of maturity unless Payee in its
sole and absolute discretion notifies Maker that Payee will apply
such partial prepayments in a manner other than as set forth
herein.
2.3 Default Interest. On and after the occurrence of
a Default, as defined in this Note or the Mortgage, any advance
made by Payee under any Loan Document and any principal or
accrued interest not paid when due shall bear interest at the
Default Rate.
2.4 Principal and Interest at Maturity. The entire
Outstanding Principal Balance and all accrued and unpaid interest
thereon, and any and all other sums which are due and payable
pursuant to the terms and provisions of the Note, the Mortgage
and all of the other Loan Documents shall be due and payable on
the Maturity Date.
2.5 Calculation of Interest. All interest on this
Note shall be calculated annually on the basis of twelve 30-day
months, provided, however, that for portions of the Outstanding
Principal Balance which are outstanding for less than a full
calendar month, interest on such portion of the Outstanding
Principal Balance shall be calculated on the basis of a 365-day
year and the actual number of days elapsed in any portion of a
month for which interest may be due on such portion of the
Outstanding Principal Balance.
2.6 Payments after Default. All unpaid interest that
has accrued on the Outstanding Principal Balance, and all unpaid
payments of principal whether prior or subsequent to the
occurrence of the Default, shall be paid at the time of, and as a
condition precedent to, the curing of the Default. While any
Default exists, Payee is expressly authorized to apply payments
made to it as it may elect against any or all amounts, or
portions thereof, then due and payable hereunder or under any of
the other Loan Documents, whether towards interest, reduction of
the Outstanding Principal Balance, or any combination thereof,
unless, with respect to any voluntary payment made by Maker,
Maker directs that such voluntary payment be applied as set forth
in a notice sent concurrently with such payment, it being agreed
and understood, however, that in no event or circumstance shall
Payee be required to accept such payment nor shall such payment
cure any Default then existing unless expressly agreed to by
Payee.
2.7 Place of Payment. Payments and prepayments to be
made under this Note are to be made at such place as the legal
holder of this Note may from time to time designate.
III. SECURITY, DEFAULTS AND REMEDIES
3.1 Security for Payment. The payment of this Note is
secured by, among other things, the Mortgage. By this reference,
the Mortgage is incorporated by reference as if fully set forth
herein.
3.2 Occurrence of Default; Acceleration of Maturity
Date. It is agreed that upon occurrence of any of the following
events of default under this Note (a "Default"):
(a) default in the payment of principal or interest on
or before the fifth (5th) day after the same is
due, or default in the due and punctual payment of
Taxes and Premiums, as defined in the First
Mortgage, or default in the performance or
observance of any other covenant or agreement of
Maker contained herein which is not cured within
thirty (30) days from the date of such default,
provided, however, that if Maker has commenced in
good faith to cure such default during the
aforesaid thirty (30) day period and proceeds with
due diligence and continuity to completion of such
cure, Maker shall have a maximum of an additional
sixty (60) days (over and above the initial 30-day
period) to cure such default; or
(b) occurrence of any Default (as defined therein)
under any of the Loan Documents,
then, at any time thereafter, at the election of the holder or
holders hereof and without additional notice to Maker, the
Outstanding Principal Balance, together with accrued interest
thereon, shall become at once due and payable at the place of
payment as aforesaid, and Payee may proceed to exercise any
rights and remedies available to Payee under the Mortgage and the
other Loan Documents, and to exercise any other rights and
remedies against Maker which Payee may have at law, in equity or
otherwise.
3.3 Nature of Remedies. The remedies of Payee as
provided herein or in the Mortgage or any of the other Loan
Documents, shall be cumulative and concurrent, and may be pursued
singularly, successively or together, at the sole discretion of
Payee, and may be exercised as often as occasion therefor shall
arise. Failure of Payee, for any period of time or on more than
one occasion, to exercise its option to accelerate the Maturity
Date of this Note shall not constitute a waiver of the right to
exercise the same at any time thereafter or in the event of any
subsequent Default. No act of omission or commission of Payee,
including specifically any failure to exercise any right, remedy
or recourse, shall be deemed to be a waiver or release of the
same; any such waiver or release is to be effected only through a
written document executed by Payee and then only to the extent
specifically recited therein. A waiver or release in connection
with any one event shall not be construed as a waiver or release
of any subsequent event or as a bar to any subsequent exercise of
Payee's rights or remedies hereunder. Notice of the exercise of
any right or remedy granted to Payee by this Note is not required
to be given.
3.4 Payment of Attorneys' Fees and Costs. If:
(a) this Note or any Loan Document is placed in the hands of an
attorney for collection or enforcement or is collected or
enforced through any legal proceeding; (b) if an attorney is
retained to represent Payee in any bankruptcy, reorganization,
receivership, or other proceedings affecting creditors' rights
and involving a claim under this Note or any of the Loan
Documents; (c) if an attorney is retained to protect or enforce
the lien of the Mortgage or the rights or remedies of Payee under
any of the Loan Documents; or (d) if an attorney is retained to
represent Payee in any other proceedings whatsoever in connection
with this Note, the Mortgage, any of the Loan Documents or any
property subject thereto, then Maker shall pay to Payee all
reasonable attorneys' fees, disbursements, costs and expenses
incurred in connection therewith, in addition to all other
amounts due hereunder.
3.5 Late Charge. If any installment of interest,
principal, Tax and Insurance Deposits or Reserves is not paid
when due, Maker shall pay to Payee a late charge of four (4%)
percent of the amount so overdue in order to defray part of the
expense incident to handling such delinquent payment or payments.
Such late charge shall be in addition to and separate from any
increase in interest due hereunder as a result of calculation of
interest due hereunder at the Default Rate.
IV. OTHER GENERAL AGREEMENTS
4.1 Notices. Any notice which any party hereto may
desire or may be required to give to any other party hereto shall
be in writing, and shall be deemed given (i) if and when
personally delivered, (ii) upon receipt if sent by a nationally
recognized overnight courier, or (iii) on the third (3rd)
business day after being deposited in United States registered or
certified mail, return receipt requested, postage prepaid,
addressed to a party at its address set forth below, or at such
other place as such party may have designated to all other
parties by notice in writing in accordance herewith:
(a) If to Maker:
5665 Northside Drive, N.W.
Suite 370
Atlanta, Georgia 30328
Attention: Arthur Queler
With copies to:
Post & Heymann
100 Jericho Quadrangle
Suite 214
Jericho, New York 11753
Attention: William Post, Esq.
and
NPI Property Management Corporation
5665 Northside Drive, N.W.
Suite 370
Atlanta, Georgia 30328
Attention: Arthur Queler
(b) If to Payee:
The Travelers Insurance Company
c/o Travelers Realty Investment Company
461 Fifth Avenue
New York, New York 10017
Attention: Real Estate
Loan No. 502191
With copies to:
The Travelers Insurance Company
c/o Travelers Realty Investment Company
One Tower Square - 2 SHS
Hartford, Connecticut 06183-2020
Attention: Real Estate Loan No. 502191
and
Battle Fowler
75 East 55th Street
New York, New York 10022
Attention: Dean A. Stiffle, Esq. (W.F.S.)
(Matter No. 10695.0136)
Except as otherwise specifically required herein, notice of the
exercise of any right or option granted to Payee by this Note is
not required to be given.
4.2 Governing Law and Other Agreements. Maker agrees
that: (a) this instrument and the rights and obligations of the
parties hereunder shall be governed by the laws of the State of
South Carolina, without reference to the conflict of law
principles of such state; and (b) upon the Maturity Date, Payee
shall not have any obligation to refinance the indebtedness
evidenced by this Note or to extend further credit to Maker.
MAKER AGREES TO SUBMIT TO PERSONAL JURISDICTION IN THE STATE OF
SOUTH CAROLINA IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS
NOTE AND IN FURTHERANCE OF SUCH AGREEMENT, THE UNDERSIGNED HEREBY
AGREES AND CONSENTS THAT WITHOUT LIMITING OTHER METHODS OF
OBTAINING JURISDICTION, PERSONAL JURISDICTION OVER THE MAKER IN
ANY SUCH ACTION OR PROCEEDING MAY BE OBTAINED WITHIN OR WITHOUT
THE JURISDICTION OF ANY COURT LOCATED IN SOUTH CAROLINA AND THAT
ANY PROCESS OR NOTICE OF MOTION OR OTHER APPLICATION TO ANY SUCH
COURT IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING MAY BE
SERVED UPON MAKER BY REGISTERED OR CERTIFIED MAIL TO OR BY
PERSONAL SERVICE AT THE LAST KNOWN ADDRESS OF MAKER, WHETHER SUCH
ADDRESS BE WITHIN OR WITHOUT THE JURISDICTION OF ANY SUCH COURT.
4.3 Interpretation. The headings of sections and
paragraphs in this Note are for convenience only and shall not be
construed in any way to limit or define the content, scope, or
intent of the provisions hereof. As used in this Note, the
singular shall include the plural, and masculine, feminine, and
neuter pronouns shall be fully interchangeable, where the context
so requires. The parties hereto intend and believe that each
provision in this Note comports with all applicable law.
However, if any provision in this Note is found by a court of law
to be in violation of any applicable law, and if such court
should declare such provision of this Note to be unlawful, void
or unenforceable as written, then it is the intent of all parties
to the fullest possible extent that it is legal, valid and
enforceable, that the remainder of this Note shall be construed
as if such unlawful, void or unenforceable provision were not
contained therein, and that the rights, obligations and interests
of Maker and the holder hereof under the remainder of this Note
shall continue in full force and effect; provided, however, that
if any provision of this Note which is found to be in violation
of any applicable law concerns the imposition of interest
hereunder, the rights, obligations and interests of Maker and
Payee with respect to the imposition of interest hereunder shall
be governed and controlled by the provisions of Paragraph 4.5
hereof. Time is of the essence of this Note.
4.4 Waiver. Maker and any and all others who are now
or may become liable for all or part of the obligations of Maker
under this Note including but not limited to the Responsible
Entities (collectively the "Obligors") agree to be jointly and
severally bound hereby and jointly and severally, to the extent
permitted by law: (a) waive and renounce any and all redemption
and exemption rights and the benefit of all valuation and
appraisement privileges against the indebtedness evidenced by
this Note or by any extension or renewal hereof; (b) waive
presentment and demand for payment, notices of nonpayment and of
dishonor, protest of dishonor, and notice of protest; (c) waive
all notices in connection with the delivery and acceptance hereof
and all other notices in connection with the performance,
default, or enforcement of the payment hereof or hereunder;
(d) waive any and all lack of diligence and delays in the
enforcement of the payment hereof; (e) agree that the liability
of each of the Obligors shall be unconditional and without regard
to the liability of any other person or entity for the payment
hereof, and shall not in any manner be affected by any indulgence
or forbearance granted or consented to by Payee to any of them
with respect hereto; (f) consent to any and all extensions of
time, renewals, waivers, or modifications that may be granted by
Payee with respect to the payment or other provisions hereof, and
to the release of any security at any time given for the payment
hereof, or any part thereof, with or without substitution, and to
the release of any person or entity liable for the payment
hereof; and (g) consent to the addition of any and all other
makers, endorsers, guarantors, and other obligors for the payment
hereof, and to the acceptance of any and all other security for
the payment hereof, and agree that the addition of any such
obligors or security shall not affect the liability of any of
Maker for the payment hereof.
4.5 Excess Interest. (a) The Mortgage and this Note
are subject to the express condition that at no time shall Maker
be obligated or required to pay interest on the principal balance
due under this Note at a rate which could subject the holder of
this Note to either civil or criminal liability as a result of
being in excess of the maximum interest rate which Maker is
permitted by law to contract or agree to pay. If by the terms of
the Mortgage or this Note, Maker is at any time required or
obligated to pay interest on the principal balance due under this
Note at a rate in excess of such maximum rate, the rate of
interest under this Note shall be deemed to be immediately
reduced to such maximum rate and the interest payable shall be
computed at such maximum rate and all prior interest payments in
excess of such maximum rate shall be applied and shall be deemed
to have been payments in reduction of the principal balance of
this Note.
(b) The Maker warrants that the extension of credit
evidenced by this Note is solely for business or commercial
purposes and not for personal, family or agricultural purposes
under the South Carolina Consumer Protection Act.
4.6 Successors, Payees and Assigns. Upon any
endorsement, assignment, or other transfer of this Note by Payee
or by operation of law, the term "Payee," as used herein, shall
mean such endorsee, assignee, or other transferee or successor to
Payee then becoming the holder of this Note. This Note shall
inure to the benefit of Payee and its successors and assigns and
shall be binding upon the undersigned and its successors and
assigns. The term "Maker", as used herein, shall include the
respective successors, assigns, legal and personal
representatives, executors, administrators, devisees, legatees
and heirs of Maker.
4.7 Prospective Participants. Maker acknowledges that
Payee may after the date of this Note desire to sell and assign
participation interests in the Loan to one or more domestic or
foreign banks, insurance companies, pension funds, trusts or
other institutional lenders or other persons, parties or
investors (including, but not limited to, grantor trusts, owner
trusts, special purpose corporations, REMICs, real estate
investment trusts or other similar or comparable investment
vehicles) as may be selected by Payee in its sole and absolute
discretion and on terms and conditions satisfactory to Payee in
its sole and absolute discretion (any such bank, insurance
company, pension fund, trust or other institutional lender or
other person, party or investor to whom a participation interest
in the Loan is so sold and assigned is herein referred to as a
"Participant"). Maker shall cooperate, and shall cause Manager
and each guarantor, indemnitor and other person or party
associated or connected with the Loan or the collateral therefor
to cooperate, in all respects with Payee in connection with the
sale of participation interests in the Loan in the manner
contemplated by this paragraph, and shall, in connection
therewith, execute and deliver such estoppels, certificates,
instruments and documents as may be reasonably requested by
Payee. It is agreed and understood that Maker shall not incur or
be responsible for any costs, fees or expenses of any nature
whatsoever as a result of Payee's sale of participation interests
in all or any portion of the Loan in the manner contemplated by
this paragraph more than two (2) times during any Loan Year.
Maker grants to Payee, and shall cause Manager and each
guarantor, indemnitor and other person or party associated or
connected with the Loan or the collateral therefor to grant to
Payee, the right to distribute on a confidential basis financial
and other information concerning Maker, Manager, each such
guarantor, indemnitor and other person or party and the property
encumbered by the Mortgage and other pertinent information with
respect to the Loan to any party who has purchased a
participation interest in the Loan or who has expressed a serious
interest in purchasing a participation interest in the Loan.
Payee shall advise any such party that such information shall be
treated as confidential. Any party to whom any such information
is distributed and who declines to purchase a participation
interest in the Loan shall be requested to return to Payee all
such information distributed to it without retaining any copies
thereof. It is agreed and understood that Payee shall in no
event and under no circumstance have any liability as a result of
any party's failure to follow the directions or advice of Maker
in handling such confidential information. Maker shall execute
and deliver, and shall cause Manager and each guarantor,
indemnitor and other person or party associated or connected with
the Loan or the collateral therefor to execute and deliver, such
documents and instruments as may be reasonably necessary to split
the Loan into two or more loans evidenced, secured and advanced
by and pursuant to separate sets of notes, deeds of trust and
other related loan documents to the full extent required by Payee
to facilitate the sale of participation interests in the Loan in
the manner contemplated by this paragraph, it being agreed that
(i) any such splitting of the Loan will not adversely affect or
diminish the rights of Payee as presently set forth in this Note,
the Mortgage or the other Loan Documents and will not increase
the respective obligations and liabilities of Maker, Manager or
any such guarantor, indemnitor or other person or party above
those presently set forth in this Note, the Mortgage or the other
Loan Documents, (ii) the mortgages and other documents securing
the Loan as so split will have such priority of lien as may be
specified by Payee, and (iii) the retained interest of Payee in
the Loan as so split shall be allocated to or among one or more
of such separate loans in a manner specified by Payee in its sole
and absolute discretion. If Maker shall default in the
performance of its obligation as set forth in this paragraph, and
if such default shall not be remedied by Maker within ten (10)
business days after notice by Payee, Payee shall have the right
in its discretion to declare the Debt immediately due and
payable. Payee also reserves the right at any time during the
term of the Loan and in its sole and absolute discretion to
effect a so-called securitization of the Loan in such manner and
on such terms and conditions as Payee shall deem to be
appropriate in its sole and absolute discretion and with such
domestic or foreign banks, insurance companies, pension funds,
trusts or other institutional lenders or other persons, parties
or investors (including, but not limited to, guarantor trusts,
owner trusts, special purpose corporations, REMICs, real estate
investment trusts or other similar or comparable investment
vehicles) as may be selected by Payee in its sole and absolute
discretion.
4.8 Limited Personal Liability. Without in any manner
releasing, impairing or otherwise affecting this Note, the
Mortgage or any of the other Loan Documents or the validity
thereof or hereof or the lien thereof, there is no personal
liability of Maker or any corporation, partnership or individual
having a direct or indirect ownership interest in Maker, or any
of their respective successors or assigns, hereunder or under any
of the other Loan Documents, and no monetary or deficiency
judgment shall be sought or enforced against Maker or any
corporation, partnership or individual having a direct or
indirect ownership interest in Maker, or any of their respective
successors or assigns; provided, however, that a judgment may be
sought against Maker or any corporation, partnership or
individual having a direct or indirect ownership interest in
Maker or any of their respective successors or assigns to the
extent necessary to enforce the rights of Payee in, to, or
against the Premises securing the Debt. Notwithstanding any of
the foregoing, nothing contained in this Section shall be deemed
to prejudice the rights of Payee to recover from the Responsible
Entities (1) all loss, damage, cost and expense (including
reasonable attorneys' fees and disbursements) incurred by Payee
as a result of any material fraud or any material
misrepresentation by any of the Responsible Entities or Manager,
(2) all loss, damage, cost and expense (including reasonable
attorneys' fees and disbursements) incurred by Payee as a result
of breach of Maker's warranties, representations and covenants
contained in Paragraph 5, Paragraph 9, Paragraph 17,
Paragraph 37, Paragraph 44 or Paragraph 47 of the Mortgage,
(3) all loss, damage, cost and expense (including reasonable
attorneys' fees and disbursements) incurred by Payee as a result
of intentional or negligent waste (whether financial or physical)
of the Premises including, without limitation, failure by Maker
to pay on or prior to the due date thereof all real estate taxes
and assessments levied against the Premises, subject to Maker's
right to contest the same as set forth in paragraph 5.B. of the
Mortgage, it being agreed and understood that Maker's personal
liability to pay real estate taxes and assessments levied against
the Premises shall not exceed the Rents generated over such
period of time to which such taxes and assessments pertain;
(4) all Rents generated from the Premises received after any
default under the Loan Documents or within one year before any
default under the Loan Documents or after acceleration of the
indebtedness evidenced and secured by the Loan Documents and not
applied to payment of such indebtedness or to payment of the
normal and customary operating expenses of the Premises; (5) all
Rents from the Premises collected more than one (1) month in
advance and all security deposits that are not held in a
segregated escrow account and that are not delivered to Payee
upon demand after the occurrence of a default under any of the
Loan Documents, (6) all insurance proceeds and condemnation
awards in respect of the Premises which are not applied in
accordance with the provisions of the Loan Documents or all loss,
damage, cost and expense (including reasonable attorneys' fees
and disbursements) incurred by Payee as a result of the failure
by Maker to maintain the insurance coverage required in
Paragraphs 7 and 8 of the Mortgage, (7) all or any portion of the
upfront fees, commitment fees and other costs and expenses
incurred by Payee in connection with the closing of this
transaction and required to be paid by Maker and not promptly
reimbursed by Maker, or (8) all loss, damage, cost and expense
(including reasonable attorneys' fees and disbursements) incurred
by Payee under the Hazardous Material Guaranty and
Indemnification Agreement dated the date hereof from the
Responsible Entities and the Manager. The Responsible Entities
agree to pay to Payee all amounts described in clauses (1)
through (8) above on demand by Payee and agrees that they will be
personally liable for payment of all such sums. Furthermore,
nothing contained in the paragraph shall be deemed to prejudice
the right of Payee to recover from the Manager all loss, damage,
cost and expense (including reasonable attorneys' fees and
disbursements) incurred by Payee under that certain Manager's
Liability Letter dated the date hereof from the Manager to Payee.
IN WITNESS WHEREOF, Maker has executed and delivered
this Note as of the day and year first above written.
Mortgagor:
CENTURY PROPERTIES GROWTH FUND XXII,
a California limited partnership
By: Fox Partners IV,
a California general partnership,
its General Partner
By: Fox Capital Management
Corporation,
a California corporation,
its Managing General Partner
By:
Name:
Title:
WITNESSES:
[CORPORATE SEAL]
_____________________
_____________________
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK)
PERSONALLY appeared before me ______________________,
who, being by me duly sworn, says that (s)he saw the within named
____________. the ___________________ of FOX CAPITAL MANAGEMENT
CORPORATION, a California corporation, Managing General Partner
of FOX PARTNERS IV, a California general partnership, the sole
general partner of CENTURY PROPERTIES GROWTH FUND XXII, a
California limited partnership, sign, seal and as his act and
deed deliver the foregoing instrument and that (s)he with
_________ witnessed the execution delivery thereof.
----------------------
----------------------
Witnesses
SWORN to before me, this ____ day of ____________________, A.D.
1994
_____________________________(SEAL)
Notary Public of New York
My Commission Expires: _____________________
[NOTARIAL SEAL]