The Prudential Realty Group - stationery
Kirk S. Kniss
Vice President
Four Embarcadero Center, Suite 2700
San Francisco, CA 94111-4780
415 291-5026 Fax: 415 956-2197
September 28, 1995
Newpark Associates
c/o Mr. Andrew R. Miller
First Vice President
Homart
55 West Monroe, Suite 3100
Chicago, Illinois 60603-5060
RE: Forbearance Agreement:
Prudential Loan No. 7500690
Loan in Original Principal Amount of $50,620,220 (the
"Loan") from The Prudential Insurance Company of America
("Lender") to Newpark Associates, a California general
partnership ("Borrower"), secured by Deed of Trust covering
real property commonly known as the Newpark Mall, Newark,
California (the "Property").
Gentlemen:
The Loan matures on November 1, 1995 (the "Initial Maturity
Date"). Borrower has requested a period of time in which to negotiate
and consummate a sale or a refinance of the Property. This letter (the
"Forbearance Agreement" or "Agreement"), when signed by authorized
representatives of Lender and Borrower shall confirm the agreement
between Lender and Borrower:
1. FORBEARANCE.
So long as Borrower performs all of the terms and conditions
of this Agreement, time being of the essence, Lender shall forbear, from
the Initial Maturity Date until December 15, 1995 (the "Forbearance
Period"), from exercising its rights and remedies with respect to the
Loan and the Property which would otherwise arise under the documents
evidencing and securing the loan (the "Loan Documents") and applicable
law on account of Borrower's failure to repay the Loan in full on the
Initial Maturity Date.
2. CONDITIONS TO FORBEARANCE.
The following shall be conditions to Lender's forbearance as
outlined herein:
a. Borrower shall perform and comply with all of the terms and
conditions of the Loan Documents, except for the obligation
Newpark Associates
September 28, 1995
Page 2
to pay the principal balance of the Loan in full on the Initial Maturity
Date.
b. On the first (1st) day of each month during the Forbearance
Period, beginning on November 1, 1995 and continuing through and
including December 1, 1995, Borrower shall pay to Lender monthly
payments in the amount of $416,351.31. The interest rate on the Loan
for the Forbearance Period shall be the interest rate provided in the
Promissory Note. Payments shall be applied as provided in SECTION 4 of
the Promissory Note.
c. Borrower shall, throughout the Forbearance Period, make
diligent efforts to sell or refinance the Property. Borrower
understands that Lender shall have no obligation to consent to any
proposal to sell or refinance the Property during the Forbearance
Period, whether or not such transfer shall be permitted pursuant to
SECTION 4.2 of the Deed of Trust securing the Loan (the "Deed of
Trust").
d. Not later than the expiration of the Forbearance Period (the
expiration date of the relevant period will sometimes be referred to
herein as the "Maturity Date") Borrower shall repay the Loan in full.
3. EFFECT OF DEFAULT.
Borrower acknowledges that, unless the Loan is repaid in
full on or before the Maturity Date, Borrower shall be in default; and
that but for this Agreement Lender would immediately be entitled to
exercise its rights and remedies under the Loan Documents and applicable
law with respect to that default. Accordingly, in the event of any
default by Borrower during the Forbearance Period with respect to any of
the terms and conditions herein, Lender shall immediately be entitled to
exercise all of its rights and remedies under the Loan Documents and
applicable law. Provisions in the Loan Documents, if any, which require
notice, passage of time, or both prior to Lender's exercise of its
rights and remedies upon Borrower's default are hereby waived by
Borrower and Ground Lessor effective upon commencement of the
Forbearance Period.
4. SERVICING FEE.
Borrower shall, on or before the Initial Maturity Date, pay
to Lender a servicing fee in the amount of five thousand dollars
($5,000.00).
Newpark Associates
September 28, 1995
Page 3
5. PAYMENT OF EXPENSES.
Borrower shall pay any and all costs and expenses of Lender
incurred in connection with the transactions contemplated hereby,
including, without limitation, title insurance premiums, title costs and
expenses and Lender's legal costs and expenses, which shall include the
reasonably allocated cost of Lender's in-house counsel. Borrower shall
pay such costs on the earlier of (a) five (5) days after written demand
therefor by Lender or (b) the date of payment in full of the Loan.
6. LOAN IN FULL FORCE AND EFFECT.
The Loan and Loan Documents remain in full force and effect.
This Agreement shall not be construed as a modification thereof; but
rather, is merely an agreement by Lender, subject to certain terms and
conditions, to forebear from exercising rights and remedies.
7. MISCELLANEOUS.
This Agreement shall be governed by the laws of the
jurisdiction where the Property is located. In the event of any
litigation relating hereto, the prevailing party shall recover its
costs, including reasonable attorneys fees and expenses.
If the foregoing is agreeable to Borrower, please arrange for
authorized representatives of Borrower to sign, date, and return a copy
of this Forbearance Agreement to the undersigned not later than October
10, 1995.
Thank you very much.
Sincerely,
LENDER:
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, a
New Jersey corporation
By: KIRK KNISS
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Kirk Kniss
Vice President