ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Agreement") is made as of this 1st day of
November, 1993, by and between CONFEDERATION LIFE INSURANCE COMPANY, a
mutual life insurance company incorporated in Canada ("Lender"), WEST
STEWARTS MILL ASSOCIATES, L.P., a Georgia limited partnership ("Borrower")
and SHOPTAW-JAMES, INC., a Georgia corporation ("Escrow Agent").
W I T N E S S E T H:
WHEREAS, Borrower executed that certain Real Estate Note dated August
6, 1987 in favor of Lender in the original principal amount of Three
Million Seven Hundred Twenty-Five Thousand and No/100 Dollars
($3,725,000.00), as amended by that certain First Amendment to Real Estate
Note ("First Amendment") dated November 27, 1987 by and between Lender and
Borrower, and as further amended by that certain Modification of Real
Estate Note ("Second Amendment") dated November 21, 1988 by and between
Lender and Borrower, and as further amended by that certain Third Amendment
to Real Estate Note ("Third Amendment") dated as of the date hereof by and
between Lender and Borrower (as so amended, the "Note"); and
WHEREAS, the Note is secured by (among other things) that certain Deed
to Secure Debt and Security Agreement dated August 6, 1987, executed by
Borrower in favor of Lender and recorded at Deed Book 571, Page 388 of the
Douglas County, Georgia records, as amended by that certain First Amendment
to Deed to Secure Debt and Security Agreement dated November 27, 1987 by
and between Borrower and Lender and recorded at Deed Book 589, Page 208,
aforesaid records, and as further amended by that certain Second Amendment
to Deed to Secure Debt and Security Agreement dated as of the date hereof
by and between Borrower and Lender (as so amended, the "Security Deed"),
which Security Deed encumbers certain improved commercial real estate
located in Douglas County, Georgia described on Exhibit A attached hereto
and made a part hereof (the "Property"), which Property is generally known
as Park Plaza Shopping Center.
WHEREAS, in consideration of Lender's agreement to modify the interest
rate and payment schedule under the Note as contemplated by the Third
Amendment, Lender has requested and Borrower has agreed to deposit with
Escrow Agent the Security Deposits and Net Operating Income from the
Property to be held and disbursed in the manner hereinafter set forth.
NOW THEREFORE, for and in consideration of the premises, the mutual
covenants and agreements set forth herein, and in the Third Amendment, Ten
and No/100 Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by Lender,
Borrower and Escrow Agent, the parties hereto hereby agree as follows:
1. Appointment of Escrow Agent. Borrower and Lender do hereby
appoint Escrow Agent to perform the duties of Escrow Agent hereunder, and
Escrow Agent hereby accepts such appointment and agrees to perform the
duties and obligations imposed upon it by this Agreement.
2. Payments to Escrow Agent. Commencing on November 20, 1993 and
within twenty (20) days of the end of each calendar month thereafter
through the date on which all amounts evidenced or secured by the Note and
Security Deed have been paid in full (the "Escrow Term"), Borrower shall
deliver to Escrow Agent the Net Operating Income and all Security Deposits
related to the Property.
All amounts paid by Borrower to Escrow Agent hereunder shall be
held and disbursed by Escrow Agent in the manner hereinafter set forth.
Borrower's payment of Net Operating Income due on or before November 20,
1993 shall be for the month of October, 1993. Escrow Agent hereby
acknowledges receipt of $9,717.83 in Security Deposits from Borrower.
3. Disbursement of Escrow Funds. So long as no Event of Default
shall have occurred and be continuing under the Note or the Security Deed,
Lender and Borrower agree that the Escrow Funds shall be used to refund
Security Deposits to tenants which have not forfeited same under their
lease at the Property and pay such tenant improvement costs, leasing
commissions paid to third parties and Charter Properties, Inc., Borrower's
legal fees pertaining specifically to the leasing of space at the Property
or property management, and major repairs and replacements of the
improvements located on the Property which are reasonable and customary in
the market in which the Property is located ("Capital Expenditures"), and
improvements to the Property which are approved by Lender in its sole and
absolute discretion. In order to obtain a disbursement of Escrow Funds,
Borrower shall deliver a written request to Escrow Agent and Lender (a
"Funding Request") containing such documentation, evidence and lien waivers
(in the case of brokerage fees or expenses for construction, maintenance or
repairs) as Lender shall reasonably request ("Backup Documentation") to
substantiate the expenses to be funded from the Escrow Funds and satisfy
any lien rights associated with such items of expense. Disbursements of
the Escrow Funds under this Agreement shall thereafter be made by Escrow
Agent only upon receipt of written directions from Lender approving in
whole or in part the Funding Request. Within ten (10) calendar days of
receipt of any Funding Request, Lender shall notify Escrow Agent of the
amount, and the manner in which Escrow Funds are to be distributed.
Lender, at its option, may require Escrow Agent to distribute Escrow Funds
to Borrower, or directly to any third parties who are entitled to receive
any portion of the Escrow Funds. Lender shall not be obligated to request
disbursements of the Escrow Funds more often than once in any calendar
month; provided, however, Lender hereby agrees that it shall also review
and approve (or disapprove) a Funding Request within ten (10) days of a
written request by Borrower containing the Backup Documentation and a fully
executed lease for space at the Property.
Except as set forth in Section 6.6 of said Third Amendment, in
addition to disbursements for Capital Expenditures and Security Deposits,
in the event the Escrow Funds (excluding Security Deposits which have not
been forfeited by any tenant) shall exceed One Hundred Thousand Dollars
($100,000) at the end of any calendar quarter during the Escrow Term, the
amount of Escrow Funds in excess of said $100,000 shall be paid to Lender
and applied against the outstanding principal balance under the Note.
4. Escrow Funds as Security for Loan. The Escrow Funds shall
constitute additional collateral for the indebtedness and obligations of
Borrower under the Note and Security Deed. Borrower does hereby grant to
Lender security title and a continuing, general lien upon and security
interest in the Escrow Funds in order to secure Borrower's obligations
under the Note and Security Deed. Upon any default by Borrower under the
Note or the Security Deed which extends beyond any applicable grace or cure
period provided under the Note or the Security Deed, Lender may, at its
option, notify Escrow Agent that such default has occurred and direct
Escrow Agent to immediately deliver all or any portion of the Escrow Funds
to Lender. Escrow Agent shall be entitled and is hereby directed to rely
solely on directions from Lender with respect to the occurrence of such a
default and any disbursement of the Escrow Funds to Lender as a result
thereof.
5. Investment of Escrow Funds. Escrow Agent shall promptly deposit
any Escrow Funds in an interest-bearing account with The Chattahoochee
National Bank and shall leave said funds deposited in such account until
disbursed as provided in this Agreement. Interest accruing from time to
time with respect to the Escrow Funds shall be reported for federal and
state income tax purposes as income of Borrower. All interest earned on
the Escrow Funds shall remain in and become part of the Escrow Funds.
Borrower hereby represents and warrants that its Federal Employer
Identification Number is 58-1651242.
6. Payment of Escrow Funds to Lender. Lender and Borrower hereby
agree that in the event any amounts of the Escrow Funds are disbursed to
Lender pursuant to Section 6.5(b) of the Third Amendment, no prepayment
premium shall be payable to Lender under the Note solely as a result of
such amounts being paid in advance of the maturity date of the Note.
7. Escrow Agent Fees. Escrow Agent shall be entitled to a fee of
$350.00 per year as compensation for its holding and administration of the
Escrow Funds. Escrow Agent shall deduct said compensation from the Escrow
Funds held under this Agreement.
8. Substitute Escrow Agent. Upon written agreement of Lender and
Borrower, Lender and Borrower, at their discretion, may appoint a
substitute escrow agent at any time hereafter upon written notice to Escrow
Agent. Such new escrow agent shall thereupon become successor to the
Escrow Agent and shall be vested with all powers, duties and obligations
herein conferred upon Escrow Agent in the same manner and to the same
extent as if originally named herein. Upon appointment of a new escrow
agent and a transfer by Escrow Agent to such new escrow agent of the Escrow
Funds, Shoptaw-James, Inc. shall be released from and relieved from all
obligations and liability arising hereunder from and after the date of such
transfer.
9. Release and Indemnity. Lender and Borrower hereby release and
discharge Escrow Agent from all matters with respect to the subject matter
hereof (except for Escrow Agent's negligence or intentional wrongdoing) and
agree that in performing any of its duties hereunder, Escrow Agent shall
not incur any liability to anyone for any damages, losses or expenses,
except for those caused by Escrow Agent's negligence or intentional
wrongdoing, and without limiting the generality of the foregoing, Escrow
Agent shall not incur any liability with respect to (a) any action taken or
omitted in good faith with respect to any questions relating to the duties
and responsibilities of the Escrow Agent under this Agreement, or (b) any
action taken or omitted in reliance upon any instrument, including any
written notice or instruction provided for in this Agreement, not only as
to its due execution and the validity and effectiveness of its provisions,
but also as to the truth and accuracy of any information contained therein,
which the Escrow Agent shall in good faith believe to be genuine, to have
been signed or presented by a proper person or persons, and to conform with
the provisions of this Agreement. Lender and Borrower, jointly and
severally, hereby agree to indemnify and hold harmless Escrow Agent against
any and all loss, claims, damages, liabilities and expenses, which may be
imposed upon Escrow Agent or incurred by Escrow Agent in connection with
its acceptance of the appointment as Escrow Agent hereunder, or the
performance of its duties hereunder, except with respect to its negligence
or intentional wrongdoing.
10. Disputes. Notwithstanding anything contained in this Agreement
to the contrary, in the event of any dispute between Lender and Borrower,
or in the event that Escrow Agent is given contrary instructions by Lender
and Borrower, Escrow Agent, at its option, shall be permitted to tender
into the registry of the Superior Court of Cobb County, Georgia all monies
held by it, together with such documents and pleadings as it may deem
appropriate, and interplead Lender and Borrower with respect thereto,
whereupon Escrow Agent's liabilities and obligations hereunder shall be
terminated.
11. Time of Essence. Time is of the essence of each and every
provision in this Agreement.
12. Binding. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective representatives,
heirs, successors, and assigns; provided, however, that Escrow Agent may
not delegate any of its duties, obligations, or responsibilities hereunder
to any other person or entity without the prior written consent of Lender
and Borrower.
13. Notices. Any notice, request, demand, instruction, or other
communication (a "Notice") to be given to any party concerning this
Agreement may be given by the party or its counsel and shall be deemed to
have been properly sent and given when delivered by hand or when sent by
certified mail, return receipt requested, or by reputable courier service.
If delivered by hand, a Notice shall be deemed to have been sent, given,
and received when actually received by the addressee. If sent by certified
mail, a Notice shall be deemed to have been sent and given when properly
deposited with the United States Postal Service, with the proper address
and postage paid therewith, and shall be deemed to have been received on
the third (3rd) business day following the date of such deposit, whether or
not actually received by addressee. If sent by courier service, a Notice
shall be deemed to have been sent and given when actually delivered by said
courier service. The addresses to which Notices shall be sent are:
If to Borrower: West Stewarts Mill Associates, L.P.
c/o Charter Properties, Inc.
1815 The Exchange
Suite 100
Atlanta, Georgia 30339
Attn: Mr. Charles H. Lesley, President
If to Lender: Confederation Life Insurance Company
260 Interstate North
Atlanta, Georgia 30339
Attn: Ms. Peggy A. Ramsey
With a copy to: Confederation Life Insurance Company
260 Interstate North
Atlanta, Georgia 30339
Attn: Monty S. Levy, Esq., Assistant Counsel
If to Escrow Agent: Shoptaw-James, Inc.
5871 Glenridge Drive
Suite 200
Atlanta, Georgia 30339
Attn: Mr. Larry Brown
Each party shall have the right to change the address to which Notices to
it are to be sent by giving written notice of said change to the other
parties as provided in this Section. If any Notice actually shall not be
received by the addressee due to said addressee's failure or refusal to
furnish to the other party an accurate current address or due to the
addressee's failure or refusal to accept a delivery tendered at the address
specified in or pursuant to this Section, then, in such event, said Notice
conclusively shall be deemed to have been received by addressee on the
earlier to occur of (a) the time specified in this Section, or (b) when a
delivery attempt was made to the address specified in or pursuant to this
Section.
14. Participation in Negotiation and Preparation. The parties
acknowledge that each party and its counsel have participated in the
negotiation and preparation of this Agreement. This Agreement shall be
construed without regard to any presumption or other rule requiring
construction against the party causing the Agreement to be drafted.
15. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Georgia.
16. Third Amendment. The terms and provision of the Third Amendment
are incorporated herein by this reference and made a part hereof in the
same manner as if set forth herein in full. In the event of any conflict
between the terms of this Agreement and the terms of said Third Amendment,
the terms of the Third Amendment shall control and be binding.
17. Capitalized Terms. The capitalized terms used in this Agreement
shall have the meaning attributed to them in the Third Amendment unless
otherwise defined herein.
IN WITNESS WHEREOF, the duly authorized representatives of Lender,
Borrower and Escrow Agent have executed this Agreement under seal as of the
date first written above.
LENDER:
CONFEDERATION LIFE INSURANCE
COMPANY, a mutual insurance company
incorporated in Canada
By:/s/ Ross D. Friend
--------------------------------
Name: Ross D. Friend
------------------------------
Title: Legal Vice President
-----------------------------
By:/s/ Kevin Ellis
--------------------------------
Name: Kevin Ellis
------------------------------
Title: Manager Mortgage Investments
-----------------------------
BORROWER:
WEST STEWARTS MILL ASSOCIATES, L.P.
(successor by name change to West Stewarts
Mill Associates, Ltd.), a Georgia limited
partnership
By: /s/ Charles H. Lesley (SEAL)
--------------------------
Name: Charles H. Lesley,
its sole general partner
ESCROW AGENT:
SHOPTAW-JAMES, INC.
By:/s/ Larry D. Brown
--------------------------------
Name: Larry D. Brown
------------------------------
Title: Vice President
-----------------------------
Attest:/s/ Rebecca J. Dumont
----------------------------
Name: Rebecca J. Dumont
------------------------------
Title: Associate Manager - Loan
Servicing
-----------------------------
(CORPORATE SEAL)
EXHIBIT A
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TRACT A
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ALL THAT TRACT OR PARCEL OF LAND lying, situated and being in Land Lots 129
and 130 of the 2nd District, 5th Section, Douglas County, Georgia, which
tract is more particularly described as follows:
TO FIND THE POINT OF BEGINNING, commence at the common corner of Land Lots
129, 130, 159 and 160 of said District and Section; running thence along
the westerly land lot line of Land Lot 129 South 01 degrees 24' 28" East
637.36 feet to an iron pin placed and THE POINT OF BEGINNING; FROM SAID
POINT OF BEGINNING AS THUS ESTABLISHED, thence South 63 degrees 09' 44"
East 152.49 feet to an iron pin found on the northwesterly right-of-way
line of Georgia Highway No. 5 (at which point said road has an 80-foot
right-of-way); thence along the northwesterly right-of-way line Of Georgia
Highway No. 5 and along the arc of a curve to the left (said curve being
subtended by a chord bearing South 17 degrees 08' 50" West and having a
chord distance of 94.49 feet) an arc distance of 94.56 feet to a point
located on said right-of-way line; thence continuing along said
right-of-way line South 14 degrees 32' 55" West 115.98 feet to a point
located on said right-of-way line; thence leaving said right-of-way line
South 88 degrees 46' 22" West 324.59 feet to a point; thence South 01
degree 13' 37" East 5.00 feet to a point; thence South 88 degrees 46' 23"
West 285.00 feet to a point; thence North 08 degrees 46' 23" East 470.13
feet to an iron pin placed; thence South 89 degrees 36' 17" East 391.54
feet to an iron pin placed; thence South 01 degree 19' 10" East 140.00 feet
to an iron pin found; thence South 63 degrees 00' 18" East 71.62 feet to an
iron pin placed that is THE POINT OF BEGINNING; said tract or parcel
containing 5.53 acres (being designated "Tract B"), per plat of survey
prepared for West Stewarts Mill Associates, Ltd. and Confederation Life
Insurance Company by Crawford-Williams Assoc., Inc., dated August 11, 1986,
last revised July 27, 1987, and bearing the certification of Douglas C.
Crawford, Georgia Registered Land Surveyor No. 1833.
TRACT B
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ALL THAT TRACT OR PARCEL OF LAND situated, lying and being in Land Lots 129
and 130 of the 2nd District, 5th Section, Douglas County, Georgia, and
being more particularly described as follows:
BEGINNING at a point in the centerline of a branch (which point is located
South 01 degrees 39' 46" East a distance of 281.69 feet from the common
corner of Land Lots 129, 130, 159 and 160, said District, Section and
County, as measured along the easterly land lot line of said Land Lot 130);
thence in a southeasterly direction along the centerline of said branch and
following the meanderings thereof generally along the following courses and
distances: South 80 degrees 42' 14" East 50.76 feet; South 70 degrees 45'
11" East 39.61 feet: South 60 degrees 22' 46" East 85.20 feet; South 45
degrees 00' 00" East 49.46 feet; North 81 degrees 47' 08" East 40.38 feet;
North 88 degrees 08' 56" East 23.90 feet; South 75 degrees 57' 53" East
80.38 feet to a point in the westerly right-of-way line of Georgia Highway
5 (an 80-foot right-of-way); thence South 36 degrees 04' 12" West along
said westerly right-of-way line 47.13 feet to a point; thence South 35
degrees 59' 28" West, continuing along said westerly right-of-way line,
49.95 feet to a point; thence South 36 degrees 02' 07" West, continuing
along said westerly right-of-way line, 71.37 feet to a right-of-way
monument; thence southwesterly, continuing along said westerly right-of-way
line, along a curve to the left (said curve having a chord length of 200.99
feet on a bearing of South 28 degrees 19' 04" West) an arc distance of
201.69 feet to an iron pin found, which iron pin is located northeasterly
591.70 feet, as measured along said westerly right-of-way line, from the
intersection of said westerly right-of-way line with the northerly
right-of-way line of West Stewarts Mill Boulevard (a 90-foot right-of-way);
thence North 63 degrees 09' 44" West, leaving said westerly right-of-way
line, 152.55 feet to an iron pin placed in the westerly line of Land Lot
129 (which is also the easterly line of Land Lot 130), said District,
Section and County; thence North 63 degrees 00' 19" West 71.62 feet to an
iron pin found; thence North 01 degree 19' 10" West 140.00 feet to an iron
pin placed; thence North 01 degree 15' 53" West 105.17 feet to an iron pin
found; thence South 79 degrees 27' 11" East 65.27 feet to an iron pin found
in the easterly line of said Land Lot 130 (which is also the westerly line
of Land Lot 129); thence North 01 degree 39' 46" West along said easterly
land lot line 89.95 feet to THE POINT OF BEGINNING; said tract containing
2.27 acres as shown on a survey for West Stewarts Mill Associates, Ltd. and
Confederation Life Insurance Company, prepared by Crawford-Williams Assoc.,
Inc., dated July 2, 1987, and bearing the certification of Douglas C.
Crawford, Georgia Registered Land Surveyor No. 1833.
TOGETHER WITH:
As to both Tracts A and B above:
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All of the rights, benefits and privileges appertaining to such Tracts
under and pursuant to that certain Declaration of Reciprocal Easements and
Restrictions, dated December 19, 1985, by West Stewarts Mill Associates,
Ltd., a Georgia limited partnership, recorded in Deed Book 496, page 26,
records of Douglas County, Georgia, as amended by that certain First
Amendment to Declaration of Reciprocal Easements and Restrictions, dated
September 16, 1986, by West Stewarts Mill Associates, Ltd., a Georgia
limited partnership, recorded in Deed Book 528, page 452, aforesaid
records.