MORTGAGE NOTE
Atlanta, Georgia
$6,700,000.00 October 5, 1990
1. Payment of Principal and Interest.
FOR VALUE RECEIVED, HOLCOMB BRIDGE PARTNERS, L.P., a Georgia limited
partnership (the "Maker"), hereby promises to pay to the order of ALLSTATE
LIFE INSURANCE COMPANY, and any subsequent holder of this Note ("Holder" or
"Holders") in the manner hereinafter provided, the principal amount of SIX
MILLION SEVEN HUNDRED THOUSAND AND NO/100 ($6,700,000.00) together with
interest on the outstanding principal balance from the date of the initial
disbursement of all or a part of the principal of this Note ("Disbursement
Date") until maturity at the rate of ten percent (10.0%) per annum
("Contract Rate") as follows:
(a) on the Disbursement Date, interest only, in advance,
accruing from the Disbursement Date to the last day of
October, 1990, both inclusive; and
(b) interest only, in arrears, in the amount of FIFTY-FIVE
THOUSAND EIGHT HUNDRED THIRTY-THREE AND 33/100 DOLLARS
($55,833.33) on the first day of December, 1990, and on the
first day of each month thereafter until this Note is fully
paid; and
(c) on November 1, 1995 (unless this Note is extended pursuant
to paragraph 25 and, in that event, on November 1, 2000),
the entire unpaid principal amount and any interest accrued,
but remaining unpaid, and all other sums due under this
Note.
Except for the interest payable under paragraph (a) above, interest shall
be payable in arrears and calculated on the basis of a 360 day year
containing twelve 30 day months. All such payments on account of the
indebtedness evidenced by this Note shall be first applied to interest
accrued on the unpaid principal amount and the remainder toward reduction
of the unpaid principal amount.
2. Payment Information. All payments required to be made hereunder
shall be made during regular business hours to Holder at its office at 3100
Sanders Road, Northbrook, Illinois 60062, with sufficient information to
identify the source and application of such payment to Holder's Loan
#121026, or at such other place as Holder may from time to time designate
in writing. All payments shall be made in currency of United States of
America without presentment or surrender of this Note. Payments made by
check will not be deemed made until servicing agent receives good funds for
such check. Should Holder notify Maker to make payments directly to
Holder, such payments shall be made by transferring the payment in federal
or immediately available funds by bank wire or interbank transfer for the
account of Holder provided, however, that any payment of principal or
interest received after 1:00 p.m. Chicago time shall be deemed to have been
received by Holder on the next business day and shall bear interest
accordingly.
3. Security For Note. The payment of this Note and all other sums
due Holder is secured by (i) a Deed to Secure Debt, Assignment of Leases,
Rents and Contracts, Security Agreement and Fixture Filing ("Mortgage"), of
even date herewith, granted by Maker, as grantor, to Holder, as grantee,
covering certain real property, the improvements thereon and certain
personal property situated in the County of Fulton, State of Georgia
("Subject Property"), and (ii) those certain instruments of indebtedness
and security described as "Related Agreements" in the Mortgage. Except as
otherwise defined herein, all of the terms and provisions contained in the
Mortgage and the Related Agreements are hereby incorporated herein by
express reference.
4. Late Charges. Should any payment required under this Note not be
paid in full within 10 days from the date such payment is due, Maker
acknowledges that the Holder will incur extra expenses for the handling of
the delinquent payment and servicing the indebtedness evidenced hereby, and
that the exact amount of these extra expenses is extremely difficult and
impracticable to ascertain, but that a charge of five percent (5%) of the
amount of the delinquent payment ("Late Charge") would be a fair
approximation of the expense so incurred by Holder. If applicable law
requires a lesser charge, however, then the maximum charge permitted by
such law may be charged by Holder for said purpose. Therefore, Maker
shall, in such event, without further notice, and without prejudice to the
right of Holder to collect any other amounts provided to be paid hereunder
or under the Mortgage, the Related Agreements or any other instrument
executed for purposes of further securing payment of the obligations
evidenced by this Note, or to declare an Event of Default, pay to Holder
the Late Charge to compensate Holder for expenses incurred in handling
delinquent payments, unless the payment in full is received within 10 days
from the date such payment is due.
5. Interest Payable Upon Default. If there occurs an Event of
Default, under this Note or the Mortgage or under any Related Agreement,
then the unpaid principal amount of this Note, accrued and unpaid interest
thereon and all other indebtedness evidenced or secured by this Note, the
Mortgage and the Related Agreements, including any unpaid Late Charges,
shall bear interest at the Contract Rate plus five percent (5%) per annum
compounded monthly ("Default Rate") from the date of expiration of any
applicable notice, cure and grace period until such time, if any, as the
Event of Default is cured and the Mortgage and this Note are reinstated as
permitted by applicable law, or otherwise until such time as the unpaid
principal amount of this Note and all other indebtedness evidenced by this
Note are fully repaid, whichever is earlier.
6. Events of Default. An "Event of Default" shall exist under this
Note in the event Maker shall (i) fail to make any payment due under this
Note within ten (10) days from the date when such payment is due; (ii) fail
to perform or observe any covenant or agreement of Maker under this Note
within fifteen (15) days from the date notification is received from Holder
to cure any nonmonetary default (other than defaults arising from
bankruptcy and other insolvency); provided, however, that if such
nonmonetary default is of a nature that it cannot be cured within such 15
day period, Maker shall have a reasonable period of time not to exceed 180
days after the date notice of default is received by Maker within which to
effect such cure on the condition that Maker commences good faith efforts
to cure within the 15 day period and demonstrates continuous diligent
efforts in a manner satisfactory to Holder; (iii) fail to effect prepayment
after Maker issues notice of prepayment as provided in paragraph 9 hereof;
or (iv) if there shall exist an Event of Default as that term is defined in
the Mortgage or in any of the Related Agreements.
7. Additional Payments. The additional payments called for under
paragraphs 4 and 5 shall be in addition to, and shall in no way limit, any
other rights and remedies provided for in this Note, the Mortgage or in any
Related Agreements, as well as all other remedies provided by law.
8. Payment of Taxes and Expenses. Make further promises to pay to
Holder, immediately upon written notice from Holder, (i) all recordation,
transfer, stamp, documentary or other fees or taxes levied on Holder by
reason of the making or recording of this Note, the Mortgage or any of the
Related Agreements, and (ii) all actual costs, expenses, disbursements,
intangible property taxes imposed upon any Holder of this Note or mortgage
under the Mortgage or secured party under the Related Agreements (but
excluding income, estate, capital or franchise taxes), escrow fees, title
charges and reasonable legal fees and expenses actually incurred by Holder
and its counsel in the negotiation, funding, collection or attempted
collection, by foreclosure or otherwise, of the principal amount of this
Note, the interest thereon or any installment or other payment due
hereunder, and in any suit or proceeding to protect or sustain any
instrument securing this Note, including, without limitation, any
reasonable attorneys' fees and expenses incurred in any bankruptcy or
foreclosure of the Subject Property.
9. Prepayment. Maker is prohibited from prepaying this Note until
October 1, 1993 (the "No-Prepayment Period"). Subsequent to the No-
Prepayment Period, on any regular payment date, with sixty (60) days prior
written notice to Holder specifying the date of prepayment, Maker will have
the privilege of prepaying the entire outstanding principal amount together
with an accrued but unpaid interest, any other sums secured by the Mortgage
and the Related Agreements and the following percent premium on the
principal balance ("Prepayment Premium"):
2% in Loan Year 4
1% in Loan Year 5
No Prepayment Premium shall be due on the principal balance prepaid in the
last sixty (60) days of the 5th Loan Year. As used herein, the term "Loan
Year" shall mean the consecutive full twelve (12) month period commencing
on the first calendar month immediately following the Disbursement Date and
each consecutive full twelve (12) month period thereafter commencing on
such anniversary thereof.
Written notice of Marker's election to make prepayment in full of this
Note shall be given in the manner provided for notice under the Mortgage.
Partial prepayment of the outstanding principal amount of this Note shall
not be permitted except in accordance with the terms of the Mortgage. In
the event of such a permitted partial prepayment, the Prepayment Premium
calculated in this paragraph 9 shall be prorated based on the amount of the
partial prepayment relative to the then current outstanding principal
balance of this Note.
Maker acknowledges that Holder (a) has advanced the amounts evidenced
by this Note with the expectation that such amounts would be outstanding
for a period at least equal to the No-Prepayment Period, (b) would not have
been willing to advance such amounts on these terms for a shorter period of
time, (c) in making the loan evidenced by this Note, is relying on Maker's
creditworthiness and its agreement to pay in strict accordance with the
terms set forth in the Note, (d) would not make the loan without full and
complete assurance by Maker of its agreement not to prepay all or a part of
the principal of this Note except as expressly permitted herein and in the
Mortgage. Maker has been advised and acknowledges that Holder is relying
on the receipt of payments under this Note to, among other things, match
and support its obligations under contracts entered into by Holder with
third parties and that in the event of a prepayment, Holder could suffer
loss and additional expenses which are extremely difficult and impractical
to ascertain. The Prepayment Premium is a good faith resolution by Maker
and Holder of the damages Holder would suffer, and it is not intended as a
penalty. Accordingly, should this Note be paid for any reason, whether
voluntary or involuntary, or after this Note is accelerated, whether such
acceleration is due to Maker's default or otherwise, except a prepayment
resulting from condemnation or other taking of the Subject Property when no
default exists under this Note, prior to the end of the No-Prepayment
Period then Maker shall pay to Holder a Prepayment Premium calculated in
accordance with this paragraph 9.
BY INITIALING BELOW, MAKER EXPRESSLY ACKNOWLEDGES THAT PURSUANT TO THE
PROVISIONS OF THIS NOTE, MAKER HAS NO RIGHT TO PREPAY THIS NOTE IN WHOLE OR
IN PART WITHOUT PAYMENT OF THE PREPAYMENT PREMIUM, AND THAT MAKER SHALL BE
LIABLE FOR THE PAYMENT OF THE PREPAYMENT PREMIUM UPON ANY PAYMENT OF THE
OUTSTANDING PRINCIPAL OF THIS NOTE BEFORE ITS DUE DATE, WHETHER VOLUNTARY
OR INVOLUNTARY OR AFTER ACCELERATION OF THE NOTE WHETHER THE ACCELERATION
OF THE MATURITY HEREOF IS DUE TO MAKER'S DEFAULT OR OTHERWISE.
FURTHERMORE, BY INITIALING BELOW, MAKER WAIVES ANY RIGHTS IT MAY HAVE UNDER
ANY APPLICABLE STATE LAWS AS THEY RELATE TO ANY PREPAYMENT RESTRICTIONS
CONTAINED IN THIS PARAGRAPH 9 OR OTHERWISE IN THIS NOTE AND EXPRESSLY
ACKNOWLEDGES THAT HOLDER HAS MADE THE LOAN IN RELIANCE UPON SUCH AGREEMENTS
AND WAIVER OF MAKER AND THAT HOLDER WOULD NOT HAVE MADE THE LOAN WITHOUT
SUCH AGREEMENTS AND WAIVER OF MAKER. MAKER ACKNOWLEDGES THAT SPECIFIC
WEIGHT HAS BEEN GIVEN TO THE CONSIDERATION GIVEN FOR SUCH AGREEMENTS, WHICH
CONSIDERATION IS THE GRANTING OF THE LOAN.
Maker's Initials ____________
10. Evasion of Prepayment Premium. Maker acknowledges that in the
event of an acceleration of payment of this Note following default by
Maker, a tender of payment of an amount necessary to satisfy the entire
indebtedness evidenced hereby, but not including the Prepayment Premium,
made at any time prior to a foreclosure sale by Marker, its successors or
assigns or by anyone on behalf of Maker, or by a buyer upon foreclosure or
trustee's sale, shall be presumed to be and conclusively deemed to
constitute a deliberate evasion of the prepayment provisions hereof and
shall constitute a prepayment hereunder and shall therefore be subject to
the Prepayment Premium as calculated in accordance with this Note with the
date of prepayment being deemed the date of occurrence of the foreclosure
sale or the tender of payment of the amount necessary to pay the entire
indebtedness evidenced hereby in full, including the Prepayment Premium.
11. Maker's Covenants. Maker agrees that (i) this instrument and the
rights and obligations of all parties hereunder shall be governed by and
construed under the laws of the state in which the Subject Property is
located; (ii) the obligation evidenced by this Note is an exempted
transaction under the Truth-in-Lending Act, 15 U.S.C. Section 1601, et seq.
(1982); (iii) said obligation constitutes a business loan for the purpose
of the application of any laws that distinguish between consumer loans and
business loans and that have as their purpose the protection of consumers
in the state in which the Subject Property is located; (iv) at the option
of the Holder, the United States District Court for the Northern District
of Illinois and any court of competent jurisdiction of the State of
Illinois shall have jurisdiction in any action, suit or other proceeding
arising out of or relating to any act taken or omitted hereunder or the
enforcement of this Note, the Mortgage and the Related Agreements and Maker
shall not assert in any such action, suit or other proceeding that it is
not personally subject to the jurisdiction of the courts in (iv) above,
that the action, suit or proceeding is brought in an inconvenient forum or
that the venue of the action, suit or other proceeding is improper; (v) it
hereby waives any objections to venue of the courts in (iv) above; and (vi)
it hereby waives its right to a trial by jury.
12. Severability. The parties hereto intend and believe that each
provision of this Note comports with all applicable local, state and
federal laws and judicial decisions. However, if any provision or any
portion of any provision contained in this Note is held by a court of law
to be invalid, illegal, unlawful, void or unenforceable as written in any
respect, then it is the intent of all parties hereto that such portion or
provision shall be given force to the fullest possible extent that it is
legal, valid and enforceable, that the remainder of the Note shall be
construed as if such illegal, invalid, unlawful, void or unenforceable
portion or provision was not contained therein, and the rights, obligations
and interests of Maker and Holder under the remainder of this Note shall
continue in full force and effect.
13. Usury Laws. It is the intention of Maker and Holder to conform
strictly to the usury laws now or hereafter in force in the State of
Georgia, and any interest payable under this Note, the Mortgage, or any
Related Agreement shall be subject to reduction to the amount not in excess
of the maximum non-usurious amount allowed under the usury laws of the
State of Georgia as now or hereafter construed by the courts having
jurisdiction over such matters. In the event the maturity of this Note is
accelerated under the terms of this Note, the Mortgage or any Related
Agreement, or by voluntary prepayment by Maker, or otherwise, then earned
interest may never include more than the maximum amount permitted by law,
computed from the dates of each advance of loan proceeds hereunder until
payment, and any interest in excess of the maximum amount permitted by law
shall be cancelled automatically and, if theretofore paid, shall at the
option of the Holder either be rebated to Maker or credited on the
principal amount of this Note or if all principal has been prepaid, then
the excess shall be rebated to Maker. The aggregate of all interest
(whether designated as interest, service charges, points, or otherwise)
contracted for, chargeable, or receivable under this Note, the Mortgage, or
any Related Agreement shall under no circumstances exceed the maximum legal
rate upon the balance of this Note remaining unpaid from time to time. In
the event such interest does exceed the maximum legal rate, it shall be
cancelled automatically to the extent that such interest exceeds the
maximum legal rate and if theretofore paid, credited on the principal
amount of this Note or, if the Note has been prepaid, then such excess
shall be rebated to Maker.
14. Acceleration. Upon an Event of Default, Holder shall have the
right, without demand or notice, to declare the entire principal amount of
this Note and/or any Future Advance (as defined in the Mortgage) then
outstanding, and all accrued and unpaid interest thereon, and all other
sums required under this Note or under the Mortgage, to be immediately due
and payable, and notwithstanding the stated maturity in this Note or any
note evidencing any Future Advance, the principal amount of this Note
and/or any Future Advance and the accrued and unpaid interest hereon and
thereon and all other sums required hereunder and thereunder, including
without limitation, the Prepayment Premium, shall thereupon become
immediately due and payable. During the existence of such Event of
Default, Holder may apply payments received on any amounts due hereunder or
under the Mortgage or any Related Agreement as Holder may determine in its
sole discretion.
15. Waivers by Maker. As to this Note, the Mortgage, the Related
Agreements and any other instruments securing the indebtedness, Maker and
all guarantors, sureties and endorsers, severally waive all applicable
exemption rights, whether under any state constitution, homestead laws or
otherwise, and also severally waive diligence, valuation and appraisement,
presentment for payment, protest and demand, notice of protest, demand and
dishonor and diligence in collection and nonpayment of this Note and all
other notices in connection with the delivery, acceptance, performance,
default, or enforcement of the payment of this Note (except notice of
default specifically provided for in the Mortgage and the Related
Agreements). To the extent permitted by law, Maker further waives all
benefit that might accrue to Maker by virtue of any present or future laws
exempting the Subject Property, or any other property, real or personal, or
the proceeds arising from any sale of any such property, from attachment,
levy, or sale under execution, or providing for any stay of execution to be
issued on any judgment recovered on this Note or in any action to foreclose
the Mortgage, injunction against sale pursuant to power of sale, exemption
from civil process or extension of time for payment. Maker agrees that any
real estate that may be levied upon pursuant to a judgment obtained by
virtue of this Note, or any writ of execution issued thereon, may be sold
upon any such writ in whole or in part in any order desired by Holder.
16. Maker Not Released. No delay or omission of Holder to exercise
any of its rights and remedies under this Note, the Mortgage or any Related
Agreements at any time following the happening of an Event of Default shall
constitute a waiver of the right of Holder to exercise such rights and
remedies at a later time by reason of such Event of Default or by reason of
any subsequently occurring Event of Default. This Note, or any payment
hereunder, may be extended from time to time by agreement in writing
between Maker and Holder without in any other way affecting the liability
and obligations of Maker and endorsers, if any.
17. Nonrecourse. Notwithstanding any provision in this Note, the
Mortgage, or Related Agreements, except as otherwise set forth in this
paragraph, the liability of Maker and the general partners of Maker, if
any, under this Note, the Mortgage and the Related Agreements shall be
limited to, and satisfied from the Subject Property and the proceeds
thereof, the rents and all other income arising therefrom, the other assets
of Maker arising out of the Subject Property which are given as collateral
for this Note, and any other collateral given in writing to Holder as
security for repayment of this Note (all of the foregoing are collectively
referred to as the "Loan Collateral"); provided, however, that nothing
contained in this paragraph shall (i) preclude Holder from foreclosing the
lien of the Mortgage or from enforcing any of its rights or remedies in law
or inequity against Maker except as stated in this paragraph, (ii)
constitute a waiver of any obligation evidenced by this Note or secured by
the Mortgage or any Related Agreements, (iii) limit the right of Holder to
name Maker as a party defendant in any action brought under this Note, the
Mortgage or any Related Agreements, so long as execution on any judgment is
limited to the Loan Collateral, (iv) prohibit Holder from pursuing all of
its rights and remedies against any guarantor or surety, whether or not
such guarantor or surety is a partner of Maker, (v) limit the personal
liability of Maker, or any shareholder of Maker, or any general partner of
Maker to Holder for misappropriation or misappropriation of funds, fraud,
waste, willful misrepresentation or willful damage to the Subject Property
or (vi) preclude Holder from recovering from Maker and the indemnitors
under that certain Environmental Indemnity Agreement of even date herewith.
18. Successors and Assigns. The provisions of this Note shall be
binding upon Maker and its legal representatives, successors and assigns
and shall inure to the benefit of any Holder and its successors and
assigns. In the event Maker is composed of more than one party,
obligations arising from this Note are and shall be joint and several as to
each such party.
19. Remedies Cumulative. The remedies of Holder as provided in this
Note, or in the Mortgage or the Related Agreements, and the warranties
contained herein or therein shall be cumulative and concurrent, may be
pursued singly, successively or together at the sole discretion of Holder,
may be exercised as often as occasion for their exercise shall occur and in
no event shall the failure to exercise any such right or remedy be
construed as a waiver or release of such right or remedy. No remedy under
this Note, conferred upon or reserved to Holder is intended to be exclusive
of any other remedy provided in this Note, the Mortgage or any of the
Related Agreements or provided by law, but each shall be cumulative and
shall be in addition to every other remedy given under the Mortgage or any
of the Related Agreements or hereunder or now or hereafter existing at law
or in equity or by statute.
20. Notices. All notices, written confirmation of wire transfers and
all other communications with respect to this Note shall be directed as
follows: If to Holder, c/o Allstate Insurance Company, Commercial Mortgage
Division, 3100 Sanders Road, Allstate Plaza West - J2A, Northbrook,
Illinois 60062, Attention: Taxable Fixed Income - Commercial Mortgage
Division, with a copy to Allstate Insurance Company, 3100 Sanders Road,
Allstate Plaza West - M2A, Northbrook, Illinois 60062, Attention:
Financial Law Division; if to Maker, c/o Barge-Wagener, Inc., 1815 The
Exchange, Atlanta, Georgia 30339, Attn: John M. Barge and John Wagener,
with a copy to: Long, Aldridge & Norman, Two Concourse Parkway, Suite 750,
Atlanta, Georgia 30328, Attn: James A. Fleming or at such other place as
Holder or Maker may from time to time designate in writing by ten (10) days
prior written notice thereof. All notices shall be in writing and shall be
(i) hand-delivered, effective upon receipt, or (ii) sent by United States
express mail or by private overnight courier, effective upon receipt, or
(iii) served by certified mail at the appropriate address set forth above,
or at such other place as Holder or Maker may from time to time designate
in writing. Any notice or demand served by certified mail, return receipt
requested, shall be deposited in the United States mail with postage
thereon fully prepaid and addressed to the party so to be served at its
address above stated or at such other address of which said party shall
have theretofore notified in writing, as provided above, the party giving
such notice. Service of any such notice or demand so made shall be deemed
effective on the day of actual delivery as shown by the addressee's return
receipt or the expiration of three (3) business days after the date of
mailing, whichever is earlier in time.
21. No Oral Modification. This Note may not be modified or
discharged orally, but only by an agreement in writing signed by the party
against whom enforcement of any waiver, modification or discharge is
sought.
22. Time. Time is of the essence with regard to the performance
of the obligations of Maker in this Note and each and every term, covenant
and condition herein by or applicable to Maker.
23. Captions. The captions and headings of the paragraphs of
this Note are for convenience only and are not to be used to interpret,
define or limit the provisions hereof.
24. Replacement Note. Upon receipt of evidence reasonably
satisfactory to Maker of the loss, theft, destruction or mutilation of this
Note, and in the case of any such loss, theft or destruction, upon delivery
of any indemnity agreement reasonably satisfactory to Maker or, in the case
of any such mutilation, upon surrender and cancellation of this Note, Maker
will execute and deliver to Holder in lieu thereof, a replacement note
dated as of the date of this Note, identical in form and substance to this
Note and upon such execution and delivery all references in the Mortgage to
this Note shall be deemed to refer to such replacement note.
25. Extension of Note. Upon written notice by Maker to Holder
not more than 120 days nor less than 90 days prior to the maturity of this
Note, Maker may notify Holder of its intention to extend the Note for an
additional 5 years ("Extension Term") on the same terms and conditions as
contained herein except as and subject to the following terms and
conditions:
(a) Maker shall only have the right to elect to extend this Note
provided that:
(i) there is no default or event which, with notice or
the passage of time, or both, could result in a
default by Maker under the Mortgage or the Related
Agreements,
(ii) Holder is then extending mortgage loans on terms
comparable to the terms of the loan evidenced hereby,
secured by properties comparable to the Subject
Property,
(iii) there is no deterioration in the financial condition
of Maker or the Subject Property in the sole opinion
of Holder,
(iv) the Subject Property has maintained a ratio of Net
Operating Income (as defined in this paragraph 25) to
annual debt service due under the Note and any other
notes secured by the Subject Property of not less
than 110% for the 12 month period ending upon the
date Maker requests its extension of the maturity
date of this Note, and
(v) the Subject Property has a projected ratio of Net
Operating Income to annual debt service due under
this Note and any other notes secured by the Subject
Property of not less than 110% for the 12 month
period commencing on the date of the original
maturity of this Note.
(b) The interest rate shall be Holder's interest rate for 5 year
loans comparable to the loan evidenced hereby on the date
Maker notifies Holder of its election to extend this Note
pursuant to the terms hereof, as quoted to Maker.
(c) The principal outstanding as of the maturity of this initial
term of this Note shall be amortized on a 25 year schedule
with consecutive equal monthly installments of principal and
interest and a final payment of all outstanding principal
and accrued and unpaid interest at maturity of the Extension
Term.
(d) On any or all of the ten (10) business days ending 90 days
prior to the maturity date of the initial term of this Note
upon Maker's request on no more than a daily basis, Holder
shall inform the Maker of its then current interest rate,
with the understanding that its interest rate fluctuates on
at least a daily basis. Maker may notify Holder in writing
(which may be given by facsimile, followed by original
overnight delivery) on or before 2:00 p.m. Chicago time on
the day of any such quote, of its election to extend this
Note at the rate quoted on that day.
(e) In the event and after Maker elects to extend the term Maker
may prepay this Note on the terms and conditions set forth
in paragraph 9 of this Note as if the Extension Term were
the original term.
(f) Maker shall pay any costs and expenses, including legal
fees, incurred by Holder or otherwise involved in extending
the term of this Note.
(g) All items reasonably required by Holder in connection with
the extension of this Note shall be received from the Maker
within 15 calendar days of Maker's written notice of its
intention to extend this Note.
(h) At Holder's option, the extension of the term of this Note
shall be evidenced by an extension or renewal of or
amendment to this Note or by the execution of a new note.
Maker further agrees to execute and/or deliver Holder any
other documentation reasonably requested by Holder,
including without limitation, opinions of counsel and title
endorsements, all of which shall be satisfactory to Holder
in Holder's reasonable discretion.
As used in this paragraph 25, "Net Operating Income" shall mean all
rents projected from tenants in the Subject Property and paying rent under
Leases (as defined in the Mortgage) in effect during the applicable twelve
month period, which do not contain any termination rights during that
period, calculated on a cash basis, including all amounts to be received
from tenants as payment of operating expenses but not including refundable
deposits, principal or interest payments received by Maker on loans to
tenants and fees and reimbursements for work performed for tenants by
Maker, less all amounts, calculated on a cash basis, for the operation or
maintenance of the Subject Property, including ground rents, the cost of
property management, maintenance, cleaning, security, landscaping, parking
maintenance and utilities, and other costs and expenses approved in writing
by Holder and amounts reasonably estimated by Holder for the payment of
real estate taxes and assessments and other taxes related to the operation
of the Subject Property, insurance premiums, necessary repairs and future
replacements of equipment; payments under this Note shall not be included
in Net Operating Income.
IN WITNESS WHEREOF, Maker has caused this Mortgage Note to be duly
executed under seal on the date first above written.
MAKER:
HOLCOMB BRIDGE PARTNERS, L.P., a Georgia
limited partnership
By:/s/ John M. Barge (SEAL)
-------------------------
John M. Barge, Partner
By:/s/ John H. Wagener (SEAL)
--------------------------
John H. Wagener, Partner
(Being all the general partners of Maker)