Exhibit 10.13
EXTENSION AGREEMENT AND ALLONGE TO DEED OF TRUST NOTE
THIS EXTENSION AGREEMENT AND ALLONGE TO DEED OF TRUST NOTE (this
"Allonge") is made this 1st day of July, 1994, by and between BROWN'S WHARF
LIMITED PARTNERSHIP, a Maryland limited partnership (the "Borrower") and
MERCANTILE-SAFE DEPOSIT AND TRUST COMPANY, a Maryland banking corporation
(the "Bank").
RECITALS
A. On September 20, 1988, the Bank made a construction loan to the
Borrower in the original principal amount of Eleven Million Eight Hundred
Thousand and 00/100 Dollars ($11,800,000.00) (the "Loan") or so much as may
be advanced pursuant to the terms of a Building Loan Agreement of even date
therewith by and between the Borrower and the Bank (the "Loan Agreement").
B. The Loan is evidenced by a Deed of Trust Note of even date
therewith from the Borrower to the Bank (the "Original Note"). The Original
Note is secured by a Deed of Trust and Security Agreement of even date
therewith from the Borrower, as grantor, to Herbert B. Williams and Bruce D.
McClean, trustees for the benefit of the Bank and recorded among the Land
Records of Baltimore City at Liber 1841, folio 110 (the "Original Deed of
Trust"). The Original Deed of Trust encumbers certain real property located
in Baltimore City, Maryland and more particularly described therein (the
"Property").
C. Repayment of the Loan is guaranteed by a Guaranty dated
September 20, 1988, executed by Constellation Properties, Inc., a Maryland
corporation ("CPI") (the "Original CPI Guaranty") and a Guaranty dated
October 21, 1992, executed by Constellation Real Estate Group, Inc., a
Maryland corporation ("CRE") (the "Original CRE Guaranty"). CPI and CRE are
hereinafter sometimes collectively referred to as the "Guarantor". CPI is a
general partner of the Borrower.
D. The Original Note is also secured by an Assignment of Lessor's
Interest in Leases and Guarantees dated September 20, 1988 (the "Original
Assignment of Leases"). The Original Note, the Original Deed of Trust, the
Original CPI Guaranty, the Original CRE Guaranty, the Original Assignment of
Leases, the Loan Agreement, Financing Statements, together with any and all
other documents evidencing or securing the Loan, are hereinafter sometimes
collectively referred to as the "Original Loan Documents".
E. At the request of the Borrower and Guarantor, the Bank has
agreed to modify the maturity date, the interest rate and other terms and
conditions of the Loan. In return, CPI, as the owner of several adjacent
parcels of land, has agreed to grant the Bank a lien on approximately six (6)
acres more or less, of additional property located in Baltimore City,
Maryland (the "Additional Collateral").
F. The Bank has requested, and the Borrower and Guarantor have
agreed, that (a) the Borrower and Guarantor execute and deliver (i) this
Allonge, (ii) a Supplemental Deed of Trust, Assignment of Rents, and Security
Agreement; (iii) Amendments to Financing Statements; (iv) a Supplemental
Assignment of Lessor's Interest in Leases and Guarantees (the "Supplemental
Assignment"); (v) a Certificate of Borrower and Guarantor; (vi) a
Reaffirmation of CPI Guaranty; and (vii) a Reaffirmation of CRE Guaranty; and
that (b) CPI execute and deliver (i) an Indemnity Deed of Trust, Assignment
of Rents, and Security Agreement; (ii) an Indemnity Assignment of Rents; and
(iii) Indemnity Financing Statements (collectively, together with any and all
other documents evidencing or securing the modification, the "Modification
Documents").
G. The Original Note and this Allonge are hereinafter sometimes
collectively referred to as the "Note." The Original Deed of Trust and the
Supplemental Deed of Trust are hereinafter sometimes collectively referred to
as the "Deed of Trust." The Original CPI Guaranty and the Reaffirmation of
CPI Guaranty are hereinafter sometimes collectively referred to as the "CPI
Guaranty." The Original CRE Guaranty and the Reaffirmation of CRE Guaranty
are hereinafter sometimes collectively referred to as the "CRE Guaranty." The
Original Assignment of Leases and the Supplemental Assignment are hereinafter
sometimes collectively referred to as the "Assignment of Leases." The
Original Loan Documents and the Modification Documents are hereinafter
sometimes collectively referred to as the "Loan Documents" and individually
as a "Loan Document."
NOW, THEREFORE, for and in consideration of the Recitals hereinabove
set forth, which are incorporated into the body of this Allonge, the Bank's
agreement to extend the maturity date of the Loan, CPI's agreement to grant
to the Additional Collateral, and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. Amendment of Original Note. The provisions of the Original
Note are hereby amended in the following manner:
Page 2 of 9 Pages
1.1 Interest Rate. The interest rate provisions of pages 3 through
6 of the Original Note are deleted and the following is inserted as if
originally set forth therein:
FOR VALUE RECEIVED, the Borrower promises to pay to the order
of the Bank, at its principal office in Baltimore, Maryland,
or at such other place or to such other party as the holder
hereof may from time to time designate, the principal sum of
ELEVEN MILLION EIGHT HUNDRED THOUSAND AND 00/100 DOLLARS
($11,800,000.00), with interest on the unpaid principal
balance from the date of this Note, until paid, at the rate of
one half percent (0.5%) per annum in excess of the Prime Rate
(as hereinafter defined).
1.2 Prime Rate. The following is inserted as if originally set
forth in the Original Note:
Prime Rate. "Prime Rate" means the prime commercial lending
rate of the Bank as publicly announced to be in effect from
time to time. The Prime Rate is not necessarily the lowest
rate of interest charged by the Bank for commercial or other
types of loans. It is understood that the Prime Rate is only
one of the bases for computing interest on loans made by the
Bank and that by basing interest on the Prime Rate, the Bank
has not committed to charge and the Borrower has not in any
way bargained for interest based on a lower or the lowest rate
at which the Bank may now or in the future make loans to other
borrowers. Any change in the rate of interest as a result of
a change in the Prime Rate shall be effective as of the date
of the change in the Prime Rate.
1.3 Repayment and Maturity Date of Loan. The first unnumbered
paragraph on page 3 of the Original Note is deleted and the following is
inserted as if originally set forth therein:
The loan shall be repaid on a fifteen (15) year schedule of
one hundred seventy-nine (179) consecutive installments of
Sixty Five Thousand Nine Hundred Twenty One and 79/100 Dollars
($65,921.79) in principal together with any and all accrued
interest
Page 3 of 9 Pages
thereon commencing August 1, 1994, and continuing on the first
day of each month thereafter until June 1, 2009, and a payment
on July 1, 2009, at which time the entire unpaid balance of
principal and any accrued but unpaid interest, if not sooner
paid, shall be due and payable in full; provided, however,
that the entire unpaid principal and any accrued but unpaid
interest, if not sooner paid, shall be due and payable on July
1, 1999, or July 1, 2004, at the Bank's sole and absolute
discretion if the Bank provides the Borrower with written
notice no later than April 1, 1999, or April 1, 2004, as the
case may be, of its intention to call this Note (the "Call").
Any change in the rate of interest as a result of a change in
the Prime Rate shall be effective as of the date of the change
in the Prime Rate.
1.4 Loan Extension Fee. The sixth full paragraph of the Original
Note is deleted and the following is inserted as if originally set forth
therein:
Loan Extension Fee. Borrower has paid to Bank a loan
extension fee in the amount of one half percent (0.5%) of the
principal amount of the Loan, or Fifty-Nine Thousand and
00/100 Dollars ($59,000.00)
1.5 Notices. This notice provision appearing on page 4 of the
Original Note is deleted and the following is inserted as if originally set
forth therein:
Notices. All notices, requests and demands upon the
prospective parties hereto shall be in writing and shall be
sent by hand delivery or Federal Express or other commercial
courier addressed as follows, or to such other address as the
respective party may designate by notice to the others:
if to the Bank: Mercantile-Safe Deposit and Trust
Company
2 Hopkins Plaza, Suite 200
Baltimore, Maryland 21201
Attn: Nicholas C. Richardson
Assistant Vice President
Page 4 of 9 Pages
if to the Borrower: Brown's Wharf Limited Partnership
c/o Constellation Real Estate, Inc.
8815 Centre Park Drive
Columbia, Maryland 21045
Attn: General Counsel
with copy to: Constellation Real Estate Group, Inc.
250 West Pratt Street
Baltimore, Maryland 21201-2423
Attn: Corporate Secretary
Twenty-Third Floor
All such notices shall be deemed to have been given one business
day after the date on which the same was sent or upon receipt, which ever
shall first occur.
1.6 Default. The Section of the Original Note, commencing at the
second full paragraph on page 4 and continuing on carry-over paragraphs (c)
and (d) on page 5 is hereby deleted and the following is inserted as if
originally set forth therein:
Default.
The happening of any one or more of the following events shall
constitute an Event of Default under this Note:
(a) The Borrower fails to make any payment within five (5) days of
the date when due; or
(b) The Borrower fails to perform or comply with any other
covenant, term or condition of the Note, the Deed of Trust, or any
other Loan Document and such failure continues uncured for thirty
(30) days after written notice thereof from the Bank to the
Borrower; or
(c) An Event of Default (as defined therein) shall have occurred
and be continuing under the Deed of Trust, the CRE Guaranty, the
CPI Guaranty, the Loan Agreement, any of the Original Loan
Documents or any of the Modification Documents; or
Page 5 of 9 Pages
(d) Any representation or warranty made by the Borrower in this
Note proves to have been incorrect or misleading in any material
respect either on the date when made or on the date reaffirmed
pursuant to the terms of this Note; or
(e) The Borrower shall fail to pay the entire principal and
outstanding interest within five (5) days after due if the Bank
exercises the Call.
It is expressly agreed that upon the happening of an Event of
Default hereunder or under any of the Loan Documents, the entire
unpaid balance of the principal sum due hereunder, plus all accrued
interest shall, at the option of the holder hereof, at once become
and be due and payable.
Upon the occurrence of an Event of Default hereunder and if
this Note is collected by an attorney, the Borrower agrees to pay
all costs of collection, including reasonable and verifiable
attorney's fees.
1.7 Mutual Waiver of Jury Trial. The Original Note is amended by
adding the following as if originally set forth therein:
Mutual Waiver of Jury Trial.
The holder of this Note and Borrower each, on behalf of itself and
its successors and assigns, waives to the fullest extent permitted
by law all right to trial by jury of any and all claims between
them arising under this Note, the Amended and Restated Deed of
Trust, the Loan Agreement, or any other documents and agreements
executed in connection, directly or indirectly, with this loan
transaction, and any and all claims arising under common law or
under any statute of any state or the United States of America,
whether any such claims be now existing or hereafter arising, now
known or unknown. In making this waiver, the holder of this Note
and Borrower acknowledge and agree that any and all claims made by
the holder of this Note against Borrower and all
Page 6 of 9 Pages
claims made by the Borrower against the holder of this
Note shall be heard by a judge of a court of proper
jurisdiction and shall not be heard by a jury. The holder
of this Note and Borrower acknowledge and agree that this
waiver of trial by jury is a material element of the
consideration for this transaction. The holder of this
Note and Borrower, with advice of counsel, each
acknowledges that it is knowingly and voluntarily waiving
a legal right by agreeing to this waiver provision.
2. Outstanding Indebtedness. As of July 1, 1994, the principal
balance outstanding under the Loan is Eleven Million Eight Hundred Thousand
and 00/100 Dollars ($11,800,000.00). Accrued and unpaid interest on the Loan
through July 1, 1994 is Seventy-two thousand seven hundred thirty-nine
dollars and 73 cents ($72,739.73), with interest accruing at the rate of
$2424.66 per diem.
3. No Set-offs, etc. The Borrower hereby acknowledges that as of
the date hereof, the Borrower has no sets-offs, defenses, claims, or
counterclaims against the Bank as pertains to (a) the Borrower's obligation
to pay the indebtedness evidenced by the Note or (b) the enforcement of any
of the other Original Loan Documents, or the Modification Documents. The
Borrower further acknowledges that the Bank has promptly, properly and
completely performed all obligations, if any, imposed on it by the Original
Note and the Original Loan Documents.
4. Release. The Borrower hereby releases, acquits, and forever
discharges the Bank and its affiliates, officers, directors, attorneys,
agents, employees and representatives from any and all claims, demands,
suits, contracts, agreements, accounts, defenses, offsets against the Loan,
and liabilities of any kind of character which the Borrower ever had, now
has, or may hereafter have against the Bank, its affiliates, officers,
directors, attorneys, agents, employees, and representatives arising prior to
the date hereof; provided, however, that such release shall not include any
claims arising from the gross negligence or misconduct of the Bank.
5. No Novation. The Borrower and the Bank expressly agree that
nothing contained in this Allonge shall in any way be construed as a
substitution, replacement, or novation of the indebtedness evidenced by the
Original Note and by this Allonge, which indebtedness shall remain in full
force and effect as confirmed, modified, amended and restated herein. The
Original Loan Documents and the Modification Documents
Page 7 of 9 Pages
remain in full force and effect and there exists no oral modification thereto.
6. Effect of this Allonge. Except as expressly modified herein
and in the Modification Documents, all other terms and conditions set forth
in the Original Loan Documents are hereby ratified and confirmed and remain
in full force and effect.
7. Attachment of Allonge to Original Note. This Allonge is (a)
being physically attached to the Original Note simultaneously with the entry
into this Allonge by the parties hereto to evidence the modifications to the
terms of the Original Note set forth herein, and (b) upon such attachment
shall be deemed to be part of the Original Note, as fully and completely as
if its provisions were set forth at length in the Note.
8. Effectiveness. This Allonge shall become effective on, and
only on, its execution and delivery by each party hereto.
IN WITNESS WHEREOF, the Borrower and the Bank have executed and
ensealed this Allonge, intending it to be a sealed instrument, the day and
year first-above written.
WITNESS: BORROWER
BROWN'S WHARF LIMITED PARTNERSHIP, a
Maryland limited partnership
By: CPI BROWN'S WHARF, INC., a
Maryland corporation, its
general partner
/s/ By: /s/ Roger A. Waesche, Jr. (SEAL)
- -------------- -----------------------------
Name: Roger A. Waesche, Jr.
Title: Vice President
By: CONSTELLATION PROPERTIES, Inc.,
a Maryland corporation, its
general partner
/s/ By: /s/ Roger A. Waesche, Jr. (SEAL)
- -------------- -----------------------------
Name: Roger A. Waesche, Jr.
Title: Vice President
Page 8 of 9 Pages
BANK
----
MERCANTILE-SAFE DEPOSIT AND TRUST
COMPANY, a Maryland banking
corporation
/s/ Courtney G. Carpenter By: /s/ Nicholas C. Richardson (SEAL)
- ------------------------- -----------------------------
Name: Nicholas C. Richardson
Title: Assistant Vice President
Page 9 of 9 Pages