Exhibit 10.6
AMENDED AND RESTATED DEED OF TRUST NOTE
THIS AMENDED AND RESTATED DEED OF TRUST NOTE ("this Agreement") is made
and entered into as of this 6th day of October, 1995 by and between SECURITY
LIFE OF DENVER INSURANCE COMPANY, a Colorado corporation (together with its
participants, successors and assigns, "the Lender"), and CRANBERRY- 140
LIMITED PARTNERSHIP, a Maryland limited partnership ("the Borrower").
RECITALS
R-1. The Lender is the holder of that certain note issued by the Borrower
to The Bank of Baltimore dated March 11, 1991 ("the Existing Note").
R-2. As the holder of the Existing Note, the Lender is the beneficiary
under each of the documents securing the Existing Note (collectively, "the
Existing Loan Documents"), including, but not limited to, that certain Deed
of Trust and Security Agreement dated March 11, 1991 and recorded among the
Land Records of Carroll County, Maryland in Liber 1250 at folios 621 et seq.
granted by the Borrower to Larry S. Lindenmeyer and Alan H. Herbst, Trustees
("the Existing Deed of Trust").
R-3. Immediately prior to the endorsement of the Existing Note to the
Lender, the Borrower repaid a portion of the principal amount evidenced
thereby, so that the total principal amount currently outstanding under the
Existing Note is Ten Million and 00/100 Dollars ($10,000,000.00). The parties
agree to (i) reduce the amount of the debt evidenced by the Existing Note to
reflect such reduced principal amount and (ii) amend and restate entirely all
of the terms and provisions of the Existing Note.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premises herein
contained, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto for themselves,
their respective successors and assigns, do hereby covenant and agree as
follows:
Article I. Indebtedness Evidenced by Note. By the provisions of the
Existing Note, the original maximum principal sum of the debt evidenced
thereby is Fourteen Million Nine Hundred Thousand and 00/100 Dollars
($14,900,000.00). Immediately prior to the endorsement of the Existing Note
to the Lender, the Borrower repaid a portion of the principal amount
evidenced thereby, so that the total principal amount currently outstanding
under the Existing Note is Ten Million and 00/100 Dollars ($10,000,000.00).
From and after the date hereof, the indebtedness evidenced by the Existing
Note as reduced, amended and restated by this Agreement shall be in the
principal sum of Ten Million and 00/100 Dollars ($10,000,000.00), together
with interest thereon as provided herein.
Article II. No Substitution or Novation. Neither this Agreement nor
anything contained herein shall be construed as a substitution or novation of
the indebtedness evidenced by the Existing Note. The Existing Note shall
remain in full force and effect, as hereby reduced, amended and restated.
Article III. No Inconsistencies. The Borrower agrees that as to any
inconsistencies between the terms and provisions of this Agreement and the
terms and provisions of the Existing Note, the terms and provisions contained
herein shall prevail and be controlling.
Article IV. Modified and Restated Text. All of the terms and provisions
of the Existing Note are hereby increased, amended and restated in their
entirety to read as follows:
MODIFIED AND RESTATED TEXT:
$10,000,000.00 Baltimore, Maryland
October 6, 1995
FOR VALUE RECEIVED, the undersigned, CRANBERRY-140 LIMITED PARTNERSHIP, a
Maryland limited partnership ("the Borrower"), hereby promises to pay to the
order of SECURITY LIFE OF DENVER INSURANCE COMPANY, a Colorado corporation
("the Lender;" the Lender, its participants and any assignee or other lawful
owner of this Amended and Restated Deed of Trust Note being hereinafter
called "the Holder"), the principal amount of TEN MILLION AND 00/100 DOLLARS
($10,000,000.00) ("the Principal Sum"), together with interest on the unpaid
balance of the Principal Sum at the rate or rates hereinafter set forth.
UPON THE TERMS which are hereinafter set forth:
1. Definitions; rules of construction.
1.1. The following terms, when used in this Note, shall have the
definitions provided in this Section 1:
"Business Day" means a day other than a Saturday, Sunday or legal
holiday observed as such by the Holder.
"Default Rate" means an annual interest rate equal to the lesser of
the Regular Rate plus four percent (4%) per annum, or the maximum interest
rate
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permitted under the applicable law of the State.
"Indenture" means the Amended and Restated Deed of Trust and
Security Agreement of even date (and recorded or intended to be recorded
among the land records of Carroll County, Maryland) by and among the
Borrower, the Lender and Raymond G. Truitt and Alan W. Adamson, Trustees,
covering, inter alia, all of those parcels of real property, situate and
lying in Carroll County, Maryland, which are described therein.
"Maturity Date" means the final and absolute due date hereof
(whether by exercise of the Holder's rights under subsection 4.2 hereof,
acceleration, declaration, extension or otherwise), which, in the absence of
such exercise, acceleration, declaration, extension or other cause for the
maturity hereof, shall be October 31, 2020.
"Monthly Payment" means an amount equal to Seventy-Three Thousand
Eight Hundred Ninety-Nine and 12/100 Dollars ($73,899.12).
"Note" means this Amended and Restated Deed of Trust Note.
"Payment Address" means the office of the Holder or such other place
as the Holder may from time to time designate in writing.
"Regular Rate" means an annual interest rate equal to seven and
fifty/one hundredths percent (7.50%) per annum.
"State" means the State of Maryland.
1.2. Any capitalized term used herein and not otherwise defined
herein, including, but not limited to, "Security Documents," "Event of
Default," "Indebtedness," "Condemnation," "Casualty," "Property," "Awards,"
"Casualty Proceeds," "Rents" and "Tax and Insurance Escrow" shall have the
meaning given to those terms in the Indenture.
1.3. The rules of construction set forth in subsection 1.2 of the
Indenture are incorporated herein as a part hereof.
2. Interest Rate. Interest shall accrue on the outstanding unpaid
balance of the Principal Sum at the Regular Rate, from and after the date
hereof through and until the date of repayment in full of the Principal Sum.
3. Payments. This Note shall be payable in the following manner:
(a) Interest only on the unpaid balance of the Principal Sum shall
be payable on the first day of the first full calendar month immediately
following the date
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hereof.
(b) Principal and interest shall be paid on the unpaid balance of
the Principal Sum in regular monthly installments, based on a twenty-five
(25) year amortization schedule, in the amount of the Monthly Payment,
together with one-twelfth (1/12th) of the Assessments and insurance
premiums to be deposited in the Tax and Insurance Escrow, beginning on
the first day of the second calendar month immediately following the date
hereof, and continuing on the first day of each succeeding month until
the Maturity Date, at which time all sums due hereunder, whether
principal, interest, prepayment premiums, fees or other sums, shall be
due and payable in full.
4. Maturity.
4.1. This Note shall mature and the entire unpaid balance of the
Principal Sum, and all accrued and unpaid interest thereon shall be due and
payable on the scheduled Maturity Date.
4.2. Notwithstanding any provisions of this Note to the contrary,
the Holder reserves the right to declare the entire amount of outstanding
principal and all unpaid accrued interest thereon to be immediately due and
payable on any one of the following dates (each hereinafter called a "Call
Date" and collectively "the Call Dates") (which Call Date shall, upon notice
from the Holder in accordance with the terms hereof, thereupon be the
Maturity Date hereunder, subject to the Holder's rights of acceleration
hereunder):
(i) Ten (10) years from the due date of the first installment
of principal and interest;
(ii) every fifth (5th) anniversary thereafter of the date
specified in subpart (i) (i.e., following the fifteenth
[15th], twentieth [20th] and twenty-fifth [25th] loan years).
Such right shall be exercised by the Holder, in its sole and absolute
discretion, by giving written notice to the Borrower at least six (6) months
prior to the Call Date on which payment of all principal and interest shall
be due and payable in accordance with such notice. The exercise of such right
by the Holder shall not relieve the Borrower of its obligation to make
scheduled payments hereunder, or to pay any other sums due and owing
hereunder, between the date of such notice and the payment date stated in
such notice. The exercise of such right by the Holder shall result in the
Principal Sum not being fully amortized by the payment of the Monthly
Payments hereunder prior to the Maturity Date and the Borrower shall be
obligated to make a "balloon payment" on the Maturity Date.
5. Calculation of Interest. Interest shall be calculated on the basis of
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a 360-day year factor applied to twelve (12) 30-day months.
6. Manner of Payment. The Borrower shall make all payments of principal
of and interest on this Note during regular business hours at the Payment
Address, and in coin or currency of the United States of America which at the
time of such payment is legal tender for the payment of public and private
debts (provided, however, that any payment of principal of or interest on
this Note received by the Holder at the Payment Address after twelve o'clock
noon, local time at the Payment Address, on any day shall be deemed to have
been received by the Holder on the next Business Day thereafter, and shall
bear interest accordingly. Any such payment tendered other than in coin or
currency shall be accepted by the Holder subject to collection, and interest
shall continue to accrue on the unpaid balance of the Principal Sum as if
such payment had not been made, until the next Business Day on which, on or
before twelve o'clock noon, local time at the Payment Address, funds in coin
or currency are, on account of such payment, available to the Holder for its
immediate use.
7. Application of Payments. All payments made hereunder shall be
applied first to late charges or other sums owing to the Holder, next to
accrued interest, and then to principal, or, in such other order or
proportion as the Holder, in its sole discretion, may determine.
8. Default Interest Rate; Late Payments.
8.1. If any payment hereunder is not paid within fifteen (15) days
after the date when due and payable, such payment shall continue as an
obligation of the Borrower, with interest thereon at the Default Rate from
the date the payment was due until paid in full. From and after the Maturity
Date, the entire unpaid balance of the Principal Sum and all unpaid interest
accrued thereon at such maturity shall bear interest at the Default Rate.
Interest at the Default Rate shall be payable with the payment of the overdue
amount, and otherwise shall be compounded monthly on the first day of each
and every calendar month until paid in full.
8.2. In addition, the Borrower shall pay (a) a late charge in an
amount equal to four percent (4%) of any Monthly Payment which is not paid
within fifteen (15) days after the date when due and payable, and (b) all
reasonable and actual costs of enforcement or collection, including
reasonable attorneys' fees, if the Holder consults an attorney with respect
to enforcement thereof or any other right of the Holder with respect hereto
after default or if this Note is referred to an attorney for collection after
default. The late charge shall be payable to the Holder as additional
interest and not as a penalty.
9. Waivers. The Borrower hereby waives all applicable exemption rights,
whether under any state constitution, homestead laws or otherwise, valuation
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and appraisement, presentment of this Note for payment, protest and demand,
dishonor and notice of protest, demand or dishonor and nonpayment under this
Note, and agrees that, without giving notice to or obtaining the consent of the
Borrower or any other person, the Holder may extend the time of payment, release
any party liable for any obligation hereunder, release any of the security for
this Note, accept other security therefor, and otherwise modify the terms of
payment of any or all of the debt evidenced by this Note, with or without having
been requested to do so by any other person liable hereon, and such consent
shall not alter or diminish the liability of the Borrower or any other person
hereunder, except if and to the extent that the Holder may otherwise agree with,
respectively, the Borrower or such other person, expressly and in writing;
provided, however, that in no event shall any such change increase the
obligations of the Borrower hereunder unless and until such change is agreed to
in writing by Borrower. THE BORROWER, BY ITS EXECUTION OF THIS NOTE, AND THE
HOLDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER, OR IN CONNECTION WITH
THIS NOTE OR ANY OF THE OTHER SECURITY DOCUMENTS.
10. Prepayment.
10.1. No prepayment of the Principal Sum of this Note shall be allowed
prior to the 12th month of the anniversary of the date of this Note. Beginning
with the 13th month from the anniversary of the date of this Note, the Principal
Sum of this Note may be prepaid in whole but not in part, on any interest
payment date herein, provided that: (1) not later than sixty (60) days prior to
such prepayment, the Borrower delivers written notice to the Holder that the
Borrower intends to prepay this Note in full on the date specified in such
notice; and (2) the Borrower pays to the Holder at the time of such prepayment,
a sum, which together with the amount prepaid shall be sufficient to invest in a
U.S. Treasury obligation for the remaining term of the Loan to produce the same
effective yield to maturity as the Loan ("the Prepayment Premium") calculated in
accordance with the following provisions of this subsection 10.1. The Prepayment
Premium shall be the greater of the following calculations:
(i) The sum of (a) the present value of the scheduled Monthly
Payment on the Loan from the date of prepayment to the
earlier of the scheduled Maturity Date or the next applicable
Call Date, and (b) the present value of the amount of
principal and interest due on the earlier of the scheduled
Maturity Date or the next applicable Call Date (assuming all
scheduled Monthly Payments due prior to the scheduled
Maturity Date or the next applicable Call Date were made when
due); minus (c) the outstanding balance of the Principal Sum
as of the date of prepayment. The present values described in
(a) and (b) are computed on a monthly basis as of the date of
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prepayment, discounted at a rate equal to (1) the rate of the
U.S. Treasury Note closest in maturity to the remaining term
of the Loan calculated based on the earlier of the scheduled
Maturity Date or the next applicable Call Date (as such rate
is reported in the Wall Street Journal on the fifth Business
Day preceding the date of prepayment) plus (2) 40 basis
points; or
(ii) One percent (1%) of the then outstanding balance of the
Principal Sum.
Notwithstanding the foregoing, however, in the event of acceleration of this
Note at any time (other than as the result of the Holder's election to
accelerate the Maturity Date in accordance with subsection 4.2 above, in which
event no Prepayment Premium shall apply) and subsequent involuntary or voluntary
prepayment, the Prepayment Premium shall be payable, however, in no event shall
it exceed an amount equal to the excess, if any, of (i) interest calculated at
the highest applicable rate permitted by applicable law, as construed by courts
having jurisdiction thereof, on the balance of the Principal Sum of this Note
from time to time outstanding from the date thereof to the date of such
acceleration, over (ii) interest theretofore paid and earned on this Note. Any
prepaid amounts specified in such notice shall become due and payable at the
time provided in such notice. Under no circumstances shall the Prepayment
Premium ever be less than zero. The amount of prepayment shall never be less
than the full amount of the then outstanding principal and interest of this
Note.
10.2. Notwithstanding the provisions of subsection 10.1, if the
Borrower is entitled to obtain the Partial Release as defined in Section 11.4(b)
of the Indenture, then the Holder agrees to accept the Partial Release Principal
Repayment Amount required to be paid thereunder without imposition of the
Prepayment Premium.
10.3. Notwithstanding the provisions of subsection 10.1, the Prepayment
Premium shall not apply to any prepayment resulting from the application of
Casualty Proceeds or Condemnation Awards under the Indenture to payment of the
Principal Sum or any part thereof.
11. Payment of Costs. If, after any Event of Default, the Holder retains an
attorney with respect to any enforcement action which the Holder may be entitled
to take, including but not limited to, any suit or action is instituted to
collect any or all of the Principal Sum, any interest accrued thereon or any
other sum falling due under the provisions of this Note, or if this Note is
placed in the hands of an attorney for collection, the Borrower hereby agrees to
pay all reasonable and actual costs thereby incurred by the Holder, including
that of attorneys' fees, all of which shall be added to and become part of the
debt evidenced hereby.
12. Security. This Note is given to evidence a loan in the amount of the
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Principal Sum made to the Borrower by the Lender (the Borrower's receipt of
which from the Lender is hereby acknowledged), and is secured by the
Indenture. The Indenture contains a more particular description of the real
and personal property, equipment and fixtures covered by the Indenture,
provisions for the acceleration of the maturity of this Note upon the
occurrence of certain Events of Default enumerated in the Indenture, and
provisions setting forth the rights of the Holder in respect of such
security, all of which are incorporated in this Note by reference.
13. Acceleration. Upon the occurrence of any Event of Default, the unpaid
balance of the Principal Sum, together with all accrued and unpaid interest and
all other sums evidenced hereby or secured by the Indenture, including the
prepayment fee described in Section 10, shall at the Holder's option become
immediately due and payable.
14. Applicable Law. This Note shall be construed, interpreted and enforced
in accordance with the laws of the State as the same are in effect from time to
time.
15. Joint and Several Liability. If there exists more than one Borrower,
all liabilities and obligations under this Note and the Indenture shall be joint
and several with respect to the Borrowers.
16. Excess Interest. Nothing herein contained, nor any transaction related
thereto, shall be construed or so operate as to require the Borrower to pay
interest at a greater rate than the maximum allowed by law. Should any interest
or other charges paid or payable by the Borrower in connection with this Note,
or any other document delivered in connection herewith, result in the
computation or earning of interest in excess of the maximum allowed by
applicable state or federal law, then any and all such excess shall be and the
same is hereby waived by the Holder, and any and all such excess paid shall be
credited automatically against and in reduction of the balance due under this
Note, and the portion of said excess which exceeds the balance due under this
Note shall be paid by the Holder to the Borrower.
17. Time of the Essence. The Borrower agrees that time is strictly of the
essence hereof.
18. Notices. Any notices required to be given hereunder shall be given in
the manner set forth for notices in the Indenture.
19. Extensions. The Maturity Date and/or any other date by which payment is
required to be made hereunder may be extended by the Holder from time to time in
its sole discretion, without in any way altering or impairing the Borrower's
liability hereunder.
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20. Estoppel Certificate. The Borrower agrees to furnish to the Lender at
any time and from time to time, within fifteen (15) days after written request
therefor, a written estoppel certificate, duly executed and acknowledged,
setting forth the amount which the Borrower then believes to be due under this
Note, and whether any claim, offset or defense then exists hereunder.
21. Assignability. This Note may be assigned by the Lender or any
subsequent Holder at any time and from time to time, and shall inure to the
benefit of and be enforceable by the Lender and its successors and assigns and
any other person to whom the Holder may grant an interest in the Borrower's
obligations to the Lender, and shall be binding and enforceable against the
Borrower and the Borrower's successors and assigns. The Holder shall have the
right to assign, participate, syndicate or transfer any or all of its investment
in the Loan, including sales through one or more private placements or publicly
registered offerings. The Borrower shall, without expense to the Borrower,
cooperate with the Lender to effect such transactions, provide such information,
including non-confidential financial information, which information may be
divulged to third parties as may be necessary, and execute documentation as
requested by the Holder in connection therewith, including amendments or
restatements of the Security Documents so long as such amendments or
restatements do not (i) alter the essential business terms thereof or (ii) in
any way increase the liability of Borrower thereunder. The Holder shall provide
written notice to the Borrower following any transfer of all of the Holder's
investment in the Loan if such transfer also includes the servicing of the Loan.
22. Invalidity of Any Part. If any provision or part of any provision of
this Note shall be for any reason held invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision hereof, and this Note shall be construed as if such provision or
part thereof had never been contained herein, but only to the extent of its
invalidity, illegality or unenforceability.
23. Confession of Judgment. SUBJECT TO THE PROVISIONS OF SECTION 24, UPON
AN EVENT OF DEFAULT, AND FOLLOWING FIVE (5) DAYS PRIOR WRITTEN NOTICE WITH
RESPECT TO ANY EVENT OF DEFAULT FOR WHICH WRITTEN NOTICE IS NOT OTHERWISE
REQUIRED TO BE GIVEN TO THE BORROWER BY THE HOLDER, THE BORROWER HEREBY APPOINTS
AND AUTHORIZES ANY ATTORNEY OF ANY COURT OF RECORD TO BE THE BORROWER'S TRUE AND
LAWFUL ATTORNEY-IN-FACT, AND IN THE BORROWER'S NAME AND STEAD, TO ACKNOWLEDGE
SERVICE OF ANY AND ALL LEGAL PAPERS ON ANY KIND OF SUIT BROUGHT FOR COLLECTION
OF THIS OBLIGATION AND TO APPEAR FOR THE BORROWER IN ANY COURT OF COMPETENT
JURISDICTION IN THE STATE AND TO ACKNOWLEDGE AND CONFESS JUDGMENT AGAINST THE
BORROWER AND IN FAVOR OF THE HOLDER OF THIS NOTE FOR THE ENTIRE PRINCIPAL AMOUNT
OF THIS NOTE THEN REMAINING UNPAID WITH INTEREST THEREON THEN ACCRUED AND
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UNPAID, TOGETHER WITH REASONABLE ATTORNEYS' FEES, WHICH SHALL BE NOT LESS THAN
$10,000, AND COURT COSTS, AND THE BORROWER HEREBY WAIVES THE RIGHT OF APPEAL AND
STAY OF EXECUTION.
24. Limitation of Liability. Subject to the terms of the next succeeding
paragraph of this Section 24 and notwithstanding anything to the contrary
otherwise contained in this Note, it is agreed that the promise of the Borrower
to pay the principal indebtedness and the interest on this Note shall be for the
sole purpose of establishing the existence of an indebtedness; the Holder's
source of satisfaction of said indebtedness and of the Borrower's other
obligations hereunder and under the Security Documents is limited solely to (a)
the Property (b) rents, issues and profits from the Property received by the
Borrower and (c) any separate agreements guaranteeing the payment of the amounts
due hereunder and under the Security Documents and the Borrower's performance
hereunder and under the Security Documents; the Holder shall not seek to procure
payment out of any other assets of the Borrower, or to procure any judgment
against the Borrower for any amount which is or may be payable under this Note,
the Indenture or any of the other Security Documents or for any deficiency
remaining after foreclosure of the Indenture; provided, however, that nothing
herein contained shall be deemed to be a release or impairment of said
indebtedness or the security therefore intended by the Indenture, or be deemed
to preclude the Holder from foreclosing the Indenture or from enforcing any of
the Holder's rights thereunder, or in any way or manner affecting the Holder's
rights and privileges under any of the Security Documents or any separate
agreements guaranteeing the Borrower's payment and performance hereunder and
under the Security Documents.
Notwithstanding the foregoing limitation of liability provision, it is
expressly understood and agreed that the Borrower, and Constellation Real Estate
Group, Inc. shall be jointly and severally liable for the payment to the Holder
of:
(i) the misapplication of all rents, security deposits, or other
income, issues, profits and revenues derived from the
Property after an Event of Default, provided that any rents
collected more than one (1) month in advance as of the time
of the Event of Default shall be considered to have been
collected after the Event of Default;
(ii) any loss due to fraud or misrepresentation to the Holder by
the Borrower (or by any of its general partners, by any of
the general partners of any of its general partners or any of
its or their agents, if applicable);
(iii) the misapplication of (a) proceeds paid under any insurance
policies by reason of damage, loss or destruction to any
portion of the Property to the full extent of such misapplied
proceeds, or
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(b) proceeds or awards resulting from the condemnation or
other taking in lieu of condemnation of any portion of the
Property, to the full extent of such misapplied proceeds or
awards;
(iv) any loss due to waste of the Property or any portion thereof,
and all reasonable and actual costs including reasonable
attorney's fees, incurred by the Holder to protect the
Property and any other security for the indebtedness
evidenced by this Note or to enforce such Note, the
Indenture, and any of the other Security Documents;
(v) any taxes, assessments and insurance premiums for which the
Borrower is liable under this Note, the Indenture or any of
the other Security Documents and which are paid by the
Holder, including any recordation tax or other charge
resulting from the purchase, amendment and restatement of the
Existing Note and the Existing Deed of Trust;
(vi) any loss arising under the hazardous substance
indemnification and hold harmless agreement and the
Borrower's hazardous substances covenants, warranties and
representations provisions contained in the Environmental
Indemnity Agreement of even date herewith by the Borrower and
Constellation Real Estate Group, Inc. to and for the benefit
of the Holder; and
(vii) all reasonable and actual costs and fees including without
limitation reasonable attorney fees incurred by the Holder in
the enforcement of subparagraphs (i) - (vi) above.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed, sealed
and delivered by its duly authorized officers or representatives as of the day
and year first written above.
WITNESS: CRANBERRY-140 LIMITED PARTNERSHIP,
Maryland limited partnership
By: Constellation Properties, Inc.,
a Maryland corporation, its general
partner
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- -------------------------------
By: (SEAL)
------------------------------
Name:
Title:
The Borrower
Article V. Effect of this Agreement. Nothing in the provisions of this
Agreement shall be deemed in any way to affect the priority of the Existing Deed
of Trust over any other lien, security interest, charge, encumbrance or
conveyance, or to release or change the liability of any person who is now or
hereafter primarily or secondarily liable under or on account of the Existing
Note.
Article VI. Ratification and Confirmation. The Existing Note, as reduced,
amended and restated in accordance with the provisions of Article IV of this
Agreement, is hereby ratified and confirmed in all respects by the Borrower.
Article VII. Due Authorization and Consideration. The Borrower hereby
represents, warrants and covenants to the Holder that the Existing Note and this
Agreement are the valid, binding and legally enforceable obligations of the
Borrower enforceable in accordance with their respective terms; that fair
consideration has been given for the Existing Note and this Agreement; that the
execution, ensealing and delivery of this Agreement by the Borrower has been
duly and validly authorized in all respects by the Borrower; and that the
persons who executed the Existing Note and who are executing this Agreement on
behalf of the Borrower have each been duly authorized so to do.
Article VIII. No Offsets, etc. The Borrower hereby represents, warrants and
covenants to the Holder that there are no offsets, counterclaims or defenses at
law or in equity against this Agreement, the Existing Note or the Existing Loan
Documents, that, except as set forth herein, the Existing Note has not been
modified or amended in any manner whatsoever, and that the Borrower had and has
full power, authority and legal right to execute the Existing Note and this
Agreement and to observe and perform all of the terms and conditions of the
Existing Note and this Agreement on the Borrower's part to be observed or
performed.
Article IX. Severability. If any term, covenant or condition of this
Agreement shall be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be construed without such provision.
Article X. Successors and assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
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and assigns hereunder.
Article XI. Amendment. This Agreement may be amended by and only by an
instrument executed and delivered by each party hereto.
Article XII. Effectiveness. This Agreement shall become effective upon and
only upon its execution and delivery by each party hereto.
IN WITNESS WHEREOF, each party hereto has executed and ensealed
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this Agreement, or caused it to be executed and ensealed by its duly authorized
representative, as of the day and year first above written.
WITNESS or ATTEST: SECURITY LIFE OF DENVER INSURANCE
COMPANY, a Colorado corporation
By: (SEAL)
------------------------------
Name:
Title:
- Lender-
[SIGNATURES CONTINUE ON PAGE 14]
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[SIGNATURES CONTINUED FROM PAGE 13]
WITNESS: CRANBERRY-140 LIMITED PARTNERSHIP, a
Maryland limited partnership
By: Constellation Properties, Inc., a
Maryland corporation, its sole general
partner
By: (SEAL)
------------------------------
Name:
Title:
THIS IS TO CERTIFY that this is the Amended and Restated Deed of Trust Note
described in and secured by a certain Amended and Restated Deed of Trust and
Security Agreement, bearing even date herewith, by and among Cranberry-140
Limited Partnership, as grantor, Security Life of Denver Insurance Company, as
beneficiary and Raymond G. Truitt and Alan W. Adamson, as trustees; the Amended
and Restated Deed of Trust Note and the Amended and Restated Deed of Trust and
Security Agreement having been executed by Cranberry-140 Limited Partnership in
my presence.
----------------------------------
Notary Public
My Commission Expires:
------------------
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