Robert S. McDaniel, Jr. and W. Jane McDaniel - Page 27




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          titioners rely are not established by the record and/or are                 
          irrelevant to a determination of whether such an agreement may be           
          so inferred.                                                                
               We note initially that the Bank had no duty to notify Mr.              
          McDaniel as a guarantor of the 1989 note that the partnership had           
          not timely made the balloon payment under that note.  Nor was the           
          Bank required to notify Mr. McDaniel as a guarantor of any                  
          default under the 1989 note.5  Furthermore, contrary to petition-           
          ers' contention, the Bank exercised its right under the 1989 note           
          to delay collection of the balloon payment and did not materially           
          change the terms of, or forgo its right to receive the balloon              
          payment under, that note.  Indeed, after the Bank notified Second           
          Street in April 1994 that the Second Street loan was in default,            
          the partnership obtained financing from Northern Trust, which it            
          used in October 1994 to pay off that loan.  In addition, Mr.                
          Palermo's testimony that the topic of Mr. McDaniel's liability              
          did not arise in his discussions during 1993 with personnel of              

               5  It is noteworthy that Mr. Palermo did inform Mr. McDaniel           
          that the balloon payment had not been timely made, at least some            
          time shortly before Mr. McDaniel wrote Mr. Martens on Apr. 26,              
          1994, with respect to the Apr. 21, 1994 letter that Mr. Martens             
          had sent to Mr. Palermo informing him that NationsBank/Amresco              
          considered the 1989 note to be in default.  Since Mr. McDaniel              
          continued to see Mr. Palermo on a daily basis throughout the                
          years at issue after he assigned his partnership interest to Mr.            
          Palermo in May 1992, we believe that it is likely that Mr.                  
          McDaniel was aware well before April 1994 that Second Street had            
          not made the balloon payment.                                               






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