Exhibit 10.1
PROMISSORY NOTE
$65,500,000 October 16, 1998
New York, New York
FOR VALUE RECEIVED, the undersigned, AMERICAN DE/SPE LLC, a
Delaware limited liability company, and VIRGINIA STREET ASSOCIATES LIMITED
PARTNERSHIP, a Colorado limited partnership (collectively, "Borrower"), jointly
and severally, promise to pay to the order of COLUMN FINANCIAL, INC., a Delaware
corporation ("Lender"), at the office of Lender at 0000 Xxxxxxxxx Xxxx, X.X.,
Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000-0000, or at such other place as Lender may
designate to Borrower in writing from time to time, the principal sum of
Sixty-Five Million Five Hundred Thousand and NO/100 DOLLARS ($65,500,000.00),
together with interest on so much thereof as is from time to time outstanding
and unpaid, from the date of the advance of the principal evidenced hereby, at
the rate of seven and one-half percent (7.50%) per annum (the "Note Rate"), in
lawful money of the United States of America, which shall at the time of payment
be legal tender in payment of all debts and dues, public and private.
ARTICLE I -- TERMS AND CONDITIONS
1.01 Payment of Principal and Interest. Said interest shall be
computed hereunder based on a 360-day year and paid for the actual number of
days elapsed for any whole or partial month for which interest is being
calculated. In computing the number of days during which interest accrues, the
day on which funds are initially advanced shall be included regardless of the
time of day such advance is made, and the day on which funds are repaid shall be
included unless repayment is credited prior to close of business. Payments in
federal funds immediately available in the place designated for payment received
by Lender prior to 2:00 p.m. local time at said place of payment shall be
credited prior to close of business, while other payments may, at the option of
Lender, not be credited until immediately available to Lender in federal funds
in the place designated for payment prior to 2:00 p.m. local time at said place
of payment on a day on which Lender is open for business. Such principal and
interest shall be payable in equal consecutive monthly installments of
$457,985.50 each, beginning on the first day of the second full calendar month
following the date of the advance of the principal amount evidenced by this Note
(or on the first day of the first full calendar month following the date of the
advance of the principal amount evidenced by this Note if such date is the first
day of a calendar month), and continuing on the first day of each and every
month thereafter (or if such day is not a Business Day (as defined in the Cash
Management Agreement) on the first Business Day thereafter) until November 1,
2008 (the "Maturity Date"), at which time the entire outstanding principal
balance hereof, together with all accrued but unpaid interest thereon, shall be
due and payable in full. Each such monthly installment shall be applied first to
the payment of accrued interest and then to reduction of principal. If the
advance of the principal amount evidenced by this Note is made on a date other
than the first day of a calendar month, then Xxxxxxxx shall pay to Lender
contemporaneously with the execution hereof interest at the foregoing interest
rate for a period from the date hereof through
and including the last day of the calendar month in which this note is funded.
All payments delivered to an account or reserve under the Cash Management
Agreement shall be deemed to be delivered to Lender.
1.02 Prepayment.
(a) Prior to the Lockout Expiration Date (defined below), this
Note may not be prepaid in whole or in part, except as provided in Section
1.02(c); provided, however, Borrower shall have the right and option to release
the Security Property (as hereinafter defined) from the lien of the Security
Instrument (as hereinafter defined) in accordance with the terms and provisions
of Section 1.35 and Section 1.36 of the Security Instrument. This Note may be
prepaid in whole but not in part (except as otherwise specifically provided
herein) at any time after the date of the 114th monthly installment of principal
and interest due hereunder (the "Lockout Expiration Date") provided (i) written
notice of such prepayment is received by Lender not more than sixty (60) days
and not less than thirty (30) days prior to the date of such prepayment and (ii)
such prepayment is received on the first day of a calendar month (or, if such
prepayment is not received on the first day of a calendar month, interest is
paid through the last day of such calendar month) and is accompanied by all
interest accrued hereunder and all other sums due hereunder or under the other
Loan Documents.
(b) If prior to the Lockout Expiration Date and following the
occurrence of any default beyond any applicable notice and/or grace period,
Borrower shall tender payment of an amount sufficient to satisfy all of the
indebtedness evidenced by the Note and the other Loan Documents (as hereinafter
defined) at any time prior to a sale of the Security Property, either through
foreclosure or the exercise of the other remedies available to Lender under the
Security Instrument, such tender by Borrower shall be deemed to be voluntary and
Borrower shall pay, in addition to the amounts payable hereunder and under the
Loan Documents, a prepayment fee in an amount equal to the greater of (A) two
percent (2.0%) of the principal amount being prepaid, and (B) one percent (1%)
of the principal amount being repaid plus the positive excess of (i) the present
value ("PV") of all future installments of principal and interest due under this
Note including the principal amount due at maturity (collectively, "All Future
Payments"), discounted at an interest rate per annum equal to the rate published
in the Treasury Constant Maturity Yield Index, during the second full week
preceding the date on which such premium is payable, for instruments having a
maturity coterminous with the remaining term of this Note, over (ii) the
principal amount of this Note outstanding immediately before such prepayment.
"Treasury Constant Maturity Yield Index" shall mean the average yield for "This
Week" as reported by the Federal Reserve Board in Federal Reserve Statistical
Release H.15 (519). If there is no Treasury Constant Maturity Yield Index for
instruments having a maturity coterminous with the remaining term of this Note,
then the index shall be equal to the weighted average yield to maturity of the
Treasury Constant Maturity Yield Indices with maturities next longer and shorter
than such remaining average life to maturity, calculated by averaging (and
rounding upward to the nearest whole multiple of 1/100 of 1% per annum, if the
average is not such a multiple) the yields of the relevant Treasury Constant
Maturity Yield indices (rounded, if necessary, to the nearest 1/100 of 1% with
any figure of 1/200 of 1% or above rounded upward). In the event that any
prepayment fee is due hereunder, Xxxxxx shall deliver to Borrower a statement
setting forth the amount and determination of the prepayment fee,
2
and, provided that Xxxxxx shall have in good faith applied the formula described
above, Xxxxxxxx shall not have the right to challenge the calculation or the
method of calculation set forth in any such statement in the absence of manifest
error, which calculation may be made by Xxxxxx on any day during the thirty (30)
day period preceding the date of such prepayment. Lender shall not be obligated
or required to have actually reinvested the prepaid principal balance at the
Treasury Constant Maturity Yield or otherwise as a condition to receiving the
prepayment fee.
(c) Partial prepayments of this Note shall not be permitted,
except partial prepayments resulting from Lender applying insurance or
condemnation proceeds to reduce the outstanding principal balance of this Note
as provided in the Security Instrument, in which event no prepayment fee or
premium shall be due. No notice of prepayment shall be required under the
circumstance specified in the preceding sentence. No principal amount repaid may
be reborrowed. Partial payments of principal shall be applied to the unpaid
principal balance evidenced hereby but such application shall not reduce the
amount of the fixed monthly installments required to be paid pursuant to Section
1.01 above.
1.03 Security. The indebtedness evidenced by this Note and the
obligations created hereby are secured by those certain mortgages (collectively,
the "Security Instrument") from Borrower to Lender, dated as of the date hereof,
concerning property located in Onondaga, Xxxxxx, Xxxxxx and Albany Counties, New
York, Union and Muskingum Counties, Ohio and Dauphin County, Pennsylvania. The
Security Instrument together with this Note and all other documents to or of
which Xxxxxx is a party or beneficiary now or hereafter evidencing, securing,
guarantying, modifying or otherwise relating to the indebtedness evidenced
hereby, are herein referred to collectively as the "Loan Documents". All of the
terms and provisions of the Loan Documents are incorporated herein by reference.
Some of the Loan Documents are to be filed for record on or about the date
hereof in the appropriate public records.
1.04 Default. It is hereby expressly agreed that should any
default occur in the payment of principal or interest as stipulated above and
such payment is not made within five (5) days of the date such payment is due
(provided that no grace period is provided for the payment of principal and
interest due on the Maturity Date), or should any other default occur under any
of the Loan Documents which is not cured within any applicable grace or cure
period, then a default shall exist hereunder, and in such event the indebtedness
evidenced hereby, including all sums advanced or accrued hereunder or under any
other Loan Document, and all unpaid interest accrued thereon, shall, at the
option of Lender and without notice to Borrower, at once become due and payable
and may be collected forthwith, whether or not there has been a prior demand for
payment and regardless of the stipulated date of maturity. In the event that any
payment (other than any payment due on maturity, by acceleration or otherwise)
is not received by Lender on the date when due, then in addition to any default
interest payments due hereunder, Borrower shall also pay to Lender a late charge
in an amount equal to five percent (5.0%) of the amount of such overdue payment.
So long as any default exists and continues hereunder, regardless of whether or
not there has been an acceleration of the indebtedness evidenced hereby, and at
all times after maturity of the indebtedness evidenced hereby (whether by
acceleration or otherwise), interest shall accrue on the outstanding principal
balance of this Note at a rate per annum equal to four percent (4.0%) plus the
interest rate which would be in effect hereunder absent such default or
maturity, or if such increased
3
rate of interest may not be collected under applicable law, then at the maximum
rate of interest, if any, which may be collected from Borrower under applicable
law (the "Default Interest Rate"), and such default interest shall be
immediately due and payable. Borrower acknowledges that it would be extremely
difficult or impracticable to determine Xxxxxx's actual damages resulting from
any late payment or default, and such late charges and default interest are
reasonable estimates of those damages and do not constitute a penalty. The
remedies of Lender in this Note or in the Loan Documents, or at law or in
equity, shall be cumulative and concurrent, and may be pursued singly,
successively or together in Xxxxxx's discretion. Time is of the essence of this
Note. In the event this Note, or any part hereof, is collected by or through an
attorney-at-law, Xxxxxxxx agrees to pay all costs of collection including, but
not limited to, reasonable attorney's fees.
1.05 Exculpation. Notwithstanding anything in the Loan
Documents to the contrary, but subject to the qualifications hereinbelow set
forth, Xxxxxx agrees that (i) Borrower shall be liable upon the indebtedness
evidenced hereby and for the other obligations arising under the Loan Documents
to the full extent (but only to the extent) of the security therefor, the same
being all properties (whether real or personal), rights, estates and interests
now or at any time hereafter securing the payment of this Note and/or the other
obligations of Borrower under the Loan Documents (collectively, the "Security
Property"), (ii) if default occurs in the timely and proper payment of all or
any part of such indebtedness evidenced hereby or in the timely and proper
performance of the other obligations of Borrower under the Loan Documents, any
judicial proceedings brought by Lender against Borrower shall be limited to the
preservation, enforcement and foreclosure, or any thereof, of the liens,
security titles, estates, assignments, rights and security interests now or at
any time hereafter securing the payment of this Note and/or the other
obligations of Borrower under the Loan Documents, and confirmation of any sale
under power of sale, and no attachment, execution or other writ of process shall
be sought, issued or levied upon any assets, properties or funds of Borrower
other than the Security Property except with respect to the liability described
below in this section, and (iii) in the event of a
foreclosure of such liens, security titles, estates, assignments, rights or
security interests securing the payment of this Note and/or the other
obligations of Borrower under the Loan Documents, whether by judicial
proceedings or exercise of power of sale, no judgment for any deficiency upon
the indebtedness evidenced hereby shall be sought or obtained by Lender against
Borrower, except with respect to the liability described below in this section;
provided, however, that, notwithstanding the foregoing provisions of this
section, Borrower shall be fully and personally liable and subject to legal
action for loss, cost or damage due to (a) proceeds paid to
Borrower under any insurance policies (or paid as a result of any other claim or
cause of action against any person or entity) by reason of damage, loss or
destruction to all or any portion of the Security Property, to the full extent
of such proceeds not previously delivered to Lender, but which, under the terms
of the Loan Documents, should have been delivered to Lender,
(b) proceeds paid to Borrower or awards resulting from the condemnation or other
taking in lieu of condemnation of all or any portion of the Security Property,
or any of them, to the full extent of such proceeds or awards not previously
delivered to Lender, but which, under the terms of the Loan Documents, should
have been delivered to Lender, (c) all tenant security
deposits or other refundable deposits paid to or held by Borrower or any other
person or entity in connection with leases of all or any portion of the Security
Property which are not applied in accordance with the terms of the applicable
lease or other agreement, (d) rent and other payments
received from tenants under leases of all or any portion of the Security
Property paid more than one month in advance,
4
(e) rents, issues, profits and revenues of all or any portion of the Security
Property distributed to partners in Borrower that (i) are received or applicable
to a period after any notice of default from Lender hereunder or under the Loan
Documents in the event of any default by Borrower hereunder or thereunder, which
is not then or thereafter, whether or not within an applicable grace period,
cured prior to the acceleration of the principal sum of this Note, and (ii) are
not either applied to the payment of real estate taxes or other ordinary and
necessary expenses of owning and operating the Security Property or paid to
Lender, (f) damage to the Security Property as a result of the intentional
misconduct or gross negligence of Borrower or any of its principals, officers or
general partners, or any agent or employee of any such persons acting within the
scope of their agency or employment, to the extent of Net Operating Income (as
defined in that certain Cash Management Agreement dated the date hereof between
Maker and Payee (the "Cash Management Agreement") or any removal of the Security
Property in violation of the terms of the Loan Documents, to the full extent of
the losses or damages incurred by Lender on account of such failure, (g) failure
to pay any valid taxes, assessments, mechanic's liens, materialmen's liens or
other liens which could create liens on any portion of the Security Property
which would be superior to the lien or security title of the Security Instrument
or the other Loan Documents, to the full extent of the amount claimed by any
such lien claimant, to the extent of Operating Income (as defined in the Cash
Management Agreement), (h) all obligations and indemnities of Borrower under the
Loan Documents relating to hazardous or toxic substances or compliance with
environmental laws and regulations to the full extent of any losses or damages
(including those resulting from diminution in value of any Security Property)
incurred by Lender as a result of the existence of such hazardous or toxic
substances or failure to comply with environmental laws or regulations, (i)
fraud or material misrepresentation as to facts existing at the time such
representation is made by Borrower or any of its principals, officers, or
general partners, any guarantor, any indemnitor or any agent, employee or other
person authorized or apparently authorized to make statements or representations
on behalf of Borrower, any principal, officer or partner of Borrower, any
guarantor or any indemnitor, to the full extent of any losses, damages and
expenses of Lender on account thereof and (j) any action, claim or counterclaim
or similar cause of action asserted or interposed by or on behalf of Maker
against Payee in any action or proceeding for foreclosure of the Mortgage
regardless of the forum, court or venue, or if Maker raises any defense to its
obligations under any of the Loan Documents, in either event of which such
action, claim, counterclaim, similar cause of action or defense is found by the
applicable court or trier of facts to be wholly or materially without basis in
law or fact. References herein to particular sections of the Loan Documents
shall be deemed references to such sections as affected by other provisions of
the Loan Documents relating thereto. Nothing herein shall be deemed (w) to be a
waiver of any right which Payee may have under any bankruptcy law of the United
States or of any State in which any part of the Mortgaged Property is located to
file a claim for the full amount of the Loan or to require that all of the
Mortgaged Property and any other collateral given to secure the Loan shall
continue to secure all of the Loan; (x) to impair the validity of the Loan; (y)
to impair the right of Payee as mortgagee or secured party to foreclose any lien
or security interest or (z) impair the right of Payee to obtain the Recourse
Distributions received by Maker, including, without limitation, the right, if
any, to proceed against any constituent partner or shareholder of Maker to the
extent any such Recourse Distribution has actually theretofore been distributed
to such constituent partner or shareholder. The provisions of this Section 1.05
shall be inapplicable to Maker if any petition for bankruptcy, reorganization or
arrangement pursuant to federal or state law shall be filed by, consented to or
5
acquiesced in by or with respect to Maker or if Maker shall institute any
proceeding for the dissolution or liquidation of Maker or if Maker shall make an
assignment for the benefit of creditors, in which event Payee shall have
recourse against all of the assets of Maker and the Recourse Distributions
received by the constituent partners and shareholders of Maker. For purposes of
this Section 1.05, the term "Recourse Distributions" shall mean the
distributions referred to in the foregoing clause (e).
ARTICLE II - GENERAL CONDITIONS
2.01 No Waiver; Amendment. No failure to accelerate the debt
evidenced hereby by reason of default hereunder, acceptance of a partial or past
due payment, or indulgences granted from time to time shall be construed (i) as
a novation of this Note or as a reinstatement of the indebtedness evidenced
hereby or as a waiver of such right of acceleration or of the right of Lender
thereafter to insist upon strict compliance with the terms of this Note, or (ii)
to prevent the exercise of such right of acceleration or any other right granted
hereunder or by any applicable laws; and Borrower hereby expressly waives the
benefit of any statute or rule of law or equity now provided, or which may
hereafter be provided, which would produce a result contrary to or in conflict
with the foregoing. No extension of the time for the payment of this Note or any
installment due hereunder, made by agreement with any person now or hereafter
liable for the payment of this Note shall operate to release, discharge, modify,
change or affect the original liability of Borrower under this Note, either in
whole or in part unless Xxxxxx agrees otherwise in writing. This Note may not be
changed orally, but only by an agreement in writing signed by the party against
whom enforcement of any waiver, change, modification or discharge is sought.
2.02 Waivers. Presentment for payment, demand, protest and
notice of demand, protest and nonpayment and all other notices are hereby waived
by Xxxxxxxx. Borrower hereby further waives and renounces, to the fullest extent
permitted by law, all rights to the benefits of any statute of limitations and
any moratorium, reinstatement, marshalling, forbearance, valuation, stay,
extension, redemption, appraisement, exemption and homestead now or hereafter
provided by the Constitution and laws of the United States of America and of
each state thereof, both as to itself and in and to all of its property, real
and personal, against the enforcement and collection of the obligations
evidenced by this Note or the other Loan Documents.
2.03 Limit of Validity. The provisions of this Note and of all
agreements between Borrower and Lender, whether now or existing or hereafter
arising and whether written or oral, are hereby expressly limited so that in no
contingency or event whatsoever, whether by reason of demand or acceleration of
the maturity of this Note or otherwise, shall the amount paid, or agreed to be
paid ("Interest"), to Lender for the use, forbearance or retention of the money
loaned under this Note exceed the maximum amount permissible under applicable
law. If, from any circumstance whatsoever, performance or fulfillment of any
provision hereof or of any agreement between Borrower and Lender shall, at the
time performance or fulfillment of such provision shall be due, exceed the limit
for Interest prescribed by law or otherwise transcend the limit of validity
prescribed by applicable law, then ipso facto the obligation to be performed or
fulfilled shall be reduced to such limit and if, from any circumstance
whatsoever, Lender shall ever receive anything of value deemed Interest by
applicable law in excess of the maximum lawful amount, an amount
6
equal to any excessive Interest shall be applied to the reduction of the
principal balance owing under this Note in the inverse order of its maturity
(whether or not then due) or at the option of Lender be paid over to Borrower,
and not to the payment of Interest. All Interest (including any amounts or
payments deemed to be Interest) paid or agreed to be paid to Lender shall, to
the extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full period until payment in full of the principal balance
of this Note so that the Interest thereof for such full period will not exceed
the maximum amount permitted by applicable law. This Section 2.03 will control
all agreements between Borrower and Lender.
2.04 Use of Funds. Borrower hereby warrants, represents and
covenants that no funds disbursed hereunder shall be used for personal, family
or household purposes.
2.05 Unconditional Payment. Borrower is and shall be obligated
to pay principal, interest and any and all other amounts which become payable
hereunder or under the other Loan Documents absolutely and unconditionally and
without any abatement, postponement, diminution or deduction and without any
reduction for counterclaim (other than compulsory counterclaims) or setoff. In
the event that at any time any payment received by Lender hereunder shall be
deemed by a court of competent jurisdiction to have been a voidable preference
or fraudulent conveyance under any bankruptcy, insolvency or other debtor relief
law, then the obligation to make such payment shall survive any cancellation or
satisfaction of this Note or return thereof to Borrower and shall not be
discharged or satisfied with any prior payment thereof or cancellation of this
Note, but shall remain a valid and binding obligation enforceable in accordance
with the terms and provisions hereof, and such payment shall be immediately due
and payable upon demand.
2.06 Governing Law; Consent to Jurisdiction.
(a) This Note shall be interpreted, construed and enforced
according to the laws of the State of New York, except that the provisions of
Section 2.08 shall be governed by Pennsylvania law.
(b) Any suit, action or proceeding against Maker or Payee
arising out of or relating to this Note shall be instituted in any federal or
state court in New York, New York, pursuant to ss.5-1402 of the New York General
Obligations Law, or, at Xxxxx's discretion, in any state where the Trust
Property is located and Maker waives any objection which it may now or hereafter
have to the laying of venue of any such suit, action or proceeding, and Maker
hereby irrevocably submits to the jurisdiction of any such court in any suit,
action or proceeding. Maker does hereby designate and appoint C.T. Corporation
System, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as their authorized agent to
accept and acknowledge on their behalf service of any and all process which may
be served in any such suit, action or proceeding in any federal or state court
in New York, New York, or in the state in which the Trust Property is located
and agrees that service of process upon said agent at said address and written
notice of said service of Maker mailed or delivered to Maker in the manner
provided in the Mortgage, shall be deemed in every respect effective service of
process upon Maker, in any such suit, action or proceeding. Maker (i) shall give
prompt notice to the Payee of any changed address of their authorized agent
hereunder, (ii) may at any time and from time to time designate a substitute
authorized agent
7
with an office in New York, New York (which office shall be designated as the
address for service of process), and (iii) shall promptly designate such a
substitute if its authorized agent ceases to have an office in New York, New
York or is dissolved without leaving a successor.
2.07 Miscellaneous. The terms and provisions hereof shall be
binding upon and inure to the benefit of Xxxxxxxx and Xxxxxx and their
respective heirs, executors, legal representatives, successors,
successors-in-title and assigns, whether by voluntary action of the parties or
by operation of law. As used herein, the terms "Borrower" and "Lender" shall be
deemed to include their respective heirs, executors, legal representatives,
successors, successors-in-title and assigns, whether by voluntary action of the
parties or by operation of law. If Borrower consists of more than one person or
entity, each shall be jointly and severally liable to perform the obligations of
Borrower under this Note. All personal pronouns used herein, whether used in the
masculine, feminine or neuter gender, shall include all other genders; the
singular shall include the plural and vice versa. Titles of articles and
sections are for convenience only and in no way define, limit, amplify or
describe the scope or intent of any provisions hereof. Time is of the essence
with respect to all provisions of this Note. This Note and the other Loan
Documents contain the entire agreements between the parties hereto relating to
the subject matter hereof and thereof and all prior agreements relative hereto
and thereto which are not contained herein or therein are terminated.
2.08 Pennsylvania Provisions. The following provisions shall
apply in connection with any enforcement of Xxxxxx's remedies under the Loan
Documents with respect to portions of the Security Property located in
Pennsylvania:
(a) Sealed Instrument. This Note is a sealed instrument.
(b) Confession of Judgment.
(1) THE FOLLOWING PARAGRAPH SETS FORTH A WARRANT OF AUTHORITY
FOR AN ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWER IN GRANTING THIS WARRANT OF
ATTORNEY TO CONFESS JUDGMENT AGAINST THE BORROWER, THE BORROWER HEREBY
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, AND, ON THE ADVICE OF THE SEPARATE
COUNSEL OF BORROWER, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS BORROWER HAS OR
MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE
CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF
PENNSYLVANIA.
(2) BORROWER IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY
OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA,
OR ELSEWHERE, TO APPEAR FOR BORROWER AT ANY TIME AFTER DEFAULT BEYOND ANY
APPLICABLE NOTICE AND GRACE PERIOD UNDER THIS NOTE OR UNDER THE LOAN DOCUMENTS
IN ANY ACTION BROUGHT AGAINST BORROWER ON THIS NOTE AT THE SUIT OF LENDER, AS OF
ANY TERM, AND IN THAT ACTION TO CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR
THE ENTIRE UNPAID PRINCIPAL OF THIS NOTE AND ALL OTHER SUMS DUE UNDER THIS NOTE
OR THE LOAN DOCUMENTS, AND ALL
8
INTEREST ACCRUED ON THOSE AMOUNTS, TOGETHER WITH COSTS OF SUIT, ATTORNEY'S
COMMISSION FOR COLLECTION OF FIVE PERCENT (5%) OF THE TOTAL AMOUNT THEN DUE BY
BORROWER TO LENDER (BUT IN ANY EVENT NOT LESS THAN TEN THOUSAND DOLLARS
($10,000.00)), TOGETHER WITH INTEREST ON ANY JUDGMENT OBTAINED BY XXXXXX AT THE
DEFAULT INTEREST RATE, SPECIFIED IN THE NOTE AFTER DEFAULT, INCLUDING INTEREST
AT THAT RATE FROM AND AFTER THE DATE OF ANY SHERIFF'S OR JUDICIAL SALE UNTIL
ACTUAL PAYMENT IS MADE TO LENDER OF THE FULL AMOUNT DUE LENDER; AND FOR SO DOING
THIS NOTE OR A COPY OF IT VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT.
THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT SHALL NOT BE EXHAUSTED BY
ANY EXERCISE OF IT BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL
PAYMENT IN FULL OF ALL THE AMOUNTS DUE UNDER THIS NOTE.
2.09 Consolidation and Restatement. Xxxxxx is the lawful owner
and holder of the notes described on Exhibit A attached hereto (the "Existing
Notes"), by assignment or otherwise, which Existing Notes evidence indebtedness
of one of Borrower. Xxxxxx and Xxxxxxxx have agreed that the Existing Notes will
be amended, modified and restated in their entirety pursuant hereto, and
consolidated with certain new indebtedness of Borrower to Lender pursuant
hereto. Accordingly, by Xxxxxxxx's execution and delivery, and Xxxxxx's
acceptance of delivery, of this Note, this Note does hereby amend, modify and
restate the Existing Notes in their entirety, and consolidate the Existing Notes
with one another and with the new indebtedness evidenced hereby, so as to cause
this Note to evidence one joint and several debt of Borrower in the principal
amount of $65,500,000. All of the terms, covenants, agreements, rights,
obligations and conditions of the Existing Notes are hereby amended, restated
and superseded in their entirety by this Note, it being understood, acknowledged
and agreed that the consolidation and restatement of the Existing Notes pursuant
to this Note shall not (and does not) impair the debt evidenced by the Existing
Notes. Each Borrower expressly acknowledges and consents to its joint and
several liability for the entire debt evidenced by this Note and, if and to the
extent such Borrower was not the obligor with respect to the indebtedness
evidenced by any of the Existing Notes, such Borrower, by its execution and
delivery of this Note, does hereby expressly assume joint and several liability
for such indebtedness on the restated terms set forth herein.
9
IN WITNESS WHEREOF, Xxxxxxxx has executed this Note under seal
as of the date first above written.
AMERICAN DE/SPE, LLC,
a Delaware limited liability company
By: AMERICAN DE/SPE 1, INC., a Delaware
corporation, its managing member
By: /s/ Xxxxxxx X. Butte
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title:Vice-President
CORPORATE SEAL
VIRGINIA STREET ASSOCIATES
LIMITED PARTNERSHIP,
a Colorado limited partnership
By: American DE/SPE 3 Inc., a Delaware
-------------------------------
corporation, its general partner
By: /s/ Xxxxxxx X. Butte
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title:Vice-President
CORPORATE SEAL
