EXHIBIT 10.36
SECOND AMENDMENT TO LOAN AND CREDIT FACILITY AGREEMENT
by and between
XXXXXXXXXX XX REALTY L.P.
(Borrower),
CENTURY PLAZA ASSOCIATES, L.P.,
MARLTON PLAZA ASSOCIATES, L.P.
and
CV REIT, INC.
(Guarantors)
and
GMAC COMMERCIAL MORTGAGE CORPORATION
(Lender)
Date: March 8, 1999
SECOND AMENDMENT TO LOAN AND CREDIT FACILITY AGREEMENT
THIS SECOND AMENDMENT TO LOAN AND CREDIT FACILITY AGREEMENT (this
"Amendment") is made as of the 8th day of March, 1999, by and
between XXXXXXXXXX XX REALTY L.P., a Delaware limited partnership
("Borrower"), CENTURY PLAZA ASSOCIATES, L.P., a Delaware limited
partnership ("Century"), MARLTON PLAZA ASSOCIATES, L.P., a
Delaware limited partnership ("Marlton"), and CV REIT, INC., a
Delaware corporation ("CV") (each, a "Guarantor" and
collectively, "Guarantors") and GMAC COMMERCIAL MORTGAGE
CORPORATION, a California corporation ("Lender").
PRELIMINARY STATEMENTS
A. Borrower, Century, CV and Lender entered into a Loan and
Credit Facility Agreement dated March 31, 1998, amended June
25, 1998 (the "Agreement") pursuant to which Lender agreed,
upon the terms and subject to the conditions set forth
therein and in other Facility Loan Documents (as such term
is defined in the Agreement), to make advances (each
advance, a "Loan", as more particularly described in the
Agreement) to Borrower in an aggregate maximum outstanding
principal amount of One Hundred Million Dollars
($100,000,000), and Borrower agreed to pay the amounts due
thereunder and otherwise comply with the terms and
conditions of the Agreement and of each Loan.
B. Borrower has requested that Lender make a Loan to Borrower
pursuant to the Agreement in an amount not to exceed
$18,500,000, which such Loan shall be secured by Borrower's
pledge of all its right, title and interest in a certain
note receivable, which such note receivable is secured by
certain real property in the County of Broward, State of
Florida, all as more particularly described herein.
C. All terms not otherwise defined herein shall have the
meanings ascribed to them in the Agreement.
NOW THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties agree as follows:
1. The List of Loan Schedules shall be replaced with that set
forth on Exhibit "A" attached hereto and made a part hereof.
2. Schedule 3-1 shall be added to the Agreement as set forth on
Exhibit "B" attached hereto and made a part hereof, and such Loan
shall be referred to herein as the "Pembroke Note Advance". The
note receivable pledged to Lender as collateral for the Pembroke
Note Advance is referred to herein as the "Pembroke Note
Receivable"
3. Section 2.9 is amended and restated in its entirety as
follows:
2.9 Funding of Facility.
(a) Advances. Each Loan under this Agreement shall be a
minimum amount of one million dollars ($1,000,000) with
any additional amounts of such Loan in fifty thousand
dollar ($50,000) increments. No Loan under this
Agreement shall be permitted after the twenty-fourth
(24th) month after the date of this Agreement.
(b) Maximum Outstanding Facility Amount/Loan Amount.
I. The Maximum Outstanding Facility Amount shall not exceed the
sum of the following:
A. In the case of Loans which are secured by
mortgages on real estate, seventy-five (75%)
percent of the Appraised Value (as hereinafter
defined) of the Projects which are collateral for
the Loans;
B. In the case of the Pembroke Note Advance, the
lesser of (i) $18,500,000; (ii) 75 percent of the
Adjusted Principal Balance (as hereinafter
defined) only in the event any Voluntary
Prepayments (as hereinafter defined) are made
under the Pembroke Note Receivable; or (iii) 75
percent of the Xxxx-to-Market Value of the
Pembroke Note Receivable (as hereinafter defined);
and
C. One hundred (100%) percent of the Reserves and the
Insurance Reserve.
II. Lender reserves the right to perform periodic re-valuations
of the Pembroke Note Receivable at any time at its
discretion (the "Xxxx-to-Market Value"). Initially, Lender
will value the Pembroke Note Receivable utilizing a discount
rate equal to 350 basis points above the 30 year Treasury
Note Rate, and the initial appraised value at the time of
this Amendment is $28,516,000. However, Lender reserves the
right to modify the xxxx-to-market discount rate at its sole
discretion based upon market conditions and other criteria,
at any time, as it deems prudent; but in no event shall the
xxxx-to-market discount rate utilized by Lender herein at
anytime be less than 9 percent. As used in this section 2.9,
Adjusted Principal Balance shall mean $24,475,000, less
Voluntary Prepayments under the Pembroke Note Receivable.
"Voluntary Prepayments" shall mean any payments which reduce
the amount of principal due and owing under the Pembroke
Note Receivable other than through regularly scheduled
payments of principal and interest in accordance with the
terms therein.
III. Provided the Loan Criteria in Section 3.1 are met and the
Maximum Outstanding Facility Amount is not exceeded, for
Newly Acquired Projects, each Loan shall not exceed the
higher of (i) seventy-five (75%) percent of the Appraised
Value, or (ii) one hundred (100%) percent of the Total
Acquisition Costs.
(c) Debt Service Coverage/Outstanding Facility Amount. The
minimum Debt Service Coverage Ratio for the Outstanding
Facility Amount shall be 1.30. The Debt Service
Coverage Ratio will be recalculated quarterly or upon
the making of any Loan utilizing the average interest
rate of the daily closing yield of the benchmark
10-year Treasury Note as published by the Wall Street
Journal for the preceding three months, plus 175 basis
points using a 30-year amortization schedule.
4. Section 3.1(a) is amended and restated as follows:
Debt Service Coverage.
(i) The minimum Debt Service Coverage Ratio for the
Outstanding Facility Amount shall be 1.30, as set forth
in Section 2.9 hereof.
(ii) The minimum Debt Service Coverage Ratio for each
Project for which a Loan is made under this Agreement,
other than the Pembroke Note Advance, shall be 1.20.
(iii) With respect to the Pembroke Note Advance, theowners
("Pembroke Owners") of the property ("Recreation
Mortgaged Property") securing the Pembroke Note
Receivable shall at all times maintain a minimum Lease
Debt Service Coverage Ratio of 1.25. For purposes
hereof, the Lease Debt Service Coverage Ratio shall
mean a ratio derived by dividing the Net Unit Lease
Income for a trailing twelve (12) month period by the
debt service on the Note Receivable for that twelve
(12) month period. Net Unit Lease Income shall mean
the gross proceeds arising from the operations of the
Pembroke Owners, including revenues from unit leases,
social programs and miscellaneous income, less the
Operating Expenses incurred in connection therewith.
Operating Expenses shall mean all expenses annually
incurred by Pembroke Owners with respect to the
ownership, operation, maintenance, repair, leasing and
occupancy of the Recreation Mortgaged Property,
including, but not limited to real estate taxes,
special assessments or similar charges, personal
property taxes, costs of utilities, non-capital
maintenance and repair costs, operating and management
fees, insurance, and all other costs incurred in
connection with leasing commissions and advertising and
professional and administrative general expenses.
Borrower and/or Pembroke Owners shall calculate and
certify (by authorized officer) to Lender on a
quarterly basis the Lease Debt Service Coverage Ratio
for that quarter, which shall be subject to Lender's
review and approval.
5. Article 3 is amended by adding the following section:
3.5 Conditions to Funding Advances under any Loan.
The following shall be conditions precedent to any disbursement
by Lender of any portion of any Loan to Borrower or any Affiliate
(any "Advance") if such Advance is
(i) not made in connection with Borrower or any Affiliate
providing new security or collateral for such Advance; and
(ii) made subsequent to the date of the closing of such
Loan, and provided that all of the conditions set forth in
Sections 3.2 and 3.3 hereof have previously been satisfied with
respect to such Loan (for purposes of this section 3.5, the
closing of any such Loan shall be deemed to be the date of the
Title Insurance Policy for such Loan):
(a) Borrower shall provide to Lender, with respect to all
real property securing the Loan pursuant to which an Advance is
requested, an updated title report, revealing no other liens or
encumbrances other than the exceptions set forth on the Title
Insurance Policy for such Loan, along with such endorsements to
the Title Insurance Policy as Lender shall require to ensure that
the Title Insurance Policy insures the Lender's Mortgage for such
Loan as a first lien on such property to the full extent of the
amount of the Loan disbursed. Notwithstanding the foregoing,
Borrower shall not be required to provide updated title searches
or endorsements with respect to the real property that is
security for the Pembroke Note Receivable.
(b) Borrower shall pay all reasonable fees of Lender in
connection with such Advance, including but not limited to title
search and endorsement fees and reasonable legal fees of Lender's
counsel.
(c) Borrower shall execute a certificate which shall
certify to Lender that:
(i) There exists no Event of Default under any Loan
and there exists no state of facts or circumstances, which with
the passage of time would result in an Event of Default under any
Loan;
(ii) Each Project is in compliance with all
Governmental Requirements, and Borrower and its Affiliates have
received no notices from any governmental entity or any other
party that Borrower or any Affiliate is or may be in violation of
any Governmental Requirements;
(iii) There have been no material changes to the
conditions at any property of Borrower or any Affiliate since the
delivery by Borrower of required engineering and environmental
reports for such property;
(iv) All management agreements for all Projects are
in full force and effect;
(v) All representations and warranties made by
Borrower or any Affiliate in this Agreement or any document
executed in connection with any Loan remain true and are
reaffirmed;
(vi) There has been no material adverse change in the
financial position of Borrower or any Affiliate;
(vii) Borrower and any applicable Affiliate is in
compliance with all of the covenants contained in this Agreement,
including but not limited to the affirmative covenants contained
in Article 4 and the negative covenants contained in Article 5.
Borrower shall attach as an exhibit to such certificate all
calculations necessary to show that Borrower and such affiliates
are in compliance with all the financial covenants of this
Agreement, including but not limited to Debt Service Coverage
Ratios and Loan to Value Ratios.
(d) At Lender's option, all Advances will be disbursed
through the title company insuring Lender's title to the
Projects.
6. Article 4 is amended by adding the following section:
4.15 Borrower's Requirements to Post Cash or Collateral if
Maximum Availability under Pembroke Note Advance is
Exceeded. In the event that the aggregate amount of
the Pembroke Note Advance outstanding exceeds the
maximum allowable availability as set forth in Section
2.9(b)I.B. hereof, then Borrower shall be required to
either pay down the Pembroke Note Advance or provide
cash or pledge other collateral acceptable to Lender to
bring the Pembroke Note Advance outstanding balance
into compliance with the maximum Pembroke Note Advance
amount.
7. The following is added to Section 4.4 of the Agreement
Financial Reporting with respect to Pembroke Note Advance:
(i) Borrower and Pembroke Owners shall, within forty-five
(45) days of the end of each calender quarter, certify to Lender
the outstanding principal balance of the Pembroke Note
Receivable, verify all payments made thereunder through that
calendar quarter and certify to Lender the payment status of real
property taxes, assessments and insurance with respect to the
Recreation Mortgaged Property.
(ii) Borrower and Pembroke Owners shall notify Lender in
writing, within 3 business days of knowledge thereof, of any
pending, contemplated or actual receipt of any prepayment or
premium made in connection with the Pembroke Note Receivable.
(iii) Borrower and Pembroke Owners shall, within forty-five
(45) days of each calendar quarter, certify to Lender the rents
paid under the unit leases for the Recreation Mortgaged Property
("Unit Leases") for said quarter, and shall determine and provide
to Lender the delinquency rate (in terms of dollars and number of
tenants) of payments under the Unit Leases. For purposes of this
certification, lease payments shall be deemed delinquent if made
thirty (30) days after the actual due date thereof. Lender
reserves the right to receive all supporting detail and
documentation, including a list of all tenants in arrears, amount
of delinquency, etc. in connection with said certification.
(i) Pembroke Owners shall, within forty-five (45) days of
the end of each calendar quarter, provide to Lender
financial statements, certified by an authorized
officer, including a balance sheet and operating
statements.
Audits: Lender shall have the right at any time and from time to
time, to audit the books and records of Borrower and Pembroke
Owners at Lender's sole cost and expense. However, such audit
shall be at the cost of Borrower in the event of any of the
following: (i) a material adverse change, in Lender's sole
determination, in the financial condition of Borrower, Pembroke
Owners or the Recreation Mortgaged Property; (ii) any default
under the Pembroke Note Advance; (iii) any Change in Management
or Change in Control of Borrower; or (iv) any default under any
the loan documents made in connection with the Pembroke Note
Receivable.
8. Section 8.1 is amended by adding the following subsections:
(l) A default by Borrower or any Affiliate pursuant to any
of the loan documents executed in connection with any
Loan.
(m) A default by Pembroke Owners under the Pembroke Note
Receivable or a default under the mortgage on the
Recreation Mortgaged Property which secures the
Pembroke Note Receivable, following all applicable cure
periods.
9. Section 8.2 is amended by adding the following subsection:
(a) An Event of Default under this Agreement or under any
Loan shall be an Event of Default under each and every
Loan. Notwithstanding the foregoing, the Mortgage and
Security Agreement from Century Plaza Associates, L.P.
listed as item No. 5 on Schedule 1-1 shall secure only
the note listed as No. 2 on said Schedule 1-1.
10. Section 10.9 is amended and restated as follows:
10.9 Waiver of Jury Trial. BORROWER AND LENDER WAIVE ALL
RIGHTS TO TRIAL BY JURY OF ANY AND ALL CLAIMS,
COUNTERCLAIMS, AND DEFENSES ARISING UNDER THIS
AGREEMENT, THE NOTES, THE OTHER FACILITY LOAN
DOCUMENTS, OR ANY OTHER AGREEMENT OR AGREEMENTS BETWEEN
BORROWER AND LENDER AT ANY TIME, INCLUDING ANY SUCH
AGREEMENTS, WHETHER WRITTEN OR ORAL, MADE OR ALLEGED TO
HAVE BEEN MADE AT ANY TIME PRIOR TO THE DATE HEREOF,
AND ALL AGREEMENTS MADE HEREAFTER OR OTHERWISE. IN
MAKING THIS WAIVER BORROWER AND LENDER ACKNOWLEDGE AND
AGREE THAT ANY AND ALL SUCH CLAIMS, COUNTERCLAIMS, AND
DEFENSES SHALL BE HEARD BY A JUDGE OF A COURT OF
COMPETENT JURISDICTION, WITHOUT A JURY. BORROWER
AND LENDER ACKNOWLEDGE AND AGREE THAT THIS WAIVER OF
TRIAL BY JURY IS A MATERIAL ELEMENT OF THE
CONSIDERATION FOR THIS AGREEMENT. BORROWER AND LENDER
ACKNOWLEDGE THAT THIS IS A WAIVER OF A LEGAL RIGHT AND
THAT THIS WAIVER IS MADE KNOWINGLY AND VOLUNTARILY
AFTER CONSULTATION WITH, OR THE OPPORTUNITY TO CONSULT
WITH, COUNSEL OF ITS CHOICE.
11. Except as expressly amended hereby, the terms and conditions
of the Agreement shall remain unchanged and in full force and
effect, and the parties hereto hereby ratify and confirm the
terms and conditions of the Agreement, as amended hereby.
IN WITNESS WHEREOF, and intending to be legally bound hereby,
Borrower, Guarantors and Lender have executed this Amendment
under seal as of the day and year first above written.
BORROWER:
XXXXXXXXXX XX REALTY L.P.
By: Xxxxxxxxxx XX Realty Trust, a Delaware business trust,
its sole general partner
/s/ Xxxxx X. Xxxxxx
By:___________________________
Xxxxx X. Xxxxxx, Xx.
President
GUARANTORS:
CENTURY PLAZA ASSOCIATES, L.P.
By: CP General Partner LLC, a Delaware limited liability
company, its sole general partner
By: Xxxxxxxxxx XX Realty L.P., a Delaware limited
partnership, its sole member
By: Xxxxxxxxxx XX Realty Trust, a Delaware business trust,
its sole general partner
/s/ Xxxxx X. Xxxxxx
By: ________________________
Xxxxx X. Xxxxxx, Xx.
President
CV REIT, INC.
/s/ Xxxxx X. Xxxxxx
By:_______________________________
Xxxxx X. Xxxxxx, Xx., President
LENDER:
GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation
By:___________________________________
Name:
Title:
GUARANTOR:
MARLTON PLAZA ASSOCIATES, L.P.
By: Marlton Plaza, LLC, a Delaware limited liability company,
its sole general partner
By: Xxxxxxxxxx XX Realty L.P., a Delaware limited
partnership, its sole member
By: Xxxxxxxxxx XX Realty Trust, a Delaware business
trust, its sole general partner
/s/ Xxxx Xxxxxxx /s/ Xxxxx X. Xxxxxx
Witness: __________________ By: ___________________________
Name: Xxxx Xxxxxxx Xxxxx X. Xxxxxx, Xx.
President
Exhibit "A"
to Amendment to Loan and Credit Facility Agreement Dated March
31, 1998
LIST OF LOAN SCHEDULES
0-0 Xxxxxxx Xxxxx, Xxxxxxxxx Xxxxx, Xxxxxxx
0-0 Xxxxxxx Xxxxxxxx Xxxxxxxx Xxxxxx--Xxxxx XX, Xxxxxxx, Xxx
Xxxxxx
3-1 Assignment of Note secured by Pembroke Pines properties
Exhibit "B"
to Amendment to Loan and Credit Facility Agreement Dated March
31, 1998
Schedule 3-1
[ASSIGNMENT OF NOTE SECURED BY PEMBROKE PINES PROPERTIES]
Location:
Amount of Loan: $ 18,500,000.00
Repair Reserve: $ 0
Replacement Reserve: $ 0
TI/Leasing Commissions
Reserve: $ 0
Insurance Escrow: None from Borrower to Lender
Tax Escrow: None from Borrower to Lender
Facility Loan Documents:
1. Loan and Credit Facility Agreement (Xxxxxxxxxx XX Realty
L.P., Century Plaza Associates, L.P., CV Reit, Inc. and GMAC
Commercial Mortgage Corporation)
2. Amendment to Loan and Credit Facility Agreement Dated March
31, 1998 (Xxxxxxxxxx XX Realty L.P., Century Plaza
Associates, L.P., CV Reit, Inc. and GMAC Commercial Mortgage
Corporation) dated June 24, 1998
3. Second Amendment to Loan and Credit Facility Agreement
(Xxxxxxxxxx XX Realty L.P., Century Plaza Associates, L.P.,
CV Reit, Inc. and GMAC Commercial Mortgage Corporation) dated
March 8, 1999
4. Promissory Note ($18,500,000) from Xxxxxxxxxx XX Realty L.P.
to Lender
5. Allonge to Pledged Note
6. Collateral Pledge, Assignment and Security Agreement
7. UCC-1 Financing Statements
8, Assignment of Mortgage and Security Agreements
9. UCC-3 Financing Statements
10. Assignment of Assignment of Leases and Rents
11. Assignment Regarding Management Agreement and Subordination
of Management Fees
12. Guaranty and Suretyship Agreement of Marlton Plaza
Associates, L.P.
13. Guaranty and Suretyship Agreement of CV Reit, Inc.
14. Certification of Borrower and Affiliates
15. Assignment of Lockbox Contract
16. Certificate of GP of Xxxxxxxxxx XX Realty L.P.
17. Certificate of GP of Century Plaza Associates, L.P.
18. Certificate of CV Reit, Inc.
19. Certification of GP of Marlton Plaza Associates, L.P.
20. Funding Escrow Agreement
21. Owners' Estoppel and Recognition Agreement to Lender
EXHIBIT 10.37
NOTE
$18,500,000 Philadelphia, Pennsylvania
March 8, 1999
FOR VALUE RECEIVED, the undersigned, XXXXXXXXXX XX REALTY
L.P., a Delaware limited partnership having an address at
Xxxxxxxx Xxxxx, 000 Xxxx Xxxxxxxxxx Pike, Suite 200, Plymouth
Meeting, Pennsylvania 19462 ("Borrower"), hereby promises to pay
to the order of GMAC COMMERCIAL MORTGAGE CORPORATION, a
California corporation, having an address at 000 Xxxxxxx Xxxx,
X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxxxxx 00000-0000 ("Lender"), its
successors and permitted assigns as holder of this Note (Lender,
its successors and permitted assigns, being hereinafter sometimes
referred to collectively as "Holder"), at Lender's address set
forth above or at such other place or to such other person as may
be designated in writing to Borrower by Lender, the principal sum
of Eighteen Million Five Hundred Thousand Dollars ($18,500,000)
or so much thereof which shall be advanced by Lender to Borrower
(the "Loan"), together with interest on the unpaid balance
thereof at the rates hereinafter set forth. The Loan is being
made pursuant to a Loan and Credit Facility Agreement between
Borrower, Century Plaza Associates, L.P., Marlton Plaza
Associates, L.P., CV Reit, Inc., and Lender dated March 31, 1998
and amended June 25, 1998 and as of the date hereof (as amended,
the "Credit Facility").
ON THE TERMS AND SUBJECT TO THE CONDITIONS which are
hereinafter set forth:
Section 1. Interest Rate and Payment Dates.
1.1 Initial Rate and Initial Payment. Interest shall
accrue on the balance of the principal amount outstanding
hereunder from time to time from and after the date hereof at the
rate of 6.715% per annum until the first Rate Adjustment Date (as
defined below). On each successive Rate Adjustment Date, the rate
of interest at which interest accrues shall be adjusted to the
then applicable LIBOR Rate (as defined below) for the calendar
month commencing on such date. Interest for the period beginning
on the date of the first advance hereunder (the "Funding Date")
and ending on and including the last day of the month in which
the Funding Date occurs shall be payable on the Funding Date.
Interest shall be calculated on the basis of a 360-day year and
shall be charged on the principal balance outstanding from time
to time for the actual number of days elapsed.
1.2 Rate Adjustment Date. The interest rate shall be
adjusted on the dates (each being a "Rate Adjustment Date")
described in this paragraph. The first Rate Adjustment Date
shall be the first day of the month following the Funding Date,
and subsequent Rate Adjustment Dates shall fall on the first day
of each subsequent calendar month thereafter.
1.3 Default Interest Rate. If Borrower fails to make any
payment of principal, interest or fees on the date on which such
payment becomes due and payable, whether at maturity or by
acceleration, such payment shall bear interest beginning on the
eleventh day following the date which such amount became due and
payable until paid at the fluctuating rate (the "Default Rate")
which is four (4) percentage points above the then applicable
LIBOR Rate, but in no event shall the rate of interest payable
hereunder exceed the highest rate allowed by law.
1.4 LIBOR Rate. The LIBOR Rate shall mean the rate per
annum determined solely by Holder as of each Rate Adjustment
Date, and shall be one and seventy-five one-hundredths percent
(1.75%) per annum in excess of one month LIBOR (stated as a
number out to five decimal places), determined in the manner set
forth below. On each Rate Adjustment Date, Holder will determine
one month LIBOR from the appropriate Bloomberg display page,
available as of the close of business on the last business day of
the month immediately preceding the Rate Adjustment Date. In the
event Bloomberg ceases publication or ceases to publish one month
LIBOR, Holder shall select a comparable publication to determine
one month LIBOR and provide notice thereof to Borrower. LIBOR
may or may not be the lowest rate based upon the market for U.S.
Dollar deposits in the London Interbank Eurodollar Market at
which Holder prices loans on the date on which the LIBOR Rate is
determined by Holder as set forth above.
1.5 LIBOR Rate Adjustments. This Note shall bear interest
at the rate set forth above or at the applicable LIBOR Rate until
a new LIBOR Rate is determined on each Rate Adjustment Date in
accordance with the provisions hereof; provided, however, that,
if Holder at any time determines, in its sole discretion, that it
has miscalculated the amount of the monthly payment of interest,
then Holder shall give notice to Borrower of the corrected
amount of such monthly payment (and the corrected amount of the
LIBOR Rate, if applicable) and (a) if the corrected amount of
such monthly payment represents an increase thereof, then
Borrower shall, within ten (10) calendar days thereafter, pay to
Holder any sums that Borrower would have otherwise been obligated
under this Note to pay to Holder had the amount of such monthly
payment not been miscalculated, or (b) if the corrected amount of
such monthly payment represents a decrease thereof and Borrower
is not otherwise in breach or default under any of the terms and
provisions of this Note or the Credit Facility, then Borrower
shall, within (10) calendar days thereafter be paid the sums that
Borrower would not have otherwise been obligated to pay to Holder
had the amount of such monthly payment not been miscalculated.
1.6 LIBOR Unascertainable. Anything herein to the contrary
notwithstanding, if (i) on any date on which the LIBOR Rate would
otherwise be set Holder shall have determined in good faith
(which determination shall be conclusive) that (A) adequate and
reasonable means do not exist for ascertaining one month LIBOR,
or (B) a contingency has occurred which materially and adversely
affects the London Interbank Eurodollar Market at which Holder
prices loans on the date on which the LIBOR Rate is determined by
Holder as set forth above, or (ii) at any time Holder shall have
determined in good faith (which determination shall be
conclusive) that the making, maintenance or funding of any part
of the Loan has been made impracticable or unlawful by compliance
by Holder in good faith with any applicable law, regulation or
guideline or interpretation or administration thereof by any
governmental authority charged with the interpretation or
administration thereof or with any request or directive of any
such governmental authority (whether or not having the force of
law); then, and in any such event, Holder may notify Borrower of
such determination. Upon such date as shall be specified in such
notice (which shall not be earlier than the date such notice is
given) the obligation of Holder to charge interest to Borrower at
the LIBOR Rate shall be suspended until Holder shall have later
notified Borrower of Holder's determination in good faith (which
determination shall be conclusive) that the circumstances giving
rise to such previous determination no longer exist.
1.7 Treasury Rate. If Holder notifies Borrower of a
determination under Section 1.6 hereof, the LIBOR Rate shall
automatically be converted to the Treasury Rate as of the date
specified in such notice (and accrued interest thereon shall be
due and payable on such date). "Treasury Rate" shall mean a rate
equal to the "Index" of the weekly average yield on United States
Treasury Securities adjusted to a constant maturity of one year,
as made available by the Federal Reserve Board 45 days prior to
each Rate Adjustment Date (the "Yield"), plus or minus, as the
case may be, the difference between the Yield and the last
available LIBOR Rate (stated as a number out to five decimal
places).
1.8 Increased Cost and Reduced Return.
(a) If on or after the date hereof, the adoption of any
applicable law, rule, or regulation, or any change therein, or
any change in the interpretation or administration thereof
by any governmental authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or
compliance by the Holder with any request or directive (whether
or not having the force of law) of any such authority, central
bank, or comparable agency shall subject Holder to any tax, duty
or other charge with respect to the Loan, or shall change the
basis of taxation of payments to Holder of the principal of or
interest on the Loan or any other amounts due under the Notes or
in respect of the Loan or its obligation to make the Loan (except
for changes in the rate of tax on the overall net income of the
Holder) and the result of the foregoing is to increase the cost
to Holder of making or maintaining the Loan, or to reduce the
amount of any sum received or receivable by Holder under this
Note with respect thereto, by an amount reasonably deemed by
Holder to be material, then, within fifteen days after demand by
Holder, Borrower shall pay to Holder such additional amount or
amounts as will compensate Holder for such increased cost or
reduction.
(b) Holder will promptly notify Borrower of any
event of which it has knowledge, occurring after the date hereof,
which will entitle Holder to compensation pursuant to this
Section. A certificate of Holder claiming compensation under
this Section, setting forth the additional amount or amounts to
be paid to it hereunder and evidence reasonably substantiating
Holder's claim for compensation shall be conclusive in the
absence of manifest error. In determining such amount, Holder
may use any reasonable averaging and attribution methods.
Section 2. Interest Payments. Commencing on the first day
of the second month following the Funding Date, and continuing on
the first day of each calendar month thereafter through and
including the Maturity Date (as defined below), interest shall be
due and payable by Borrower to Holder hereunder in arrears at the
applicable LIBOR Rate (or the Treasury Rate, if applicable)
determined as of the immediately preceding Rate Adjustment Date,
on the then outstanding principal balance of the Loan. Lender
will use its best efforts to deliver to Borrower prior to the
first of each month an invoice which sets forth the amount of
interest due to Lender.
Section 3. Application of Payments. Payments made by
Borrower on account hereof shall be applied first toward any Late
Fees (as defined below) or other fees and charges due hereunder,
second toward payment of any interest due at the Default Rate,
third toward payment of any interest due at the then applicable
LIBOR Rate set forth in Section 1.4 hereof (or the Treasury Rate,
if applicable), and fourth toward payment of principal.
Notwithstanding the foregoing, if any advances made by Holder
under the terms of any instruments securing this Note have not
been repaid, any payments made may, at the option of Holder, be
applied first to repay such advances, and interest thereon, with
the balance, if any, applied as set forth in the preceding
sentence.
Section 4. Maturity Date. Anything in this Note to the
contrary notwithstanding, the entire unpaid balance of the
principal amount thereof and all interest accrued thereon
(including, without limitation, interest accruing at the Default
Rate), all Late Fees (hereinafter defined) and all other amounts
due hereunder and under any other instrument or document
evidencing or securing the Loan which has been executed by
Borrower and/or others and by or in favor of Holder
(collectively, the "Loan Documents"), shall, unless sooner paid,
and except to the extent that payment thereof is sooner demanded
in accordance with the terms of the Loan Documents, be and become
due and payable on the Maturity Date, as defined below. The
"Maturity Date" shall be December 1, 2000 if the Funding
Date occurs on or before March 31, 1999; and the Maturity Date
shall be April 1, 2001 if the Funding Date occurs after March 31,
1999.
Section 5. Prepayment. Prepayment of the Loan in full or
in part shall be permitted only in accordance with the Credit
Facility as the Credit Facility may be amended, supplemented,
replaced or otherwise modified from time to time.
Section 6. Method of Payment. All payments to be made
under this Note shall be paid directly to Holder in lawful tender
of the United States of America. Each such payment shall be paid
by 1:00 p.m. at Horsham, Pennsylvania, time on the date such
payment is due, except if such date is not a business day such
payment shall then be due on the first business day after such
date, but interest shall continue to accrue until the date
payment is received. Any payment received after 1:00 p.m.
Horsham, Pennsylvania, time shall be deemed to have been received
on the immediately following business day for all purposes,
including, without limitation, the accrual of interest
on principal.
Section 7. Security. The debt evidenced by this Note is
secured by, among other things, a Collateral Pledge, Assignment
and Security Agreement dated as of the date hereof (the "Pledge")
between Borrower and Lender, and certain Collateral Assignments
(the "Assignments") of the Mortgages and Assignments of Leases
set forth on Exhibit A to the Pledge, which Assignments are
intended to be recorded in the office of the Recorder of Deeds of
Broward County, Florida and which cover the real property in such
county more particularly described on Exhibit A to such
Assignments.
Section 8. Default.
8.1 Events of Default.
The entire outstanding principal sum of this Note,
together with all interest accrued and unpaid thereon and all
other sums due under the Pledge, the Loan Documents and this Note
(all such sums hereinafter collectively referred to as the
"Debt"), or any portion thereof, shall without notice become
immediately due and payable at the option of Holder if any
payment required under this Note is not paid within ten (10) days
of the date when due or on the happening of any other default,
after the expiration of any applicable notice and grace periods,
herein or under the terms of the Loan Documents, the Credit
Facility or any document executed in connection with any loan
made pursuant to the Credit Facility (hereinafter each an "Event
of Default"). Time is of the essence in this Note, the Pledge
and the Credit Facility. All of the terms, covenants and
conditions contained in the Pledge and the Loan Documents are
hereby made part of this Note to the same extent and with the
same force as if they were fully set forth herein. In the
event that Holder employs counsel to collect the Debt or to
protect or foreclose the security hereof, Borrower also agrees to
pay on demand all costs of collection incurred by Holder,
including reasonable attorneys' fees for the services of counsel
whether or not suit be brought.
Borrower does hereby agree that upon the occurrence of
an Event of Default which is not cured within any applicable
grace or notice period, or upon the failure of Borrower to pay
the Debt in full on the Maturity Date, Holder shall be entitled
to receive and Borrower shall pay interest on the entire unpaid
principal sum at "Default Rate". The Default Rate shall be
computed from the occurrence of the Event of Default until the
actual receipt and collection of the Debt. This charge shall be
added to the Debt, and shall be deemed secured by the Pledge and
the Assignments. This clause, however, shall not be construed as
an agreement or privilege to extend the date of the payment of
the Debt, nor as a waiver of any other right or remedy accruing
to Holder by reason of the occurrence of any Event of Default.
In the event the Default Rate would otherwise exceed the maximum
rate permitted by applicable law, the Default Rate shall be the
maximum rate permitted by applicable law.
8.2 No Impairment of Rights; Premium Due. Nothing in this
Section shall be deemed in any way to alter or impair any right
which Holder has under this Note, the Pledge or the
Assignments, or any of the other Loan Documents or at law or in
equity, to accelerate such debt on the occurrence of any Event of
Default provided herein or therein, whether or not relating to
this Note. Upon the acceleration of this Note because of an
Event of Default, Holder shall be entitled to receive, in
addition to all other amounts due Holder, the Exit Fee (as
defined in the Credit Facility).
8.3 Late Fees. Without limiting the generality of the
foregoing provisions of this Section, if any sum payable under
this Note is not paid within ten (10) days after the date on
which it becomes due and payable, Borrower shall thereupon
automatically become obligated immediately to pay to Holder a
late charge equalling five (5%) percent of the amount of such
payment ("Late Fees"), which shall be due and payable immediately
thereupon, to defray the expenses incurred by Holder in handling
and processing such delinquent payment and to compensate Holder
for the loss of the use of such delinquent payment and such
amount shall be secured by the Pledge, the Assignments and the
Loan Documents.
Section 9. Costs of Enforcement. Borrower shall pay to
Holder on demand by the latter the amount of any and all expenses
incurred by Holder in enforcing its rights hereunder or under the
Pledge, the Assignments and/or the other Loan Documents following
an Event of Default, including but not limited to the expense of
collecting any amount owed hereunder, and of any and all
reasonable attorneys' fees incurred by Holder in connection with
such default, whether suit be brought or not, or in protecting
the security hereof. Such expenses shall be added to the
principal amount hereof, shall be secured by the Pledge, the
Assignments and the Loan Documents and shall accrue interest at
the Default Rate.
Section 10. Borrower's Waiver of Certain Rights. Borrower
hereby waives the exercise of any and all exemption rights which
it holds at law or in equity with respect to the debt evidenced
by this Note, and of any and all rights which it holds at law or
in equity to have or receive any presentment, protest, demand and
notice of dishonor, protest, demand and nonpayment as a condition
to Holder's exercise of any of its rights under this Note or the
Loan Documents.
Section 11. Extensions. The Maturity Date and/or any other
date by which any payment is required to be made hereunder may be
extended by Holder from time to time in the exercise of its sole
discretion, without in any way altering or impairing Borrower's
liability hereunder.
Section 12. General.
12.1 Applicable Law. This Note shall be given effect and
construed by application of the laws of the Commonwealth of
Pennsylvania, and any action or proceeding arising hereunder, and
each of Holder and Borrower submits (and waives all rights to
object) to non-exclusive personal jurisdiction in the
Commonwealth of Pennsylvania, for the enforcement of any and all
obligations under this Note and the Loan Documents except that if
any such action or proceeding arises under the Constitution, laws
or treaties of the United States of America, or if there is a
diversity of citizenship between the parties thereto, so that it
is to be brought in a United States District Court, it shall be
brought in the United States District Court for the Eastern
District of Pennsylvania or any successor federal court having
original jurisdiction.
12.2 Headings. The headings of the Sections, subsections,
paragraphs and subparagraphs hereof are provided herein for and
only for convenience of reference, and shall not be considered in
construing their contents.
12.3 Construction. As used herein, (a) the term "person"
means a natural person, a trustee, a corporation, a limited
liability company, a partnership and any other form of legal
entity, and (b) all references made (i) in the neuter, masculine
or feminine gender shall be deemed to have been made in all such
genders, (ii) in the singular or plural number shall be deemed to
have been made, respectively, in the plural or singular number as
well, and (iii) to any Section, subsection, paragraph or
subparagraph shall, unless therein expressly indicated to
the contrary, be deemed to have been made to such Section,
subsection, paragraph or subparagraph of this Note.
12.4 Severability. No determination by any court,
governmental body or otherwise that any provision of this Note or
any amendment hereof is invalid or unenforceable in any
instance shall affect the validity or enforceability of (a) any
other such provision, or (b) such provision in any circumstance
not controlled by such determination. Each such provision shall
be valid and enforceable to the fullest extent allowed by, and
shall be construed wherever possible as being consistent with,
applicable law.
12.5 No Waiver. Holder shall not be deemed to have waived
the exercise of any right which it holds hereunder unless such
waiver is made expressly and in writing. No delay or omission by
Holder in exercising any such right (and no allowance by Holder
to Borrower of an opportunity to cure a default in performing its
obligations hereunder) shall be deemed a waiver of its future
exercise. No such waiver made as to any instance involving the
exercise of any such right shall be deemed a waiver as to any
other such instance, or any other such right. Further,
acceptance by Holder of all or any portion of any sum payable
under, or partial performance of any covenant of, this Note, the
Pledge, the Assignment or any of the other Loan Documents,
whether before, on, or after the due date of such payment or
performance, shall not be a waiver of Holder's right either to
require prompt and full payment and performance when due of all
other sums payable or obligations due thereunder or hereunder or
to exercise any of Holder's rights and remedies hereunder or
thereunder.
12.6 Waiver of Jury Trial; Service of Process; Court Costs.
BORROWER HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING
TO WHICH BORROWER AND HOLDER MAY BE PARTIES ARISING OUT OF, IN
CONNECTION WITH, OR IN ANY WAY PERTAINING TO, THIS NOTE AND/OR
ANY OF THE LOAN DOCUMENTS. IT IS AGREED AND UNDERSTOOD THAT
THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS
AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING
BUT NOT LIMITED TO CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES
TO THIS NOTE. THIS WAIVER IS KNOWINGLY, WILLINGLY AND
VOLUNTARILY MADE BY BORROWER, AND BORROWER HEREBY
REPRESENTS THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE
BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY
JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. BORROWER
FURTHER REPRESENTS AND WARRANTS THAT IT HAS BEEN REPRESENTED
IN THE SIGNING OF THIS NOTE AND IN THE MAKING OF THIS WAIVER BY
INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE
REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN
FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS
WAIVER WITH COUNSEL. BORROWER AGREES TO PAY ALL COURT COSTS
AND REASONABLE ATTORNEY'S FEES INCURRED BY HOLDER IN
CONNECTION WITH ENFORCING ANY PROVISION OF THIS NOTE.
12.7 Offset. Upon the occurrence of an Event of Default,
Holder may set-off against any principal and interest owing
hereunder, any and all credits, money, stocks, bonds or other
security or property of any nature whatsoever on deposit with, or
held by, or in the possession of, Holder, to the credit of or for
the account of Borrower, without notice to or consent of
Borrower or any guarantor, provided that Holder shall give
subsequent notice to Borrower of any such set-off.
12.8 Non-Exclusivity of Rights and Remedies. None of the
rights and remedies herein conferred upon or reserved to Holder
is intended to be exclusive of any other right or remedy
contained herein or in any of the Loan Documents and each and
every such right and remedy shall be cumulative and concurrent,
and may be enforced separately, successively or together, and may
be exercised from time to time as often as may be deemed
necessary or desirable by Holder.
12.9 Incorporation by Reference. All of the agreements,
conditions, covenants and provisions contained in each of the
Loan Documents are hereby made a part of this Note to
the same extent and with the same force and effect as if they
were fully set forth herein. Borrower covenants and agrees to
keep and perform, or cause to be kept and performed, all
such agreements, conditions, covenants and provisions strictly in
accordance with their terms.
12.10 Joint and Several Liability. If Borrower consists of
more than one person and/or entity, each such person and/or
entity agrees that its liability hereunder is joint and several.
12.11 Business Purpose. Borrower represents and warrants
that the Loan is being obtained solely for the purpose of
acquiring or carrying on a business, professional or commercial
activity and is not for personal, agricultural, family or
household purposes.
12.12 Interest Limitation. This Note is subject to the
express condition that at no time shall Borrower be obligated or
required to pay interest on the Loan and other sums due
hereunder or any portion thereof at a rate which could subject
Lender to either civil or criminal liability as a result of being
in excess of the maximum interest rate which Borrower is
permitted by applicable law to contract or agree to pay. If by
the terms of this Note, Borrower is at any time required or
obligated to pay interest on the Loan and other sums due
hereunder or any portion thereof at a rate in excess of such
maximum rate, the rate of interest under this Note shall be
deemed to be immediately reduced to such maximum rate and the
interest payable shall be computed at such maximum rate and all
prior interest payments in excess of the maximum rate shall be
deemed to have been payments in reduction of principal
and not on account of the interest due hereunder.
12.13 Modification. This Note may not be modified,
amended, extended, changed, discharged, terminated or waived
orally or by any act or failure to act on the part of Borrower
or Holder, but only by an agreement in writing signed by the
party against whom enforcement of any modification, amendment,
extension, change, discharge, termination or waiver is
sought.
12.14 Time of the Essence. Time is strictly of the essence
of this Note.
12.15 Negotiable Instrument. Borrower agrees that this
Note shall be deemed a negotiable instrument, even though this
Note may not otherwise qualify, under applicable law,
absent this paragraph, as a negotiable instrument. Borrower
agrees that Holder shall have the right to transfer, sell and
assign this Note, the Pledge, the Assignments and the other Loan
Documents, and the obligations hereunder, provided that Holder
shall promptly give Borrower subsequent notice of such transfer,
sale or assignment.
12.16 Interest Rate After Judgment. If judgment is entered
against Borrower on this Note, the amount of the judgment entered
(which may include principal, interest, fees, Late Fees and
costs) shall bear interest at the Default Rate, to be determined
on the date of the entry of the judgment.
12.17 Relationship. Borrower and Holder intend that the
relationship between them shall be solely that of creditor and
debtor. Nothing contained in this Note or in any of the
other Loan Documents shall be deemed or construed to create a
partnership, tenancy-in-common, joint tenancy, joint venture or
co-ownership by or between Borrower and Holder.
12.18 Waiver of Automatic Stay. BORROWER HEREBY AGREES
THAT, IN CONSIDERATION OF HOLDER'S AGREEMENT TO MAKE THE LOAN AND
IN RECOGNITION THAT THE FOLLOWING COVENANT IS A MATERIAL
INDUCEMENT FOR HOLDER TO MAKE THE LOAN, IN THE EVENT THAT
BORROWER SHALL (I) FILE WITH ANY BANKRUPTCY COURT OF
COMPETENT JURISDICTION OR BE THE SUBJECT OF ANY PETITION UNDER
ANY SECTION OR CHAPTER OF TITLE 11 OF THE UNITED STATES CODE, AS
AMENDED ("BANKRUPTCY CODE"), OR SIMILAR LAW OR STATUTE; (II) BE
THE SUBJECT OF ANY ORDER FOR RELIEF ISSUED UNDER THE
BANKRUPTCY CODE OR SIMILAR LAW OR STATUTE; (III) FILE OR BE THE
SUBJECT OF ANY PETITION SEEKING ANY REORGANIZATION,
ARRANGEMENT, COMPOSITION, READJUSTMENT, LIQUIDATION,
DISSOLUTION, OR SIMILAR RELIEF UNDER ANY PRESENT OR FUTURE
FEDERAL OR STATE ACT OR LAW RELATING TO BANKRUPTCY,
INSOLVENCY, OR OTHER RELIEF FOR DEBTORS; (IV) HAVE SOUGHT OR
CONSENTED TO OR ACQUIESCED IN THE APPOINTMENT OF ANY TRUSTEE,
RECEIVER, CONSERVATOR, OR LIQUIDATOR; OR (V) BE THE SUBJECT OF AN
ORDER, JUDGMENT OR DECREE ENTERED BY ANY COURT OF COMPETENT
JURISDICTION APPROVING A PETITION FILED AGAINST ANY BORROWER
FOR ANY REORGANIZATION, ARRANGEMENT, COMPOSITION,
READJUSTMENT, LIQUIDATION, DISSOLUTION, OR SIMILAR RELIEF UNDER
ANY PRESENT OR FUTURE FEDERAL OR STATE ACT OR LAW RELATING TO
BANKRUPTCY, INSOLVENCY OR RELIEF FOR DEBTORS, THEN, SUBJECT TO
COURT APPROVAL, HOLDER SHALL THEREUPON BY ENTITLED AND
BORROWER HEREBY IRREVOCABLY CONSENTS TO, AND WILL NOT
CONTEST, AND AGREES TO STIPULATE TO RELIEF FROM ANY AUTOMATIC
STAY OR OTHER INJUNCTION IMPOSED BY SECTION 362 OF THE
BANKRUPTCY CODE, OR SIMILAR LAW OR STATUTE (INCLUDING, WITHOUT
LIMITATION, RELIEF FROM ANY EXCLUSIVE PERIOD SET FORTH IN
SECTION 1121 OF THE BANKRUPTCY CODE) OR OTHERWISE, ON OR
AGAINST THE EXERCISE OF THE RIGHTS AND REMEDIES OTHERWISE
AVAILABLE TO HOLDER AS PROVIDED IN THIS NOTE AND THE LOAN
DOCUMENTS, AND AS OTHERWISE PROVIDED BY LAW, AND BORROWER
HEREBY IRREVOCABLY WAIVES ITS RIGHTS TO OBJECT TO SUCH RELIEF.
12.19 Notices. All notices or other written communications
hereunder shall be given and become effective as provided in the
Credit Facility
IN WITNESS WHEREOF, Borrower has executed this Note or
caused it to be executed on its behalf by its duly authorized
representatives, the day and year first above written, and the
obligations under this Note shall be binding upon Borrower's
successors and assigns.
XXXXXXXXXX XX REALTY L.P., a Delaware
limited partnership
By: Xxxxxxxxxx XX Realty Trust, a
Delaware business trust, its sole general partner
/s/ Xxxxx X. Xxxxxx
By:____________________________
Xxxxx X. Xxxxxx, Xx.
President
EXHIBIT 10.38
[Pembroke Pines]
COLLATERAL PLEDGE, ASSIGNMENT AND SECURITY AGREEMENT
THIS COLLATERAL PLEDGE AND ASSIGNMENT (this "Assignment"),
is made this 8th day of March, 1999 by XXXXXXXXXX XX REALTY L.P.
("Pledgor"), a Delaware limited partnership, with its principal
offices located at Xxxxxxxx Xxxxx, 000 X. Xxxxxxxxxx Pike, Suite
200, Plymouth Xxxxxxx, Xxxxxxxxxxxx 00000, to and for the benefit
of GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation
("Lender"), with offices located at 000 Xxxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxxx, 00000 to secure obligations of the Pledgor.
BACKGROUND:
a. Pursuant to a certain Loan and Credit Facility
Agreement (the "Credit Facility") between Lender,
Pledgor, Century Plaza Associates, L.P., Marlton Plaza
Associates, L.P. and CV Reit, Inc. dated March 31,
1998, amended June 25, 1998 and as of the date hereof,
Lender has agreed to make loans up to an aggregate
amount of $100,000,000 to the Pledgor and/or its
affiliates on the terms and conditions set forth in the
Credit Facility. Lender has agreed to make
non-revolving line of credit facility of up to the
maximum principal sum of $18,500,000 (the "Note
Advance") to Pledgor pursuant to the Credit Facility.
The Loan is evidenced by a certain Promissory Note (the
"Note") of even date herewith from Pledgor to Lender.
The Note and all the other documents executed by
Pledgor or any other party in connection with the Loan
are hereinafter referred to as the "Loan Documents".
b. Pursuant to the Credit Facility, Lender made a
loan to Pledgor in an amount not to exceed $7,650,000,
(the "Century Plaza Loan"), evidenced by a Promissory
Note dated April 9, 1998 from Pledgor in favor of
Lender, and Lender made a loan to Marlton Plaza
Associates, L.P. in an amount not to exceed $9,300,000
(the "Marlton Crossing Loan"), evidenced by a
Promissory Note dated June 24, 1998. The note and all
the documents executed by Pledgor or any other party in
connection with the Century Plaza Loan are hereinafter
referred to as the "Century Plaza Loan Documents", and
the note and all the documents executed by Pledgor or
any other party in connection with the Marlton
Crossing Loan are hereinafter referred to as the
"Marlton Crossing Loan Documents."
c. Pledgor is the holder of a Consolidated Term Note
dated July 31, 1992 in the original principal sum of
$35,672,941.33, executed in connection with that
certain Restated Loan Agreement dated July 31, 1992
among Century Village West, Inc., F.W.D.C., Inc. and
Wynmoor Limited Partnership, others and CV Reit, Inc.
(collectively, the "Note Receivable"), which Note
Receivable was assigned to Pledgor by assignment dated
February 2, 1999. The Note Receivable is secured by
certain mortgages encumbering real estate, which
mortgages and real estate are more particularly
described on Exhibit A attached hereto and made a part
hereof (each a "Mortgage" and collectively, the
"Mortgages"), by a certain Assignment of Recreation
Lease and a certain Assignment of Leases, Rents,
Profits, Purchase and Sale Contracts and Other
Agreements, as more particularly described on Exhibit B
attached hereto and made a part hereof (each an
"Assignment" and collectively, the "Assignments"), and
by certain UCC-1 financing statements (the "Financing
Statements") executed by Collateral Owners (as
hereinafter defined), copies of which appear on Exhibit
D attached hereto. The owners of all the collateral
securing the Note Receivable are CVP Community Center,
Inc., a Florida corporation, and Newcen Golf Course,
Inc., a Florida corporation, and are hereinafter
referred to as the "Collateral Owner".
d. As security for the payment and performance by
Pledgor of all of its obligations (whether monetary or
non-monetary) owed to Lender pursuant to the Loan
Documents, the Marlton Crossing Loan Documents, the
Century Plaza Loan Documents and all other obligations
of Pledgor to Lender pursuant to the Credit Facility
(individually and collectively, the "Pledgor
Obligations"), Lender has required the execution and
delivery of this Assignment and Pledgor has agreed to
assign to Lender, all of Pledgor's right, title and
interest in and under the Note Receivable, the
Mortgages and the Assignments and all other collateral
securing the Note Receivable.
NOW, THEREFORE, for value received and intending to be
legally bound, Pledgor agrees as follows:
i. Pledge and Assignment. As security for the
payment and performance of all of the Pledgor
Obligations, Pledgor hereby pledges, assigns,
transfers and grants to Lender a security interest
in, all of Pledgor's right, title and interest in
and to the Note Receivable, the Mortgages, the
Assignments and the Financing Statements
(collectively, the "Assigned Instruments")
including the right to receive and retain all
payments or sums due and payable thereunder, all
cash and other monies and property paid thereon
and all other proceeds and substitutions thereof.
Simultaneously with the execution hereof, Pledgor
shall execute an allonge in favor of Lender and
shall deliver to Lender the original Note
Receivable. Pledgor shall also execute collateral
assignments of each Mortgage and Assignment of
Leases and all other instruments, in recordable
form, as shall be necessary to assign to Lender
the Assigned Instruments.
ii. Payments Prior to Event of Default. All
payments made under the Note Receivable or any of
the other Assigned Instruments shall be applied as
provided in the Note Receivable and the Assigned
Instruments, and Collateral Owners shall continue
to make all such payments to Pledgor thereunder,
and may rely conclusively on the authority of
Pledgor to make all decisions, take all actions
and exercise all rights that can be made, taken or
exercised, until Collateral Owner is given written
notice by Lender to do otherwise following the
occurrence of an Event of Default or by court
order. Pledgor shall cause Collateral Owner to
execute the Estoppel and Recognition Agreement
attached hereto as Exhibit C to evidence its
agreement to act in accordance with any such
notice from Lender specifying that an Event of
Default has occurred.
iii. Limitation of Lender's Liability. This
Assignment is executed only as security for the
payment and performance of the Pledgor Obligations
and, therefore, the execution and delivery of this
Assignment shall not subject Lender to, or
transfer or pass to Lender, or in any way affect
or modify, any liability or obligation of Pledgor
as a party to or beneficiary of any of the
Assigned Instruments, it being understood and
agreed that, notwithstanding this Assignment, all
of Pledgor's liabilities and obligations as a
party to the Assigned Instruments shall be and
remain enforceable only against Pledgor. Pledgor
agrees to pay and perform all such liabilities and
obligations. Except in the event of Lender's
fraudulent acts, Pledgor agrees to indemnify
Lender against and hold it harmless from any and
all liability, loss or damage which it may incur
under any of the Assigned Instruments or under or
by reason of this Assignment and of and from any
and all claims and demands whatsoever which may be
asserted against it by reason of any alleged
obligation or undertaking on its part to perform
or discharge any of the terms of any of the
Assigned Instruments.
iv. Representations and Warranties. Pledgor,
further represents and warrants to Lender that:
(i) Pledgor is a limited partnership, duly organized,
validly existing and in good standing under the laws of
the State of Delaware with full power and authority to
execute and deliver and perform its obligations under
this Assignment;
(ii) This Assignment has been duly executed and delivered by
Pledgor and is a valid and binding obligation of
Pledgor enforceable in accordance with its terms;
(iii) All of Pledgor's right, title and interest in the
Assigned Instruments is now owned, or upon receipt
thereof by by Pledgor will be owned, by
Pledgor free and clear of all Security interests,
liens, encumbrances or other restrictions; and
(iv) Pledgor has full and complete right, authority and
power to assign all of Pledgor's right, title and
interest which Pledgor has or may have in the Assigned
Instruments and to endorse and deliver the Note
Receivable to Lender.
(e) The outstanding principal balance of
the Note Receivable is $24,902,623.89, and the date amount of the
last payment received is February 4, 1999 and $245,028.07.
(f) There are no existing defenses to
payment of the Note Receivable that Owner may assert against
Pledgor, and Pledgor knows of no existing state of facts which
would give rise to a defense to the Note Receivable.
(g) There are no oral or written agreements
which modify the terms of the Note Receivable.
(h) All Florida Documentary Stamp Taxes and
Florida Intangible Taxes have been paid in connection with the
execution of the Note Receivable and the recordation of the
Mortgages.
v. Covenants. Pledgor will, unless Lender
consents in writing to the contrary, (a) fulfill
or perform every condition and covenant of the
Assigned Instruments to be fulfilled or performed
by Pledgor; (b) give to Lender prompt notice of
the receipt of any notice of default under any of
the Assigned Instruments, together with a copy of
such notice of default; (c) enforce the
performance or observance of every covenant and
condition of the Assigned Instruments to be
performed or observed by Collateral Owner; (d) not
modify, release or terminate nor in any way alter
the terms of any of the Assigned Instruments; (e)
neither waive nor release Collateral Owner from
any obligations or conditions under any of the
Assigned Instruments; and (f) deliver to Lender,
upon written demand, a statement specifying the
payments received under the Assigned Instruments
for the period specified in such demand, together
with such other similar information as Lender may
require. Pledgor hereby covenants that Pledgor
will not sell, convey, assign, transfer, or
otherwise dispose of any of the Assigned
Instruments or any interest therein or create,
incur or permit to exist any pledge, mortgage,
lien, charge or encumbrance or any security
interest whatsoever in or with respect to any of
the Assigned Instruments other than that created
hereby, without the prior written consent of
Lender which may be withheld at the Lender's sole
discretion.
vi. Warrant of Attorney.
(i) Pledgor hereby irrevocably constitutes and appoints Lender
and any officer or agent thereof, with full power of substitution
coupled with an interest, as its true and lawful attorney-in-fact
with full irrevocable power and authority in the place and stead
of Pledgor and in the name of Pledgor or in its own name
effective as long as an Event of Default is continuing, for
the purpose of carrying out the terms of this Assignment, to take
any and all appropriate action and to execute any and all
documents and instruments which may be necessary or appropriate
to accomplish the purpose of this Assignment and the other Lender
Loan Documents, and, without limiting the generality of the
foregoing, Pledgor hereby grants Lender the power and rights on
behalf of Pledgor, without notice to or assent by Pledgor, to do
the following:
(i) During the existence of any Event of
Default, in the name of Pledgor or in its own name, or
otherwise, to take possession of and indorse and
collect any checks, drafts, notes, acceptances, or
other instruments for the payment of monies due under,
or with respect to, the Note Receivable, and to file
any claim or to take any other action or proceeding in
any court of law or equity or otherwise deemed
appropriate by Lender for the purpose of collecting any
and all such moneys due under or with respect to the
Note Receivable whenever payable; and
(ii) During the existence of any Event of
Default, (A) to direct Collateral Owner to make payment
of any and all monies due or to become due under the
Note Receivable directly to Lender; (B) to ask or
demand for, collect, receive payment of and receipt
for, sign and indorse, any and all monies, drafts,
claims, and other amounts due or to become due at any
time in respect of or arising out of the Note
Receivable and (C) generally, to sell, transfer,
pledge, and make any agreement with respect to or
otherwise deal with any Assigned Instrument as fully
and completely as though Lender were the absolute owner
thereof for all purposes, and to do, at Lender's option
and Pledgor's expense, all acts and things which Lender
deems necessary to protect, preserve, or realize upon
the Assigned Instruments, all as fully and effectively
as Pledgor might do.
vii. Remedies of Lender Upon Default. Upon the occurrence of
an Event of Default under the Note Advance or any of the loans
made by Lender to Pledgor or Pledgor's affiliates under the
Credit Facility, Lender, in its sole discretion, may:
(i) Exercise all or some or any of its rights and remedies
under this Assignment or as may otherwise be
available to Lender at law or in equity, in such order
as Lender may elect;
(ii) Exercise, on its behalf or on behalf of Pledgor, all or
some or any of the rights and remedies of Pledgor under
the Assigned Instruments, including, without
limitation, the right to ask or demand for, collect,
receive payment of and receipt for, any and all monies,
claims, and other amounts due or to become due at any
time in respect of or arising under any of the Assigned
Instruments; and
(iii) Exercise all such rights as a secured party under the
Uniform Commercial Code (the "U.C.C.") as now enacted
or hereinafter applicable under the laws of
Pennsylvania or Delaware, as the case may be, as
Lender, in Lender's sole judgment, shall deem necessary
or appropriate, without demand of performance or other
demand, advertisement, or notice of any kind (except
the notice of time and place of public or private sale)
to or upon or any other person (all of which are to the
extent permitted by law, hereby expressly waived),
including without limitation the right to sell all or
any part of the Assigned Instruments at one or more
public or private sales; and any such sale or sales may
be made for cash, upon credit, or for future delivery.
Lender may resort first to the security created by this
Assignment or first to the security afforded by any other
instruments, in any such case without affecting Lender's rights
under this Assignment. Pledgor expressly waives and agrees not to
assert: (i) any right to require Lender to proceed against
Pledgor or any affiliate of Pledgor in any particular order or
manner; and (ii) any right to require Lender to proceed against
or exhaust any security for the Pledgor Obligations in any
particular order or manner. Pledgor waives any and all right to
require the marshalling of assets or to require that any of the
security be sold in inverse order of alienation or that any of
the security be sold in parcels or as an entirety in connection
with the exercise of any of the remedies permitted by applicable
law or provided in this Agreement, the Mortgages or the
Assignments.
viii. Perfection of Security Interests.
Pledgor shall deliver to Lender, at the time of
execution of this Assignment and from time to time
thereafter as required by Lender, such executed
financing and continuation statements as are required
to perfect Lender's security interest in the Assigned
Instruments.
ix. Release of Assigned Instruments. Upon all of the
Pledgor Obligations having been satisfied in full, (a)
this Assignment and all rights of Lender hereunder
shall terminate and be of no further force and effect,
and (b) Lender shall endorse the Note Receivable to the
order of Pledgor and return it to Pledgor and execute
and deliver to Pledgor such termination statements
with respect to Lender's security interest in the
Assigned Instruments as Pledgor may reasonably request.
x. Notices. All notices shall be sent to the parties
hereto at the addresses set forth in the heading
section of this Assignment. All notices to the parties
to the Assigned Instruments, other than those parties
who are a party hereto, shall be sent to the addresses
set forth in the Assigned Instruments. All notices
under the provisions of this Assignment shall be in
writing (including telex or facsimile communication)
and shall be effective (i) in the case of telex or
facsimile, when received, (ii) in the case of hand
delivered notice, when hand delivered, (iii) if given
by United States mail, three (3) days after such
communication is deposited in the mail with first
class postage prepaid, return receipt requested,
and (iv) if given by any other means (including by
overnight courier), when delivered.
xi. Miscellaneous.
(i) Pledgor, at its expense, will execute,
acknowledge and deliver all such instruments in form
satisfactory to Lender and take all such action as
Lender from time to time may reasonably require in
order further to effectuate the purposes of this
Assignment and to carry out the terms hereof.
(ii) This Assignment shall inure to the benefit of
and shall be binding upon the successors and assigns of
the parties hereto.
(iii) This Assignment and the rights and obligations
hereunder shall be construed in accordance with and
governed by the laws of the Commonwealth of
Pennsylvania without regard to principles of conflicts
of law.
(iv) The paragraph headings used herein are for
convenience only and do not affect or modify the terms
and conditions hereof.
(v) If any provision hereof is found by a court of
competent jurisdiction to be prohibited or
unenforceable, it shall be ineffective only to the
extent of such prohibition or unenforceability, and
such prohibition or unenforceability shall not
invalidate the balance of such provision to the extent
it is not prohibited or enforceable, nor invalidate the
other provisions hereof.
xii. Waiver of Jury Trial. PLEDGOR AND LENDER WAIVE
ALL RIGHTS TO TRIAL BY JURY OF ANY AND ALL CLAIMS,
COUNTERCLAIMS, AND DEFENSES ARISING UNDER THIS
AGREEMENT, THE NOTES, THE OTHER FACILITY LOAN
DOCUMENTS, OR ANY OTHER AGREEMENT OR
AGREEMENTS BETWEEN PLEDGOR AND LENDER AT ANY
TIME, INCLUDING ANY SUCH AGREEMENTS, WHETHER
WRITTEN OR ORAL, MADE OR ALLEGED TO HAVE BEEN
MADE AT ANY TIME PRIOR TO THE DATE HEREOF, AND ALL
AGREEMENTS MADE HEREAFTER OR OTHERWISE. IN MAKING THIS
WAIVER PLEDGOR AND LENDER ACKNOWLEDGE AND AGREE THAT
ANY AND ALL SUCH CLAIMS, COUNTERCLAIMS, AND DEFENSES
SHALL BE HEARD BY A JUDGE OF A COURT OF COMPETENT
JURISDICTION, WITHOUT A JURY. PLEDGOR AND LENDER
ACKNOWLEDGE AND AGREE THAT THIS WAIVER OF TRIAL BY JURY
IS A MATERIAL ELEMENT OF THE CONSIDERATION FOR THIS
AGREEMENT. PLEDGOR AND LENDER ACKNOWLEDGE THAT THIS
IS A WAIVER OF A LEGAL RIGHT AND THAT THIS WAIVER IS
MADE KNOWINGLY AND VOLUNTARILY AFTER CONSULTATION WITH,
OR THE OPPORTUNITY TO CONSULT WITH, COUNSEL OF ITS
CHOICE.
IN WITNESS WHEREOF, Pledgor has caused this Assignment
to be executed the day and year first above written.
XXXXXXXXXX XX REALTY L.P., a Delaware
limited partnership
[CORP SEAL]
By: Xxxxxxxxxx XX Realty Trust, its sole
general partner
/s/ Xxxxx X. Xxxxxx
By:_________________________________
Xxxxx X. Xxxxxx, Xx.
President
COMMONWEALTH OF PENNSYLVANIA :
: SS.
COUNTY OF :
On the _____ day of March, 1999, before me, a Notary
Public in and for the State and County aforesaid, the
undersigned, personally appeared Xxxxx X. Xxxxxx, who
acknowledged himself to be the President of Xxxxxxxxxx XX Realty
Trust, the general partner of XXXXXXXXXX XX REALTY L.P., a
Delaware limited partnership, and that he, being authorized to do
so, executed the foregoing instrument for the purposes therein
contained by signing as President of such general partner.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal.
______________________________
Notary Public
My commission expires:
EXHIBIT A
[Mortgage and Security Agreement from __________ in favor of
CV Reit, Inc., dated _____________ and recorded in the office of
the [Recorder of Deeds] of __________ County, Florida,
("Recorder's Office") on ___________, 1992 in Book ______, Page
______, and assigned to Pledgor by assignment dated
_________________ and recorded in the Recorder's Office on
_______________, 19__, in Book _____, Page _____.]
EXHIBIT B
[Assignment of Rents and Leases from ____________ in favor of
CV Reit, Inc., dated _____________ and recorded in the office of
the [Recorder of Deeds] of __________ County, Florida,
("Recorder's Office") on ___________, 1992 in Book ______, Page
______, and assigned to Pledgor by assignment dated
_________________ and recorded in the Recorder's Office on
_______________, 19__, in Book _____, Page _____.]
