EXHIBIT 99.6
AMENDED AND RESTATED SECURED PROMISSORY NOTE
(WATERFORD)
Los Angeles, California
$458,847.95 as of June 1, 1996
This Amended and Restated Secured Promissory Note amends and restates
in its entirety that certain Promissory Note Secured by Mortgage in the
principal amount of $325,000.00 dated as of January 13, 1993 as made by Angeles
Partners XIV, a California limited partnership, to Angeles Mortgage Investment
Trust, a California business trust, and previously amended by that certain Note
Modification Agreement dated October 10, 1994, as follows:
FOR VALUE RECEIVED, the undersigned, Angeles Partners XIV, a California
limited partnership ("Borrower"), promises to pay to the order of Angeles
Mortgage Investment Trust, a California business trust, or its assigns (the
"Holder"), the principal sum of Four Hundred Fifty-Eight Thousand, Eight Hundred
Forty-Seven Dollars and Ninety-Five Cents ($458,847.95), with interest on the
unpaid balance thereof at the rate of 12% per annum, compounded monthly,
commencing on the date hereof and continuing thereafter until paid in full.
Borrower shall pay to Holder on March 15 and October 15 of each year
during the remaining term of this Note, commencing October 15, 1996, a payment
equal to the Net Cash Flow, if any, generated by the real property owned by
Waterford Square Apartments, a California general partnership (the "Waterford
Partnership") on or from the real property owned by the Waterford Partnership
and located at 000 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx (the "Waterford
Property"). The term "Net Cash Flow" as used herein shall mean: All gross
revenues generated by and from the ownership, use, or rental of the Waterford
Property and the apartment complex located and operated thereon generated during
the prior six (6) months, including, but not limited to, rents, issues and
profits generated by the Waterford Property, laundry facilities, vending
machines, et cetera, less (i) ordinary and necessary operating expenses incurred
during the applicable six (6) month period with regard to ordinary maintenance
and repair and the operation of- the apartment complex on the Waterford
Property, (ii) monthly debt- service due to Washington Capital Associates, Inc.
("Washington") on the obligations secured by the existing first priority
mortgage on the Waterford Property, and (iii) such capital improvement costs as
may be budgeted by the Waterford Partnership's asset management group, submitted
to Holder for review no later than thirty (30) days prior to the commencement of
the applicable fiscal year and pre-approved by Holder in writing prior to the
time that such capital improvement is undertaken.(1)
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(1) Provided, however, that in the event of an "Emergency" (defined below),
the Waterford Partnership may make corrective expenditures not provided
for in the budget, so long as the Waterford Partnership or Borrower
notifies Holder the occurrence of such Emergency, and the related
expenditures, as promptly as is reasonably possible. As used herein, an
Emergency shall mean an event or occurrence which (i) threatens human
safety (ii) constitutes a breach of implied warranty of habitability
applicable to the premises or (iii) poses an imminent treat of physical
damage to the premises or any part thereof.
Borrower shall pay all principal and accrued unpaid interest on the
earlier of:
(1) March 1, 1998;
(2) default by the Waterford Partnership under the terms of
the promissory note and/or mortgage (or any related agreement or
amendment or modification thereto or refinance thereof) (collectively
the "Washington Loan Documents") entered into between Washington and
the Waterford Partnership which mortgage constitutes a lien on the
Waterford Property to secure the loan ("Washington Loan") evidenced by
the Washington Loan Documents;
(3) sale of the Waterford Property;
(4) sale or refinance of Borrower's interest (beneficial or
otherwise) in the Waterford Partnership;
(5) any breach by Borrower of any covenant contained in that
certain Master Agreement or the Security Agreement and Assignment
entered into simultaneously herewith between Borrower and Holder;
(6) any covenant, representation or warranty of Borrower or
the Waterford Partnership contained in said Master Agreement is
breached or determined by Holder to be false;
(7) default by Borrower in its obligations under the Amended
and Restated Secured Promissory Note (Glenwood) dated June 1, 1996 in
the original principal sum of $1,915,127.94 executed by Xxxxxxxx in
favor of Angeles Mortgage Investment Trust.
Borrower agrees that, so long as any sums are outstanding hereunder,
Xxxxxxxx's or the Waterford Partnership's payment of any revenues generated by
the Waterford Property to any other partner in Borrower (other than asset
management fees with regard to the Waterford Property paid to Angeles Realty
Corporation II or its affiliates in an amount no greater than $30,000.00 per
year), or to Angeles Acceptance Pool, L.P., or any affiliate of Borrower, or
any affiliate of Xxxxxxxx's general partner, or any affiliate of Insignia
Financial Group, Inc. shall constitute a default hereunder and shall cause all
sums outstanding hereunder to become immediately due and payable without notice
or demand.
Should any sum due hereon not be paid when due, said past due sums
shall thereafter bear interest at the highest non-usurious rate permitted by
law, or, if none is applicable, 18% per annum (the "Default Rate"). Xxxxxxxx
acknowledges and agrees that the loan evidenced by this Note was made by Xxxxxx
and used by Borrower solely for Borrower's business purposes.
All agreements between Borrower and Holder are expressly limited so
that in no contingency or event whatsoever, whether by reason of payment of
extension, loan, or commitment fees, of advancement of proceeds, acceleration of
maturity of the unpaid principal balance hereof or otherwise, shall the amount
paid or agreed to be paid to the holder for the use, forbearance or detention
of the principal amount hereof exceed the maximum legal rate
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permissible under any law which a court of competent jurisdiction may deem
applicable hereto. If, from any circumstance whatsoever, fulfillment of any
provision of this Note at the time performance of such provision shall be due,
shall involve transcending the maximum legal rate of interest prescribed by law
which a court of competent jurisdiction may deem applicable hereto or thereto,
then, ipso facto, the obligation to be fulfilled shall be reduced to the limit
of such maximum rate, and if from any circumstance the holder shall ever receive
as interest an amount which would exceed said maximum legal rate, such amount
which would be excessive interest shall be applied to the reduction of the
unpaid principal balance due hereunder and not to the payment of interest; to
the extent that such excessive amount exceeds the unpaid principal balance
hereon, Holder shall refund it to Borrower. In determining whether excessive
interest would be charged hereon, to the extent permitted by applicable law all
sums paid or agreed to be paid to the holder for the use, forbearance, or
detention of the indebtedness evidenced hereby outstanding from time to time
shall be pro rated, amortized, allocated and spread from the date of
disbursement of the proceeds of this Note until payment in full of the unpaid
principal sum so that the actual rate of interest on account of such
indebtedness in uniform throughout the term hereof. This provision shall control
every other provision of all agreements between Borrower and Holder.
This Note may be prepaid, either in full or part, without penalty.
The acceptance by Holder of any payment hereunder which is less than
payment in full of any amount due and payable by the time of such payment shall
not constitute a waiver of the right to exercise any option, right, or remedy at
that time or at any subsequent time, nor shall it nullify any prior exercise of
any such option, right, or remedy without the express written consent of the
holder.
All payments on this Not e shall be applied first to the payment of
principal, and the remainder thereof shall be applied to the reduction of the
accrued but unpaid interest due on this Note.
Borrower hereby waives diligence and the right to plead any statute of
limitations, presentment, grace, protest and demand, and also notice of protest,
demand, dishonor and non-payment of this Note, and any and all moratorium,
appraisement, exemption and homestead rights now provided or which may hereafter
be provided by any federal or state statute including, but not limited to,
exemptions provided by or allowed under the Bankruptcy Code, both as to itself
personally and as to all of its property, whether real or personal, against the
enforcement and collection of the obligations evidenced by this Note and any and
all extensions, renewals and modifications hereof. Time is of the essence of
each and every provision herein.
All amounts payable hereunder are payable in immediately available U.S.
funds, without set off or deduction. Any payment received by Holder after 12:00
noon, Pacific Standard Time (or Pacific Daylight Time, when appropriate) should
be considered for all purposes (including the calculation of interest and late
charges) as having been made on the next following day which is not a Saturday,
Sunday, or legal holiday ("business day"); if the date for any payment hereunder
falls on a day which is not a business day, then, for all purposes of this Note,
the same shall be
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deemed to have fallen on the next following business day, and such extension of
time shall in such case be included in the computation of interest.
Xxxxxxxx agrees to pay to Holder All costs and attorneys' fees
incurred by Xxxxxx in enforcing its rights and remedies hereunder or under any
agreement executed in connection herewith.
Payments on this Note, as well as any notices to Holder, are to be
mailed or delivered to Holder whose address for this purpose is 000 X. Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000, or to such other place
as Holder may from time to time direct by written notice to Borrower.
This Note shall be construed according to the laws of the State of
California. Borrower hereby submits to personal jurisdiction in said State for
the enforcement of its obligations hereunder and waives any and all personal
rights under the law of any other jurisdiction to object to such personal
jurisdiction within said State of California.
This Note may not be changed orally but only by an agreement in writing
signed by the party against whom such change is sought to be enforced.
This Note is secured by all of Borrower's interest (beneficial or
otherwise) in the Waterford Partnership and is delivered pursuant to the Master
Agreement entered into among Borrower, Holder, and the Waterford Partnership
simultaneously herewith.
If any provision hereof is declared to be invalid or unenforceable, it
is the intention of Borrower and Holder that the remainder of this document, or,
if applicable, the remainder of the invalid or unenforceable clause, sentence,
or paragraph, shall be valid and enforced to the fullest extent permitted.
Notwithstanding any other provision herein, except as hereinafter
provided, no partner in the Borrower shall have any personal liability hereon,
and in the event of default, holder's recourse shall be limited to the Waterford
Property and the other assets of the Borrower, and no deficiency judgment shall
be sought or obtained against any partner in the undersigned. If Xxxxxxxx shall
default hereunder, the first sentence of this paragraph shall not be construed
to affect in any manner the right of the holder to fully enforce all security
rights reserved or granted by the Security Agreement and Assignment executed
simultaneously herewith.
ANGELES PARTNERS XIV,
a California limited partnership
By: Angeles Realty Corporation II, a California
corporation, Its General Partner
By: /s/ Xxxxxx X. Xxxx, Xx.
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Its: Vice President
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