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Exhibit (b)(16)
Loan No. V_04132
PROMISSORY NOTE
$21,100,000.00 August ____, 1999
FOR VALUE RECEIVED 55 PUBLIC LLC, a Delaware limited liability company,
(hereinafter referred to as "Borrower"), promises to pay to the order of ▇▇▇▇▇▇
GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation, its
successors and assigns (hereinafter referred to as "Lender"), the principal sum
of TWENTY ONE MILLION ONE HUNDRED THOUSAND DOLLARS ($21,100,000.00), in lawful
money of the United States of America, with interest thereon to be computed on
the unpaid principal balance outstanding on the first day of the applicable
Interest Accrual Period (hereinafter defined) at the Interest Rate (hereinafter
defined) in effect for such Interest Accrual Period.
1. DEFINITIONS
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms in this Note
shall include in the singular number the plural and in the plural number the
singular. All capitalized terms not otherwise defined herein shall have the
meaning ascribed to them in the Security Instrument (hereinafter defined).
"Additional Taxes" shall have the meaning set forth in Section 2.1(d)
hereof.
"Adjusted LIBOR Rate" shall mean, at any date of determination, the
quotient of (i) the LIBOR Rate then in effect divided by (ii) the difference
between (A) 1.0, minus (B) the reserve percentage (expressed as a decimal)
applicable during such Interest Accrual Period (or if more than one such
percentage shall be so applicable, the daily average of such percentages for
those days in such Interest Accrual Period during which any such percentage
shall be so applicable) under regulations issued from time to time by the Board
for determining the maximum reserve requirement (including, any emergency,
supplemental or other marginal reserve requirement) of Lender with respect to
liabilities or assets consisting of or including "Eurocurrency liabilities" (as
such term is defined in Regulation D of the Board) having a term equal to such
Interest Accrual Period.
"Base Rate" shall mean, for any day, the greater of (a) the Prime Rate for
such day, and (b) the Federal Funds Rate for such day plus 3.0%.
"Board" shall mean the Board of Governors of the Federal Reserve System,
and any successor thereof.
"Business Day" shall mean any day other than (a) a Saturday or Sunday, or
(b) a day on which banking and savings and loan institutions in the State of New
York are authorized or obligated by law or executive order to be closed, and
when used in the context of a Loan bearing interest at the LIBOR Rate, is also a
day of trading by and between banks in the London interbank market.
"Capital Adequacy Rule" shall mean any law, rule or regulation
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regarding capital adequacy, or any interpretation or administration thereof by
any Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency.
"Closing Date" means the date of this Note.
"Federal Funds Rate" shall mean, for any date, the rate set forth in the
weekly statistical release designated as H.15(519) or any successor publication,
published by the Board for such day opposite the caption "Federal Funds
Effective." If on the relevant day such rate is not yet so published, the rate
for such date will be the rate set forth in the daily statistical release
designated as the Composite 3:30 p.m. Quotations for U.S. Government Securities,
or any successor publication, published by the Federal Reserve Bank of New York
for such date under the caption "Federal Funds Effective Rate." If on any
relevant date the appropriate rate for such date is not yet published in either
of the foregoing publications, the rate for such day will be the arithmetic mean
(rounded upwards if necessary, to the nearest 1/100th of one percent) of the
rates for the last transaction in overnight Federal Funds arranged prior to 9:00
a.m. (New York City time) on that day by three leading brokers or dealers of
Federal Funds transactions in New York City, selected by ▇▇▇▇▇▇.
"First Interest Accrual Period" shall mean the period from and including
the Closing Date to and including the last day of the calendar month in which
the Closing Date occurs.
"Governmental Authority" shall mean, with respect to any person, any
federal or state government or other political subdivision thereof and any
entity, including any regulatory or administrative authority or court,
exercising executive, legislative, judicial, regulatory or administrative or
quasi-administrative functions of or pertaining to government, and any
arbitration board or tribunal in each case, having jurisdiction over such
applicable person or such person's property and any stock exchange on which
shares of capital stock of such person are listed or admitted for trading.
"Interest Accrual Period" shall mean the First Interest Accrual Period and,
thereafter, each one (1) month period, which shall be a calendar month.
"Interest Rate" (i) at all times that the sum of the Adjusted LIBOR Rate
plus the LIBOR Margin is equal to any amount less than 9.65% and greater than
8.43%, shall mean the rate per annum (expressed as a percentage) equal to the
Adjusted LIBOR Rate plus the LIBOR Margin; (ii) at all times that the sum of the
Adjusted LIBOR Rate plus the LIBOR Margin is equal to or less than 8.43%, shall
mean 8.43% per annum; (iii) at all times that the sum of the Adjusted LIBOR Rate
plus the LIBOR Margin is equal to or greater than 9.65%, shall mean 9.65% per
annum; or (iv) if Lender shall exercise its rights under Section 2.5, shall mean
the Base Rate.
"LIBOR Lending Office" shall mean the office of Lender located at Nassau,
Bahamas or such other branch (or affiliate) of Lender as Lender may designate as
its LIBOR Lending Office.
"LIBOR Margin" shall mean three and one quarter percent (3.25%) per annum.
"LIBOR Rate" shall mean the rate of interest (rounded upwards, if
necessary, to the nearest 1/16 of 1%) quoted to Lender in the London Interbank
market at or about 11:00 a.m. (London time) two Business Days prior to the first
day of the applicable Interest Accrual Period for the offering to Lender of
Dollar deposits for such Interest Accrual Period in
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an amount approximately equal to the aggregate amount of the Loan to be
outstanding on the first day of such Interest Accrual Period and with a maturity
equal to such Interest Accrual Period.
"Parent" shall mean, with respect to Lender, any person controlling Lender.
"Payment" shall have the meaning set forth in Section 2.2(a) hereof.
"Payment Date" shall mean, with respect to each month, the first calendar
day in such month, or if such day is not a Business Day, the next following
Business Day.
"Prime Rate" shall mean a fluctuating interest rate per annum equal to the
rate of interest announced publicly in New York, New York, from time to time, as
▇▇▇▇▇▇'s prime rate. The Prime Rate does not necessarily represent the lowest or
best rate actually charged to any customer. Lender may make commercial loans or
other loans at rates of interest, at, above or below the Prime Rate.
"Unscheduled Payments" shall mean (a) all condemnation and insurance
proceeds that Borrower is required to apply to the repayment of the Debt
pursuant to this Note, the Security Instrument or any other Loan Documents, (b)
any funds representing a voluntary or involuntary principal prepayment, and (c)
any net proceeds obtained by ▇▇▇▇▇▇ from the exercise of remedies under this
Note, the Security Instrument or the other Loan Documents after the occurrence
of an Event of Default.
2. PAYMENT TERMS
Section 2.1 Payments.
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(a) Payments under this Note, calculated in accordance with the terms
hereof, shall be due and payable as follows:
(i) a payment of interest only on the date hereof for the First
Interest Accrual Period; and
(ii) payments of interest only at the Interest Rate in effect for the
Interest Accrual Period ending on the day preceding the Payment Date shall be
due and payable on the Payment Date in October, 1999, and on each subsequent
Payment Date through and including the Payment Date in August, 2002; thereafter
(iii) the entire outstanding principal amount of this Note, together
with all accrued and unpaid interest, a nonrefundable commitment fee in an
amount equal to one percent (1%) of the original principal balance of this Note
(the "Commitment Fee"), and any other charges due hereon shall be due and
payable on the Payment Date occurring in September, 2002 (the "Maturity Date").
(b) Payments shall be paid by ▇▇▇▇▇▇▇▇, without set-off or counterclaim, by
wire transfer to Lender at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-0061 or to
such other location or account as lender may specify to Borrower from time to
time, in federal or other immediately available funds in lawful money of the
United States of America, not later than 12:00 noon, New York City time, on each
Payment Date. If any payment hereunder or under any of the Loan Documents
becomes due and payable on a day other than a Business Day, such payment shall
not be payable until the next succeeding Business Day, provided, however, if
such next succeeding Business Day falls within the next calendar month, such
payment shall be due and payable on the immediately preceding Business Day. If
the date for any payments of
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principal is extended on account of the foregoing or on account of operation of
law or otherwise, interest thereon shall be payable at the then applicable rate
during such extension. Interest on the principal sum of this Note shall be
calculated on the basis of the actual number of days elapsed in a three hundred
sixty (360) day year.
(c) Lender shall determine the LIBOR Rate, Base Rate, Prime Rate and
Federal Funds Rate as in effect from time to time, and each such determination
of the LIBOR Rate, Base Rate, Prime Rate and Federal Funds Rate shall be
conclusive and binding absent manifest error.
(d) Payments made by Borrower under this Note shall be made free and clear
of, and without reduction for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding income and franchise taxes of the
United States of America or any political subdivision or taxing authority
thereof or therein (such non-excluded taxes being called "Additional Taxes"). If
any Additional Taxes are required to be withheld from any amounts payable to
Lender hereunder or under any of the other Loan Documents, the amounts so
payable to Lender shall be increased to the extent necessary to yield to Lender
(after payment of all Additional Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Note.
Section 2.2 Application of Payments.
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(a) Each and every payment (a "Payment") made by Borrower to Lender in
accordance with the terms of this Note and/or the terms of any one or more of
the other Loan Documents and all other proceeds received by Lender with respect
to the Debt, shall be applied as follows:
(1) Payments other than Unscheduled Payments shall be applied (i)
first, to all interest (other than Default Rate interest) which shall be due and
payable with respect to the Loan pursuant to the terms hereof as of the date the
Payment is received (including any unpaid interest and interest thereon to the
extent permitted by applicable law), (ii) second, to all charges, Default Rate
interest or other premiums and other sums payable hereunder or under the other
Loan Documents (other than those sums included in clause (i) of this Section
2.2(a)(1)) in such order and priority as determined by Lender in its sole
discretion, and (iii) on the Maturity Date, to the Loan until the Loan has been
paid in full.
(2) Unscheduled Payments shall be applied at the end of the Interest
Accrual Period in which such Unscheduled Payments are received as a principal
prepayment of the Loan amount to amortize the Loan.
(b) To the extent that Borrower makes a Payment or Lender receives any
Payment or proceeds for Borrower's benefit, which are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
a trustee, debtor in possession, receiver, custodian or any other party under
any bankruptcy law, common law or equitable cause, then, to such extent, the
obligations of Borrower hereunder intended to be satisfied shall be revived and
continue as if such Payment or proceeds had not been received by Lender.
Section 2.3 Indemnity. ▇▇▇▇▇▇▇▇ agrees to indemnify Lender and to hold it
harmless from any cost, loss or reasonable expenses which Lender may sustain or
incur as a consequence of (a) Borrower making a payment or prepayment of
principal on the Loan on a day which is not a Payment Date with respect thereto,
(b) default by Borrower in making any prepayment after Borrower has given a
notice of prepayment, and (c) any acceleration
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of the maturity of the Loan by ▇▇▇▇▇▇ in accordance with the terms of this Note,
including, but not limited to, any such reasonable costs, loss or expense
arising in liquidating the Loan and from interest or reasonable and customary
fees payable by Lender to lenders of funds obtained by it in order to maintain
the Loan hereunder.
Section 2.4 Increased Cost and Reduced Return.
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(a) If, on or after the date hereof, the adoption of any applicable law,
rule or regulation, or any change in any applicable law, rule or regulation, 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 Lender (or its LIBOR Lending Office)
with any request or directive (whether or not having the force of law) of any
such Governmental Authority, central bank or comparable agency shall impose,
modify or deem applicable any reserve (including, without limitation, any such
requirement imposed by the Board (but excluding with respect to any such
requirement reflected in the then effective LIBOR Rate)), special deposit,
insurance assessment or similar requirement against assets of, deposits with or
for the account of, or credit extended by, Lender (or its LIBOR Lending Office)
or shall impose on Lender (or its LIBOR Lending Office) or on the London
interbank market any other condition affecting any loan bearing interest at the
LIBOR Rate, and the result of any of the foregoing is to increase the cost to
Lender (or its LIBOR Lending Office) of maintaining the Loan at the LIBOR Rate,
or to reduce the amount of any sum received or receivable by Lender (or its
LIBOR Lending Office) under this Note with respect thereto, by an amount deemed
by Lender to be material, then, within fifteen (15) days after demand by Lender,
Borrower shall pay to Lender such additional amount or amounts as will
compensate Lender for such increased cost or reduction.
(b) If Lender shall have determined that, after the date hereof, the
adoption of any Capital Adequacy Rule has or would have the effect of reducing
the rate of return on capital of Lender (or its parent) as a consequence of
▇▇▇▇▇▇'s obligations hereunder to a level below that which Lender (or its
Parent) could have achieved but for such adoption, change, request or directive
(taking into consideration its policies with respect to capital adequacy) by an
amount deemed by Lender to be material, then from time to time, within fifteen
(15) days after demand by ▇▇▇▇▇▇, Borrower shall pay to Lender such additional
amount or amounts as will compensate Lender (or its Parent) for such reduction.
(c) Lender will promptly notify Borrower of any event of which it has
knowledge, occurring after the date hereof, which will entitle the Lender to
compensation pursuant to this Section 2.4 and will designate a different LIBOR
Lending Office if such designation will avoid the need for, or reduce the amount
of such compensation and will not, in the judgment of Lender, be otherwise
disadvantageous to Lender. A certificate of Lender claiming compensation under
either Section 2.4(a) or 2.4(b) and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error; provided that any certificate delivered by Lender pursuant to
this Section 2.4(c) shall (i) in the case of a certificate in respect of amounts
payable pursuant to Section 2.4(a), set forth in reasonable detail the basis for
and the calculation of such amounts, and (ii) in the case of a certificate in
respect of amounts payable pursuant to Section 2.4(b), (A) set forth at least
the same amount of detail in respect of the calculation of such amount as Lender
provides in similar circumstances to other similarly situated borrowers from
Lender, and (B) include a statement by Lender that it has allocated to the Loan
a proportionately equal amount of any reduction of the rate of return on
Lender's capital due to a Capital Adequacy Rule as it has allocated to each of
its other outstanding loans that are effected similarly by such Capital
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Adequacy Rule.
Section 2.5 Deposits Unavailable. In the event, and on each occasion, that
(a) Lender shall have determined that dollar deposits in the principal amounts
of the Loan are not generally available to Lender in the London interbank
market, for such periods and amounts then outstanding hereunder or that
reasonable means do not exist for ascertaining the LIBOR Rate, or (b) Lender
determines that the rate at which such dollar deposits are being offered will
not adequately and fairly reflect the cost to Lender of maintaining the Loan at
the LIBOR Rate during such month, Lender shall, as soon as practicable
thereafter, give written notice of such determination to ▇▇▇▇▇▇▇▇. In the event
of such determination, until the circumstances giving rise to such notice no
longer exist, the Loan shall bear interest at the Base Rate. After an Event of
Default, interest shall accrue on the outstanding principal balance of this Note
at a rate per annum equal to the Default Rate (hereinafter defined).
Section 2.6 Illegality. If on or after the date of this Note, the adoption
of any applicable law, rule or regulation, or any change in any applicable law,
rule or regulation, 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 Lender (or
its LIBOR Lending Office) with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency shall
make it unlawful or impossible for Lender (or its LIBOR Lending Office) to
maintain the Loan to Borrower pursuant to this Section 2.6, Payee shall
designate a different LIBOR Lending Office if such designation will avoid the
need for giving such notice and will not, in the judgment of Lender, be
otherwise disadvantageous to Lender. If Lender shall determine that it may not
lawfully continue to maintain the Loan at the LIBOR Rate to maturity and shall
so specify in such notice, the Loan shall bear interest at the Base Rate.
3. SECURITY
This Note is secured by, and ▇▇▇▇▇▇ is entitled to the benefits of, the
Security Instrument, the Assignment, the Environmental Agreement, and the other
Loan Documents (hereinafter defined). The term "Security Instrument" means the
Open-End Mortgage and Security Agreement dated the date hereof given by Borrower
for the use and benefit of Lender covering the estate of Borrower in certain
premises as more particularly described therein (which premises, together with
all properties, rights, titles, estates and interests now or hereafter securing
the Debt and/or other obligations of Borrower under the Loan Documents, are
collectively referred to herein as the "Property"). The term "Assignment" means
the Assignment of Leases and Rents of even date herewith executed by ▇▇▇▇▇▇▇▇ in
favor of ▇▇▇▇▇▇. The term "Environmental Agreement" means the Environmental
Indemnity Agreement of even date herewith executed by ▇▇▇▇▇▇▇▇ in favor of
▇▇▇▇▇▇. The term "Loan Documents" refers collectively to this Note, the Security
Instrument, the Assignment, the Environmental Agreement, and any and all other
documents executed in connection with this Note or now or hereafter executed by
▇▇▇▇▇▇▇▇ and/or others and by or in favor of Lender, which wholly or partially
secure or guarantee payment of this Note or pertains to indebtedness evidenced
by this Note.
4. LATE FEE
If any installment payable under this Note (including the final installment
due on the Maturity Date) is not received by Lender within ten (10) days after
the date on which it is due (without regard to any applicable cure and/or notice
period), Borrower shall pay to Lender upon demand an amount equal to the lesser
of (a) five percent (5%) of such
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unpaid sum or (b) the maximum amount permitted by applicable law to defray the
expenses incurred by Lender in handling and processing such delinquent payment
and to compensate Lender for the loss of the use of such delinquent payment, and
such amount shall be secured by the Loan Documents.
5. DEFAULT AND ACCELERATION
So long as an Event of Default exists, Lender may, at its option, without
notice or demand to Borrower, declare the Debt immediately due and payable. All
remedies hereunder, under the Loan Documents and at law or in equity shall be
cumulative. In the event that it should become necessary to employ counsel to
collect the Debt or to protect or foreclose the security for the Debt or to
defend against any claims asserted by Borrower arising from or related to the
Loan Documents, ▇▇▇▇▇▇▇▇ also agrees to pay to Lender on demand all costs of
collection or defense incurred by ▇▇▇▇▇▇, including reasonable attorneys' fees
for the services of counsel whether or not suit be brought.
6. DEFAULT INTEREST
Upon the occurrence of an Event of Default Borrower shall pay interest on
the entire unpaid principal sum and any other amounts due under the Loan
Documents at the rate equal to the lesser of (a) the maximum rate permitted by
applicable law, or (b) the greater of (i) five percent (5%) above the Interest
Rate or (ii) five percent (5%) above the Prime Rate, in effect at the time of
the occurrence of the Event of Default (the "Default Rate"). The Default Rate
shall be computed from the occurrence of the Event of Default until the actual
receipt and collection of a sum of money determined by ▇▇▇▇▇▇ to be sufficient
to cure the Event of Default. Amounts of interest accrued at the Default Rate
shall constitute a portion of the Debt, and shall be deemed secured by the Loan
Documents. 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 Lender by reason of the occurrence of any
Event of Default.
7. PREPAYMENT
(a) The principal balance of this Note may not be prepaid in whole or in
part (except with respect to the application of casualty or condemnation
proceeds or pursuant to Section 3.12 of the Security Instrument) prior to the
end of the first Loan Year (as hereinafter defined). During the second Loan Year
or at anytime thereafter, provided no Event of Default exists, the principal
balance of this Note may be prepaid, in whole but not in part (except with
respect to the application of casualty or condemnation proceeds or pursuant to
Section 3.12 of the Security Instrument), as of the last day of an Interest
Accrual Period upon not less than thirty (30) days, nor more than ninety (90)
days, prior written notice to Lender specifying the date on which prepayment is
to be made and upon payment of (i) interest due through and including the last
day of the Interest Accrual Period in which such prepayment is being made, (ii)
all other sums then due under this Note and the other Loan Documents, and (iii)
the Commitment Fee. If any such notice of prepayment is given, the principal
balance of this Note and the other sums required under this paragraph shall be
due and payable on the date specified in such notice; provided, however,
Borrower shall have the right, no more than one time each Loan Year, to withdraw
any notice of prepayment given to Lender, provided that ▇▇▇▇▇▇ receives written
notice of such withdrawal on or before forty-five (45) days prior to the date
upon which such prepayment was to be made. Lender shall not be obligated to
accept any prepayment of the principal balance of this Note unless it is
accompanied by the Commitment Fee. The term "Loan Year" for purposes of this
paragraph means each complete 365-day period (366 days in a leap year),
beginning on the first scheduled Payment Date set forth in
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Section 2.1(a) of this Note.
(b) Anything herein to the contrary notwithstanding, (i) if the prepayment
results from the application to the Debt of casualty or condemnation proceeds
from the Property or pursuant to Section 3.12 of the Security Instrument, the
Borrower shall not be required to pay any portion of the Commitment Fee at the
time of such prepayment , and (ii) if Borrower refinances the Loan with a new
permanent (i.e., ten year term) fixed rate loan from Lender or its affiliates,
then the Commitment Fee shall be waived by Lender.
8. SAVINGS CLAUSE
This Note is subject to the express condition that at no time shall
Borrower be obligated or required to pay interest on the principal balance due
hereunder 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 principal balance due hereunder at a rate in excess of such
maximum rate, the Interest Rate or the Default Rate, as the case may be, shall
be deemed to be immediately reduced to such maximum rate and all previous
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. All
sums paid or agreed to be paid to Lender for the use, forbearance, or detention
of the Debt, shall, to the extent permitted by applicable law, be amortized,
prorated, allocated, and spread throughout the full stated term of this Note
until payment in full so that the rate or amount of interest on account of the
Debt does not exceed the maximum lawful rate of interest from time to time in
effect and applicable to the Debt for so long as the Debt is outstanding.
Notwithstanding anything to the contrary contained herein or in any of the other
Loan Documents, it is not the intention of Lender to accelerate the maturity of
any interest that has not accrued at the time of such acceleration or to collect
unearned interest at the time of such acceleration.
9. WAIVERS
(a) Except as specifically provided in the Loan Documents, Borrower and any
endorsers, sureties or guarantors hereof jointly and severally waive presentment
and demand for payment, notice of intent to accelerate maturity, notice of
acceleration of maturity, protest and notice of protest and non-payment, all
applicable exemption rights, valuation and appraisement, notice of demand, and
all other notices in connection with the delivery, acceptance, performance,
default or enforcement of the payment of this Note and the bringing of suit and
diligence in taking any action to collect any sums owing hereunder or in
proceeding against any of the rights and collateral securing payment hereof.
Borrower and any surety, endorser or guarantor hereof agree (i) that the time
for any payments hereunder may be extended from time to time without notice and
consent, (ii) to the acceptance by Lender of further collateral, (iii) the
release by Lender of any existing collateral for the payment of this Note, (iv)
to any and all renewals, waivers or modifications that may be granted by Lender
with respect to the payment or other provisions of this Note, and/or (v) that
additional Borrowers, endorsers, guarantors or sureties may become parties
hereto all without notice to them and without in any manner affecting their
liability under or with respect to this Note. No extension of time for the
payment of this Note or any installment hereof shall affect the liability of
Borrower under this Note or any endorser or guarantor hereof even though the
Borrower or such endorser or guarantor is not a party to such agreement.
(b) Failure of Lender to exercise any of the options granted herein to
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Lender upon the happening of one or more of the events giving rise to such
options shall not constitute a waiver of the right to exercise the same or any
other option at any subsequent time in respect to the same or any other event.
The acceptance by Lender of any payment hereunder that is less than payment in
full of all amounts due and payable at the time of such payment shall not
constitute a waiver of the right to exercise any of the options granted herein
to Lender at that time or at any subsequent time or nullify any prior exercise
of any such option without the express written acknowledgment of the Lender.
10. EXCULPATION
(a) Notwithstanding anything in the Loan Documents to the contrary, but
subject to the qualifications below, ▇▇▇▇▇▇ and Borrower agree that:
(i) Borrower shall be liable upon the Debt and for the other
obligations arising under the Loan Documents to the full extent (but only to the
extent) of the security therefor; provided, however, that in the event (A) of
fraud, willful misconduct or material misrepresentation by Borrower, its general
partners, if any, its members, if any, its principals, its affiliates, its
agents or its employees or by any Guarantor or any Indemnitor in connection with
the loan evidenced by this Note, (B) of Borrower's breach or default under
Sections 4.3 or 8.2 of the Security Instrument, or (C) the Property or any part
thereof becomes an asset in a voluntary bankruptcy or insolvency proceeding, the
limitation on recourse set forth in this Subsection 10(a) will be null and void
and completely inapplicable, and this Note shall be with full recourse to
Borrower.
(ii) If a default occurs in the timely and proper payment of all or
any part of the Debt, Lender shall not enforce the liability and obligation of
Borrower to perform and observe the obligations contained in this Note or the
Security Instrument by any action or proceeding wherein a money judgment shall
be sought against Borrower, except that Lender may bring a foreclosure action,
action for specific performance or other appropriate action or proceeding to
enable Lender to enforce and realize upon the Security Instrument, the Other
Loan Documents and the interest in the Property, the Rents and any other
collateral given to Lender created by the Security Instrument and the Other Loan
Documents; provided, however, that any judgment in any action or proceeding
shall be enforceable against Borrower only to the extent of ▇▇▇▇▇▇▇▇'s interest
in the Property, in the Rents and in any other collateral given to Lender.
▇▇▇▇▇▇, by accepting this Note and the Security Instrument, agrees that it shall
not, except as otherwise herein provided, sue for, seek or demand any deficiency
judgment against Borrower in any action or proceeding, under or by reason of or
under or in connection with this Note, the Other Loan Documents or the Security
Instrument.
(iii) The provisions of this Subsection 10(a) shall not (A) constitute
a waiver, release or impairment of any obligation evidenced or secured by this
Note, the Other Loan Documents or the Security Instrument; (B) impair the right
of Lender to name Borrower as a party defendant in any action or suit for
judicial foreclosure and sale under the Security Instrument; (C) affect the
validity or enforceability of any indemnity, guaranty, master lease or similar
instrument made in connection with this Note, the Security Instrument, or the
Other Loan Documents; (D) impair the right of Lender to obtain the appointment
of a receiver; (E) impair the enforcement of the Assignment executed in
connection herewith; (F) impair the right of Lender to enforce the provisions of
Article 11 of the Security Instrument; or (G) impair the right of Lender to
obtain a deficiency judgment or judgment on this Note against Borrower if
necessary to obtain any insurance proceeds or condemnation awards to which
▇▇▇▇▇▇ would otherwise be entitled under the Security Instrument; provided,
however,
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Lender shall only enforce such judgment against the insurance proceeds and/or
condemnation awards.
(iv) Notwithstanding the provisions of this Article to the contrary,
Borrower shall be personally liable to Lender for the Losses it incurs due to:
(A) the misapplication or misappropriation of Rents; (B) the misapplication or
misappropriation of insurance proceeds or condemnation awards; (C) Borrower's
failure to return or to reimburse Lender for all Personal Property taken from
the Property by or on behalf of Borrower and not replaced with Personal Property
of the same utility and of the same or greater value; (D) any act of actual
waste or arson by Borrower, any principal, affiliate, general partner or member
thereof or by any Indemnitor or any Guarantor; (E) any fees or commissions paid
by Borrower to any principal, affiliate, general partner or member of Borrower,
any Indemnitor or any Guarantor in violation of the terms of this Note, the
Security Instrument or the Other Loan Documents; (F) Borrower's failure to
comply with the provisions of Section 11.2 of the Security Instrument; or (G)
any breach of the Environmental Indemnity.
(b) Nothing herein shall be deemed to be a waiver of any right which Lender
may have under Sections 506(a), 506(b), 1111(b) or any other provisions of the
Bankruptcy Code to file a claim for the full amount of the Debt or to require
that all collateral shall continue to secure all of the Debt, owing to Lender in
accordance with this Note, the Security Instrument and the Other Loan Documents.
11. AUTHORITY
Borrower (and the undersigned representative of Borrower, if any)
represents that Borrower has full power, authority and legal right to execute,
deliver and perform its obligations pursuant to this Note and the other Loan
Documents and that this Note and the other Loan Documents constitute legal,
valid and binding obligations of Borrower. Borrower further represents that the
loan evidenced by the Loan Documents was made for business or commercial
purposes and not for personal, family or household use.
12. NOTICES
All notices or other communications required or permitted to be given
pursuant hereto shall be given in the manner and be effective as specified in
the Security Instrument, directed to the parties at their respective addresses
as provided therein.
13. TRANSFER
Lender shall have the unrestricted right at any time or from time to time
to sell this Note and the loan evidenced by this Note and the Loan Documents or
participation interests therein. Borrower shall execute, acknowledge and deliver
any and all instruments reasonably requested by ▇▇▇▇▇▇ to satisfy such
purchasers or participants that the unpaid indebtedness evidenced by this Note
is outstanding upon the terms and provisions set out in this Note and the other
Loan Documents. To the extent, if any, specified in such assignment or
participation, such assignee(s) or participant(s) shall have the rights and
benefits with respect to this Note and the other Loan Documents as such
assignee(s) or participant(s) would have if they were the Lender hereunder.
14. WAIVER OF TRIAL BY JURY
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF
RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO
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THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS
NOTE OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION
ARISING IN CONNECTION THEREWITH INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO
(A) ALLEGATIONS THAT A PARTNERSHIP EXISTS BETWEEN LENDER AND BORROWER; (B) USURY
OR PENALTIES OR DAMAGES THEREFOR; (C) ALLEGATIONS OF UNCONSCIONABLE ACTS,
DECEPTIVE TRADE PRACTICE, LACK OF GOOD FAITH OR FAIR DEALING, LACK OF COMMERCIAL
REASONABLENESS, OR SPECIAL RELATIONSHIPS (SUCH AS FIDUCIARY, TRUST OR
CONFIDENTIAL RELATIONSHIP); (D) ALLEGATIONS OF DOMINION, CONTROL, ALTER EGO,
INSTRUMENTALITY, FRAUD, REAL ESTATE FRAUD, MISREPRESENTATION, DURESS, COERCION,
UNDUE INFLUENCE, INTERFERENCE OR NEGLIGENCE; (E) ALLEGATIONS OF TORTIOUS
INTERFERENCE WITH PRESENT OR PROSPECTIVE BUSINESS RELATIONSHIPS OR OF ANTITRUST;
OR (F) SLANDER, LIBEL OR DAMAGE TO REPUTATION. THIS WAIVER OF RIGHT TO TRIAL BY
JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY ▇▇▇▇▇▇▇▇, AND IS INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A
TRIAL BY JURY WOULD OTHERWISE ACCRUE. ▇▇▇▇▇▇ IS HEREBY AUTHORIZED TO FILE A COPY
OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY
BORROWER.
15. APPLICABLE LAW
This Note shall be governed by and construed in accordance with the laws of
the state in which the real property encumbered by the Security Instrument is
located (without regard to any conflict of laws or principles) and the
applicable laws of the United States of America.
16. JURISDICTION
BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY COURT OF
COMPETENT JURISDICTION LOCATED IN THE STATE IN WHICH THE PROPERTY IS LOCATED IN
CONNECTION WITH ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE.
17. NO ORAL CHANGE
The provisions of this Note and the Loan Documents may be amended or
revised only by an instrument in writing signed by the Borrower and Lender. This
Note and all the other Loan Documents embody the final, entire agreement of
▇▇▇▇▇▇▇▇ and Lender and supersede any and all prior commitments, agreements,
representations and understandings, whether written or oral, relating to the
subject matter hereof and thereof and may not be contradicted or varied by
evidence of prior, contemporaneous or subsequent oral agreements or discussions
of ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇. There are no oral agreements between Borrower and
Lender. Executed as of the day and year first above written.
BORROWER:
55 PUBLIC LLC, a Delaware limited
liability company
BY: 55 PUBLIC REALTY CORP., a
Delaware corporation, Managing Member
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Title: Executive Vice-President
-----------------------------
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