$25,615,200 December 2, 1996
AMENDED AND RESTATED NOTE
This Amended and Restated Note is made and entered into as of the
2nd day of December, 1996, by and between AIMCO LT, L.P., a Delaware
limited partnership ("MAKER"), and GMAC COMMERCIAL MORTGAGE CORPORATION, a
California corporation ("LENDER").
BACKGROUND
A. Lender is the holder of a Note from Maker (the "ORIGINAL
NOTE") dated November 14, 1996 in the principal amount of $6,317,000.
B. Maker and Lender desire to amend and restate the Original Note
on the terms hereinafter set forth.
NOW, THEREFORE, intending to be legally bound, Maker and Lender agree
that the Original Note is hereby amended and restated in its entirety to read as
follows:
[Remainder of Page Intentionally Left Blank]
NOTE
(GP Loan)
US $25,615,200 December 2, 1996
FOR VALUE RECEIVED, AIMCO LT, L.P., a Delaware limited partnership
("MAKER"), promises to pay GMAC COMMERCIAL MORTGAGE CORPORATION, a California
corporation ("LENDER"), or order, the principal sum of Twenty-Five Million
Six Hundred Fifteen Thousand Two Hundred Dollars ($25,615,200), together with
interest thereon, as follows.
1. DEFINITIONS. As used in this Note, the following terms shall
have the meanings set forth below:
"BUSINESS DAY" shall mean any day other than (i) a Saturday,
Sunday or public holiday under the laws of the Commonwealth of Pennsylvania,
or (ii) any other day on which banking institutions are authorized or
obligated to close in Philadelphia, Pennsylvania.
"COMMITMENT" shall mean that certain commitment letter dated
October 10, 1996 from Lender to Maker and to Apartment Investment and
Management Company ("AIMCO"), as amended. The Commitment shall survive the
execution and delivery of the other Loan Documents. In the event of any
conflict between the terms of the Commitment and the terms of the other Loan
Documents, the latter shall control.
"DEFAULT RATE" shall mean a rate per annum equal to four percent
(4%) above the then current LIBOR Rate under this Note.
"DOLLAR", "DOLLARS" and "$" shall mean lawful money of the United
States of America.
"LIBOR RATE" shall mean with respect to each Euro-Dollar Interest
Period the annual rate of interest designated as the British Banker's
Association settlement rate that appears on the display on page 3750 (under
the caption "USD" of the Telerate Services, Incorporated screens or such
other display as may replace such page) as of 11:00 AM (London time) on the
second (2nd) full Euro-Dollar Day next preceding the first day of each
calendar month with respect to which interest is payable under this Note, as
the rate per annum for (1) month deposits in the London interbank market;
provided, however, that if no offered quotations appear on the Telerate
Services, Incorporated screen or if quotations are not given on such screen
for a period of time comparable to such Euro-Dollar Interest Period, then the
LIBOR Rate applicable to such Euro-Dollar
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Interest Period shall be the rate of interest determined by Lender to be the
prevailing rate per annum quoted to it at approximately 10:00 AM (Eastern
time) by two (2) or more New York Euro-Dollar deposit dealers of recognized
standing selected by Lender for the offering of Dollar deposits to Holder by
lending banks in the London interbank market for one (1) month periods and in
the amount approximately equal to the principal amount then owing under this
Note. If more than one LIBOR Rate is reported, then the LIBOR Rate shall
equal the average of such rates. Notwithstanding anything to the contrary
contained in this Note, the LIBOR Rate for the period from the date hereof
through and including December 31, 1996 shall be five and one-half percent
(5.5%).
"EURO-DOLLAR DAY" means any business day on which commercial banks
are open for international business (including dealings in Dollar deposits)
in London, England.
"EURO-DOLLAR INTEREST PERIOD" shall mean the period commencing on
the first day of each calendar month during the term of this Note through and
including the last such calendar day of such month; provided, that the first
Euro-Dollar Interest Period shall commence on the date hereof.
"EVENT OF DEFAULT" shall mean (i) a failure of Maker to pay when
due principal, interest or any other charge under this Note or to otherwise
comply with the terms of this Note, and (ii) a default beyond the expiration
of any applicable notice and grace period under any other Loan Document.
"GOVERNMENTAL AUTHORITY" shall mean any federal, state or local
governmental or quasi-governmental subdivision, authority or other
instrumentality thereof and any entity asserting or exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"LAW" shall mean all statutes, codes, laws, ordinances,
regulations, rules, policies or other federal, state, local and municipal
requirements of any governmental authority, whether now or hereafter enacted
or adopted, and all judgments, decrees, injunctions, writs, orders or like
action of an arbitrator or other governmental authority of competent
jurisdiction.
"LOAN" shall mean the $25,615,200 loan made by Lender to Maker
pursuant to the Pledge and the Commitment and evidenced by this Note.
"LOAN DOCUMENTS" shall mean the following documents: (i) the
Commitment; (ii) this Note; (iii) the Pledge; and (iv) all other documents or
agreements arising under, related to, or
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made in connection with, the Loan, as such loan documents may be amended from
time to time. To the extent there is any inconsistency between this Note and
the Fledge, the terms of this Note shall, to the extent permitted by Law,
govern.
"MATURITY DATE" is defined in paragraph 5 hereof.
"PLEDGE" shall mean that certain Amended and Restated Pledge and
Security Agreement from Maker to Lender of even date herewith.
"PERSON" shall mean any individual, for profit or not for profit
corporation, partnership, joint venture, association, limited liability
company, limited liability partnership, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"PRIME RATE" shall mean the interest rate per annum announced from
time to time by Citibank, N.A. or its successor, as its Prime Rate. The
Prime Rate may be greater or less than other interest rates charged by
Citibank, N.A. to other borrowers and is not solely based or dependent upon
the interest rate which Citibank, N.A. may charge any particular borrower or
class of borrowers.
2. INTEREST RATES.
(a) LIBOR RATE. The unpaid principal amount of this Note shall,
subject to subparagraph 2(b) hereof, bear interest for each day at a rate per
annum equal to the LIBOR Rate then in effect for such day plus two hundred
fifty (250) basis points; provided, however, that if under paragraph 3 hereof
the LIBOR Rate is not applicable, then such interest shall accrue at the
Prime Rate.
(b) DEFAULT RATE. Upon the occurrence of any Event of Default by
Maker and/or after the maturity hereof (whether by acceleration or
otherwise), this Note shall bear interest at the Default Rate.
(c) CALCULATIONS. The interest rate hereunder shall (i) be
calculated based on a year of 360 days and charged for the actual number of
days elapsed, and (ii) change automatically from time to time, effective as
of the effective date of each change in the LIBOR Rate, or the Prime Rate, as
applicable.
3. INTEREST RATE; REIMBURSEMENT; INDEMNITY.
(a) LIBOR UNASCERTAINABLE. If (i) on any date on which the LIBOR
Rate would otherwise be set Lender shall have determined in good faith (which
determination shall be
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conclusive) that (A) adequate and reasonable means do not exist for
ascertaining such LIBOR Rate, or (B) a contingency has occurred which
materially and adversely affects the interbank eurodollar market, or (ii) at
any time Lender 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 Lender in
good faith with any Law 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, Lender may notify Maker 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 Lender to charge interest to
Maker at the LIBOR Rate shall be suspended until Lender shall have later
notified Maker of Lender's determination in good faith (which determination
shall be conclusive) that the circumstances giving rise to such previous
determination no longer exist.
(b) PRIME RATE. If Lender notifies Maker of a determination
under subparagraph 3(a) hereof, the LIBOR Rate shall automatically be
converted to the Prime Rate as of the date specified in such notice (and
accrued interest thereon shall be due and payable on such date).
(c) REIMBURSEMENT FOR INCREASED COSTS OR REDUCED RETURN. If any
Law or guideline or interpretation or application thereof by any Governmental
Authority charged with the interpretation or administration thereof or
compliance with any request or directive of any Governmental Authority
(whether or not having the force of law) now existing or hereafter adopted
(i) subjects Lender to any tax or changes the basis of taxation with respect
to this Note, the Commitment, the Loan or payments by Maker of principal,
interest or other amounts due from Maker hereunder or thereunder (except for
taxes on the overall net income or overall gross receipts of Lender imposed
as a result of a present or former connection between the jurisdiction of the
government or taxing authority imposing such tax and Lender; provided, that
this exclusion shall not apply to a connection arising solely from Lender
having executed, delivered, performed its obligations under or received a
payment under, or enforced any of the Loan Documents), (ii) imposes, modifies
or deems applicable any reserve, special deposit or similar requirement
against credits or commitments to extend credit extended by, assets (funded
or contingent) of, deposits with or for the account of, or other acquisition
of funds by, Lender, (iii) imposes, modifies or deems applicable any capital
adequacy or similar requirement against assets (funded or contingent) of, or
credits or commitments to extend credit extended by, Lender, or
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otherwise applicable to the obligations of Lender under the Commitment, or
(iv) imposes upon Lender any other condition or expense with respect to this
Note, the Commitment or its making, maintenance or funding of any part of the
Loan or any security therefor, and the result of any of the foregoing is to
increase the cost to, reduce the income receivable by, or impose any expense
(including, without limitation, loss of margin) upon Lender or, in the case
of clause (iii) above, any Person controlling Lender, with respect to this
Note, the Commitment or the making, maintenance or funding of any part of the
Loan (or, in the case of any capital adequacy or similar requirement, to have
the effect of reducing the rate of return on Lender's or such controlling
Person's capital, taking into consideration Lender's or such controlling
Person's policies with respect to capital adequacy) by an amount which Lender
deems to be material, Lender may from time to time notify Maker of the amount
determined in good faith (using any averaging and attribution methods) by
Lender (which determination shall be conclusive) to be necessary to
compensate Lender for such increase, reduction or imposition. Such amount
shall be due and payable by Maker to Lender five (5) Business Days after such
notice is given.
4. INTEREST PAYMENT DATES. Interest hereunder shall be due and
payable on the first day of the second full calendar month after the date
hereof and on the first day of each calendar month thereafter. After
maturity hereof (by acceleration or otherwise), interest hereunder shall be
due and payable on demand.
5. MATURITY. This Note shall mature on January 1, 1998 (the
"MATURITY DATE"). On the Maturity Date the entire unpaid principal balance
hereof, together with accrued interest thereon, and all other amounts due
hereunder and under the other Loan Documents, shall become due and payable in
full.
6. PREPAYMENTS/EXIT FEE.
(a) OPTIONAL. Maker shall have the right at its option to
prepay this Note in whole (but not in part, except in the case of a partial
prepayment required by Maker under the Pledge) at any time.
(b) NOTICE OF PREPAYMENT. Maker shall give Lender not less
than thirty (30) days' prior written notice of any prepayment permitted by
this paragraph 6, specifying the date of prepayment, which shall be a
Business Day. Such notice of prepayment having been given, on the date
specified in such notice, the principal together with interest on such
principal amount to such date, along with all other amounts due hereunder and
under the other Loan Documents (including, without
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limitation, the premium described in subparagraph 6 (c) hereof) shall be due
and payable.
(c) PREMIUM. In the event any prepayment is made (or this
Note is paid at maturity, but Lender does not facilitate the refinancing of
the Loan) Lender will suffer damages that are extremely difficult to
ascertain. Accordingly, any prepayment or payment of this Note at maturity
shall be accompanied by payment of an amount equal to one percent (1%) of the
original principal amount of this Note (or in the case of a permitted partial
prepayment, one percent (1%) of the amount being prepaid) as a prepayment or
exit fee, as applicable. The parties have agreed that this premium is a
reasonable estimate of Lender's damages in the event of a prepayment, or a
refinancing not facilitated by Lender. Notwithstanding the foregoing, the
premium set forth in this subparagraph 6(c) shall be waived if (i) Maker
repays the Note solely with the proceeds of a sale of common or preferred
stock by AIMCO and without using the proceeds, directly or indirectly, of any
loan or other indebtedness, or (ii) Lender facilitates the refinancing of
the Loan.
7. PAYMENTS. All payments (including, without limitation,
prepayments) to be made in respect of principal, interest or other amounts
due from Maker hereunder shall be payable at 12:00 Noon, Philadelphia time,
on the day when due. Such payments shall be made to Lender at its office at
000 Xxxxxxx Xxxx, X.X. Xxx 0000, Xxxxxxx XX 00000-0000, in Dollars, without
setoff, counterclaim or other deduction of any nature. Any such payment
received by Lender after 12:00 Noon, Philadelphia time, on any day shall be
deemed to have been received on the next succeeding Business Day. Whenever
any payment to be made under this Note or any other Loan Document shall be
stated to be due on a day which is not a Business Day, such payment shall be
made on the next following Business Day and such extension of time shall be
included in computing interest, if any, in connection with such payment. To
the extent permitted by Law, after there shall have occurred an Event of
Default, all amounts due hereunder and under the other Loan Documents (by
acceleration or otherwise), including, without limitation, principal and
interest under this Note, shall bear interest for each day until paid (before
and after judgment), payable on demand, at the Default Rate.
8. LATE CHARGE. If any installment of interest, principal, or
principal and interest shall become overdue for a period in excess of ten
(10) days, a "late charge" in the amount of five percent (5%) of such overdue
installment shall be paid by Maker to Lender, which "late charge" shall be
payable on demand. This charge shall be in addition to, and not in lieu of,
any other remedy Lender may have and is in addition to any reasonable fees
and charges of any agents or attorneys which Lender is
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entitled to employ on any default hereunder, whether authorized herein, or by
Law.
9. DEFAULT. If an Event of Default shall occur, Lender, at its
option, may accelerate the indebtedness evidenced hereby and all other
amounts due under the Loan Documents and may exercise the other rights and
remedies provided it in the Pledge and the other Loan Documents, as well as
those it may have at law or in equity. Upon the acceleration of this Note
because of an Event of Default, a tender of payment by Maker of the amount
necessary to satisfy the entire indebtedness evidenced hereby made at any
time shall constitute an evasion of the prepayment terms of this Note and
shall be deemed a voluntary prepayment and shall entitle Lender to receive,
in addition to all other amounts due Lender, the prepayment fee set forth in
subparagraph 6(c) hereof.
10. INTEREST LIMITATION. Notwithstanding anything to the contrary
contained herein or in the Pledge or any other of the Loan Documents, the
effective rate of interest on the obligation evidenced by this Note shall not
exceed the maximum rate of interest permitted to be paid by applicable Law.
Without limiting the generality of the foregoing, in the event the interest
charged hereunder results in an effective rate of interest higher than that
lawfully permitted to be paid, then such charges shall be reduced by the sum
sufficient to result in an effective rate of interest permitted and any
amount which would exceed the highest lawful rate already received and held
by Lender shall be applied to a reduction of principal and not to the payment
of interest. Maker agrees that for the purpose of determining the highest
rate permitted by applicable Law, any non-principal payment (including,
without limitation, late fees and other fees) shall be deemed, to the extent
permitted by Law, to be an expense, fee, premium or penalty, rather than
interest.
11. MISCELLANEOUS. This Note is secured by and is entitled to the
benefits of the Pledge and the other Loan Documents.
The unpaid principal amount of this Note, the unpaid interest
accrued hereon, the interest rate or rates applicable to such unpaid
principal amount and the duration of such applicability shall at all times be
ascertained from the records of Lender, which shall be conclusive absent
manifest error.
Maker hereby expressly waives presentment, demand, notice, protest
and all other demands and notices in connection with the delivery,
acceptance, performance, default or enforcement of this Note, the Pledge and
the other Loan Documents, and an action for amounts due hereunder or
thereunder shall immediately accrue.
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All notices, requests, demands, directions and other communications
(collectively, "NOTICES") under the provisions hereof shall be in writing
unless otherwise expressly permitted hereunder, shall be sent as provided in
the Pledge and shall be effective as provided in the Pledge. Lender may rely
on any notice purportedly made by or on behalf of Maker, and shall have no
duty to verify the identity or authority of the person giving such notice.
If this Note is placed in the hands of an attorney at law for
collection by reason of default on the part of Maker, Maker hereby agrees to
pay to Lender in addition to the sums stated above, the reasonable costs of
collection, including without limitation, a reasonable sum as attorneys fees.
This Note may not be amended, modified or supplemented orally.
If any term or provision of this Note or the application thereof to
any Person or circumstance shall to any extent be invalid or unenforceable,
the remainder of this Note, or the application of such term or provision to
Persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Note shall be valid and enforceable to the fullest extent permitted by
Law.
This obligation shall bind Maker and its successors and assigns,
and the benefits hereof shall inure to Lender and its successors and assigns.
The paragraph headings used herein are for convenience only and do
not affect or modify the terms and conditions of this Note.
From time to time, without affecting the obligation of Maker to pay
the outstanding principal balance of this Note and observe the covenants of
Maker contained herein, without affecting the guaranty of any person,
corporation, partnership or other entity for payment of the outstanding
principal balance of this Note, without giving notice to or obtaining the
consent of Maker or any guarantor, and without liability on the part of
Lender, Lender may, at the option of Lender, extend the time for payment of
such outstanding principal balance or any part thereof, reduce the payments
thereon, release anyone liable on any of such outstanding principal balance,
accept a renewal of this Note, modify the terms and time of payment of such
outstanding principal balance, join in any extension or subordination
agreement, release any security given herefor, take or release other or
additional security, and agree in writing with Maker to modify the rate of
interest or period of
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amortization of this Note or change the amount of the monthly installments
payable hereunder.
The remedies of Lender as provided herein, and in the other Loan
Documents shall be cumulative and concurrent, and may be pursued singly,
successively or together against Maker and/or any other property mortgaged,
pledged or assigned to Lender as security for this Note, at the sole
discretion of Lender, and such remedies shall not be exhausted by any
exercise thereof but may be exercised as often as occasion therefor shall
occur.
Maker hereby waives and releases all errors, defects and
imperfections in any proceedings instituted by Lender under the terms of this
Note or any of the other Loan Documents, as well as all benefit that might
accrue to Maker by virtue of any present or future laws exempting any
property, real or personal, or any part of the proceeds arising from any sale
of such property, from attachment, levy or sale under execution or providing
for any stay of execution, exemption from civil process or extension of time
for payment, as well as the right of inquisition on any real estate that may
be levied upon under a judgment obtained by virtue hereof, and Maker hereby
voluntarily condemns the same and authorizes the entry of such voluntary
condemnation on any writ of execution issued thereon, and agrees that such
real estate may be sold upon any such writ in whole or in part in any order
desired by Lender.
Lender shall not by any act of omission or commission be deemed to
have waived any of its rights or remedies hereunder unless such waiver be in
writing and signed by Lender, and then only to the extent specifically set
forth therein; a waiver with respect to one event shall not be construed as
continuing or as a bar to or waiver of such right or remedy on a subsequent
event.
THIS NOTE AMENDS, RESTATES, CONSOLIDATES AND SUPERSEDES THE
ORIGINAL NOTE. WITHOUT DUPLICATION, THIS NOTE SHALL IN NO WAY EXTINGUISH
MAKER'S UNCONDITIONAL OBLIGATION TO REPAY ALL INDEBTEDNESS EVIDENCED BY THE
ORIGINAL NOTE (PLUS THE ADDITIONAL PRINCIPAL INDEBTEDNESS SET FORTH IN THIS
NOTE), IS GIVEN IN SUBSTITUTION FOR, AND NOT AS PAYMENT OF, THE ORIGINAL
NOTE, AND IS IN NO WAY INTENDED TO CONSTITUTE A NOVATION OF THE ORIGINAL NOTE.
12. CHOICE OF LAW; JURISDICTION. Notwithstanding anything in the
Loan Documents to the contrary, this Note shall be governed by, interpreted,
construed and enforced pursuant to and in accordance with the laws of the
Commonwealth of Pennsylvania (excluding the law applicable to conflicts or
choice of law) except to the extent as may be expressly provided otherwise in
the Pledge. Maker agrees that, at Lender's option, any controversy arising
under or in relation to this Note or any
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other Xxxx Documents shall be litigated in the Commonwealth of Pennsylvania.
At Lender's option, the Court of Common Pleas for Xxxxxxxxxx County,
Pennsylvania and the federal court for the Eastern District of Pennsylvania,
shall have jurisdiction over all controversies which may arise under or in
relation to this Note, including, without limitation, those controversies
relating to the execution, jurisdiction, breach, enforcement or compliance
with this Note or any other issue arising under, related to, or in connection
with any of the other Loan Documents. Maker irrevocably consents to service,
jurisdiction, and venue of such courts for any litigation arising from this
Note or any of the other Loan Documents, and waives any other venue to which
it might be entitled by virtue of domicile, habitual residence or otherwise.
Nothing contained herein, however, shall prevent Lender from bringing any
suit, action or proceeding or exercising any rights against Maker, or against
any property in any other jurisdiction. Initiating such suit, action or
proceeding or taking such action in any other jurisdiction shall in no event
constitute a waiver of the agreement contained herein that the laws of the
Commonwealth of Pennsylvania shall govern the rights and obligations of Maker
and Lender as provided herein, or the submission herein by Maker to personal
jurisdiction within the Commonwealth of Pennsylvania. The foregoing
provisions were knowingly, willingly and voluntarily agreed to by Maker upon
consultation with independent counsel.
IN WITNESS WHEREOF, the parties, intending to be legally bound,
have duly executed and delivered this Amended and Restated Note as of the
date first above written.
MAKER:
AIMCO LT, L.P., a Delaware limited
partnership
By: AIMCO HOLDINGS, L.P., a Delaware
limited partnership, its general
partner
By: AIMCO HOLDINGS QRS, INC., a
Delaware corporation, its
general partner
By: /s/ X. Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
---------------------------------
Title: VP
---------------------------------
[Signatures Continued on Following Page]
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LENDER:
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Senior Vice President
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