PROMISSORY NOTE
$3,800,000.00 Houston, Texas
As of July 31, 1995
FOR VALUE RECEIVED, PFL-290 LIMITED PARTNERSHIP, a Texas limited
partnership, as maker, having its principal place of business at 0000 Xxxxx
Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxx 00000 ("Borrower"), hereby unconditionally
promises to pay to the order of RFG FINANCIAL, INC., a New York corporation, as
payee, having its principal place of business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("Lender"), or at such other place as the holder hereof may from time
to time designate in writing, the principal sum of THREE MILLION EIGHT HUNDRED
THOUSAND AND 00/100 Dollars ($3,800,000.00), in lawful money of the United
States of America with interest thereon to be computed from the date of this
Note at the Applicable Interest Rate (defined below), and to be paid in
installments as follows:
1. PAYMENT TERMS
(a) A payment of interest only on August 1, 1995;
(b) A constant payment of $32,542.51 on the first day of
September, 1995 and on the first day of each calendar month
thereafter up to and including the first day of July, 2005;
each of the payments to be applied as follows:
(i) First, to the payment of interest computed at the Applicable
Interest Rate.
(ii) The balance applied toward the reduction of the principal sum;
and the balance of the principal sum and all accrued but unpaid interest thereon
shall be due and payable on the first day of August, 2005 (the "Maturity Date").
Interest on the principal sum of this Note shall be calculated on the basis of a
three hundred sixty (360) day year based on twelve (12) thirty (30) day months
except that interest due and payable for a period of less than a full calendar
month shall be calculated by multiplying the actual number of days elapsed in
such period by a daily rate based on said 360-day year unless the Highest Lawful
Rate (hereinafter defined) would thereby be exceeded in which event, to the
extent necessary to avoid exceeding the Highest Lawful Rate, interest shall be
computed on the basis of the actual number of days elapsed in the applicable 365
or 366 calendar year in which such interest accrued. The term "Loan Year" as
used in this Note shall mean each complete twelve (12) month period after the
first day of the first full calendar
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320754.1 (Benchmark Note)
month following the date hereof (or the date hereof if the date hereof is the
first day of a calendar month).
2. INTEREST
The term "Applicable Interest Rate" as used in the Security Instrument
(defined below) and this Note shall mean a rate per annum from the date of this
Note through and including the Maturity Date of the lesser of nine and
one-quarter percent (9.25%) or the Highest Lawful Rate. The term "Highest Lawful
Rate" as used herein shall mean, on any day, the maximum nonusurious interest
rate stated on a per annum basis that at any time or from time to time may be
contracted for, taken, reserved, charged or received on the Debt (defined below)
under applicable federal or Texas law, whichever permits the Highest Lawful Rate
that are presently in effect or, to the extent allowed by law, under such
applicable laws that may hereafter be in effect and that allow a higher maximum
nonusurious interest rate than applicable laws now allow. On each day, if any,
that Chapter 1 of the Texas Credit Code establishes the Highest Lawful Rate, the
same shall be the "Indicated Rate Ceiling" as defined herein.
3. DEFAULT AND ACCELERATION
(a) The whole of the principal sum of this Note, (b) interest, default
interest, late charges and other sums, as provided in this Note, the Security
Instrument or the Other Security Documents (defined below), (c) all other monies
agreed or provided to be paid by Borrower in this Note, the Security Instrument
or the Other Security Documents, (d) all sums advanced pursuant to the Security
Instrument to protect and preserve the Property (defined below) and the lien and
the security interest created thereby, and (e) all sums advanced and costs and
expenses incurred by Lender in connection with the Debt (defined below) or any
part thereof, any renewal, extension, or change of or substitution for the Debt
or any part thereof, or the acquisition or perfection of the security therefor,
whether made or incurred at the request of Borrower or Lender (all the sums
referred to in (a) through (e) above shall collectively be referred to as the
"Debt") shall without notice become immediately due and payable at the option of
Lender if any payment required in this Note is not paid prior to the tenth
(10th) day after the date when due or on the Maturity Date 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 Security Instrument or any of the
Other Security Documents (collectively, an "Event of Default").
4. DEFAULT INTEREST
Borrower does hereby agree that upon the occurrence of an Event of
Default, Lender shall be entitled to receive and Borrower shall pay interest on
the entire unpaid principal sum at a rate equal to the lesser of (a) five
percent (5 %) plus the Applicable Interest Rate and (b) the Highest Lawful Rate
(the "Default Rate"). The Default Rate shall be computed from the
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occurrence of the Event of Default until the earlier of the date upon which the
Event of Default is cured or the date upon which the Debt is paid in full.
Interest calculated at the Default Rate shall be added to the Debt, and shall be
deemed secured by the Security Instrument. 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.
5. PREPAYMENT
(a) The principal balance of this Note may not be prepaid in whole or in
part prior to the sixth Loan Year. During the sixth Loan Year or any time
thereafter, provided no Event of Default exists, the principal balance of this
Note may be prepaid in whole, or in part, upon but not less than thirty (30)
days and not more than forty (40) days prior written notice to Lender specifying
the date on which prepayment is to be made (the "Prepayment Date") and upon
payment of (i) accrued interest to and including the Prepayment Date together
with a payment of all interest which would have accrued on the principal balance
of this Note to and including the first day of the calendar month immediately
following the Prepayment Date, if such prepayment occurs on a date which is not
the first day of a month (the "Shortfall Interest Payment"), (ii) (A) in the
event of a partial prepayment, all other sums then due under this Note, the
Security Instrument and the Other Security Documents, and (B) in the event of a
prepayment in whole, all other sums due under this Note, the Security Instrument
and the Other Security Documents, and (iii) the Prepayment Consideration
(defined below). Notwithstanding the foregoing, Borrower shall have the
additional privilege to prepay the entire principal balance of this Note during
the sixty (60) calendar days immediately preceding the Maturity Date without any
fee or consideration for such privilege provided (i) no Event of Default exists,
(ii) written notice of such prepayment is given by Borrower to Lender in the
manner set forth above and (iii) Borrower shall be required to make the
Shortfall Interest Payment, if applicable.
(b) The term "Prepayment Consideration" shall mean an amount equal to the
present value of a series of payments each equal to the Payment Differential
(hereinafter defined) and payable on the first day of each month ("Monthly
Payment Date") from the date of prepayment through and including the Maturity
Date discounted at the Reinvestment Yield (hereinafter defined) (monthly
compounding) for the number of months remaining from the date of prepayment to
each such Monthly Payment Date. The term "Reinvestment Yield" as used herein
shall be equal to the yield on the U.S. Treasury issue (primary issue) with a
maturity date closest to, but not earlier than, the Maturity Date with such
yield being based on the bid price for such issue as published in The Wall
Street Journal in New York City, New York on a date fourteen ( 14) days prior to
the date of prepayment set forth in the prepayment notice (or, if such bid price
is not published on that date, the next preceding date
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on which such bid price is so published and converted to a monthly compounded
nominal yield. In the event The Wall Street Journal ceases publication or ceases
to publish the bid price for such U.S. Treasury issues, Lender shall select a
comparable publication to determine such bid price. Absent manifest error, the
determination of the Reinvestment Yield and the calculation of the Prepayment
Consideration by Lender shall be binding on Borrower. The term "Payment
Differential" as used herein shall be equal to the product of (y) a fraction,
the numerator of which is the excess, if any, of a per annum interest rate equal
to the Applicable Interest Rate over the Reinvestment Yield (expressed as a
decimal percentage), and the denominator of which is 12, and (z) the portion of
the principal balance of this Note being prepaid on the Prepayment Date.
(c) If any notice of prepayment is given under this Section 5, the
principal balance of this Note and the other sums required under this prepayment
section shall be due and payable on the Prepayment Date. Lender shall not be
obligated to accept any prepayment of the principal balance of this Note unless
it is accompanied by the prepayment fees and the Prepayment Consideration due in
connection therewith: Notwithstanding anything contained in this Section 5 to
the contrary, provided no Event of Default exists, no prepayment fee shall be
due in connection with a complete or partial prepayment resulting from the
application of insurance proceeds or condemnation awards pursuant to Sections
3.3 and 3.6 of the Security Instrument, but Borrower shall be required to make
the Shortfall Interest Payment, if applicable.
(d) If following the occurrence of any Event of Default, Borrower shall
tender payment of an amount sufficient to satisfy the entire Debt at any time
prior to a judicial or nonjudicial foreclosure sale or sale pursuant to a power
of sale of any Property and prior to the time prepayment of the principal
balance of this Note is permitted hereunder, Borrower shall, in addition to the
entire Debt, also pay to Lender an amount equal to the sum of (i) interest
calculated as set forth in Subsection 5(a)(i) including the Shortfall Interest
Payment, (ii) prepayment fees equal to the present value of all interest
payments which would have accrued on the principal balance of this Note
outstanding as of the date of such tender at the Applicable Interest Rate from
the date of such tender to the first day prepayment is permitted pursuant to
this Note discounted at a rate equal to the Treasury Rate based on U.S. Treasury
constant maturities with maturity dates (one longer and one shorter) most nearly
approximating the date upon which prepayment is first permitted pursuant to this
Note, and (iii) a prepayment consideration equal to the Prepayment Consideration
which would have been payable to Lender pursuant to Subsection 5(a)(iii) as of
the first day of the sixth Loan Year based on the Treasury Rate in effect as of
the date of such tender. If at the time of such voluntary or involuntary
prepayment of this Note, prepayment of the principal balance of the Loan is
permitted, Borrower shall, in addition to the entire Note, also pay to Lender
the Shortfall Interest Payment, and the applicable prepayment fees and the
Prepayment Consideration set forth in Subsection 5(b) above. An involuntary
prepayment shall include any prepayment made in connection with reinstatement of
the Security Instrument under foreclosure
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320754.1 (Benchmark Note)
proceedings, or exercise of a power of sale, any right of redemption exercised
by Borrower or any other party having a right to redeem or prevent foreclosure,
or which is made or occurs upon the consummation of any sale in foreclosure or
under exercise of a power of sale.
(e) Any permitted partial prepayments may be made only in multiples
satisfactory to Lender. Any permitted partial prepayment shall be applied to the
installments of principal last due under this Note and shall not release
Borrower from the obligation to pay the installments of interest and/or
principal next becoming due under this Note.
6. SECURITY
This Note is secured by the Security Instrument and the Other Security
Documents. The term "Security Instrument" as used in this Note shall mean the
Deed of Trust and Security Agreement dated the date hereof in the principal sum
of $3,800,000.00 given by Xxxxxxxx to (or for the benefit of) Lender covering
the fee estate of Borrower in certain premises (the "Property") located in
Xxxxxx County, State of Texas, and other property, as more particularly
described therein and intended to be duly recorded in said County. The term
"Other Security Documents" as used in this Note shall mean all and any of the
documents other than this Note or the Security Instrument now or hereafter
executed by Borrower and/or others and by or in favor of Lender, which wholly or
partially secure or guarantee payment of this Note. Whenever used. the singular
number shall include the plural, the plural number shall include the singular,
and the words "Lender" and "Borrower" shall include their respective successors,
assigns, heirs, executors and administrators.
All of the terms, covenants and conditions contained in the Security
Instrument and the Other Security 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.
7. SAVINGS CLAUSE
It is the intention of the parties hereto to conform strictly to
applicable usury laws. Accordingly, if the transactions contemplated hereby
would be usurious under any such applicable law, then, and in that event,
notwithstanding anything to the contrary in this Note, or in any other
instrument or agreement entered into in connection with or as security for this
Note, whether now existing or hereafter arising and whether written or oral, it
is agreed as follows:
(i) the aggregate of all interest and any other charges constituting
interest, or adjudicated as constituting interest, and that is contracted for,
charged or received under this Note, or under any of the aforesaid instruments
or agreements or otherwise in connection with this Note (whether designated as
interest, fees, late charges, payments or otherwise) shall under no
circumstances exceed the maximum amount of interest permitted by any such
applicable law and
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320754.1 (Benchmark Note)
any excess shall be canceled automatically and, if theretofore paid, shall be
credited on this Note by Xxxxxx (or, if this Note has been paid in full,
refunded to Borrower); and
(ii) in the event that the maturity of this Note is accelerated by
reason of an Event of Default under this Note, or otherwise, including, but not
limited to voluntary prepayment by Borrower, then such consideration that
constitutes interest may never include more than the maximum rate of interest
permitted by any such applicable law computed from the dates of each advance of
the loan proceeds outstanding until payment. If from any circumstance Lender
shall ever receive interest or any other charges constituting interest, the
amount, if any, which would exceed the maximum rate of interest permitted by
such applicable law shall be applied to the reduction of the principal amount
owing on this Note or on account of any other principal indebtedness of Borrower
to Lender, and not to the payment of interest. If such excessive interest
exceeds the unpaid balance of principal hereof and such other indebtedness, the
amount of such excessive interest which exceeds the unpaid balance of principal
hereof and such other indebtedness shall be refunded to Borrower.
All sums paid or agreed to be paid to Lender for the use, forbearance or
detention of the indebtedness evidenced hereby shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout the full
term of such indebtedness until payment in full so that the actual rate or
amount of interest on account of any such indebtedness is uniform throughout the
term thereof and does not exceed the applicable usury ceiling.
8. LATE CHARGE
If any sum payable under this Note is not paid prior to the tenth (10th)
day after the date on which it is due, Borrower shall pay to Lender upon demand
an amount equal to the lesser of five percent (5 %) of the unpaid sum or the
maximum amount permitted by applicable law to defray the expenses incurred by
Lender in handling and processing the delinquent payment and to compensate
Lender for the loss of the use of the delinquent payment and the amount shall be
secured by the Security Instrument and the Other Security Documents.
9. NO ORAL CHANGE
This Note may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
Borrower or Lender, but only by an agreement in writing signed by the party
against whom enforcement of any modification, amendment, waiver, extension,
change, discharge or termination is sought.
10. JOINT AND SEVERAL LIABILITY
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320754.1 (Benchmark Note)
If Borrower consists of more than one person or party, the obligations and
liabilities of each person or party shall be joint and several.
11. WAIVERS
Borrower and all others who may become liable for the payment of all or
any part of the Debt do hereby severally waive presentment and demand for
payment, notice of dishonor, protest and notice of protest and non-payment and
all other notices of any kind, except as set forth in the following paragraph
hereof. No release of any security for the Debt or extension of time for payment
of this Note or any installment hereof, and no alteration, amendment or waiver
of any provision of this Note, the Security Instrument or the Other Security
Documents made by agreement between Lender or any other person or party shall
release, modify, amend, waive, extend, change, discharge, terminate or affect
the liability of Borrower, and any other person or entity who may become liable
for the payment of all or any part of the Debt, under this Note, the Security
Instrument or the Other Security Documents. No notice to or demand on Borrower
shall be deemed to be a waiver of the obligation of Borrower or of the right of
Lender to take further action without further notice or demand as provided for
in this Note the Security Instrument or the Other Security Documents. If
Borrower is a partnership, the agreements herein contained shall remain in force
and applicable, notwithstanding any changes in the individuals comprising the
partnership, and the term "Borrower," as used herein, shall include any
alternate or successor partnership, but any predecessor partnership and their
partners shall not thereby be released from any liability. If Borrower is a
corporation, the agreements contained herein shall remain in full force and
applicable notwithstanding any changes in the shareholders comprising, or the
officers and directors relating to, the corporation, and the term "Borrower" as
used herein, shall include any alternative or successor corporation, but any
predecessor corporation shall not be relieved of liability hereunder. (Nothing
in the foregoing sentence shall be construed as a consent to, or a waiver of,
any prohibition or restriction on transfers of interests in such partnership
which may be set forth in the Security Instrument or any Other Security
Document.)
Notwithstanding the foregoing, Borrower shall be entitled to the notices
and cure periods as set forth in Section 10.1 of the Security Instrument.
12. TRANSFER
Upon the transfer of this Note, Borrower hereby waiving notice of any such
transfer, Xxxxxx may deliver all the collateral mortgaged, granted, pledged or
assigned pursuant to the Security Instrument and the Other Security Documents,
or any part thereof, to the transferee who shall thereupon become vested with
all the rights herein or under applicable law given to Lender with respect
thereto, and Lender shall thereafter forever be relieved and fully discharged
from
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320754.1 (Benchmark Note)
any liability or responsibility in the matter; but Lender shall retain all
rights hereby given to it with respect to any liabilities and the collateral not
so transferred.
13. WAIVER OF TRIAL BY JURY
BORROWER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT,
TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE LOAN EVIDENCED BY THIS
NOTE, THE APPLICATION FOR THE LOAN EVIDENCED BY THIS NOTE, THIS NOTE, THE
SECURITY INSTRUMENT OR THE OTHER SECURITY DOCUMENTS OR ANY ACTS OR OMISSIONS OF
LENDER, ITS OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS IN CONNECTION THEREWITH.
14. EXCULPATION
(a) Except as otherwise provided herein, Lender shall not enforce the
liability and obligation of Borrower to perform and observe the obligations
contained in this Note, the Security Instrument or the Other Security Documents
by any action or proceeding wherein a money judgment shall be sought against
Borrower or its partners, 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 this Note, the Security Instrument,
the Other Security Documents, and the interest in the Property, the Rents (as
defined in the Security Instrument) and any other collateral given to Lender
created by this Note, the Security Instrument and the Other Security Documents;
provided, however, that any judgment in any such action or proceeding shall be
enforceable against Borrower or its partners only to the extent of Borrower's
interest in the Property, in the Rents and in any other collateral given to
Lender. Xxxxxx, by accepting this Note and the Security Instrument, agrees that
it shall not, except as otherwise provided in Section 11.10 of the Security
Instrument, sue for, seek or demand any deficiency judgment against Borrower or
its partners in any such action or proceeding, under or by reason of or under or
in connection with this Note, the Other Security Documents or the Security
Instrument. The provisions of this Section shall not, however, (i) constitute a
waiver, release or impairment of any obligation evidenced or secured by this
Note, the Other Security Documents or the Security Instrument; (ii) 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; (iii) impair the
rights of Trustee (as defined in the Security Instrument) and Lender from
exercising their right to sell the Property pursuant to the power of sale
granted in the Security Instrument; (iv) 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 Security
Documents; (v) impair the right of Lender to obtain the appointment of a
receiver; (vi) impair the enforcement of the Assignment of Leases and Rents
executed in connection herewith; or (vii) impair the right of Lender to enforce
the provisions of Sections 13.2, 13.3 and 13.4 of the Security Instrument.
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320754.1 (Benchmark Note)
(b) Notwithstanding the provisions of this Section 14 to the contrary,
Xxxxxxxx shall be personally liable to Lender for the Losses (as defined in the
Security Instrument) it incurs due to: (i) fraud or intentional
misrepresentation by Borrower, its partners or Guarantor (as deemed in the
Security Instrument) or any of their respective employees, officers, directors
or counsel, or by the appraiser, the environmental consultant or the engineering
company who have prepared and delivered to Lender, respectively, the appraisal,
the Environmental Report (as defined in the Security Instrument) and the
engineering report in connection with the execution and the delivery of this
Note, the Security Instrument or the Other Security Documents; (ii) Borrower's
misapplication or misappropriation of Rents received by Borrower after written
notice to Borrower of the occurrence of an Event of Default; (iii) Borrower's
misapplication or misappropriation of tenant security deposits or Rents
collected in advance; (iv) the misapplication or the misappropriation of
insurance proceeds or condemnation awards; (v) Borrower's failure to pay Taxes
(as defined in the Security Instrument), Insurance Premiums (as defined in the
Security Instrument), Other Charges (as defined in the Security Instrument)
(except to the extent that sums sufficient to pay such amounts have been
deposited in escrow with Lender pursuant to the terms of the Security
Instrument), charges for labor or materials or other charges at the time of
foreclosure that can create liens on the Property; (vi) Borrower's failure to
return or to reimburse Lender for all Personal Property (as defined in the
Security Instrument) 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; (vii) any act of actual waste or arson by Borrower, any principal,
affiliate or general partner thereof or by any Indemnitor (as defined in the
Security Instrument) or Guarantor; (viii) any fees or commissions paid by
Borrower to any principal, affiliate or general partner of Borrower, any
Indemnitor or any Guarantor in violation of the terms of this Note, the Security
Instrument or the Other Security Documents; or (ix) Borrower s failure to comply
with the provisions of Section 4.2 or 7.1, or Article 12 or 13 of the Security
Instrument.
(c) Notwithstanding the foregoing, the agreement of Lender not to pursue
recourse liability as set forth in Subsection (a) above SHALL BECOME NULL AND
VOID and shall be of no further force and effect (1) in the event of Borrower's
default under Section 3.11, 4.3, 8.1, 8.2, 8.3 or 8.4, of the Security
Instrument, (2) if the Property or any part thereof shall become an asset in (i)
a voluntary bankruptcy or insolvency proceeding, or (ii) an involuntary
bankruptcy or insolvency proceeding which has not been instituted by Xxxxxx and
which is not dismissed within ninety (90) days of filing or (3) if an Event of
Default described in Subsection 10.1(a), (b), (c), (o) or (t) of the Security
Instrument occurs and continues and Lender, its affiliate or designee fails to
obtain title to the Property pursuant to an exercise of a power of sale, a
consensual foreclosure or a conveyance in lieu of foreclosure, within one
hundred and eighty (180) days of notice to Borrower from Lender or its agent of
such Event of Default by reason of Xxxxxxxx's or any Guarantor's impeding or
restricting any action to enforce the Security Instrument or failing to deliver
to Lender, its affiliate or designee a deed to the Property in lieu of
foreclosure which conveys title to the Property free and clear of all liens,
encumbrances and other title exceptions other than those, if any, to which the
Security Instrument is subject and subordinate.
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320754.1 (Benchmark Note)
(d) 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 U.S. Bankruptcy Code to file a claim for the full amount of the
indebtedness secured by the Security Instrument or to require that all
collateral shall continue to secure all of the indebtedness owing to Lender in
accordance with this Note, the Security Instrument and the Other Security
Documents.
15. AUTHORITY
Borrower (and the undersigned representative of Borrower, if any)
represents that Borrower has full power, authority and legal right to execute
and deliver this Note, the Security Instrument and the Other Security Documents
and that this Note, the Security Instrument and the Other Security Documents
constitute valid and binding obligations of Borrower.
16. APPLICABLE LAW
This Note shall be deemed to be a contract entered into pursuant to the
laws of the State of New York and shall in all respects be governed, construed,
applied and enforced in accordance with applicable federal law and the laws of
the State of New York, without reference or giving effect to any choice of law
doctrine.
17. VENUE AND JURISDICTION
Xxxxxxxx agrees to submit to personal jurisdiction in the State of New
York in any action or proceeding arising out of this Note. In furtherance of
such agreement, Xxxxxxxx hereby agrees and consents that without limiting other
methods of obtaining jurisdiction, personal jurisdiction over Borrower in any
such action or proceeding may be obtained within or without the jurisdiction of
any court located in New York and that any process or notice of motion or other
application to any such court in connection with any such action or proceeding
may be served upon Borrower by registered or certif~ed mail to, or by personal
service at, the last known address of Borrower, whether such address be within
or without the jurisdiction of any such court. Borrower hereby agrees that the
venue of any litigation arising in connection with the indebtedness, or in
respect of any of the obligations of Borrower under this Note, shall, to the
extent permitted by law, be in New York County.
18. COUNSEL FEES
In the event that it should become necessary to employ counsel to collect
the Debt or to protect or foreclose the security therefor, Xxxxxxxx also agrees
to pay all reasonable fees and expenses of Xxxxxx, including, without
limitation, reasonable attorney's fees for the services of such counsel whether
or not suit be brought.
19. NOTICES
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320754.1 (Benchmark Note)
All notices or other written communications hereunder shall be deemed to
have been properly given (i) upon delivery, if delivered in person or by
facsimile transmission with receipt acknowledged, (ii) one (1) Business Day
(defined below) after having been deposited for overnight delivery with any
reputable overnight courier service, or (iii) three (3) Business Days after
having been deposited in any post office or mail depository regularly maintained
by the U.S. Postal Service and sent by registered or certified mail. postage
prepaid, addressed as follows:
If to Borrower: PFL-290 Limited Partnership
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxx X.Xxxxxxx and Xx. Xxxxxx X. Xxxxxx
Xxxxxxxxx No.: (000) 000-0000
With a copy to: Xxxxxxx, Xxxx, Zivley, Hill & Xxxxxx, L.L.P.
000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to Lender: RFG Financial, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx. New York 10153
Attention: Xx. Xxxxx X. Xxxxxxx
Xxxxxxxxx No.: (000) 000-0000
With a copy to: Xxxxxxx Xxxxxxxx & Xxxx
Two World Trade Center
New York, New York 10048
Attention: Xxxxxx Xxxxxx Xxxxx, Esq.
Facsimile No.: (000) 000-0000
or addressed as such party may from time to time designate by written notice to
the other parties.
Either party by notice to the other may designate additional or different
addresses for subsequent notices or communications.
"Business Day" shall mean a day upon which commercial banks are not
authorized or required by law to close in New York, New York.
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320754.1 (Benchmark Note)
20. ENTIRE AGREEMENT
THIS NOTE, THE SECURITY INSTRUMENT AND THE OTHER SECURITY DOCUMENTS EMBODY THE
ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE LENDER AND THE OTHER RESPECTIVE
PARTIES HERETO AND THERETO AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS
BETWEEN SUCH PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
IN WITNESS WHEREOF. Xxxxxxxx has duly executed this Note as of the day and
year first above written.
PFL-290 LIMITED PARTNERSHIP, a Texas
limited partnership
By: UNITEG PFL-290, INC., a Texas
corporation and its general partner
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
President
Pay to the order of
without recourse
RFG FINANCIAL, INC.,
a New York corporation
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
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320754.1 (Benchmark Note)
President
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320754.1 (Benchmark Note)
STATE OF TEXAS )
)
COUNTY OF XXXXXX )
This instrument was acknowledged before me on July 28, 1995, by XXXXXX X.
XXXXXXX, president of UNITEG PFL-290 INC., a Texas corporation which is the sole
general partner of PFL-290 LIMITED PARTNERSHIP, a Texas limited partnership, on
behalf of said corporation and said limited partners.
/s/ Xxxxx X. Xxxx
Notary Public in and
for the State of Texas
My Commission expires:
9/24/96 Xxxxx X. Xxxx
Print Name of Notary
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320754.1 (Benchmark Note)
