Exhibit 99(b)(6)
[Carefree]
PROMISSORY NOTE
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U.S. $4,575,000.00 December 1, 2000
FOR VALUE RECEIVED, and at the times hereinafter specified, N'TANDEM
PROPERTIES, L.P., a Delaware limited partnership ("Maker"), whose address is
0000 Xxxxx Xxxxxxxx Xxx, Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000, hereby promises to
pay to the order of ANCHOR NATIONAL LIFE INSURANCE COMPANY, an Arizona
corporation (hereinafter referred to, together with each subsequent holder
hereof, as "Holder"), at 1 SunAmerica Center, Century City, Los Angeles,
California 90067-6022, or at such other address as may be designated from time
to time hereafter by any Holder, the principal sum of FOUR MILLION FIVE HUNDRED
SEVENTY-FIVE THOUSAND AND NO/100THS DOLLARS ($4,575,000.00), together with
interest on the principal balance outstanding from time to time, as hereinafter
provided, in lawful money of the United States of America.
By its execution and delivery of this promissory note (this "Note"),
Maker covenants and agrees as follows:
1. Interest Rate and Payments.
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(a) The balance of principal outstanding from time to time under
this Note shall bear interest at the rate of seven and sixty-three one-
hundredths percent (7.63%) per annum (the "Original Interest Rate"), computed on
the basis of a three hundred sixty (360) day year for the actual number of days
elapsed.
(b) Interest only shall be payable on the date the loan evidenced
by this Note (the "Loan") is funded by Xxxxxx, in advance, for the period from
and including the date of funding through and including December 31, 2000.
(c) Commencing on February 1, 2001 and on the first day of each
month thereafter through and including December 1, 2005 combined payments of
principal and interest shall be payable, in arrears, in the amount of $32,397.30
each (such amount representing an amount that would be sufficient to fully
amortize the original principal amount of this Note over a thirty (30) year
period (the "Amortization Period"), if such amortization were based on a three
hundred sixty (360) day year composed of twelve (12) months of thirty (30) days
each).
(d) The entire outstanding principal balance, together with all
accrued and unpaid interest and all other sums due hereunder, shall be due and
payable in full on January 1, 2006 (the "Original Maturity Date").
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THE EXCISE TAX ON DOCUMENTS REQUIRED BY FLORIDA LAW HAS BEEN PAID ON THIS NOTE
AND DOCUMENTARY STAMPS HAVE BEEN AFFIXED TO ONE OF THE MORTGAGES (IN THE AMOUNT
SPECIFIED IN EXHIBIT C TO THAT MORTGAGE) RECORDED IN HILLSBOROUGH COUNTY,
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FLORIDA AND CANCELLED.
2. Holder's Extension Option; Net Operating Income.
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(a) If Maker shall fail to pay the outstanding principal balance
of this Note and all accrued interest and other charges due hereon at the
Original Maturity Date, Holder shall have the right, at Holder's sole option and
discretion, to extend the term of the Loan for an additional period of five (5)
years (the "Extension Term"). If Holder elects to extend the term of the Loan,
Maker shall pay all fees of Holder incurred in connection with such extension,
including, but not limited to, attorneys' fees and title insurance premiums.
Maker shall execute all documents reasonably requested by Xxxxxx to evidence and
secure the Loan, as extended, and shall obtain and provide to Holder any title
insurance policy or endorsement requested by Xxxxxx.
(b) Should Holder elect to extend the term of the Loan as
provided above, Holder shall (i) reset the interest rate borne by the then-
existing principal balance of the Loan to a rate per annum (the "New Rate")
equal to the greater of (A) the Original Interest Rate, or (B) Holder's (or
comparable lenders', if Holder is no longer making such loans) then-prevailing
interest rate for five (5) year loans secured by properties similar to the
Property, as determined by Holder in its sole discretion; (ii) re-amortize the
then-existing principal balance of the Loan over the remaining portion of the
Amortization Period (the "New Amortization Period"); (iii) have the right to
require Maker to enter into modifications of the non-economic terms of the Loan
Documents as Holder may request (the "Non-Economic Modifications"); and (iv)
notwithstanding any provision set forth in the Loan Documents to the contrary,
have the right to require Maker to make monthly payments into escrow for
insurance premiums and real property taxes, assessments and similar governmental
charges. Hence, monthly principal and interest payments during the Extension
Term shall be based upon the New Rate, in an amount that would be sufficient to
fully amortize the outstanding principal balance of the Loan over the New
Amortization Period, if such amortization were based on a three hundred sixty
(360) day year composed of twelve (12) months of thirty (30) days each.
(c) If Holder elects to extend the term of the Loan, Holder shall
advise Maker of the New Rate on or prior to the Original Maturity Date.
(d) In addition to the required monthly payments of principal and
interest set forth above, commencing on the first day of the second month
following the Original Maturity Date and continuing on the first day of each
month thereafter during the Extension Term (each an "Additional Payment Date"),
Maker shall make monthly payments to Holder in an amount equal to all Net
Operating Income (hereinafter defined) attributable to the Property for the
calendar month ending on the last day of the month that is two months preceding
each such Additional Payment Date. For example, assuming the Original Maturity
Date is January 1, then Net Operating Income for the period from January 1
through January 31 shall be payable to Holder on March 1; Net Operating Income
for the period from February 1 through February 28 shall be payable to Holder on
April 1, and so on.
(e) Holder shall deposit all such Net Operating Income received
from Maker into an account or accounts maintained at a financial institution
chosen by Holder or its servicer in its sole discretion (the "Deposit Account")
and all such funds shall be invested in a
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manner acceptable to Holder in its sole discretion. All interest, dividends and
earnings credited to the Deposit Account shall be held and applied in accordance
with the terms hereof.
(f) On the third Additional Payment Date and on each third
Additional Payment Date thereafter, Holder shall apply all Excess Funds
(hereinafter defined), if any, to prepayment of amounts due under this Note,
without premium or penalty.
(g) As security for the repayment of the Loan and the performance
of all other obligations of Maker under the Loan Documents, Maker hereby
assigns, pledges, conveys, delivers, transfers and grants to Holder a first
priority security interest in and to: all Maker's right, title and interest in
and to the Deposit Account; all rights to payment from the Deposit Account and
the money deposited therein or credited thereto (whether then due or in the
future due and whether then or in the future on deposit); all interest thereon;
any certificates, instruments and securities, if any, representing the Deposit
Account; all claims, demands, general intangibles, choses in action and other
rights or interests of Maker in respect of the Deposit Account; any monies then
or at any time thereafter deposited therein; any increases, renewals,
extensions, substitutions and replacements thereof; and all proceeds of the
foregoing.
(h) From time to time, but not more frequently than monthly,
Maker may request a disbursement (a "Disbursement") from the Deposit Account for
capital expenses, tenant improvement expenses, leasing commissions and special
contingency expenses. Holder may consent to or deny any such Disbursement in its
reasonable discretion.
(i) Upon the occurrence of any Event of Default (hereinafter
defined) (i) Maker shall not be entitled to any further Disbursement from the
Deposit Account; and (ii) Holder shall be entitled to take immediate possession
and control of the Deposit Account (and all funds contained therein) and to
pursue all of its rights and remedies available to Holder under the Loan
Documents, at law and in equity.
(j) All of the terms and conditions of the Loan shall apply
during the Extension Term, except as expressly set forth above, and except that
no further extensions of the Loan shall be permitted.
(k) For the purposes of the foregoing:
(i) "Excess Funds" shall mean, on any Additional Payment
Date, the amount of funds then existing in the Deposit Account (including
any Net Operating Income due on the applicable Additional Payment Date),
less an amount equal to the sum of three regularly scheduled payments of
principal and interest due on this Note;
(ii) "Net Operating Income" shall mean, for any particular
period of time, Gross Revenue for the relevant period, less Operating
Expenses for the relevant period; provided, however, that if such amount is
equal to or less than zero (0), Net Operating Income shall equal zero (0);
(iii) "Gross Revenue" shall mean all payments and other
revenues (exclusive, however, of any payments attributable to sales taxes)
received by or
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on behalf of Maker from all sources related to the ownership or operation
of the Property, including, but not limited to, rents, room charges,
parking fees, interest, security deposits (unless required to be held in a
segregated account), business interruption insurance proceeds, operating
expense pass-through revenues and common area maintenance charges, for the
relevant period for which the calculation of Gross Revenue is being made;
and
(iv) "Operating Expenses" shall mean the sum of all ordinary
and necessary operating expenses actually paid by Maker in connection with
the operation of the Property during the relevant period for which the
calculation of Operating Expenses is being made, including, but not limited
to, (a) payments made by Maker for taxes and insurance required under the
Loan Documents, and (b) monthly debt service payments as required under
this Note.
3. Budgets During Extension Term.
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(a) Within fifteen (15) days following the Original Maturity Date
and on or before December 1 of each subsequent calendar year, Maker shall
deliver to Holder a proposed revenue and expense budget for the Property for the
remainder of the calendar year in which the Original Maturity Date occurs or the
immediately succeeding calendar year (as applicable). Such budget shall set
forth Maker's projection of Gross Revenue and Operating Expenses for the
applicable calendar year, which shall be subject to Holder's reasonable
approval. Once a proposed budget has been reviewed and approved by Xxxxxx, and
Maker has made all revisions requested by Xxxxxx, if any, the revised budget
shall be delivered to Holder and shall thereafter become the budget for the
Property hereunder (the "Budget") for the applicable calendar year. If Maker and
Holder are unable to agree upon a Budget for any calendar year, the budgeted
Operating Expenses (excluding extraordinary items) provided in the Budget for
the Property for the preceding calendar year shall be considered the Budget for
the Property for the subject calendar year until Maker and Holder agree upon a
new Budget for such calendar year.
(b) During the Extension Term, Maker shall operate the Property
in accordance with the Budget for the applicable calendar year, and the total of
expenditures relating to the Property exceeding one hundred and five percent
(105%) of the aggregate of such expenses set forth in the Budget for the
applicable time period shall not be treated as Operating Expenses for the
purposes of calculating "Net Operating Income," without the prior written
consent of Holder except for emergency expenditures which, in the Maker's good
faith judgment, are reasonably necessary to protect, or avoid immediate danger
to, life or property.
4. Reports During Extension Term.
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(a) During the Extension Term, Maker shall deliver to Holder all
financial statements reasonably required by Xxxxxx to calculate Net Operating
Income, including, without limitation, a monthly statement to be delivered to
Holder concurrently with Maker's payment of Net Operating Income that sets forth
the amount of Net Operating Income accompanying such statement and Maker's
calculation of Net Operating Income for the relevant calendar month. Such
statements shall be certified by an executive officer of Maker or Maker's
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manager, managing member or general partner (as applicable) as having been
prepared in accordance with the terms hereof and to be true, accurate and
complete in all material respects.
(b) In addition, on or before February 1 of each calendar year
during the Extension Term, Maker shall submit to Holder an annual income and
expense statement for the Property which shall include the calculation of Gross
Revenue, Operating Expenses and Net Operating Income for the preceding calendar
year and shall be accompanied by Maker's reconciliation of any difference
between the actual aggregate amount of the Net Operating Income for such
calendar year and the aggregate amount of Net Operating Income for such calendar
year actually remitted to Holder. All such statements shall be certified by an
executive officer of Maker or Maker's manager, managing member or general
partner (as applicable) as having been prepared in accordance with the terms
hereof and to be true, accurate and complete in all material respects. If any
such annual financial statement discloses any inconsistency between the
calculation of Net Operating Income and the amount of Net Operating Income
actually remitted to Holder, Maker shall immediately remit to Holder the amount
of any underpayment of Net Operating Income for such calendar year or, in the
event of an overpayment by Maker, such amount may be withheld from any
subsequent payment of Net Operating Income required hereunder.
(c) Holder may notify Maker within ninety (90) days after receipt
of any statement or report required hereunder that Holder disputes any
computation or item contained in any portion of such statement or report. If
Holder so notifies Maker, Xxxxxx and Maker shall meet in good faith within
twenty (20) days after Xxxxxx's notice to Maker to resolve such disputed items.
If, despite such good faith efforts, the parties are unable to resolve the
dispute at such meeting or within ten (10) days thereafter, the items shall be
resolved by an independent certified public accountant designated by Holder
within fifteen (15) days after such ten (10) day period. The determination of
such accountant shall be final. All fees of such accountant shall be paid by
Maker. Maker shall remit to Holder any additional amount of Net Operating Income
found to be due for such periods within ten (10) days after the resolution of
such dispute by the parties or the accountant's determination, as applicable.
The amount of any overpayment found to have been made for such periods may be
withheld from any required future remittance of Net Operating Income.
(d) Maker shall at all times keep and maintain full and accurate
books of account and records adequate to reflect correctly all items required in
order to calculate Net Operating Income.
5. Prepayment.
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(a) During the first thirty (30) months after the date of this
Note, Maker shall have no right to prepay all or any part of this Note.
(b) At any time after the date that is thirty (30) months
following the date of this Note, Maker shall have the right to prepay the full
principal amount of this Note and all accrued but unpaid interest hereon as of
the date of prepayment, provided that (i) Maker gives not less than thirty (30)
days' prior written notice to Holder of Maker's election to prepay this Note,
and (ii) Maker pays a prepayment premium to Holder equal to the greater of (A)
one
5
percent (1%) of the outstanding principal amount of this Note or (B) the Present
Value of this Note (hereinafter defined), less the amount of principal being
prepaid, calculated as of the prepayment date.
(c) Holder shall notify Maker of the amount and basis of
determination of the prepayment premium. Holder shall not be obligated to accept
any prepayment of the principal balance of this Note unless such prepayment is
accompanied by the applicable prepayment premium and all accrued interest and
other sums due under this Note. Maker may not prepay the Loan on a Friday or on
any day preceding a public holiday, or the equivalent for banks generally under
the laws of the State in which the Property (hereinafter defined) is located
(the "State").
(d) Except for (i) the application of all or any portion of an
Additional Principal Payment to the principal balance of this Note in connection
with a "Permitted Release" (as such term is defined in the Loan and Partial
Release Agreement of even date herewith by and between Holder and Maker (the
"Loan Agreement")), (ii) payments of Net Operating Income, as required above,
and (iii) the application of insurance proceeds or condemnation awards to the
principal balance of this Note, as provided in the Mortgage (hereinafter
defined), in no event shall Maker be permitted to make any partial prepayments
of this Note.
(e) If Holder accelerates this Note for any reason, then in
addition to Maker's obligation to pay the then outstanding principal balance of
this Note and all accrued but unpaid interest thereon, Maker shall pay an
additional amount equal to the prepayment premium that would be due to Holder if
Maker were voluntarily prepaying this Note at the time that such acceleration
occurred, or if under the terms hereof no voluntary prepayment would be
permissible on the date of such acceleration, Maker shall pay a prepayment
premium calculated as set forth in the Mortgage.
(f) For the purposes of the foregoing:
(i) The "Present Value of this Note" with respect to any
prepayment of this Note, as of any date, shall be determined by discounting
all scheduled payments of principal and interest remaining to maturity of
this Note, attributed to the amount being prepaid, at the Discount Rate.
If prepayment occurs on a date other than a regularly scheduled payment
date, the actual number of days remaining from the prepayment date to the
next regularly scheduled payment date will be used to discount within such
period;
(ii) The "Discount Rate" is the rate which, when compounded
monthly, is equivalent to the Treasury Rate, when compounded semi-annually;
(iii) The "Treasury Rate" is the semi-annual yield on the
Treasury Constant Maturity Series with maturity equal to the remaining
weighted average life of this Note, for the week prior to the prepayment
date, as reported in Federal Reserve Statistical Release H.15 - Selected
Interest Rates, conclusively determined by Holder on the prepayment date.
The rate will be determined by linear interpolation between the
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yields reported in Release H.15, if necessary. In the event Release H.15 is
no longer published, Holder shall select a comparable publication to
determine the Treasury Rate.
(g) Holder shall not be obligated actually to reinvest the amount
prepaid in any treasury obligations as a condition precedent to receiving any
prepayment premium.
(h) Notwithstanding the foregoing, (i) no prepayment premium
shall be due in connection with the application of any insurance proceeds or
condemnation awards to the principal balance of this Note, as provided in the
Mortgage, and (ii) Maker shall have the right to prepay the full principal
amount of this Note and all accrued but unpaid interest thereon as of the date
of prepayment, without prepayment premium thereon, (A) at any time after the
date that is one hundred twenty (120) days prior to the Original Maturity Date,
and (B) at any time during the Extension Term.
6. Payments. Whenever any payment to be made under this Note shall
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be stated to be due on a Saturday, Sunday or public holiday or the equivalent
for banks generally under the laws of the State (any other day being a "Business
Day"), such payment may be made on the next succeeding Business Day.
7. Default Rate.
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(a) The entire balance of principal, interest, and other sums due
upon the maturity hereof, by acceleration or otherwise, shall bear interest from
the date due until paid at the greater of (i) eighteen percent (18%) per annum
and (ii) a per annum rate equal to five percent (5%) over the prime rate (for
corporate loans at large United States money center commercial banks) published
in The Wall Street Journal on the first business day of each month (the "Default
Rate"); provided, however, that such rate shall not exceed the maximum permitted
by applicable state or federal law. In the event The Wall Street Journal is no
longer published or no longer publishes such prime rate, Holder shall select a
comparable reference.
(b) If any payment under this Note is not made within five (5)
days following its due date, then interest shall accrue at the Default Rate from
the date such payment was due until payment is actually made.
8. Late Charges. In addition to interest as set forth herein, Maker
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shall pay to Holder a late charge equal to four percent (4%) of any amounts due
under this Note in the event any such amount is not paid within five (5) days
following its due date.
9. Application of Payments. All payments hereunder shall be applied
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first to the payment of late charges, if any, then to the payment of prepayment
premiums, if any, then to the repayment of any sums advanced by Holder for the
payment of any insurance premiums, taxes, assessments, or other charges against
the property securing this Note (together with interest thereon at the Default
Rate from the date of advance until repaid), then to the payment of accrued and
unpaid interest, and then to the reduction of principal.
10. Immediately Available Funds. Payments under this Note shall be
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payable in immediately available funds without setoff, counterclaim or deduction
of any kind, and shall
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be made by electronic funds transfer from a bank account established and
maintained by Maker for such purpose.
11. Security. This Note is secured by, among other things, (a) the
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Carefree Mortgage encumbering the Carefree Property (as both such terms are
defined in the Loan Agreement; such terms also being referred to herein
sometimes as the "Mortgage" and the "Property," respectively), and (b) the Loan
Documents and the Other Loan Documents (as such terms are defined in the
Mortgage). In the event that payment of this Note is secured by a first lien on
real estate, or by pledge of any of the other forms of collateral described in
Section 655.56, Florida Statutes, then the interest due hereunder is being
charged pursuant to the provisions of Chapter 655, Florida Statutes.
12. Certain Definitions. Capitalized terms used herein and not
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otherwise defined shall have the meanings set forth in the Mortgage.
13. Event of Default. Each of the following events will constitute
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an event of default (an "Event of Default") under this Note and under each of
the other Loan Documents and Other Loan Documents, and any Event of Default
under any Loan Document or Other Loan Document shall constitute an Event of
Default hereunder and under each of the other Loan Documents and Other Loan
Documents:
(a) any failure to pay when due any sum hereunder;
(b) any failure of Maker to properly perform any obligation
contained herein or in any of the other Loan Documents (other than the
obligation to make payments under this Note or the other Loan Documents) and the
continuance of such failure for a period of ten (10) days following written
notice thereof from Holder to Maker; provided, however, that if such failure is
not curable within such ten (10) day period, then, so long as Maker commences to
cure such failure within such ten (10) day period and is continually and
diligently attempting to cure to completion, such failure shall not be an Event
of Default unless such failure remains uncured for sixty (60) days after such
written notice to Maker; or
(c) if, at any time during the Extension Term, Gross Revenue for
any calendar month shall be less than ninety-three percent (93%) of the amount
of projected Gross Revenue for such month set forth in the applicable Budget.
14. Acceleration. Upon the occurrence of any Event of Default, the
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entire balance of principal, accrued interest, and other sums owing hereunder
shall, at the option of Xxxxxx, become at once due and payable without notice or
demand. Upon the occurrence of an Event of Default described in Section 13(c)
hereof, Holder shall have the option, in its sole discretion, to either (a)
exercise any remedies available to it under the Loan Documents or Other Loan
Documents, at law or in equity, or (b) require Maker to submit a new proposed
budget for Holder's approval. If Xxxxxx agrees to accept such new proposed
budget, then such budget shall become the Budget for all purposes hereunder.
15. Conditions Precedent. Maker hereby certifies and declares that
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all acts, conditions and things required to be done and performed and to have
happened precedent to the creation and issuance of this Note, and to constitute
this Note the legal, valid and binding
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obligation of Maker, enforceable in accordance with the terms hereof, have been
done and performed and happened in due and strict compliance with all applicable
laws.
16. Certain Waivers and Consents. Maker and all parties now or
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hereafter liable for the payment hereof, primarily or secondarily, directly or
indirectly, and whether as endorser, guarantor, surety, or otherwise, hereby
severally (a) waive presentment, demand, protest, notice of protest and/or
dishonor, and all other demands or notices of any sort whatever with respect to
this Note, (b) consent to impairment or release of collateral, extensions of
time for payment, and acceptance of partial payments before, at, or after
maturity, (c) waive any right to require Holder to proceed against any security
for this Note before proceeding hereunder, (d) waive diligence in the collection
of this Note or in filing suit on this Note, and (e) agree to pay all costs and
expenses, including reasonable attorneys' fees, which may be incurred in the
collection of this Note or any part thereof or in preserving, securing
possession of, and realizing upon any security for this Note.
17. Usury Savings Clause. The provisions of this Note and of all
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agreements between Maker and Holder are, whether now existing or hereinafter
made, hereby expressly limited so that in no contingency or event whatever,
whether by reason of acceleration of the maturity hereof, prepayment, demand for
payment or otherwise, shall the amount paid, or agreed to be paid, to Holder for
the use, forbearance, or detention of the principal hereof or interest hereon,
which remains unpaid from time to time, exceed the maximum amount permissible
under applicable law, it particularly being the intention of the parties hereto
to conform strictly to the laws of the State and Federal law, whichever is
applicable. If from any circumstance whatever, the performance or fulfillment
of any provision hereof or of any other agreement between Maker and Holder
shall, at the time performance or fulfillment of such provision is due, involve
or purport to require any payment in excess of the limits prescribed by law,
then the obligation to be performed or fulfilled is hereby reduced to the limit
of such validity, and if from any circumstance whatever Holder should ever
receive as interest an amount which would exceed the highest lawful rate, the
amount which would be excessive interest shall be applied to the reduction of
the principal balance (without prepayment premium or other penalty) owing
hereunder (or, at Xxxxxx's option, be paid over to Maker) and shall not be
counted as interest. To the extent permitted by applicable law, determination
of the legal maximum amount of interest shall at all times be made by
amortizing, prorating, allocating and spreading in equal parts during the period
of the full stated term of this Note, all interest at any time contracted for,
charged, or received from Maker in connection with this Note and all other
agreements between Maker and Holder, so that the actual rate of interest on
account of the indebtedness represented by this Note is uniform throughout the
term hereof.
18. Non-Recourse; Exceptions to Non-Recourse. Except as expressly
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hereinafter set forth, the recourse of Holder with respect to the obligations
evidenced by this Note shall be solely to the Property, Chattels, and Intangible
Personalty (as such terms are defined in the Mortgage and in the Other Loan
Documents). Notwithstanding anything to the contrary contained in this Note or
in any Loan Document or in any Other Loan Document, nothing shall be deemed in
any way to impair, limit or prejudice the rights of Holder (a) in foreclosure
proceedings or in any ancillary proceedings brought to facilitate Holder's
foreclosure on the Property or any portion thereof; (b) to recover from Maker
damages or costs (including without limitation reasonable attorneys' fees)
incurred by Holder as a result of waste by Maker;
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(c) to recover from Maker any condemnation or insurance proceeds attributable to
the Property which were not paid to Holder or used to restore the Property in
accordance with the terms of the Mortgage; (d) to recover from Maker any rents,
profits, security deposits, advances, rebates, prepaid rents or other similar
sums attributable to the Property collected by or for Maker following an Event
of Default under any Loan Document and not properly applied to the reasonable
fixed and operating expenses of the Property, including payments of this Note;
(e) to pursue the personal liability of Maker under the provisions of Section
5.10 of the Mortgage, including any indemnification provisions under such
Section; (f) subject to the limitations set forth in this Section, to exercise
any specific rights or remedies afforded Holder under any other provisions of
the Loan Documents or by law or in equity (or to recover under any guarantee
agreement given in connection with this Note); (g) to recover from Maker the
amount of any accrued taxes, assessments, and/or utility charges affecting the
Property (whether or not the same have been billed to Maker) that are either
unpaid by Maker or paid by Holder under the Mortgage (provided however, that
Maker shall not have any personal liability to the extent of amounts on deposit
in any real estate escrow account required under the Loan Documents) and to
collect from Maker any sums expended by Holder in fulfilling the obligations of
Maker, as lessor, under any leases affecting the Property; (h) to pursue any
personal liability of Maker and/or Guarantor under the Environmental Indemnity
Agreement; and (i) to recover from Maker the amount of any loss suffered by
Xxxxxx (that would otherwise be covered by insurance) as a result of Maker's
failure to maintain any insurance required under the terms of any Loan Document.
The agreement contained in this paragraph to limit the personal liability of
Maker shall become null and void and be of no further force and effect in the
event (i) that the Property or any part thereof or any interest therein, or any
interest in Maker, shall be further encumbered by a voluntary lien securing any
obligation upon which Maker or any direct or indirect general partner, manager
or managing member of Maker, any guarantor, or any principal or affiliate of
Maker shall be personally liable for repayment, whether as obligor or guarantor;
(ii) of any breach or violation of Section 5.4, 5.5 or 5.7 of the Mortgage;
(iii) of any fraud or material misrepresentation by Maker in connection with the
Property, the Loan Documents or the application made by Maker for the Loan; or
(iv) of any execution, amendment, modification or termination of any lease of
any portion of the Property without the prior written consent of Holder if such
consent is required under the terms of the Loan Documents. For purposes of the
foregoing, "affiliate" shall mean any individual, corporation, trust,
partnership or any other person or entity controlled by, controlling or under
common control with Maker. A person or entity of any nature shall be presumed to
have control when it possesses the power, directly or indirectly, to direct, or
cause the direction of, the management or policies of another person or entity,
whether through ownership of voting securities, by contract, or otherwise.
19. Severability. If any provision hereof or of any other document
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securing or related to the indebtedness evidenced hereby is, for any reason and
to any extent, invalid or unenforceable, then neither the remainder of the
document in which such provision is contained, nor the application of the
provision to other persons, entities, or circumstances, nor any other document
referred to herein, shall be affected thereby, but instead shall be enforceable
to the maximum extent permitted by law.
20. Transfer of Note. Each provision of this Note shall be and
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remain in full force and effect notwithstanding any negotiation or transfer
hereof and any interest herein to any other Holder or participant.
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21. Governing Law. Regardless of the place of its execution, this
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Note shall be construed and enforced in accordance with the laws of the State.
22. Time of Essence. Time is of the essence of this Note.
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23. Remedies Cumulative. The remedies provided to Holder in this
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Note, the Mortgage, the Loan Documents and the Other Loan Documents are
cumulative and concurrent and may be exercised singly, successively or together
against Maker, the Property, and other security, or any guarantor of this Note,
at the sole and absolute discretion of the Holder.
24. No Waiver. Holder shall not by any act or omission be deemed to
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waive any of its rights or remedies hereunder unless such waiver is in writing
and signed by the Holder and then only to the extent specifically set forth
therein. A waiver of one event shall not be construed as continuing or as a bar
to or waiver of any right or remedy granted to Holder hereunder in connection
with a subsequent event.
25. Joint and Several Obligation. If Maker is more than one person
----------------------------
or entity, then (a) all persons or entities comprising Maker are jointly and
severally liable for all of the Maker's obligations hereunder; (b) all
representations, warranties, and covenants made by Maker shall be deemed
representations, warranties, and covenants of each of the persons or entities
comprising Maker; (c) any breach, Default or Event of Default by any of the
persons or entities comprising Maker hereunder shall be deemed to be a breach,
Default, or Event of Default of Maker; and (d) any reference herein contained to
the knowledge or awareness of Maker shall mean the knowledge or awareness of any
of the persons or entities comprising Maker.
26. WAIVER OF JURY TRIAL. MAKER AND HOLDER KNOWINGLY, IRREVOCABLY,
--------------------
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED ON THIS NOTE, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE MORTGAGE, OR ANY
OTHER LOAN DOCUMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO OR TO ANY LOAN
DOCUMENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR MAKER AND HOLDER TO ENTER
INTO THE LOAN TRANSACTION EVIDENCED BY THIS NOTE.
27. WAIVER OF PREPAYMENT RIGHT WITHOUT PREMIUM. MAKER HEREBY
------------------------------------------
EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE UNDER APPLICABLE LAW TO PREPAY THIS NOTE,
IN WHOLE OR IN PART, WITHOUT PREPAYMENT PREMIUM, UPON ACCELERATION OF THE
MATURITY DATE OF THIS NOTE, AND AGREES THAT, EXCEPT AS OTHERWISE PROVIDED IN
THIS NOTE OR IN THE OTHER LOAN DOCUMENTS, IF FOR ANY REASON A PREPAYMENT OF ALL
OR ANY PART OF THIS NOTE IS MADE, WHETHER VOLUNTARILY OR FOLLOWING ANY
ACCELERATION OF THE MATURITY DATE OF THIS NOTE BY HOLDER ON ACCOUNT OF THE
OCCURRENCE OF ANY EVENT OF DEFAULT ARISING FOR ANY REASON, INCLUDING, WITHOUT
LIMITATION, AS A RESULT OF ANY PROHIBITED
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OR RESTRICTED TRANSFER, FURTHER ENCUMBRANCE OR DISPOSITION OF THE PROPERTY OR
ANY PART THEREOF SECURING THIS NOTE, THEN MAKER SHALL BE OBLIGATED TO PAY,
CONCURRENTLY WITH SUCH PREPAYMENT, THE PREPAYMENT PREMIUM PROVIDED FOR IN THIS
NOTE OR, IN THE EVENT OF PREPAYMENT FOLLOWING ACCELERATION OF THE MATURITY DATE
HEREOF WHEN THIS NOTE IS CLOSED TO PREPAYMENT, AS PROVIDED IN THE MORTGAGE.
MAKER XXXXXX DECLARES THAT HOLDER'S AGREEMENT TO MAKE THE LOAN AT THE INTEREST
RATE AND FOR THE TERM SET FORTH IN THIS NOTE CONSTITUTES ADEQUATE CONSIDERATION,
GIVEN INDIVIDUAL WEIGHT BY MAKER, FOR THIS WAIVER AND AGREEMENT.
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IN WITNESS WHEREOF and intending to be legally bound, Maker has duly
executed this Note as of the date first above written.
N'TANDEM PROPERTIES, L.P., a Delaware
limited partnership
By: N'Tandem Trust, a California business trust,
its General Partner
By: /s/ Xxxxx Xxxxx
_____________________________________________
Xxxxx Xxxxx, Authorized Agent
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