PROMISSORY NOTE
$8,430,000.00 EXHIBIT 10.3
March 27, 1998
New York, New York
FOR VALUE RECEIVED, the undersigned, VIRGINIA STREET ASSOCIATES, L.P.,
a Colorado limited partnership ("Borrower"), promises to pay to the order of
COLUMN FINANCIAL, INC., a Delaware Corporation ("Lender"), at the office of
Lender at 0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000-0000, or
at such other place as Lender may designate to Borrower in writing from time to
time, the principal sum of EIGHT MILLION FOUR HUNDRED THIRTY THOUSAND AND 00/100
DOLLARS ($8,430,000.00), together with interest on so much thereof as is from
time to time outstanding and unpaid, from the date of the advance of the
principal evidenced hereby, at a fluctuating rate equal to the sum, from time to
time, of (a) the LIBOR Rate as in effect from time to time plus (b) two percent
(2.0%) per annum (the "Note Rate"), in lawful money of the United States of
America, which shall at the time of payment be legal tender in payment of all
debts and dues, public and private.
ARTICLE I
TERMS AND CONDITIONS
1.01 PAYMENT OF PRINCIPAL AND INTEREST. (a) Said interest shall
be computed hereunder based on a 360-day year and based on twelve (12) 30-day
months for each full calendar month and on the actual number of days elapsed for
any partial month in which interest is being calculated. In computing the
number of days during which interest accrues, the day on which funds are
initially advanced shall be included regardless of the time of day such advance
is made, and the day on which funds are repaid shall be included unless
repayment is credited prior to close of business. Payments in federal funds
immediately available in the place designated for payment received by Lender
prior to 2:00 p.m. local time at said place of payment shall be credited prior
to close of business, while other payments may, at the option of Lender, not be
credited until immediately available to Lender in federal funds in the place
designated for payment prior to 2:00 p.m. local time at said place of payment on
a day on which Lender is open for business. An installment of interest only
shall be payable on May 1, 1998. On May __ , 1998 (the "Maturity Date"), the
entire outstanding principal balance hereof, together with all accrued but
unpaid interest thereon, shall be due and payable in full. Each such monthly
installment shall equal the amount of interest accrued during the preceding
month as calculated by Xxxxxx, which calculation shall be final in the absence
of manifest error reported in writing within fifteen days. Each such payment
shall be applied first to the payment of accrued interest and then to reduction
of principal. Borrower shall pay to Xxxxxx contemporaneously with the execution
hereof interest at the foregoing interest rate for a period from the date hereof
through and including the last day of the calendar month in which funding
occurs.
(b) For all purposes of this Note, "Libor Rate" shall mean the
U.S. Dollar rate (rounded upward to the nearest one-sixteenth of one percent)
listed on page 3750 (I.E., the Libor page) of the Telerate News Services titled
"British Banker Association Interest Settlement Rates"
for a designated maturity of one (1) month determined as of 11:00 a.m. London
Time on the second (2nd) full Eurodollar Business Day next preceding the first
day of each month with respect to which interest is payable hereunder (unless
such date is not a business day (as defined in the Security Instrument (as
hereinafter defined)) in which event the next succeeding Eurodollar Business Day
which is also a business day will be used). If the Telerate News Services (a)
publishes more than one (1) such Libor Rate, the average of such rates shall
apply, or (b) ceases to publish the Libor Rate, then the Libor Rate shall be
determined from such substitute financial reporting service as Lender in its
discretion shall determine. The term "Eurodollar Business Day", shall mean any
day on which banks in the City of London are generally open for interbank or
foreign exchange transactions.
1.02 PREPAYMENT. (a) This Note may be prepaid in whole but not in
part at any time, provided (i) written notice of such prepayment is received by
Lender not more than thirty (30) days and not less than ten (10) days prior to
the date of such prepayment, and (ii) such prepayment is received on the first
day of a calendar month (or, if such prepayment is not received on the first day
of a calendar month, interest is paid through the last day of such calendar
month) and is accompanied by all interest accrued hereunder and all other sums
due hereunder or under the other Loan Documents.
(b) Partial prepayments of this Note shall not be permitted,
except partial prepayments resulting from Lender applying insurance or
condemnation proceeds to reduce the outstanding principal balance of this Note
as provided in the Security Instrument, in which event no prepayment fee or
premium shall be due. No notice of prepayment shall be required under the
circumstance specified in the preceding sentence. No principal amount repaid
may be reborrowed. Partial payments of principal shall be applied to the unpaid
principal balance evidenced hereby but such application shall not reduce the
amount of the monthly installments required to be paid pursuant to Section 1.01
above.
1.03 SECURITY. The indebtedness evidenced by this Note and the
obligations created hereby are secured by that certain Mortgage and Security
Agreement (the "Security Instrument") from Borrower to Lender, dated as of even
date herewith, concerning property located in Onondonga County, New York. The
Security Instrument together with this Note and all other documents to or of
which Xxxxxx is a party or beneficiary now or hereafter evidencing, securing,
guarantying, modifying or otherwise relating to the indebtedness evidenced
hereby, are herein referred to collectively as the "Loan Documents". All of the
terms and provisions of the Loan Documents are incorporated herein by reference.
Some of the Loan Documents are to be filed for record on or about the date
hereof in the appropriate public records.
1.04 DEFAULT. It is hereby expressly agreed that should any
default occur in the payment of principal or interest as stipulated above and
such payment is not made within five (5) days of the date such payment is due
(provided that no grace period is provided for the payment of principal and
interest due on the Maturity Date), or should any other default occur under any
of the Loan Documents which is not cured within any applicable grace or cure
period, including without limitation, any sale, transfer, conveyance or other
violation of the terms of Section 1.13 of the Security Instrument, then a
default shall exist hereunder, and in such event the indebtedness evidenced
hereby, including all sums advanced or accrued hereunder or under any other Loan
Document, and all unpaid interest accrued thereon, shall, at the option of
Lender and without notice to Borrower, at once become due and payable and may be
collected forthwith,
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whether or not there has been a prior demand for payment and regardless of the
stipulated date of maturity. In the event that any payment is not received by
Lender on the date when due (subject to the applicable grace period), then in
addition to any default interest payments due hereunder, Borrower shall also pay
to Lender a late charge in an amount equal to five percent (5.0%) of the amount
of such overdue payment. So long as any default exists hereunder, regardless of
whether or not there has been an acceleration of the indebtedness evidenced
hereby, and at all times after maturity of the indebtedness evidenced hereby
(whether by acceleration or otherwise), interest shall accrue on the outstanding
principal balance of this Note at a rate per annum equal to four percent (4.0%)
plus the interest rate which would be in effect hereunder absent such default or
maturity, or if such increased rate of interest may not be collected under
applicable law, then at the maximum rate of interest, if any, which may be
collected from Borrower under applicable law (the "Default Interest Rate"), and
such default interest shall be immediately due and payable. Borrower
acknowledges that it would be extremely difficult or impracticable to determine
Xxxxxx's actual damages resulting from any late payment or default, and such
late charges and default interest are reasonable estimates of those damages and
do not constitute a penalty. The remedies of Lender in this Note or in the Loan
Documents, or at law or in equity, shall be cumulative and concurrent, and may
be pursued singly, successively or together in Xxxxxx's discretion. Time is of
the essence of this Note. In the event this Note, or any part hereof, is
collected by or through an attorney-at-law, Xxxxxxxx agrees to pay all costs of
collection including, but not limited to, reasonable attorney's fees.
1.05 EXCULPATION. Notwithstanding anything in the Loan Documents
to the contrary, but subject to the qualifications hereinbelow set forth, Xxxxxx
agrees that (i) Borrower shall be liable upon the indebtedness evidenced hereby
and for the other obligations arising under the Loan Documents to the full
extent (but only to the extent) of the security therefor, the same being all
properties (whether real or personal), rights, estates and interests now or at
any time hereafter securing the payment of this Note and/or the other
obligations of Borrower under the Loan Documents (collectively, the "Security
Property"), (ii) if default occurs in the timely and proper payment of all or
any part of such indebtedness evidenced hereby or in the timely and proper
performance of the other obligations of Borrower under the Loan Documents, any
judicial proceedings brought by Lender against Borrower shall be limited to the
preservation, enforcement and foreclosure, or any thereof, of the liens,
security titles, estates, assignments, rights and security interests now or at
any time hereafter securing the payment of this Note and/or the other
obligations of Borrower under the Loan Documents, and confirmation of any sale
under power of sale, and no attachment, execution or other writ of process shall
be sought, issued or levied upon any assets, properties or funds of Borrower
other than the Security Property except with respect to the liability described
below in this section, and (iii) in the event of a foreclosure of such liens,
security titles, estates, assignments, rights or security interests securing the
payment of this Note and/or the other obligations of Borrower under the Loan
Documents, whether by judicial proceedings or exercise of power of sale, no
judgment for any deficiency upon the indebtedness evidenced hereby shall be
sought or obtained by Lender against Borrower, except with respect to the
liability described below in this section; provided, however, that,
notwithstanding the foregoing provisions of this section, Borrower shall be
fully and personally liable and subject to legal action (a) for proceeds paid
under any insurance policies (or paid as a result of any other claim or cause of
action against any person or entity) by reason of damage, loss or destruction to
all or any portion of the Security Property, to the full extent of such proceeds
not previously delivered to Lender, but which, under the terms of the Loan
Documents, should have been delivered to Lender, (b) for proceeds or awards
resulting from the
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condemnation or other taking in lieu of condemnation of all or any portion of
the Security Property, to the full extent of such proceeds or awards not
previously delivered to Lender, but which, under the terms of the Loan
Documents, should have been delivered to Lender, (c) for all tenant security
deposits or other refundable deposits paid to or held by Borrower or any other
person or entity in connection with leases of all or any portion of the Security
Property which are not applied in accordance with the terms of the applicable
lease or other agreement, (d) for rent and other payments received from tenants
under leases of all or any portion of the Security Property paid more than one
month in advance, (e) for rents, issues, profits and revenues of all or any
portion of the Security Property received or applicable to a period after any
notice of default from Lender hereunder or under the Loan Documents in the event
of any default by Borrower hereunder or thereunder which are not either applied
to the ordinary and necessary expenses of owning and operating the Security
Property or paid to Lender, (f) for damage to the Security Property as a result
of the intentional misconduct or gross negligence of Borrower or any of
principals, officers or general partners, or any agent or employee of any such
persons, or any removal of the Security Property in violation of the terms of
the Loan Documents, to the full extent of the losses or damages incurred by
Lender on account of such failure, (g) for Borrower's failure to pay any valid
taxes, assessments, mechanic's liens, materialmen's liens or other liens which
could create liens on any portion of the Security Property which would be
superior to the lien or security title of the Security Instrument or the other
Loan Documents, to the full extent of the amount claimed by any such lien
claimant, (h) for all obligations and indemnities of Borrower under the Loan
Documents relating to hazardous or toxic substances or compliance with
environmental laws and regulations to the full extent of any losses or damages
(including those resulting from diminution in value of any Security Property)
incurred by Lender as a result of the existence of such hazardous or toxic
substances or failure to comply with environmental laws or regulations, (i) for
fraud or material misrepresentation by Borrower or any of its principals,
officers, or general partners, any guarantor, any indemnitor or any agent,
employee or other person authorized or apparently authorized to make statements
or representations on behalf of Borrower, any principal, officer or partner of
Xxxxxxxx, any guarantor or any indemnitor, to the full extent of any losses,
damages and expenses of Lender on account thereof, and (j) for any breach of the
covenants in the Security Instrument relating to further assurances and delivery
of additional security documentation, in each case to the full extent of any
losses, damages and expenses of Lender on account thereof. References herein to
particular sections of the Loan Documents shall be deemed references to such
sections as affected by other provisions of the Loan Documents relating thereto.
Nothing contained in this section shall (i) be deemed to be a release or
impairment of the indebtedness evidenced by this Note or the other obligations
of Borrower under the Loan Documents or the lien of the Loan Documents upon the
Security Property, or (ii) preclude Lender from foreclosing the Loan Documents
in case of any default or from enforcing any of the other rights of Lender
except as stated in this section, or (iii) limit or impair in any way whatsoever
the Hazardous Substances Indemnity Agreement or the Indemnity and Guaranty
Agreement each dated as of even date herewith, or release, relieve, reduce,
waive or impair in any way whatsoever, any obligation of Borrower or American
Real Estate Investment Corporation under such Hazardous Substances Indemnity
Agreement or Indemnity and Guaranty Agreement.
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ARTICLE II
GENERAL CONDITIONS
2.01 NO WAIVER; AMENDMENT. No failure to accelerate the debt
evidenced hereby by reason of default hereunder, acceptance of a partial or past
due payment, or indulgences granted from time to time shall be construed (i) as
a novation of this Note or as a reinstatement of the indebtedness evidenced
hereby or as a waiver of such right of acceleration or of the right of Lender
thereafter to insist upon strict compliance with the terms of this Note, or (ii)
to prevent the exercise of such right of acceleration or any other right granted
hereunder or by any applicable laws; and Borrower hereby expressly waives the
benefit of any statute or rule of law or equity now provided, or which may
hereafter be provided, which would produce a result contrary to or in conflict
with the foregoing. No extension of the time for the payment of this Note or
any installment due hereunder, made by agreement with any person now or
hereafter liable for the payment of this Note shall operate to release,
discharge, modify, change or affect the original liability of Borrower under
this Note, either in whole or in part unless Xxxxxx agrees otherwise in writing.
This Note may not be changed orally, but only by an agreement in writing signed
by the party against whom enforcement of any waiver, change, modification or
discharge is sought.
2.02 WAIVERS. Presentment for payment, demand, protest and notice
of demand, protest and nonpayment and all other notices are hereby waived by
Xxxxxxxx. Borrower hereby further waives and renounces, to the fullest extent
permitted by law, all rights to the benefits of any statute of limitations and
any moratorium, reinstatement, marshalling, forbearance, valuation, stay,
extension, redemption, appraisement, exemption and homestead now or hereafter
provided by the Constitution and laws of the United States of America and of
each state thereof, both as to itself and in and to all of its property, real
and personal, against the enforcement and collection of the obligations
evidenced by this Note or the other Loan Documents.
2.03 LIMIT OF VALIDITY. The provisions of this Note and of all
agreements between Borrower and Lender, whether now existing or hereafter
arising and whether written or oral, are hereby expressly limited so that in no
contingency or event whatsoever, whether by reason of demand or acceleration of
the maturity of this Note or otherwise, shall the amount paid, or agreed to be
paid ("Interest"), to Lender for the use, forbearance or retention of the money
loaned under this Note exceed the maximum amount permissible under applicable
law. If, from any circumstance whatsoever, performance or fulfillment of any
provision hereof or of any agreement between Borrower and Lender shall, at the
time performance or fulfillment of such provision shall be due, exceed the limit
for Interest prescribed by law or otherwise transcend the limit of validity
prescribed by applicable law, then IPSO FACTO the obligation to be performed or
fulfilled shall be reduced to such limit and if, from any circumstance
whatsoever, Lender shall ever receive anything of value deemed Interest by
applicable law in excess of the maximum lawful amount, an amount equal to any
excessive Interest shall be applied to the reduction of the principal balance
owing under this Note in the inverse order of its maturity (whether or not then
due) or at the option of Lender be paid over to Borrower, and not to the payment
of Interest. All Interest (including any amounts or payments deemed to be
Interest) contracted for, charged, taken, reserved, paid or agreed to be paid to
Lender shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full term of this Note, including any
extensions or renewals hereof, until payment in full of the principal balance of
this Note so
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that the Interest thereof for such full period will not exceed the maximum
amount permitted by applicable law. This Section 2.03 will control all
agreements between Borrower and Lender pursuant to the Loan Documents.
2.04 USE OF FUNDS. Borrower hereby warrants, represents and
covenants that no funds disbursed hereunder shall be used for personal, family
or household purposes.
2.05 UNCONDITIONAL PAYMENT. Borrower is and shall be obligated to
pay principal, interest and any and all other amounts which become payable
hereunder or under the other Loan Documents absolutely and unconditionally and
without any abatement, postponement, diminution or deduction and without any
reduction for counterclaim or setoff. In the event that at any time any payment
received by Lender hereunder shall be deemed by a court of competent
jurisdiction to have been a voidable preference or fraudulent conveyance under
any bankruptcy, insolvency or other debtor relief law, then the obligation to
make such payment shall survive any cancellation or satisfaction of this Note or
return thereof to Borrower and shall not be discharged or satisfied with any
prior payment thereof or cancellation of this Note, but shall remain a valid and
binding obligation enforceable in accordance with the terms and provisions
hereof, and such payment shall be immediately due and payable upon demand.
2.06 FURTHER ASSURANCES. Borrower shall execute and acknowledge
(or cause to be executed and acknowledged) and deliver to Lender all documents,
and take all actions, reasonably required by Lender from time to time to confirm
the rights created or now or hereafter intended to be created under this Note
and the other Loan Documents, to protect the validity, priority and
enforceability of this Note and the other Loan Documents, to subject to the Loan
Documents any property of Borrower intended by the terms of any one or more of
the Loan Documents to be encumbered by the Loan Documents, or otherwise carry
out the purposes of the Loan Documents and the transactions contemplated
thereunder; PROVIDED, HOWEVER, that no such further actions, assurances and
confirmations shall increase, modify or change Borrower's obligations under this
Note or under the other Loan Documents.
2.07 SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL
(1) BORROWER, TO THE FULL EXTENT PERMITTED BY LAW, XXXXXX
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT
COUNSEL, (A) SUBMITS TO PERSONAL JURISDICTION IN THE STATE OF NEW YORK OVER ANY
SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS NOTE,
(B) AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE
OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK, (C)
SUBMITS TO THE JURISDICTION OF SUCH COURTS, AND (D) TO THE FULLEST EXTENT
PERMITTED BY LAW, AGREES THAT BORROWER WILL NOT BRING ANY ACTION, SUIT OR
PROCEEDING IN ANY OTHER FORUM (BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF
LENDER TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM) AND BORROWER
FURTHER CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S.
MAIL, POSTAGE PREPAID, TO BORROWER AT THE ADDRESS FOR NOTICES DESCRIBED ON THE
FIRST PAGE HEREOF, AND CONSENTS AND AGREES THAT
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SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT
NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN
ANY OTHER MANNER PERMITTED BY LAW).
(2) BORROWER, AND BY ITS ACCEPTANCE HEREOF, XXXXXX, TO THE FULL
EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH
AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVE, RELINQUISH AND FOREVER FORGO
THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT
OF, OR IN ANY WAY RELATING TO THIS NOTE OR ANY CONDUCT, ACT OR OMISSION OF
LENDER, OR ANY OF ITS DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS
OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH LENDER, IN EACH OF THE
FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
2.08 MISCELLANEOUS. This Note shall be interpreted, construed and
enforced according to the laws of the State of New York. The terms and
provisions hereof shall be binding upon and inure to the benefit of Xxxxxxxx and
Xxxxxx and their respective heirs, executors, legal representatives, successors,
successors-in-title and assigns, whether by voluntary action of the parties or
by operation of law. As used herein, the terms "Borrower" and "Lender" shall be
deemed to include their respective successors, successors-in-title and assigns,
whether by voluntary action of the parties or by operation of law, subject to
the limitations set forth in SECTION 1.05 above. Subject to the limitations set
forth in SECTION 1.05 above, if Borrower consists of more than one person or
entity, each shall be jointly and severally liable to perform the obligations of
Borrower under this Note. All personal pronouns used herein, whether used in
the masculine, feminine or neuter gender, shall include all other genders; the
singular shall include the plural and vice versa. Titles of articles and
sections are for convenience only and in no way define, limit, amplify or
describe the scope or intent of any provisions hereof. Capitalized terms used
in this Note and not otherwise defined herein shall have the meaning ascribed to
them in the Security Instrument or in the other Loan Documents. Time is of the
essence with respect to all provisions of this Note, the Security Instrument and
the other Loan Documents. This Note and the other Loan Documents contain the
entire agreements between the parties hereto relating to
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the subject matter hereof and thereof and all prior agreements relative hereto
and thereto which are not contained herein or therein are terminated. This Note
is a sealed instrument.
IN WITNESS WHEREOF, Xxxxxxxx has executed this Note as of the date
first above written.
BORROWER:
VIRGINIA STREET ASSOCIATES, L.P.
a Colorado limited partnership
By: AMERICAN REAL ESTATE
INVESTMENT, L.P.,
its sole general partner
By: AMERICAN REAL ESTATE
INVESTMENT CORPORATION,
its sole general partner
By: /s/ Xxxxxxx X. Xxxxx
Title: Vice-President
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