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EXHIBIT 10.90
AMENDMENT NO. 13 TO AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 13 TO AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT is entered into as of this 13th day of December, 1995, by
and between FINOVA CAPITAL CORPORATION, a Delaware corporation ("Lender"), and
PREFERRED EQUITIES CORPORATION, a Nevada corporation ("Borrower").
R E C I T A L S
A. Greyhound Real Estate Finance Company, an Arizona
corporation ("GREFCO") and Borrower entered into an Amended and Restated Loan
and Security Agreement dated as of May 10, 1989 (the "Restated Loan Agreement")
that evidences a loan from GREFCO to Borrower (the "Modified Loan") that is
secured by, among other things, Receivables Collateral.
B. The Modified Loan and Restated Loan Agreement were
amended by an Amendment Number One to Amended and Restated Loan and Security
Agreement dated June 14, 1989 (the "First Amendment"), by an Amendment No. 2 to
Amended and Restated Loan and Security Agreement dated April 16, 1990 (the
"Second Amendment"), by an Amendment No. 3 to Amended and Restated Loan and
Security Agreement dated May 31, 1991 (the "Third Amendment"), by an Amendment
No. 4 to Amended and Restated Loan and Security Agreement dated January 13,
1992 (the "Fourth Amendment"), by an Amendment No. 5 to Amended and Restated
Loan and Security Agreement dated February 23, 1993 (the "Fifth Amendment"); by
an Amendment No. 6 to Amended and Restated Loan and Security Agreement dated
June 28, 1993 (the "Sixth Amendment"), by an Amendment No. 7 to Amended and
Restated Loan and Security Agreement dated January 24, 1994 (the "Seventh
Amendment"), by an Amendment No. 8 to Amended and Restated Loan and Security
Agreement dated as of April 15, 1994 (the "Eighth Amendment"), by an Amendment
No. 9 to Amended and Restated Loan and Security Agreement dated as of August
31, 1994 (the "Ninth Amendment"), by an Amendment No. 10 to Amended and
Restated Loan and Security Agreement dated as of January 26, 1995 ("Tenth
Amendment"), by an Amendment No. 11 to Amended and Restated Loan and Security
Agreement dated as of September 22, 1995 (the "Eleventh Amendment"), and by an
Amendment No. 12 to Amended and Restated Loan and Security Agreement dated as
of September 29, 1995 (the "Twelfth Amendment"). The Restated Loan Agreement,
the First Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment, the Fifth Amendment, the Sixth Amendment, the Seventh Amendment, the
Eighth Amendment, the Ninth Amendment, the Tenth Amendment, the Eleventh
Amendment, the Twelfth Amendment and this Thirteenth Amendment and all other
documents evidencing or executed in connection with the Loan are referred to
hereinafter as the "Loan Documents." The Restated Loan Agreement, as amended
by the First Amendment, Second Amendment, Third Amendment, Fourth Amendment,
Fifth Amendment, Sixth Amendment, Seventh Amendment, Eighth Amendment, Ninth
Amendment, Tenth Amendment, Eleventh Amendment and Twelfth Amendment is
referred to hereinafter as the "Loan Agreement." The Loan contemplated by the
Loan Agreement, as amended by this Thirteenth Amendment, is referred to
hereinafter as the "Loan." All capitalized terms used in this Thirteenth
Amendment will have the
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meanings assigned to such terms in the Loan Agreement unless those terms are
otherwise defined herein.
C. GREFCO was a wholly-owned subsidiary of Greyhound
Financial Corporation ("GFC"). Pursuant to a plan of liquidation, GREFCO was
liquidated into GFC. Further, pursuant to such plan of liquidation, GREFCO
assigned the Note and all of GREFCO's rights under the Loan Agreement and other
Documents to GFC. Effective as of February 1, 1995, GFC changed its name to
FINOVA Capital Corporation.
D. Borrower has requested and Lender has agreed to
further modify the Loan in accordance with the terms of, and subject to the
conditions contained in, this Thirteenth Amendment.
E. Borrower has requested and Lender has agreed (in
accordance with and subject to the terms of this Thirteenth Amendment), as part
of the Loan under the Loan Agreement, to increase the amount of the Mortgage
Loan Facility portion of the Loan used by Borrower to finance the acquisition
and refurbishment of timeshare resorts from $6,500,000 to $12,000,000.
F. Borrower has also requested and Lender has agreed to
fund (pursuant to the terms and conditions of this Thirteenth Amendment)
additional Advances under the Mortgage Loan Facility to finance the acquisition
and renovation of two (2) additional timeshare resort facilities located at:
(i) 000 Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx, consisting of 22 timeshare units,
more particularly described in Exhibit "A" attached hereto (the "Winnick
Building Addition"), and (ii) 000-000 Xxx Xxxxxx, Xxx Xxxxx, Xxxxxx, consisting
of 24 timeshare units, more particularly described in Exhibit "B" attached
hereto (the "Xxx Building Addition").
G. Borrower has also requested and Lender has agreed, in
accordance with and subject to the terms and conditions contained in the Loan
Agreement, as modified by this Thirteenth Amendment, to finance the cost of the
expansion and renovation of the lobby in that timeshare resort facility owned
by Borrower and known as "The Towers," which is more particularly described in
Exhibit "C" attached hereto (the "Towers"). Such Advances shall be made under
the Mortgage Loan Facility.
H. Borrower has also requested and Lender has agreed, in
accordance with and subject to the conditions contained in the Loan Agreement,
as modified by this Thirteenth Amendment, to make Advances of the Loan, from
time to time, against Instruments or Contracts arising from the Xxxxxxx
Building Addition and the Xxx Building Addition.
NOW, THEREFORE, in consideration of these recitals, the
covenants contained in this Thirteenth Amendment, and for other good and
valuable consideration, the receipt and sufficiency of which consideration is
hereby acknowledged, Lender and Borrower agree as follows:
1. LOAN AGREEMENT. Provided the conditions precedent described
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in Paragraph 12 of this Thirteenth Amendment are met to the satisfaction of
Lender, which satisfaction will be evidenced by Lender's execution of this
Thirteenth Amendment unless otherwise provided herein, the Loan Agreement is
hereby further modified as follows:
1.1 The Loan Agreement is hereby amended by adding to Article I the
following definitions:
"Xxx Building Addition": shall have the meaning set forth in the Recitals of
the Thirteenth Amendment.
"Xxx Building Addition Acquisition Advance": shall
have the meaning set forth in Paragraph 4 of the Thirteenth Amendment.
"Xxx Building Addition Deed of Trust": shall have the meaning set forth in
Paragraph 10 of the Thirteenth Amendment.
"Xxx Building Addition Incentive Fee": shall mean
the Incentive Fee provided for in Paragraph 11.4.2 of the Thirteenth
Amendment.
"Xxx Building Addition Note": shall have the meaning
set forth in Paragraph 8.1 of the Thirteenth Amendment.
"Xxx Building Addition Release Fee": shall have the
meaning set forth in Paragraph 11.2 of the Thirteenth Amendment.
"Xxx Building Addition Renovation Advances": shall
have the meaning set forth in Paragraph 5 of the Thirteenth Amendment.
"Thirteenth Amendment": shall mean this Amendment
No. 13 to Amended and Restated Loan and Security Agreement.
"Towers Advances": shall have the meaning set forth
in Paragraph 6 of the Thirteenth Amendment.
"Towers Note": shall have the meaning set forth in
Paragraph 9 of the Thirteenth Amendment.
"Towers Note Principal Reduction Fee": shall have
the meaning set forth in Paragraph 9.3 of the Thirteenth Amendment.
"Towers Lobby Expansion": shall have the meaning set
forth in Paragraph 6 of the Thirteenth Amendment.
"Xxxxxxx Building Addition": shall have the meaning
set forth in the Recitals of the Thirteenth Amendment.
"Xxxxxxx Building Addition Acquisition Advance":
shall have the meaning set forth in Paragraph 2 of the Thirteenth
Amendment.
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"Xxxxxxx Building Addition Deed of Trust": shall
have the meaning set forth in Paragraph 10 of the Thirteenth
Amendment.
"Xxxxxxx Building Addition Incentive Fee": shall
mean the Incentive Fee provided for in Paragraph 11.4.1 of the
Thirteenth Amendment.
"Xxxxxxx Building Addition Note": shall have the
meaning set forth in Paragraph 7.1 of the Thirteenth Amendment.
"Xxxxxxx Building Addition Renovation Advances":
shall have the meaning set forth in Paragraph 3 of the Thirteenth
Amendment.
"Xxxxxxx Building Addition Release Fee": shall have
the meaning set forth in Paragraph 11.1 of the Thirteenth Amendment.
1.2 The definitions of the following terms in
Article I of the Loan Agreement, including, to the extent applicable, the First
Amendment, Second Amendment, Third Amendment, Fourth Amendment, Fifth
Amendment, Sixth Amendment, Seventh Amendment, Eighth Amendment, Ninth
Amendment, Tenth Amendment, Eleventh Amendment and Twelfth Amendment are hereby
amended and restated in their entirety to read as follows:
"Documents": shall mean the Note, the First
Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment, the Fifth Amendment, the Sixth Amendment, the Seventh
Amendment, the Eighth Amendment, the Ninth Amendment, the Tenth
Amendment, the Eleventh Amendment, the Twelfth Amendment, the
Thirteenth Amendment, the 2.5 MM Note, the Suites Phase II Note, the
Xxx Building One Note, the Xxx Building Two Note, the Aloha Bay Phase
I Note, the Aloha Bay Phase II Note, the Xxxxxxx Building Addition
Note, the Xxx Building Addition Note, the Towers Note, the Guarantee,
the Deed of Trust, the Headquarters Deed of Trust, the Xxx Building
One Deed of Trust, the Xxx Building Two Deed of Trust, the Aloha Bay
Phase I Mortgage, the Aloha Bay Phase II Mortgage, the Xxxxxxx
Building Addition Deed of Trust, the Xxx Building Addition Deed of
Trust, the Assignments, the Contracts, the Instruments, the Agency
Agreement, the Oversight Agreement, this Agreement, and all other
documents and instruments executed in connection with the Loan,
together with any and all renewals, extensions, amendments,
restatements or replacements thereof, whether now or hereafter
existing.
"Mortgage Loan Facility": shall mean that portion of
the Loan not to exceed $12,000,000 under which Advances may be made to
Borrower on a revolving basis in order to finance Borrower's
acquisition and refurbishment of time-share resorts. The Advances
made under the Mortgage Loan Facility include the First Suites Phase
II Loan Advance, the Second Suites Phase II Loan Advance, the Xxx
Building One Acquisition Advance, the Xxx Building Two Acquisition
Advance, the Xxxxxxx Building Addition Acquisition Advance, the
Xxxxxxx Building Addition Renovation Advances, the Xxx Building
Addition Acquisition Advance, the Xxx Building Addition Renovation
Advances, the Towers Advances and any other Advances made by Lender to
Borrower after the date of the Thirteenth Amendment to finance
Borrower's acquisition and
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refurbishment of time-share resorts, exclusive of the following
Advances which are not included within the Mortgage Loan Facility:
the Receivables Over-Advances as provided for in the Tenth Amendment,
the Aloha Bay Phase I Acquisition Advance, Aloha Bay Phase I
Renovation Advances, the Aloha Bay Phase II Acquisition Advance, Aloha
Bay Phase II Construction Advances, and the Advances evidenced by the
2.5 MM Note.
"Project": shall mean each of the Xxxxxxx Building
Addition (as defined in the Thirteenth Amendment), Xxx Building
Addition (as defined in the Thirteenth Amendment), Aloha Bay Phase I
(as defined in the Eleventh Amendment), Aloha Bay Phase II (as defined
in the Eleventh Amendment), Xxx Building One (as defined in the Tenth
Amendment), Xxx Building Two (as defined in the Tenth Amendment),
South Park Ranches (as defined in the Ninth Amendment), Suites Phase
II (as defined in the Eighth Amendment), Fountains (as defined in the
Sixth Amendment), Xxxxxxx (as defined in the Sixth Amendment), Suites
Phase I (as defined in the Fourth Amendment) and those certain real
estate developments which are owned by the Borrower or the Trustee,
located in Xxx County and Xxxxx County in the State of Nevada, and
Huerfano County in the State of Colorado, which are more particularly
described in Exhibit "P-1" to the First Amendment.
"Xxx Building One Deed of Trust": shall mean the Xxx
Building One Deed of Trust, as modified and amended pursuant to that
First Modification of Deed of Trust [Xxx Building One] recorded
November 22, 1995 in Book 951122 as Instrument No. 01278, Official
Records of Xxxxx County, Nevada, and by that Second Modification of
Deed of Trust [Xxx Building One] described in Paragraph 9.3 of the
Thirteenth Amendment.
"Xxx Building Two Deed of Trust": shall mean the Xxx
Building Two Deed of Trust, as modified and amended pursuant to that
First Modification of Deed of Trust [Xxx Building Two] described in
Paragraph 9.3 of the Thirteenth Amendment.
1.3 The term "Borrowing Term," as defined in
Article I of the Loan Agreement, is hereby amended by including therein the
periods of time during which Lender is committed to make Advances under the
Loan Agreement, as amended by the Thirteenth Amendment, with respect to the
properties described in this Paragraph 1.3, which commitment shall terminate
(a) as to the Xxxxxxx Building Addition, on October 31, 1996; (b) as to the Xxx
Building Addition, on October 31, 1996; and (c) as to the Towers Lobby
Expansion, on October 31, 1996.
1.4 The introductory subparagraph of Paragraph
3.1 of the Loan Agreement is hereby amended and restated in its entirety to
read as follows:
"3.1(a) As security for Borrower's payment and
Performance of all Obligations owed to Lender under the Documents
(including, without limitation, the 2.5 MM Note, the Suites Phase II
Note, the Xxx Building One Note, the Xxx Building Two Note, the Aloha
Bay Phase I Note (subject to the limitations set forth in the Aloha Bay
Phase I Mortgage with respect to Aloha Bay Phase I), the Aloha Bay
Phase II Note (subject to the limitations set forth in
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the Aloha Bay Phase II Mortgage with respect to Aloha Bay Phase II),
the Xxxxxxx Building Addition Note, the Xxx Building Addition Note,
and the Towers Note, Borrower hereby grants, transfers and assigns to
Lender a Security Interest in and to all of Borrower's right, title
and interest in and to all of the following:"
1.5 The introductory subparagraph of Paragraph
3.1(b) of the Loan Agreement (which was added to the Loan Agreement pursuant to
the Fourth Amendment) is hereby amended and restated in its entirety to read as
follows:
"(b) As further security for Borrower's payment
and Performance of all Obligations owed to Lender under the Documents
(including, without limitation, the 2.5 MM Note, the Suites Phase II
Note, the Xxx Building One Note, the Xxx Building Two Note, the Aloha
Bay Phase I Note (subject to the limitations set forth in the Aloha
Bay Phase I Mortgage with respect to Aloha Bay Phase I), the Aloha Bay
Phase II Note (subject to the limitations set forth in the Aloha Bay
Phase II Mortgage with respect to Aloha Bay Phase II), the Xxxxxxx
Building Addition Note, the Xxx Building Addition Note, and the Towers
Note, Borrower hereby grants, transfers and assigns to Lender a
Security Interest in and to all of Borrower's right, title and
interest in and to all of the following:"
1.6 Paragraph 7.2 of the Loan Agreement is hereby
amended by adding the phrase "(exclusive of the aggregate outstanding principal
balance of the 2.5 MM Note, the Suites Phase II Note, the Xxx Building One
Note, the Xxx Building Two Note, the Aloha Bay Phase I Note, the Aloha Bay
Phase II Note, the Xxxxxxx Addition Note, the Xxx Building Addition Note, and
the Towers Note)" immediately following the word "Loan" at both places where
the term "Loan" appears in the first sentence thereof.
1.7 Paragraph 9.1(a) of the Loan Agreement is
hereby amended and restated in its entirety to read as follows:
"(a) Lender fails to receive from Borrower when
due and payable (i) any amount that Borrower is obligated to pay on
the Note, (ii) any amount that Borrower is obligated to pay on the 2.5
MM Note, (iii) any amount that Borrower is obligated to pay on the
Suites Phase II Note, (iv) any amount that Borrower is obligated to
pay on the Xxx Building One Note, (v) any amount that Borrower is
obligated to pay on the Xxx Building Two Note, (vi) any amount that
Borrower is obligated to pay on the Aloha Bay Phase I Note, (vii) any
amount that Borrower is obligated to pay on the Aloha Bay Phase II
Note, (viii) any amount that Borrower is obligated to pay on the
Xxxxxxx Building Addition Note, (ix) any amount that Borrower is
obligated to pay on the Xxx Building Addition Note, (x) any amount
that Borrower is obligated to pay on the Towers Note, or (xi) any
other payment due under the Documents; and such failure shall continue
for five (5) days after notice thereof to Borrower, except for the
payment of the final installment due under each of the Note, the 2.5
MM Note, the Suites Phase II Note, the Xxx Building One Note, the Xxx
Building Two Note, the Aloha Bay Phase I Note, the Aloha Bay Phase II
Note, the Xxxxxxx Building Addition Note, the Xxx Building Addition
Note, or the Towers Note, for which
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no grace period is allowed;"
2. XXXXXXX BUILDING ADDITION ACQUISITION ADVANCE. As an
Advance against the Maximum Loan Amount and the Mortgage Loan Facility, Lender
shall make a loan (the "Xxxxxxx Building Addition Acquisition Advance") to
Borrower in an amount equal to the lesser of (a) $1,350,000, or (b) 90% of the
bona fide costs and expenses incurred or to be incurred by Borrower in
acquiring the Xxxxxxx Building Addition, as established by evidence
satisfactory to Lender (exclusive of any overhead of or profits to Borrower or
any of the Control Group). The following terms and conditions shall apply to
the Xxxxxxx Building Addition Acquisition Advance:
2.1 At such time as all conditions with respect
to the Xxxxxxx Building Addition Acquisition Advance in this Thirteenth
Amendment have been satisfied in Lender's discretion, Lender shall disburse the
Xxxxxxx Building Addition Acquisition Advance to Borrower in a single Advance
on a date mutually agreeable to the parties hereto; provided , however, that
Lender shall have no obligation to disburse any portion of the Xxxxxxx Building
Addition Acquisition Advance after January 21, 1996.
2.2 Borrower shall use the proceeds of the
Xxxxxxx Building Addition Acquisition Advance to pay for a portion of
Borrower's costs in purchasing the Xxxxxxx Building Addition.
2.3 Borrower shall pay to Lender the Mortgage
Loan Commitment Fee applicable to the Xxxxxxx Building Addition Acquisition
Advance simultaneously with such Advance.
3. XXXXXXX BUILDING ADDITION RENOVATION ADVANCES. As an
Advance against the Maximum Loan Amount and the Mortgage Loan Facility, Lender
shall make a loan (the "Xxxxxxx Building Addition Renovation Advances") to
Borrower, in a total amount not to exceed the lesser of (a) $750,000 or (b) 90%
of the total bona fide out-of-pocket costs and expenses incurred by Borrower
through the date of such Advance in renovating the Xxxxxxx Building Addition,
as established by evidence satisfactory to Lender (exclusive of any overhead of
or profits to Borrower or any of the Control Group (for the purposes of the
foregoing, the term "overhead" shall not be deemed to include reasonable and
customary salaries paid to employees of Borrower performing renovations with
respect to the Xxxxxxx Building Addition)). Borrower shall use the proceeds of
any Xxxxxxx Building Addition Renovation Advances to reimburse Borrower for
Borrower's costs incurred in renovating and refurbishing the Xxxxxxx Building
Addition. Lender shall have no obligation to fund any Xxxxxxx Building
Addition Renovation Advances until such time as all conditions with respect
thereto in this Thirteenth Amendment have been satisfied in Lender's
discretion, and Lender shall have no obligation to make any further Xxxxxxx
Building Addition Renovation Advances after October 31, 1996.
4. XXX BUILDING ADDITION ACQUISITION ADVANCE. As an
Advance against the Maximum Loan Amount and the Mortgage Loan Facility, Lender
shall make a loan (the "Xxx Building Addition Acquisition Advance") to Borrower
in an amount equal to the lesser of (a) $825,000, or (b) 90% of the total bona
fide out-of-pocket costs
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and expenses to Borrower in acquiring the Xxx Building Addition, as established
by evidence satisfactory to Lender (exclusive of any overhead of or profits to
Borrower or any of the Control Group). The following terms and conditions
shall apply to the Xxx Building Addition Acquisition Advance:
4.1 At such time as all conditions with respect
to the Xxx Building Addition Acquisition Advance in this Thirteenth Amendment
have been satisfied in Lender's discretion, Lender shall disburse the Xxx
Building Addition Acquisition Advance to Borrower in a single advance on a date
mutually agreeable to the parties hereto; provided, however, that Lender shall
have no obligation to disburse any portion of the Xxx Building Addition
Acquisition Advance after December 21, 1995.
4.2 Borrower shall use the proceeds of the Xxx
Building Addition Acquisition Advance to pay for a portion of its costs in
purchasing the Xxx Building Addition.
4.3 Borrower shall pay the Mortgage Loan
Commitment Fee applicable to the Xxx Building Addition Acquisition Advance
simultaneously with the making of such Advance.
5. XXX BUILDING ADDITION RENOVATION ADVANCES. As an
Advance against the Maximum Loan Amount and the Mortgage Loan Facility, Lender
shall make a loan (the "Xxx Building Addition Renovation Advances") to Borrower
in a total amount equal to the lesser of (a) $675,000, or (b) 90% of the total
bona fide out-of-pocket costs and expenses incurred by Borrower through the
date of such Advance in renovating the Xxx Building Addition, as established by
evidence satisfactory to Lender (exclusive of any overhead of or profits to
Borrower or any of the Control Group (for the purposes of the foregoing, the
term "overhead" shall not be deemed to include reasonable and customary
salaries paid to employees of Borrower performing renovations with respect to
the Xxx Building Addition)). Borrower shall use the proceeds of any Xxx
Building Addition Renovation Advances to reimburse Borrower for Borrower's
costs incurred in renovating and refurbishing the Xxx Building Addition.
Lender shall have no obligation to fund any Xxx Building Addition Renovation
Advances until such time as all conditions with respect thereto in this
Thirteenth Amendment have been satisfied in Lender's discretion, and Lender
shall have no obligation to make any further Xxx Building Addition Renovation
Advances after October 31, 1996.
6. TOWERS ADVANCES. As an Advance against the Maximum
Loan Amount and the Mortgage Loan Facility, Lender shall make a loan (the
"Towers Advances") to Borrower in a total amount not to exceed the lesser of:
(a) $700,000, or (b) 90% of the bona fide out-of- pocket costs and expenses
incurred by Borrower through the date of such Advance in expanding, renovating
and refurbishing the main lobby area within the Towers (the "Towers Lobby
Expansion"), as established by evidence satisfactory to Lender (exclusive of
any overhead of or profits to Borrower or any of the Control Group (for the
purposes of the foregoing, the term "overhead" shall not be deemed to include
reasonable and customary salaries paid to employees of Borrower performing
renovations in connection with the Towers Lobby Expansion)). Borrower shall
use the proceeds of any Towers Advances to reimburse Borrower for Borrower's
costs incurred in performing the Towers Lobby Expansion. Lender shall
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have no obligation to fund any Towers Advances until such time as all
conditions with respect thereto in this Thirteenth Amendment have been
satisfied in Lender's discretion, and Lender shall have no obligation to make
any further Towers Advances after October 31, 1996.
7. XXXXXXX BUILDING ADDITION NOTE.
7.1 The Xxxxxxx Building Addition Acquisition
Advance and Xxxxxxx Building Addition Renovation Advances made with respect to
the Xxxxxxx Building Addition shall be evidenced by a single Promissory Note
(the "Xxxxxxx Building Addition Note") of Borrower, in a form acceptable to
Lender, executed and delivered to Lender simultaneously with Borrower's request
for the Xxxxxxx Building Addition Acquisition Advance, in the amount of up to
$2,100,000, payable to Lender upon the terms and conditions contained herein
and therein. Lender and Borrower hereby agree that, notwithstanding any
provision to the contrary in the Loan Agreement, the terms and conditions of
the Xxxxxxx Building Addition Note and this Paragraph 7 shall apply with
respect to repayment of the Xxxxxxx Building Addition Note. To the extent that
Borrower's indebtedness to Lender arising from the Xxxxxxx Building Addition
Note is evidenced by both the Note (as distinguished from the Xxxxxxx Building
Addition Note) and the Xxxxxxx Building Addition Note, receipts by Lender in
payment or satisfaction of such indebtedness (including receipt by Lender of
Xxxxxxx Building Addition Release Fees as provided in Paragraph 11.1 hereof)
shall be credited against sums due under both the Note and the Xxxxxxx Building
Addition Note and/or any judgment entered thereon.
7.2 Notwithstanding the provisions of Paragraph
7.3.1 of the Loan Agreement, Borrower shall have the right to prepay the
Xxxxxxx Building Addition Note only in the event and upon the condition that
Borrower (a) pays all sums due and payable to Lender in connection with the
Xxxxxxx Building Addition Note, (b) has given Lender at least thirty (30) days
prior written notice of the prepayment, and (c) pays to Lender at the time of
prepayment a prepayment premium equal to one percent (1%) of the then unpaid
principal balance of the Xxxxxxx Building Addition Note, together with any
unpaid portion of the Xxxxxxx Building Addition Incentive Fee as described in
Paragraph 11.4.1 below. Except as provided in the foregoing, Borrower shall
have no right to prepay the Xxxxxxx Building Addition Note, other than through
the application of Xxxxxxx Building Addition Release Fees against the principal
balance thereof, as provided in Paragraph 7.3 hereof.
7.3 The principal balance of the Xxxxxxx Building
Addition Note shall be repaid as follows: At such time as Borrower conveys a
Unit in the Xxxxxxx Building Addition to a Purchaser, Borrower shall make a
principal reduction payment to Lender under the Xxxxxxx Building Addition Note
in an amount equal to the Xxxxxxx Building Addition Release Fee.
Notwithstanding anything herein to the contrary, if not sooner paid, the entire
remaining balance of the Xxxxxxx Building Addition Note, together with all
accrued and unpaid interest and all other sums due and owing thereon, shall be
due and payable in full on the date which occurs twenty-four (24) months
following the date that Lender makes the last Xxxxxxx Building Renovation
Advance (or in the event there is no such day in the 24th month, on the last
day of such month). Xxxxxxx Building Addition Release Fees paid to Lender in
connection with the release of Units from the Security Interests shall be
applied toward the next principal
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installment to become due under the Xxxxxxx Building Addition Note.
8. XXX BUILDING ADDITION NOTE.
8.1 The Xxx Building Addition Acquisition Advance
and Xxx Building Addition Renovation Advances made with respect to Xxx Building
Addition shall be evidenced by a single Promissory Note (the "Xxx Building
Addition Note") of Borrower, in a form acceptable to Lender, executed and
delivered to Lender simultaneously with Borrower's request for the Xxx Building
Addition Acquisition Advance, in the amount of up to $1,500,000, payable to
Lender upon the terms and conditions contained herein and therein. Lender and
Borrower hereby agree that, notwithstanding any provision to the contrary in
the Loan Agreement, the terms and conditions of the Xxx Building Addition Note
and this Paragraph 8 shall apply with respect to repayment of the Xxx Building
Addition Note. To the extent that Borrower's indebtedness to Lender arising
from the Xxx Building Addition Note is evidenced by both the Note (as
distinguished from the Xxx Building Addition Note) and the Xxx Building
Addition Note, receipts by Lender in payment or satisfaction of such
indebtedness (including receipt by Lender of Xxx Building Addition Release Fees
as provided in Paragraph 11.2 hereof) shall be credited against sums due under
both the Note and the Xxx Building Addition Note and/or any judgment entered
thereon.
8.2 Notwithstanding the provisions of Paragraph
7.3.1 of the Loan Agreement, Borrower shall have the right to prepay the Xxx
Building Addition Note only in the event and upon the condition that Borrower
(a) pays all sums due and payable to Lender in connection with the Xxx Building
Addition Note, (b) has given Lender at least thirty (30) days prior written
notice of the prepayment, and (c) pays to Lender at the time of prepayment a
prepayment premium equal to one percent (1%) of the then unpaid principal
balance of the Xxx Building Addition Note, together with any unpaid portion of
the Xxx Building Addition Incentive Fee as described in Paragraph 11.4.2 below.
Except as provided in the foregoing, Borrower shall have no right to prepay the
Xxx Building Addition Note, other than through the application of Xxx Building
Addition Release Fees against the principal balance thereof, as provided in
Paragraph 8.3 hereof.
8.3 The principal balance of the Xxx Building
Addition Note shall be repaid as follows: At such time as Borrower conveys a
Unit in the Xxx Building Addition to a Purchaser, Borrower shall make a
principal reduction payment to Lender under the Xxx Building Addition Note in
an amount equal to the Xxx Building Addition Release Fee. Notwithstanding
anything herein to the contrary, if not sooner paid, the entire remaining
balance of the Xxx Building Addition Note, together with all accrued and unpaid
interest and all other sums due and owing thereon, shall be due and payable in
full on ) the date which occurs twenty-four (24) months following the date that
Lender makes the last Xxx Building Addition Renovation Advance (or in the event
there is no such day in the 24th month, on the last day of such month). Xxx
Building Addition Release Fees paid to Lender in connection with the release of
Units from the Security Interests shall be applied toward the next principal
installment to become due under the Xxx Building Addition Note.
9. TOWERS NOTE.
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9.1 The Towers Advances made with respect to the
Towers Lobby Expansion shall be evidenced by a single promissory note (the
"Towers Note") of Borrower, in a form acceptable to Lender, executed and
delivered to Lender simultaneously with the execution of this Thirteenth
Amendment, in the amount of up to $700,000, payable to Lender upon the terms
and conditions contained herein and therein. Lender and Borrower hereby agree
that, notwithstanding any provision to the contrary in the Loan Agreement, the
terms and conditions of the Towers Note and this Paragraph 9 shall apply with
respect to repayment of the Towers Note. To the extent that Borrower's
indebtedness to Lender arising from the Towers Note is evidenced by both the
Note (as distinguished from the Towers Note) and the Towers Note, receipts by
Lender in payment or satisfaction of such indebtedness (including receipt by
Lender of Towers Note Principal Reduction Fees as provided in Paragraph 9.3
hereof) shall be credited against sums due under both the Note and the Towers
Note and/or any judgment entered thereon.
9.2 Notwithstanding the provisions of Paragraph
7.3.1 of the Loan Agreement, Borrower shall have the right to prepay the Towers
Note only in the event and upon the condition that Borrower (a) pays all sums
due and payable to Lender in connection with the Towers Note, (b) has provided
Lender with at least thirty (30) days prior written notice of the prepayment,
and (c) pays to Lender at the time of prepayment a prepayment premium equal to
one percent (1%) of the then unpaid principal balance of the Towers Note.
Except as provided in the foregoing, Borrower shall have no right to prepay the
Towers Note, other than through the application of Towers Note Principal
Reduction Fees against the principal balance thereof, as provided in Paragraph
9.3 hereof.
9.3 The principal balance of the Towers Note
shall be repaid as follows: At such time as Borrower conveys a Unit in Suites
Phase II, Xxx Building One, Xxx Building Two, the Xxxxxxx Building Addition, or
the Xxx Building Addition, to a Purchaser at any time after (a) thirty (30)
days after the last Towers Advance is made to Borrower, or (b) November 30,
1996, whichever occurs first, Borrower shall make a principal reduction payment
to Lender under the Towers Note in an amount equal to $200 (the "Towers Note
Principal Reduction Fee"). The Towers Note Principal Reduction Fee shall be
paid to Lender simultaneously with the payment of the Suites Phase II Release
Fee, Xxx Building One Release Fee, Xxx Building Two Release Fee, Xxxxxxx
Building Addition Release Fee or the Xxx Building Addition Release Fee, as the
case may be, until the Towers Note is paid in full, whereupon the Towers Note
Principal Reduction Fee shall no longer be required to be paid in connection
with the foregoing described release fees. Simultaneously with the execution
of this Thirteenth Amendment, Borrower shall execute and deliver to Lender
appropriate modifications to the Xxx Building One Deed of Trust (the "Second
Modification of Deed of Trust [Xxx Building One]") and the Xxx Building Two
Deed of Trust (the "First Modification of Deed of Trust [Xxx Building Two]")
which shall incorporate the provisions of this Paragraph 9.3 relating to the
payment of the Towers Note Principal Reduction Fee together with the release
fees payable by Borrower under such deeds of trust as prerequisites to the
release of Units in Xxx Building One and Xxx Building Two, respectively.
Notwithstanding anything herein to the contrary, if not sooner paid, the entire
remaining balance of the Towers Note, together with all accrued and unpaid
interest and all other sums due and owing therein, shall be due and payable in
full on the earlier of (a) the date which occurs twenty-five (25) months
following the date that
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12
Lender makes the last Towers Advance (or in the event there is no such day in
the 25th month, on the last day of such month), or (b) November 30, 1998.
Towers Note Principal Reduction Fees paid to Lender in connection with the
release of Units from the Security Interests shall be applied toward the next
principal installment to become due under the Towers Note.
10. SECURITY. As provided in Paragraphs 3.1(a) and (b)
of the Loan Agreement, the payment and Performance of the Xxxxxxx Building
Addition Note, the Xxx Building Addition Note and the Towers Note shall be
secured by the Security Interests granted to Lender pursuant to the Loan
Agreement, as amended. Furthermore, pursuant to a separate Deed of Trust,
Assignment of Rents and Proceeds and Security Agreement with respect to the
Xxxxxxx Building Addition, in a form acceptable to Lender (referred to herein
as the "Xxxxxxx Building Addition Deed of Trust"), and a separate Deed of
Trust, Assignment of Rents and Proceeds and Security Agreement with respect to
Xxx Building Addition (the "Xxx Building Addition Deed of Trust"), the payment
and Performance of the Xxxxxxx Building Addition Note and Xxx Building Addition
Note, respectively, and all other obligations owed to Lender under the
Documents shall be secured by a first priority lien on and security interest in
the Xxxxxxx Building Addition and Xxx Building Addition; all buildings and
other improvements now or hereafter erected thereon; all fixtures, equipment
and other personal property now or hereafter located on or attached or affixed
in any manner to the Xxxxxxx Building Addition and Xxx Building Addition; all
leases, income, rents, royalties, revenues, issues, profits or proceeds from
Xxxxxxx Building Addition and Xxx Building Addition; and other items of
collateral in connection therewith, all as more fully set forth in the Xxxxxxx
Building Addition Deed of Trust and Xxx Building Addition Deed of Trust.
11. RELEASES.
11.1 Lender hereby agrees that it will release
from the effect of the Security Interests granted herein and in the Xxxxxxx
Building Addition Deed of Trust, and from the effect of any UCC Financing
Statement, Units in the Xxxxxxx Building Addition which are sold by Borrower
upon (a) the payment to Lender of a release fee (the "Xxxxxxx Building Addition
Release Fee") equal to $2,500 per Unit, (b) the payment of an Incentive Fee (as
provided in Paragraph 11.4.1 below) in the amount of $20 per Unit until such
time as Borrower has repaid the Xxxxxxx Building Addition Note in full, and
thereafter in the amount of $2,500 per Unit until such time as Borrower has
paid to Lender a total Incentive Fee as to Xxxxxxx Building Addition of
$22,440, all as provided in Paragraph 11.4.1 below, (c) if applicable, the
payment to Lender of the Towers Note Principal Reduction Fee in the amount of
$200.00, and (d) the satisfaction of the Release Conditions (as defined in
Paragraph 11.3 below). Payments of interest due under the Xxxxxxx Building
Addition Note shall not be credited against any Xxxxxxx Building Addition
Release Fees.
11.2 Lender hereby agrees that it will release
from the effect of the Security Interests granted herein and in the Xxx
Building Addition Deed of Trust, and from the effect of any UCC Financing
Statement, Units in the Xxx Building Addition which are sold by Borrower upon
(a) the payment to Lender of a release fee (the "Xxx Building Addition Release
Fee") equal to $1,650 per Unit, (b) the payment of an Incentive Fee (as
provided in Paragraph 11.4.2 below) in the amount of $20 per Unit
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13
until such time as Borrower has repaid the Xxx Building Addition Note in full,
and thereafter in the amount of $1,650 per Unit until such time as Borrower has
paid to Lender a total Incentive Fee as to Xxx Building Addition of $24,480,
all as provided in Paragraph 11.4.2 hereof, (c) if applicable, the payment to
Lender of the Towers Note Principal Reduction Fee in the amount of $200.00, and
(d) the satisfaction of the Release Conditions. Payments of interest due under
the Xxx Building Addition Note shall not be credited against any Xxx Building
Addition Release Fees.
11.3 The Release Conditions are as follows:
(i) No Event of Default shall have occurred or be
continuing and no event shall then exist, which with notice, passage
of time or both would constitute an Event of Default;
(ii) The Unit to be released must have been sold
by Borrower in the ordinary course of Borrower's business in a bona
fide arms-length transaction;
(iii) The Purchaser of the Unit shall not be
affiliated with Borrower or with any of the Control Group;
(iv) Lender shall have received a written request
for such release in which Borrower certifies as to compliance with
items (i) through (iii) above, and further certifies that all other
requirements for such release have been satisfied;
(v) Borrower has paid all of Lender's
out-of-pocket expenses incurred in connection with such release and
has submitted to Lender all necessary documents for the same.
For the purposes hereof, a person or entity shall be deemed affiliated with
Borrower or the Control Group if it is a shareholder, officer, director, agent,
employee, salesman, broker or creditor of Borrower or the Control Group, or
relative of Borrower or the Control Group or of any of the foregoing, or any
other person or entity related to or affiliated with Borrower or the Control
Group, including, without limitation, the Guarantor and any independent
contractors. No partial release of a Unit shall impair or affect Lender's
remaining Security Interests or any term or provision of the Loan Agreement.
11.4 As additional consideration to Lender,
Borrower shall pay to Lender an incentive fee (the "Incentive Fee") as follows:
11.4.1 Borrower shall pay to Lender an Incentive Fee
equal to $22,440 with respect to the Units sold in the Xxxxxxx
Building Addition or released from the Xxxxxxx Building Addition Deed
of Trust. The Incentive Fee as to the Xxxxxxx Building Addition shall
be paid in installments of $20 per Unit sold or released in Xxxxxxx
Building Addition until such time as the Borrower has repaid the
Xxxxxxx Building Addition Note in full. Thereafter, the Incentive Fee
shall be paid in installments of $2,500 per Unit sold or released in
the Xxxxxxx Building Addition until the entire Incentive Fee as to
Xxxxxxx Building
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14
Addition is paid in full. Payments of the Incentive Fee, in
installments of $20 per Unit, shall be made together with Xxxxxxx
Building Addition Release Fees described in Paragraph 11.1 above,
until the Xxxxxxx Building Addition Note is repaid in full;
thereafter, payments of the Incentive Fee as to the Xxxxxxx Building
Addition, in installments of $2,500 per Unit, shall be made at the
earlier of the conveyance to a Purchaser of each sold Unit in the
Xxxxxxx Building Addition or the release of such Unit from the Xxxxxxx
Building Addition Deed of Trust. The Incentive Fee described herein
shall be in addition to the principal and interest payments due under
the Xxxxxxx Building Addition Note. The Incentive Fee may be prepaid
in whole or in part at any time. The Incentive Fee payable pursuant
to this subparagraph is the same Incentive Fee payable under Paragraph
6.1 of the Xxxxxxx Building Addition Deed of Trust.
11.4.2 Borrower shall pay to Lender an Incentive Fee
equal to $24,480 with respect to the Units sold in the Xxx Building
Addition or released from the Xxx Building Addition Deed of Trust.
The Incentive Fee as to the Xxx Building Addition shall be paid in
installments of $20 per Unit sold or released in the Xxx Building
Addition until such time as the Xxx Building Addition Note is paid in
full. Thereafter, the Incentive Fee shall be paid in installments of
$1,650 per Unit sold or released in the Xxx Building Addition until
the entire Incentive Fee as to the Xxx Building Addition is paid in
full. Payments of the Incentive Fee, in installments of $20 per Unit,
shall be made together with Xxx Building Addition Release Fees
described in Paragraph 11.2 above, until the Xxx Building Addition
Note is repaid in full; thereafter, payments of the Incentive Fee as
to the Xxx Building Addition, in installments of $1,650 per Unit,
shall be made at the earlier of the conveyance to a Purchaser of each
sold Unit in the Xxx Building Addition or the release of such Unit
from the Xxx Building Addition Deed of Trust. The Incentive Fee
described herein shall be in addition to the principal and interest
payments due under the Xxx Building Addition Note. The Incentive Fee
may be prepaid in whole or in part at any time. The Incentive Fee
payable pursuant to this subparagraph is the same Incentive Fee
payable under Paragraph 6.1 of the Xxx Building Addition Deed of
Trust.
11.5 Upon the release of a Unit from the Xxxxxxx
Building Addition Deed of Trust or the Xxx Building Addition Deed of Trust, as
the case may be, such release shall also constitute a release from the lien of
the Xxxxxxx Building Addition One Deed of Trust or the Xxx Building Addition
Deed of Trust, respectively, and from the lien of Lender's Security Interest,
of any Purchaser Notes or Purchaser Mortgages subsequently arising from the
sale of such Unit; provided, however, that notwithstanding the foregoing, such
Purchaser Notes and Purchaser Mortgages shall continue to be subject to
Lender's Security Interest to the extent that such Purchaser Notes or Purchaser
Mortgages constitute Receivables Collateral.
11.6 At such time as the principal, interest and
all other sums payable under the Xxxxxxx Building Addition Note have been paid
in full, together with the entire Incentive Fee as to the Xxxxxxx Building
Addition, Lender shall, upon the request of Borrower, release and terminate the
Xxxxxxx Building Addition Deed of Trust and the accompanying UCC Financing
Statement and any related security interests, provided that there does not then
exist an Event of Default or any act or event which with notice, the passage of
time or both would constitute an Event of Default.
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15
All instruments effecting such release and termination shall be prepared by
Borrower and submitted to Lender unless Lender otherwise specifies in its sole
discretion. Such instruments shall be in a form and substance reasonably
satisfactory to Lender.
11.7 At such time as the principal, interest and
all other sums payable under the Xxx Building Addition Note have been paid in
full, together with the entire Incentive Fee as to the Xxx Building Addition,
Lender shall, upon the request of Borrower, release and terminate the Xxx
Building Addition Deed of Trust and the accompanying UCC Financing Statement
and any related security interests, provided that there does not then exist an
Event of Default or any act or event which with notice, the passage of time or
both would constitute an Event of Default. All instruments effecting such
release and termination shall be prepared by Borrower and submitted to Lender
unless Lender otherwise specifies in its sole discretion. Such instruments
shall be in a form and substance reasonably satisfactory to Lender.
12. CONDITIONS PRECEDENT.
12.1 Lender's obligation to make any of the
Advances described in this Thirteenth Amendment is subject to the following
conditions precedent, all of which must be satisfied at or prior to the funding
of the first of any of such Advances:
(a) Borrower shall have delivered to Lender the
following executed documents, all in form satisfactory to Lender:
(i) This Thirteenth Amendment;
(ii) An opinion from Borrower's counsel,
which counsel must be acceptable to Lender, with respect to
such matters as Lender shall require;
(iii) From the Guarantor of the Loan, a
"Consent of Guarantor," in a form acceptable to Lender;
(iv) A corporate resolution of Borrower;
(v) A corporate resolution of Guarantor;
(vi) The Second Modification to Deed of
Trust [Xxx Building One];
(vii) The First Modification to Deed of
Trust [Xxx Building Two];
(viii) Such other documents or instruments
required by Lender to fully perfect the liens and security
interests of Lender described or contemplated herein;
(ix) Such other items as Lender may
require.
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16
(b) Borrower shall have obtained and delivered to
Lender, at Borrower's expense, a date-down endorsement to the existing
ALTA extended coverage mortgagee's title insurance policy issued in
favor of Lender by Lawyers' Title Insurance Company with respect to
the Xxx Building One Deed of Trust, and issued in favor of Lender by
Chicago Title Insurance Company with respect to the Xxx Building Two
Deed of Trust, respectively insuring that the Xxx Building One Deed of
Trust continues to be a first and prior lien on the Xxx Building One,
subject only to such additional title exceptions as may be approved by
Lender, notwithstanding the effect of the recordation of the Second
Modification to Deed of Trust [Xxx Building One], and that the Xxx
Building Two Deed of Trust continues to be a first and prior lien on
the Xxx Building Two, subject only to such additional title exceptions
as may be approved by Lender, notwithstanding the effect of the
recordation of the First Modification of Deed of Trust [Xxx Building
Two].
(c) Lender shall have reviewed and approved
credit references of Borrower.
(d) Lender shall have determined that the
operations of Borrower do not violate in any material respect any
applicable laws, ordinances, rules and regulations of governmental
authorities or agencies.
(e) Unless waived in writing by Lender, Lender
shall have reviewed and approved a current UCC, tax lien, judgment and
litigation search on Borrower. The foregoing condition shall be
deemed to have been waived upon Lender's execution of this Thirteenth
Amendment.
(f) Borrower shall have paid all closing costs,
title company charges, recording fees and taxes, appraisal fees and
expenses, survey fees, travel expenses, architect/engineer inspection
fees and expenses, fees and expenses of Lender's counsel, and all
other costs and expenses incurred by Lender in connection with the
preparation, closing and disbursement of the Advances made pursuant to
this Thirteenth Amendment.
(g) Borrower shall have delivered to Lender a
fully-executed copy of the purchase agreements, and all amendments
thereto, in connection with Borrower's acquisition of the Xxxxxxx
Building Addition and Xxx Building Addition.
(h) Lender shall have reviewed and approved
Borrower's budget for renovation and refurbishment of the Xxxxxxx
Building Addition and Xxx Building Addition, and Borrower's budget
with respect to the Towers Lobby Expansion.
(i) Borrower shall have delivered to Lender, and
Lender shall have approved and be satisfied with, evidence of
Borrower's equity interest in each of the Xxxxxxx Building Addition
and Xxx Building Addition.
12.2 Lender's obligation to make the Xxxxxxx
Building Addition Acquisition Advance or any Xxxxxxx Building Addition
Renovation Advances
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17
is subject to the following conditions precedent, all of which must be
satisfied at or prior to the funding of the Xxxxxxx Building Addition
Acquisition Advance:
(a) Borrower shall have satisfied all
of the conditions precedent set forth in Paragraph 12.1 above;
(b) Borrower shall have delivered to
Lender the following executed documents, all in form satisfactory to
Lender:
(i) Xxxxxxx Building Addition Note;
(ii) Environmental Certificate with
Representations, Covenants and Warranties with respect to the
Xxxxxxx Building Addition;
(iii) Xxxxxxx Building Addition Deed
of Trust;
(iv) UCC Financing Statements for
filing and/or recording with respect to the Xxxxxxx Building
Addition;
(v) Such other documents or
instruments required by Lender to fully perfect the liens and
security interests of Lender described or contemplated herein
with respect to the Xxxxxxx Building Addition.
(c) Borrower shall have delivered to
Lender a current Phase I Environmental Assessment for the Xxxxxxx
Building Addition performed by an environmental consultant acceptable
to Lender, indicating that the Xxxxxxx Building Addition does not
contain and is not affected by existing or potential environmental
contamination. If Lender is not satisfied with the results of the
Phase I Environmental Assessment or if Lender becomes aware of any
environmental issues impacting the Xxxxxxx Building Addition, Lender
shall have the right to require a site audit and regulatory compliance
evaluation of the Xxxxxxx Building Addition, which shall be prepared
by an environmental engineer acceptable to Lender and retained at the
cost of Borrower, and Lender's obligations hereunder shall be subject
to Lender's approval of such audit and evaluation.
(d) Borrower shall have delivered to
Lender a current ALTA survey of the Xxxxxxx Building Addition,
certified to Lender by a licensed engineer or surveyor acceptable to
Lender, showing, inter alia, the dimensions of the Xxxxxxx Building
Addition, access thereto, streets and street lines, easements,
location of all improvements and all other physical details thereof.
In addition, Borrower shall have delivered to Lender a current title
report with respect to the Xxxxxxx Building Addition from a title
insurance company acceptable to Lender and Lender shall have approved
the condition of title thereto as shown therein.
(e) Lender shall have inspected the
Xxxxxxx Building Addition and shall be satisfied as to the condition
thereof.
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18
(f) Borrower shall have obtained and
delivered to Lender, at Borrower's expense, an ALTA extended coverage
mortgagee's title insurance policy or policies acceptable to Lender,
with such endorsements as Lender may require, issued by a title
insurance company satisfactory to Lender, which shall be in the amount
of $2,122,440, and insuring that the Xxxxxxx Building Addition Deed of
Trust is a first and prior lien on the Xxxxxxx Building Addition,
subject only to title exceptions approved by Lender.
(g) Borrower shall have delivered to
Lender evidence satisfactory to Lender that the Xxxxxxx Building
Addition is not located within a special flood hazard area or evidence
satisfactory to Lender that the Xxxxxxx Building Addition is insured,
upon such terms and in such amounts as shall be satisfactory to
Lender, against risks of physical damage caused by flooding.
(h) Borrower shall have obtained such
public liability, casualty and other insurance policies covering the
Xxxxxxx Building Addition as Lender may require, written by insurers
in amounts and forms satisfactory to Lender.
(i) Borrower shall have paid the
applicable Mortgage Loan Commitment Fee in the amount required to be
paid (i) with respect to the Xxxxxxx Building Addition Acquisition
Advance, at the time the Xxxxxxx Building Addition Acquisition Advance
is made by Lender, and (ii) with respect to the Xxxxxxx Building
Addition Renovation Advances, at the time each such Xxxxxxx Building
Addition Renovation Advance is made by Lender pursuant hereto.
12.3 Lender's obligation to make the Xxx Building
Addition Acquisition Advance or any Xxx Building Addition Renovation Advances
is subject to the following conditions precedent, all of which must be
satisfied at or prior to the funding of the Xxx Building Addition Acquisition
Advance:
(a) Borrower shall have satisfied all of
the conditions precedent set forth in Paragraph 12.1 above.
(b) Borrower shall have delivered to
Lender the following executed documents, all in form satisfactory to
Lender:
(i) Xxx Building Addition Note;
(ii) Environmental Certificate with
Representations, Covenants and Warranties with respect to the
Xxx Building Addition;
(iii) Xxx Building Addition Deed of
Trust;
(iv) UCC Financing Statements for
filing and/or recording with respect to the Xxx Building
Addition;
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19
(v) Such other documents or
instruments required by Lender to fully perfect the liens and
security interests of Lender described or contemplated herein
with respect to the Xxx Building Addition.
(c) Borrower shall have delivered to
Lender a current Phase I Environmental Assessment for the Xxx Building
Addition performed by an environmental consultant acceptable to
Lender, indicating that the Xxx Building Addition does not contain and
is not affected by existing or potential environmental contamination.
If Lender is not satisfied with the results of the Phase I
Environmental Assessment or if Lender becomes aware of any
environmental issues impacting the Xxx Building Addition, Lender shall
have the right to require a site audit of the Xxx Building Addition,
which shall be prepared by an environmental engineer acceptable to
Lender and retained at the cost of Borrower, and Lender's obligations
hereunder shall be subject to Lender's approval of such audit. In
addition, Borrower shall have delivered to Lender a regulatory
compliance evaluation of the Xxx Building Addition acceptable to
Lender; provided, however, that if Borrower has not delivered such
regulatory compliance evaluation by the date Borrower requests the Xxx
Building Addition Acquisition Advance, then the delivery of such
evaluation shall no longer be a condition precedent to the Xxx
Building Addition Acquisition Advance, but shall become a condition
subsequent which must be satisfied within forty-five (45) days after
the date of this Thirteenth Amendment.
(d) Borrower shall have delivered to
Lender a current ALTA survey of the Xxx Building Addition, certified
to Lender by a licensed engineer or surveyor acceptable to Lender,
showing, inter alia, the dimensions of the Xxx Building Addition,
access thereto, streets and street lines, easements, location of all
improvements and all other physical details thereof. In addition,
Borrower shall have delivered to Lender a current title report with
respect to the Xxx Building Addition from a title insurance company
acceptable to Lender and Lender shall have approved the condition of
title thereto as shown therein.
(e) Lender shall have inspected the Xxx
Building Addition and shall be satisfied as to the condition thereof.
(f) Borrower shall have obtained and
delivered to Lender, at Borrower's expense, an ALTA extended coverage
mortgagee's title insurance policy or policies acceptable to Lender,
with such endorsements as Lender may require, issued by a title
insurance company satisfactory to Lender, which shall be in the amount
of $1,524,480, and insuring that the Xxx Building Addition Deed of
Trust is a first and prior lien on the Xxx Building Addition, subject
only to title exceptions approved by Lender.
(g) Borrower shall have delivered to
Lender evidence satisfactory to Lender that the Xxx Building Addition
is not located within a special flood hazard area or evidence
satisfactory to Lender that the Xxx Building Addition is insured, upon
such terms and in such amounts as shall be satisfactory to Lender,
against risks of physical damage caused by flooding.
- 19 -
20
(h) Borrower shall have obtained such
public liability, casualty and other insurance policies covering the
Xxx Building Addition as Lender may require, written by insurers in
amounts and forms satisfactory to Lender.
(i) Borrower shall have paid the
applicable Mortgage Loan Commitment Fee in the amount required to be
paid (i) with respect to the Xxx Building Addition Acquisition
Advance, at the time the Xxx Building Addition Acquisition Advance is
made by Lender, and (ii) with respect to Xxx Building Addition
Renovation Advances, at the time each such Xxx Building Addition
Renovation Advance is made by Lender pursuant hereto.
12.4 Lender's obligation to make any Towers
Advances is subject to the following conditions precedent, all of which must be
satisfied at or prior to the funding of the initial Towers Advance:
(a) Borrower shall have satisfied all of
the conditions precedent described in Paragraph 12.1 above.
(b) Borrower shall have executed and
delivered to Lender the Towers Note in a form acceptable to Lender.
13. RECEIVABLES ADVANCES. In addition to the conditions
set forth for the effectiveness of this Thirteenth Amendment as set forth in
Paragraph 12 above, Lender's obligation to make Advances of the Loan, from time
to time, against Instruments or Contracts arising from the sale of Units in the
Xxxxxxx Building Addition or the Xxx Building Addition is subject to and
conditioned upon such Instruments or Contracts qualifying as Eligible
Receivables and is furthermore subject to and conditioned upon the satisfaction
of all other conditions precedent to the making of the Advance, as set forth in
the Loan Agreement. In connection therewith, but without limiting the
generality of the foregoing, Lender's obligation to make Advances of the Loan
against Instruments or Contracts arising from the sale of Units in the Xxxxxxx
Building Addition and the Xxx Building Addition is subject to Lender's receipt
and approval of copies of the registrations/consents to sell/public offering
statements/prospectuses and/or approvals thereof required to be issued by or
used in all jurisdictions in which such Units will be offered for sale.
14. COMMISSIONS. Lender shall not be obligated to pay
any loan commission and/or brokerage fee in connection with the Advances of the
Loan made pursuant to this Thirteenth Amendment. Borrower shall pay any and
all such commissions and fees, if any, and hereby agrees to indemnify, defend
and hold harmless Lender from any claim for any such commissions or fees.
Lender represents and warrants to Borrower that Lender has no knowledge of
broker involvement in the transactions contemplated by this Thirteenth
Amendment.
15. INDEBTEDNESS ACKNOWLEDGED. Borrower acknowledges
that the indebtedness evidenced by the Documents is just and owing and agrees
to pay the indebtedness in accordance with the terms of the Documents.
Borrower further acknowledges and represents that no event has occurred and no
condition presently exists that would constitute a default or event of default
by Lender under the Loan
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21
Agreement or any of the other Documents, with or without notice or lapse of
time.
16. VALIDITY OF DOCUMENTS. Borrower hereby ratifies,
reaffirms, acknowledges and agrees that the Loan Agreement and the other
Documents represent valid, enforceable and collectable obligations of Borrower,
and that Borrower presently has no existing claims, defenses (personal or
otherwise) or rights of setoff whatsoever with respect to the Obligations of
Borrower under the Loan Agreement or any of the other Documents. Borrower
furthermore agrees that it has no defense, counterclaim, offset,
cross-complaint, claim or demand of any nature whatsoever which can be asserted
as a basis to seek affirmative relief or damages from Lender or GREFCO.
17. REAFFIRMATION OF WARRANTIES. Except to the extent,
if any, that the information in Exhibit 8.3(a) to the Loan Agreement has been
supplemented by Exhibit "D" attached hereto, Borrower hereby reaffirms to
Lender each of the representations, warranties, covenants and agreements of
Borrower as set forth in each of the Documents with the same force and effect
as if each were separately stated herein and made as of the date hereof.
18. RATIFICATION OF TERMS AND CONDITIONS. All terms,
conditions and provisions of the Loan Agreement, including the First Amendment,
Second Amendment, Third Amendment, Fourth Amendment, Fifth Amendment, Sixth
Amendment, Seventh Amendment, Eighth Amendment, Ninth Amendment, Tenth
Amendment, Eleventh Amendment and Twelfth Amendment and of each of the other
Documents shall continue in full force and effect and shall remain unaffected
and unchanged except as specifically amended hereby. In the event of any
conflict between the terms and conditions of this Thirteenth Amendment and any
of the other Documents, the provisions of this Thirteenth Amendment shall
control.
19. OTHER WRITINGS. Lender and Borrower will execute
such other writings as may be necessary to confirm or carry out the intentions
of Lender and Borrower evidenced by this Thirteenth Amendment.
20. EFFECTIVENESS OF AMENDMENT. This Thirteenth
Amendment shall not be effective until the same is executed and accepted by
Lender in the State of Arizona.
IN WITNESS WHEREOF, this instrument is executed as of the day
and year first above written.
PREFERRED EQUITIES CORPORATION, FINOVA CAPITAL CORPORATION, a
a Nevada corporation Delaware corporation
By:__________________________ By:________________________________
Xxxxxx X. Xxxxxxxxx, Vice President Title:_____________________________
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22
STATE OF ARIZONA )
) ss
County of Maricopa )
BEFORE ME, the undersigned authority, a Notary Public in and
for the County and State aforesaid, on this day personally appeared XXXXXX X.
XXXXXXXXX, known to me to be the Vice President of PREFERRED EQUITIES
CORPORATION, a Nevada corporation, who acknowledged to me that the same was the
free act and deed of such corporation and that he, being authorized by proper
authority to do so, executed the same on behalf of such corporation for the
purposes and consideration therein expressed, and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this ______ day of ______________, 1995.
_________
Notary Public
My commission expires:
______________________________
STATE OF ARIZONA )
) ss
County of Maricopa )
BEFORE ME, the undersigned authority, a Notary Public in and
for the County and State aforesaid, on this day personally appeared
_____________________________________________________________, known to me to
be the _____________________________ of FINOVA CAPITAL CORPORATION, a Delaware
corporation, who acknowledged to me that the same was the free act and deed of
such corporation and that s/he, being authorized by proper authority to do so,
executed the same on behalf of such corporation for the purposes and
consideration therein expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this ______ day of ______________, 1995.
_________
Notary Public
My commission expires:
______________________
- 22 -
23
[TOWERS LOBBY]
PROMISSORY NOTE
U.S. $700,000.00 December 13, 1995
Phoenix, Arizona
FOR VALUE RECEIVED, the undersigned PREFERRED EQUITIES
CORPORATION, a Nevada corporation ("Maker"), promises to pay to FINOVA CAPITAL
CORPORATION, a Delaware corporation ("Lender"), or order, at such place as the
holder of this Note ("Holder") may from time to time designate in writing, in
lawful money of the United States of America, the principal sum of up to SEVEN
HUNDRED THOUSAND AND NO/100 DOLLARS (U.S. $700,000.00), or so much thereof as
has been disbursed and not repaid, together with interest on the unpaid
principal balance from time to time outstanding from the date hereof until
paid, as more fully provided for below.
Interest due under this Note shall (a) accrue daily on the
basis of the actual number of days in the computation period, (b) be calculated
on the basis of a year consisting of 360 days, and (c) be payable monthly in
arrears on the later of (i) ten (10) days after Lender mails an invoice or
statement therefor to Maker or (ii) the due date set forth in said invoice or
statement. Interest shall accrue initially at an annual interest rate
("Initial Interest Rate") equal to Prime (as hereinafter defined) in effect on
the date of the initial advance of the loan evidenced by this Note ("Initial
Prime") plus 2-1/4% per annum, subject to adjustment on each Interest Rate
Change Date (as hereinafter defined), but in no event to exceed the maximum
contract rate permitted under the Applicable Usury Law (as hereinafter
defined). The interest rate shall change on each Interest Rate Change Date by
adding to or subtracting from the Initial Interest Rate, as the case may be,
the change, if any, between Initial Prime and Prime in effect on the applicable
Interest Rate Change Date. As used in this Note, the following capitalized
terms have the meaning set forth opposite them below:
"Prime" shall mean the rate of interest publicly
announced, from time to time, by Citibank, N.A., New York, New York
("Citibank"), as the corporate base rate of interest charged by
Citibank to its most creditworthy commercial borrowers notwithstanding
the fact that some borrowers of Citibank may borrow from Citibank at
rates of less than such announced Prime rate; and
"Interest Rate Change Date" means (a) the first
business day of Citibank, N.A., in New York, New York, during the
calendar month following the date of the initial advance of the loan
evidenced by this Note and (b) the first business day of Citibank,
N.A., during each successive month thereafter.
The principal sum of this Note shall be repaid in the manner
set forth in the Loan Agreement (as defined below), the applicable provisions
of which are incorporated herein by reference as if fully set forth herein.
________________ Payments of principal and/or interest shall, at the option of
Holder, earn interest after they are due at a rate ("Overdue Rate") equal to
(a) 2% per annum above the rate otherwise payable hereunder or (b) the maximum
contract rate permitted under the Applicable Usury Law, whichever of (a) or (b)
is lesser. Furthermore, in the event of the occurrence of an Event of Default
(as the term "Event of Default" is defined in the Loan Agreement) the unpaid
principal balance of this Note shall, at the option of Holder, accrue interest
at the Overdue Rate.
24
This Note is executed pursuant to that certain Amendment No.
13 to Amended and Restated Loan and Security Agreement of even date herewith
between Maker and Lender (such Amended and Restated Loan and Security
Agreement, as amended, the "Loan Agreement"). All capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the Loan
Agreement, the applicable provisions of which are incorporated herein by
reference.
All payments made under this Note shall be applied first
against amounts due hereunder or under the Loan Agreement, other than principal
and interest; second, against interest then due under this Note; and third,
against the principal of this Note.
In the event any installment of principal and/or interest
required to be made in connection with the indebtedness evidenced hereby is not
paid when due and, except in the case of the final installment, for which no
grace period is allowed, such default continues for five days after notice
thereof to Maker or an Event of Default occurs, Holder may, at its option,
without notice or demand, declare immediately due and payable the entire unpaid
principal balance hereof, all accrued and unpaid interest thereon, and all
other charges owing in connection with the loan evidenced hereby.
The contracted for rate of interest of the loan contemplated
hereby, without limitation, shall consist of the following: (i) the interest
rate, calculated and applied to the principal balance of this Note in
accordance with the provisions of this Note; (ii) Overdue Rate, calculated and
applied to the amounts due under this Note in accordance with the provisions
hereof; (iii) Mortgage Loan Commitment Fee as to the Towers Advances; and (iv)
all Additional Sums (as hereinafter defined), if any. Maker agrees to pay an
effective contracted for rate of interest which is the sum of the above
referenced elements.
All fees, charges, goods, things in action or any other sums
or things of value (other than amounts described in the immediately previous
paragraph), paid or payable by Maker (collectively, the "Additional Sums"),
whether pursuant to this Note, the Loan Agreement, the other Documents or any
other documents or instruments in any way pertaining to this lending
transaction, or otherwise with respect to this lending transaction, that under
any applicable law may be deemed to be interest with respect to this lending
transaction, for the purpose of any applicable law that may limit the maximum
amount of interest to be charged with respect to this lending transaction,
shall be payable by Maker as, and shall be deemed to be, additional interest,
and for such purposes only, the agreed upon and "contracted for rate of
interest" of this lending transaction shall be deemed to be increased by the
rate of interest resulting from the Additional Sums.
This Note is not prepayable in whole or in part, except as
specifically provided in the Loan Agreement.
In the event that Holder institutes legal proceedings to
enforce this Note and Holder is the prevailing party in such proceeding, Maker
agrees to pay Holder, in addition to any indebtedness due and unpaid, all costs
and expenses of such proceedings, including, without limitation, attorneys'
fees.
Holder shall not by any act or omission or commission be deemed
to waive any
-2-
25
of its rights or remedies hereunder unless such waiver be in writing and signed
by an authorized officer of Holder and then only to the extent specifically set
forth therein; a waiver on one occasion shall not be construed as continuing or
as a bar to or waiver of such right or remedy on any other occasion. All
remedies conferred upon Holder by this Note or any other instrument or
agreement connected herewith or related hereto shall be cumulative and none is
exclusive and such remedies may be exercised concurrently or consecutively at
Holder's option.
Every person or entity at any time liable for the payment of
the indebtedness evidenced hereby waives: presentment for payment, protest and
demand; notice of protest, demand, dishonor and nonpayment of this Note; and
trial by jury in any litigation arising out of, relating to or connected with
this Note or any instrument given as security herefor. Every such person or
entity further consents that Holder may renew or extend the time of payment of
any part or the whole of the indebtedness at any time and from time to time at
the request of any other person or entity liable therefor. Any such renewals
or extensions may be made without notice to any person or entity liable for the
payment of the indebtedness evidenced hereby.
This Note is given and accepted as evidence of indebtedness
only and not in payment or satisfaction of any indebtedness or obligation.
Time is of the essence with respect to all of Maker's
obligations and agreements under this Note.
This Note and all of the provisions, conditions, promises and
covenants hereof shall be binding in accordance with the terms hereof upon
Maker, its successors and assigns, provided nothing herein shall be deemed
consent to any assignment restricted or prohibited by the terms of the Loan
Agreement. If more than one person or other entity has executed this Note as
Maker, the obligations of such persons and entities shall be joint and several.
This Note has been executed and delivered in Phoenix, Arizona,
and the obligations of Maker hereunder shall be performed in Phoenix, Arizona.
THIS NOTE SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ARIZONA AND,
TO THE EXTENT THEY PREEMPT THE LAWS OF SUCH STATE, THE LAWS OF THE UNITED
STATES. Maker (a) hereby irrevocably submits itself to the process,
jurisdiction and venue of the courts of the State of Arizona, Maricopa County,
and to the process, jurisdiction and venue of the United States District Court
for Arizona, for the purposes of suit, action or other proceedings arising out
of or relating to this Note or the subject matter hereof brought by Holder and
(b) without limiting the generality of the foregoing, hereby waives and agrees
not to assert by way of motion, defense or otherwise in any such suit, action
or proceeding any claim that Maker is not personally subject to the
jurisdiction of the above-named courts, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper.
It is the intent of the parties to comply with the usury law
("Applicable Usury Law") applicable pursuant to the terms of the preceding
paragraph or such other usury law which is applicable if the law chosen by the
parties is not. Accordingly, it is agreed that notwithstanding any provisions
to the contrary in this Note, or in any of the documents securing payment
hereof or otherwise relating hereto, in no event shall this Note or such
documents require the payment or permit the collection of interest in excess of
the maximum contract rate permitted by the Applicable Usury Law. In the event
(a) any such excess of interest otherwise
-3-
26
would be contracted for, charged or received from Maker or otherwise in
connection with the loan evidenced hereby, or (b) the maturity of the
indebtedness evidenced by this Note is accelerated in whole or in part, or (c)
all or part of the principal or interest of this Note shall be prepaid, so that
under any of such circumstance the amount of interest contracted for, shared or
received in connection with the loan evidenced hereby, would exceed the maximum
contract rate permitted by the Applicable Usury Law, then in any such event (1)
the provisions of this paragraph shall govern and control, (2) neither Maker
nor any other person or entity now or hereafter liable for the payment hereof
will be obligated to pay the amount of such interest to the extent that it is
in excess of the maximum contract rate permitted by the Applicable Usury Law,
(3) any such excess which may have been collected shall be either applied as a
credit against the then unpaid principal amount hereof or refunded to Maker, at
Holder's option, and (4) the effective rate of interest will be automatically
reduced to the maximum amount of interest permitted by the Applicable Usury
Law. It is further agreed, without limiting the generality of the foregoing,
that to the extent permitted by the Applicable Usury Law: (x) all calculations
of interest which are made for the purpose of determining whether such rate
would exceed the maximum contract rate permitted by the Applicable Usury Law
shall be made by amortizing, prorating, allocating and spreading during the
period of the full stated term of the loan evidenced hereby, all interest at
any time contracted for, charged or received from Maker or otherwise in
connection with such loan; and (y) in the event that the effective rate of
interest on the loan should at any time exceed the maximum contract rate
allowed under the Applicable Usury Law, such excess interest that would
otherwise have been collected had there been no ceiling imposed by the
Applicable Usury Law shall be paid to Holder from time to time, if and when the
effective interest rate on the loan otherwise falls below the maximum amount
permitted by the Applicable Usury Law, to the extent that interest paid to the
date of calculation does not exceed the maximum contract rate permitted by the
Applicable Usury Law, until the entire amount of interest which would have
otherwise been collected had there been no ceiling imposed by the Applicable
Usury Law has been paid in full. Maker further agrees that should the maximum
contract rate permitted by the Applicable Usury Law be increased at any time
hereafter because of a change in the law, then to the extent not prohibited by
the Applicable Usury Law, such increases shall apply to all indebtedness
evidenced hereby regardless of when incurred; but, again to the extent not
prohibited by the Applicable Usury Law, should the maximum contract rate
permitted by the Applicable Usury Law be decreased because of a change in the
law, such decreases shall not apply to the indebtedness evidenced hereby
regardless of when incurred.
In the event of any conflict or inconsistency between the
provisions of this Note and the provisions of the Loan Agreement, the
provisions of the Loan Agreement shall control.
PREFERRED EQUITIES CORPORATION,
a Nevada corporation
"Maker"
By:_____
Xxxxxx X. Xxxxxxxxx, Vice President
Federal Taxpayer Identification
Number: 00-0000000
-4-
27
Address:
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: President
-5-
28
[XXX ADDITION]
PROMISSORY NOTE
U.S. $1,500,000.00 December 13, 1995
Phoenix, Arizona
FOR VALUE RECEIVED, the undersigned PREFERRED EQUITIES
CORPORATION, a Nevada corporation ("Maker"), promises to pay to FINOVA CAPITAL
CORPORATION, a Delaware corporation ("Lender"), or order, at such place as the
holder of this Note ("Holder") may from time to time designate in writing, in
lawful money of the United States of America, the principal sum of up to ONE
MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS (U.S. $1,500,000.00), or so
much thereof as has been disbursed and not repaid, together with interest on
the unpaid principal balance from time to time outstanding from the date hereof
until paid, as more fully provided for below.
Interest due under this Note shall (a) accrue daily on the
basis of the actual number off days in the computation period, (b) be calculated
on the basis of a year consisting of 360 days, and (c) be payable monthly in
arrears on the later of (i) ten (10) days after Lender mails an invoice or
statement therefor to Maker or (ii) the due date set forth in said invoice or
statement. Interest shall accrue initially at an annual interest rate
("Initial Interest Rate") equal to Prime (as hereinafter defined) in effect on
the date of the initial advance of the loan evidenced by this Note ("Initial
Prime") plus 2-1/4% per annum, subject to adjustment on each Interest Rate
Change Date (as hereinafter defined), but in no event to exceed the maximum
contract rate permitted under the Applicable Usury Law (as hereinafter
defined). The interest rate shall change on each Interest Rate Change Date by
adding to or subtracting from the Initial Interest Rate, as the case may be,
the change, if any, between Initial Prime and Prime in effect on the applicable
Interest Rate Change Date. As used in this Note, the following capitalized
terms have the meaning set forth opposite them below:
"Prime" shall mean the rate of interest publicly
announced, from time to time, by Citibank, N.A., New York, New York
("Citibank"), as the corporate base rate of interest charged by
Citibank to its most creditworthy commercial borrowers notwithstanding
the fact that some borrowers of Citibank may borrow from Citibank at
rates of less than such announced Prime rate; and
"Interest Rate Change Date" means (a) the first
business day of Citibank, N.A., in New York, New York, during the
calendar month following the date of the initial advance of the loan
evidenced by this Note and (b) the first business day of Citibank,
N.A., during each successive month thereafter.
The principal sum of this Note shall be repaid in the manner
set forth in the Loan Agreement (as defined below), the applicable provisions
of which are incorporated herein by reference as if fully set forth herein.
Payments of principal and/or interest shall, at the option of
Holder, earn interest after they are due at a rate ("Overdue Rate") equal to
(a) 2% per annum above the rate otherwise payable hereunder or (b) the maximum
contract rate permitted under the Applicable Usury Law, whichever of (a) or (b)
is lesser. Furthermore, in the event of the occurrence of an Event of Default
(as the term "Event of Default" is defined in the Loan Agreement) the unpaid
principal balance of this Note shall, at the option of Holder, accrue interest
at the Overdue Rate.
29
This Note is executed pursuant to that certain Amendment No.
13 to Amended and Restated Loan and Security Agreement of even date herewith
between Maker and Lender (such Amended and Restated Loan and Security
Agreement, as amended, the "Loan Agreement"). All capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the Loan
Agreement, the applicable provisions of which are incorporated herein by
reference.
All payments made under this Note shall be applied first
against amounts due hereunder or under the Loan Agreement, other than principal
and interest; second, against interest then due under this Note; and third,
against the principal of this Note.
In the event any installment of principal and/or interest
required to be made in connection with the indebtedness evidenced hereby is not
paid when due and, except in the case of the final installment, for which no
grace period is allowed, such default continues for five days after notice
thereof to Maker or an Event of Default occurs, Holder may, at its option,
without notice or demand, declare immediately due and payable the entire unpaid
principal balance hereof, all accrued and unpaid interest thereon, and all
other charges owing in connection with the loan evidenced hereby.
The contracted for rate of interest of the loan contemplated
hereby, without limitation, shall consist of the following: (i) the interest
rate, calculated and applied to the principal balance of this Note in
accordance with the provisions of this Note; (ii) Overdue Rate, calculated and
applied to the amounts due under this Note in accordance with the provisions
hereof; (iii) Mortgage Loan Commitment Fee as to the Xxx Building Addition
Acquisition Advance and all Xxx Building Addition Renovation Advances, as
defined in the Loan Agreement; (iv) the Xxx Building Addition Incentive Fee (as
defined in the Loan Agreement); and (v) all Additional Sums (as hereinafter
defined), if any. Maker agrees to pay an effective contracted for rate of
interest which is the sum of the above referenced elements.
All fees, charges, goods, things in action or any other sums
or things of value (other than amounts described in the immediately previous
paragraph), paid or payable by Maker (collectively, the "Additional Sums"),
whether pursuant to this Note, the Loan Agreement, the other Documents or any
other documents or instruments in any way pertaining to this lending
transaction, or otherwise with respect to this lending transaction, that under
any applicable law may be deemed to be interest with respect to this lending
transaction, for the purpose of any applicable law that may limit the maximum
amount of interest to be charged with respect to this lending transaction,
shall be payable by Maker as, and shall be deemed to be, additional interest,
and for such purposes only, the agreed upon and "contracted for rate of
interest" of this lending transaction shall be deemed to be increased by the
rate of interest resulting from the Additional Sums.
This Note is not prepayable in whole or in part, except as
specifically provided in the Loan Agreement.
In the event that Holder institutes legal proceedings to
enforce this Note and Holder is the prevailing party in such proceeding, Maker
agrees to pay Holder, in addition to any indebtedness due and unpaid, all costs
and expenses of such proceedings, including, without limitation, attorneys'
fees.
-2-
30
Holder shall not by any act or omission or commission be
deemed to waive any of its rights or remedies hereunder unless such waiver be
in writing and signed by an authorized officer of Holder and then only to the
extent specifically set forth therein; a waiver on one occasion shall not be
construed as continuing or as a bar to or waiver of such right or remedy on any
other occasion. All remedies conferred upon Holder by this Note or any other
instrument or agreement connected herewith or related hereto shall be
cumulative and none is exclusive and such remedies may be exercised
concurrently or consecutively at Holder's option.
Every person or entity at any time liable for the payment of
the indebtedness evidenced hereby waives: presentment for payment, protest and
demand; notice of protest, demand, dishonor and nonpayment of this Note; and
trial by jury in any litigation arising out of, relating to or connected with
this Note or any instrument given as security herefor. Every such person or
entity further consents that Holder may renew or extend the time of payment of
any part or the whole of the indebtedness at any time and from time to time at
the request of any other person or entity liable therefor. Any such renewals
or extensions may be made without notice to any person or entity liable for the
payment of the indebtedness evidenced hereby.
This Note is given and accepted as evidence of indebtedness
only and not in payment or satisfaction of any indebtedness or obligation.
Time is of the essence with respect to all of Maker's
obligations and agreements under this Note.
This Note and all of the provisions, conditions, promises and
covenants hereof shall be binding in accordance with the terms hereof upon
Maker, its successors and assigns, provided nothing herein shall be deemed
consent to any assignment restricted or prohibited by the terms of the Loan
Agreement. If more than one person or other entity has executed this Note as
Maker, the obligations of such persons and entities shall be joint and several.
This Note has been executed and delivered in Phoenix, Arizona,
and the obligations of Maker hereunder shall be performed in Phoenix, Arizona.
THIS NOTE SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ARIZONA AND,
TO THE EXTENT THEY PREEMPT THE LAWS OF SUCH STATE, THE LAWS OF THE UNITED
STATES. Maker (a) hereby irrevocably submits itself to the process,
jurisdiction and venue of the courts of the State of Arizona, Maricopa County,
and to the process, jurisdiction and venue of the United States District Court
for Arizona, for the purposes of suit, action or other proceedings arising out
of or relating to this Note or the subject matter hereof brought by Holder and
(b) without limiting the generality of the foregoing, hereby waives and agrees
not to assert by way of motion, defense or otherwise in any such suit, action
or proceeding any claim that Maker is not personally subject to the
jurisdiction of the above-named courts, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper.
It is the intent of the parties to comply with the usury law
("Applicable Usury Law") applicable pursuant to the terms of the preceding
paragraph or such other usury law which is applicable if the law chosen by the
parties is not. Accordingly, it is agreed that notwithstanding any provisions
to the contrary in this Note, or in any of the documents securing payment
hereof or otherwise relating hereto, in no event shall this Note or such
documents
-3-
31
require the payment or permit the collection of interest in excess of the
maximum contract rate permitted by the Applicable Usury Law. In the event (a)
any such excess of interest otherwise would be contracted for, charged or
received from Maker or otherwise in connection with the loan evidenced hereby,
or (b) the maturity of the indebtedness evidenced by this Note is accelerated
in whole or in part, or (c) all or part of the principal or interest of this
Note shall be prepaid, so that under any of such circumstance the amount of
interest contracted for, shared or received in connection with the loan
evidenced hereby, would exceed the maximum contract rate permitted by the
Applicable Usury Law, then in any such event (1) the provisions of this
paragraph shall govern and control, (2) neither Maker nor any other person or
entity now or hereafter liable for the payment hereof will be obligated to pay
the amount of such interest to the extent that it is in excess of the maximum
contract rate permitted by the Applicable Usury Law, (3) any such excess which
may have been collected shall be either applied as a credit against the then
unpaid principal amount hereof or refunded to Maker, at Holder's option, and
(4) the effective rate of interest will be automatically reduced to the maximum
amount of interest permitted by the Applicable Usury Law. It is further
agreed, without limiting the generality of the foregoing, that to the extent
permitted by the Applicable Usury Law: (x) all calculations of interest which
are made for the purpose of determining whether such rate would exceed the
maximum contract rate permitted by the Applicable Usury Law shall be made by
amortizing, prorating, allocating and spreading during the period of the full
stated term of the loan evidenced hereby, all interest at any time contracted
for, charged or received from Maker or otherwise in connection with such loan;
and (y) in the event that the effective rate of interest on the loan should at
any time exceed the maximum contract rate allowed under the Applicable Usury
Law, such excess interest that would otherwise have been collected had there
been no ceiling imposed by the Applicable Usury Law shall be paid to Holder
from time to time, if and when the effective interest rate on the loan
otherwise falls below the maximum amount permitted by the Applicable Usury Law,
to the extent that interest paid to the date of calculation does not exceed the
maximum contract rate permitted by the Applicable Usury Law, until the entire
amount of interest which would have otherwise been collected had there been no
ceiling imposed by the Applicable Usury Law has been paid in full. Maker
further agrees that should the maximum contract rate permitted by the
Applicable Usury Law be increased at any time hereafter because of a change in
the law, then to the extent not prohibited by the Applicable Usury Law, such
increases shall apply to all indebtedness evidenced hereby regardless of when
incurred; but, again to the extent not prohibited by the Applicable Usury Law,
should the maximum contract rate permitted by the Applicable Usury Law be
decreased because of a change in the law, such decreases shall not apply to the
indebtedness evidenced hereby regardless of when incurred.
In the event of any conflict or inconsistency between the
provisions of this Note and the provisions of the Loan Agreement, the
provisions of the Loan Agreement shall control.
PREFERRED EQUITIES CORPORATION,
a Nevada corporation
"Maker"
By:_____
Xxxxxx X. Xxxxxxxxx, Vice President
Federal Taxpayer Identification
-4-
32
Number: 00-0000000
Address:
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: President
-5-
33
[XXXXXXX ADDITION]
PROMISSORY NOTE
U.S. $2,100,000.00
December 13, 1995
Phoenix, Arizona
FOR VALUE RECEIVED, the undersigned PREFERRED EQUITIES
CORPORATION, a Nevada corporation ("Maker"), promises to pay to FINOVA CAPITAL
CORPORATION, a Delaware corporation ("Lender"), or order, at such place as the
holder of this Note ("Holder") may from time to time designate in writing, in
lawful money of the United States of America, the principal sum of up to TWO
MILLION ONE HUNDRED THOUSAND AND NO/100 DOLLARS (U.S. $2,100,000.00), or so
much thereof as has been disbursed and not repaid, together with interest on
the unpaid principal balance from time to time outstanding from the date hereof
until paid, as more fully provided for below.
Interest due under this Note shall (a) accrue daily on the
basis of the actual number of days in the computation period, (b) be calculated
on the basis of a year consisting of 360 days, and (c) be payable monthly in
arrears on the later of (i) ten (10) days after Lender mails an invoice or
statement therefor to Maker or (ii) the due date set forth in said invoice or
statement. Interest shall accrue initially at an annual interest rate
("Initial Interest Rate") equal to Prime (as hereinafter defined) in effect on
the date of the initial advance of the loan evidenced by this Note ("Initial
Prime") plus 2-1/4% per annum, subject to adjustment on each Interest Rate
Change Date (as hereinafter defined), but in no event to exceed the maximum
contract rate permitted under the Applicable Usury Law (as hereinafter
defined). The interest rate shall change on each Interest Rate Change Date by
adding to or subtracting from the Initial Interest Rate, as the case may be,
the change, if any, between Initial Prime and Prime in effect on the applicable
Interest Rate Change Date. As used in this Note, the following capitalized
terms have the meaning set forth opposite them below:
"Prime" shall mean the rate of interest publicly
announced, from time to time, by Citibank, N.A., New York, New York
("Citibank"), as the corporate base rate of interest charged by
Citibank to its most creditworthy commercial borrowers notwithstanding
the fact that some borrowers of Citibank may borrow from Citibank at
rates of less than such announced Prime rate; and
"Interest Rate Change Date" means (a) the first
business day of Citibank, N.A., in New York, New York, during the
calendar month following the date of the initial advance of the loan
evidenced by this Note and (b) the first business day of Citibank,
N.A., during each successive month thereafter.
The principal sum of this Note shall be repaid in the manner
set forth in the Loan Agreement (as defined below), the applicable provisions
of which are incorporated herein by reference as if fully set forth herein.
Payments of principal and/or interest shall, at the option of
Holder, earn interest after they are due at a rate ("Overdue Rate") equal to
(a) 2% per annum above the rate otherwise payable hereunder or (b) the maximum
contract rate permitted under the Applicable Usury Law, whichever of (a) or (b)
is lesser. Furthermore, in the event of the occurrence of an Event of Default
(as the term "Event of Default" is defined in the Loan Agreement) the unpaid
principal balance of this Note shall, at the option of Holder, accrue interest
at the Overdue Rate.
34
This Note is executed pursuant to that certain Amendment No.
13 to Amended and Restated Loan and Security Agreement of even date herewith
between Maker and Lender (such Amended and Restated Loan and Security
Agreement, as amended, the "Loan Agreement"). All capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the Loan
Agreement, the applicable provisions of which are incorporated herein by
reference.
All payments made under this Note shall be applied first
against amounts due hereunder or under the Loan Agreement, other than principal
and interest; second, against interest then due under this Note; and third,
against the principal of this Note.
In the event any installment of principal and/or interest
required to be made in connection with the indebtedness evidenced hereby is not
paid when due and, except in the case of the final installment, for which no
grace period is allowed, such default continues for five days after notice
thereof to Maker or an Event of Default occurs, Holder may, at its option,
without notice or demand, declare immediately due and payable the entire unpaid
principal balance hereof, all accrued and unpaid interest thereon, and all
other charges owing in connection with the loan evidenced hereby.
The contracted for rate of interest of the loan contemplated
hereby, without limitation, shall consist of the following: (i) the interest
rate, calculated and applied to the principal balance of this Note in
accordance with the provisions of this Note; (ii) Overdue Rate, calculated and
applied to the amounts due under this Note in accordance with the provisions
hereof; (iii) Mortgage Loan Commitment Fee as to the Xxxxxxx Building Addition
Acquisition Advance and all Xxxxxxx Building Addition Renovation Advances, as
defined in the Loan Agreement; (iv) the Xxxxxxx Building Addition Incentive Fee
(as defined in the Loan Agreement); and (v) all Additional Sums (as hereinafter
defined), if any. Maker agrees to pay an effective contracted for rate of
interest which is the sum of the above referenced elements.
All fees, charges, goods, things in action or any other sums
or things of value (other than amounts described in the immediately previous
paragraph), paid or payable by Maker (collectively, the "Additional Sums"),
whether pursuant to this Note, the Loan Agreement, the other Documents or any
other documents or instruments in any way pertaining to this lending
transaction, or otherwise with respect to this lending transaction, that under
any applicable law may be deemed to be interest with respect to this lending
transaction, for the purpose of any applicable law that may limit the maximum
amount of interest to be charged with respect to this lending transaction,
shall be payable by Maker as, and shall be deemed to be, additional interest,
and for such purposes only, the agreed upon and "contracted for rate of
interest" of this lending transaction shall be deemed to be increased by the
rate of interest resulting from the Additional Sums.
This Note is not prepayable in whole or in part, except as
specifically provided in the Loan Agreement.
In the event that Holder institutes legal proceedings to
enforce this Note and Holder is the prevailing party in such proceeding, Maker
agrees to pay Holder, in addition to any indebtedness due and unpaid, all costs
and expenses of such proceedings, including, without limitation, attorneys'
fees.
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Holder shall not by any act or omission or commission be
deemed to waive any of its rights or remedies hereunder unless such waiver be
in writing and signed by an authorized officer of Holder and then only to the
extent specifically set forth therein; a waiver on one occasion shall not be
construed as continuing or as a bar to or waiver of such right or remedy on any
other occasion. All remedies conferred upon Holder by this Note or any other
instrument or agreement connected herewith or related hereto shall be
cumulative and none is exclusive and such remedies may be exercised
concurrently or consecutively at Holder's option.
Every person or entity at any time liable for the payment of
the indebtedness evidenced hereby waives: presentment for payment, protest and
demand; notice of protest, demand, dishonor and nonpayment of this Note; and
trial by jury in any litigation arising out of, relating to or connected with
this Note or any instrument given as security herefor. Every such person or
entity further consents that Holder may renew or extend the time of payment of
any part or the whole of the indebtedness at any time and from time to time at
the request of any other person or entity liable therefor. Any such renewals
or extensions may be made without notice to any person or entity liable for the
payment of the indebtedness evidenced hereby.
This Note is given and accepted as evidence of indebtedness
only and not in payment or satisfaction of any indebtedness or obligation.
Time is of the essence with respect to all of Maker's
obligations and agreements under this Note.
This Note and all of the provisions, conditions, promises and
covenants hereof shall be binding in accordance with the terms hereof upon
Maker, its successors and assigns, provided nothing herein shall be deemed
consent to any assignment restricted or prohibited by the terms of the Loan
Agreement. If more than one person or other entity has executed this Note as
Maker, the obligations of such persons and entities shall be joint and several.
This Note has been executed and delivered in Phoenix, Arizona,
and the obligations of Maker hereunder shall be performed in Phoenix, Arizona.
THIS NOTE SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ARIZONA AND,
TO THE EXTENT THEY PREEMPT THE LAWS OF SUCH STATE, THE LAWS OF THE UNITED
STATES. Maker (a) hereby irrevocably submits itself to the process,
jurisdiction and venue of the courts of the State of Arizona, Maricopa County,
and to the process, jurisdiction and venue of the United States District Court
for Arizona, for the purposes of suit, action or other proceedings arising out
of or relating to this Note or the subject matter hereof brought by Holder and
(b) without limiting the generality of the foregoing, hereby waives and agrees
not to assert by way of motion, defense or otherwise in any such suit, action
or proceeding any claim that Maker is not personally subject to the
jurisdiction of the above-named courts, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper.
It is the intent of the parties to comply with the usury law
("Applicable Usury Law") applicable pursuant to the terms of the preceding
paragraph or such other usury law which is applicable if the law chosen by the
parties is not. Accordingly, it is agreed that notwithstanding any provisions
to the contrary in this Note, or in any of the documents securing payment
hereof or otherwise relating hereto, in no event shall this Note or such
documents
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require the payment or permit the collection of interest in excess of the
maximum contract rate permitted by the Applicable Usury Law. In the event (a)
any such excess of interest otherwise would be contracted for, charged or
received from Maker or otherwise in connection with the loan evidenced hereby,
or (b) the maturity of the indebtedness evidenced by this Note is accelerated
in whole or in part, or (c) all or part of the principal or interest of this
Note shall be prepaid, so that under any of such circumstance the amount of
interest contracted for, shared or received in connection with the loan
evidenced hereby, would exceed the maximum contract rate permitted by the
Applicable Usury Law, then in any such event (1) the provisions of this
paragraph shall govern and control, (2) neither Maker nor any other person or
entity now or hereafter liable for the payment hereof will be obligated to pay
the amount of such interest to the extent that it is in excess of the maximum
contract rate permitted by the Applicable Usury Law, (3) any such excess which
may have been collected shall be either applied as a credit against the then
unpaid principal amount hereof or refunded to Maker, at Holder's option, and
(4) the effective rate of interest will be automatically reduced to the maximum
amount of interest permitted by the Applicable Usury Law. It is further
agreed, without limiting the generality of the foregoing, that to the extent
permitted by the Applicable Usury Law: (x) all calculations of interest which
are made for the purpose of determining whether such rate would exceed the
maximum contract rate permitted by the Applicable Usury Law shall be made by
amortizing, prorating, allocating and spreading during the period of the full
stated term of the loan evidenced hereby, all interest at any time contracted
for, charged or received from Maker or otherwise in connection with such loan;
and (y) in the event that the effective rate of interest on the loan should at
any time exceed the maximum contract rate allowed under the Applicable Usury
Law, such excess interest that would otherwise have been collected had there
been no ceiling imposed by the Applicable Usury Law shall be paid to Holder
from time to time, if and when the effective interest rate on the loan
otherwise falls below the maximum amount permitted by the Applicable Usury Law,
to the extent that interest paid to the date of calculation does not exceed the
maximum contract rate permitted by the Applicable Usury Law, until the entire
amount of interest which would have otherwise been collected had there been no
ceiling imposed by the Applicable Usury Law has been paid in full. Maker
further agrees that should the maximum contract rate permitted by the
Applicable Usury Law be increased at any time hereafter because of a change in
the law, then to the extent not prohibited by the Applicable Usury Law, such
increases shall apply to all indebtedness evidenced hereby regardless of when
incurred; but, again to the extent not prohibited by the Applicable Usury Law,
should the maximum contract rate permitted by the Applicable Usury Law be
decreased because of a change in the law, such decreases shall not apply to the
indebtedness evidenced hereby regardless of when incurred.
In the event of any conflict or inconsistency between the
provisions of this Note and the provisions of the Loan Agreement, the
provisions of the Loan Agreement shall control.
PREFERRED EQUITIES CORPORATION,
a Nevada corporation
"Maker"
By:____
Xxxxxx X. Xxxxxxxxx, Vice President
Federal Taxpayer Identification
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Number: 00-0000000
Address:
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: President
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