EXHIBIT 10.10
AMENDMENT TO AMENDED AND RESTATED NOTE A
THIS AMENDMENT TO AMENDED AND RESTATED NOTE A (as more particularly defined
in Paragraph 1, this "Amendment") is made of the 29th day of January, 1998, by
and between CENTURY PROPERTIES FUND XIX, a California limited partnership (as
more particularly defined in Paragraph 1 hereof, "Maker"), having an address as
set forth in Paragraph 7 (hereinafter defined), and THE TRAVELERS INSURANCE
COMPANY, a Connecticut corporation, having an address as set forth in Paragraph
7 (as more particularly defined in Paragraph 1 hereof, "Payee").
WITNESSETH:
WHEREAS, Payee and Maker are parties to that certain Modification and
Severance Agreement dated as of September 1, 1994 (as more particularly defined
in Paragraph 1 hereof, "Modification and Severance Agreement");
WHEREAS, Payee is the owner and holder of that certain Amended and Restated
Note A dated as of September 1, 1994, executed and delivered by Maker payable to
the order of Payee, in the restated principal amount of Ten Million Eight
Hundred Thousand Dollars ($10,800,000) (as more particularly defined in
Paragraph 1 hereof, "Note"), repayment of which is secured by, among other
things: (a) that certain Amended and Restated Deed of Trust A dated as of
September 1, 1994, executed and delivered by Maker for the benefit of Payee,
recorded in Volume 94180, Page 03686 in the Deed of Trust Records, Dallas
County, Texas ("Land Records") (as more particularly defined in Paragraph 1
hereof, "Deed of Trust"); and (b) all other documents, certificates, affidavits
and other instruments now or at any time prior or subsequent hereto evidencing,
securing, or relating to any way to any of the above referenced documents
(collectively the foregoing, including the Note and the Modification and
Severance Agreement, are more particularly defined in Paragraph 1 hereof as the
"Loan Documents"); and
WHEREAS, Maker has requested that Payee amend certain provisions of the
Loan Documents (collectively, the "Modifications") pursuant to the Modification
and Severance Agreement, and in order to accomplish the Modifications, Maker and
Payee have agreed to enter into this Amendment and the other Amendment Documents
(hereinafter defined) which modify each and all of the Loan Documents.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Maker and Payee hereby agree as
follows:
1. DEFINITIONS. All capitalized terms used herein and not otherwise
defined in this Paragraph 1 or the Note shall have the meanings for such terms
set forth in the Modification and Severance Agreement. The parties further
agree that the following terms shall have the meanings hereinafter set forth,
such definitions to be applicable equally to the singular and plural forms, and
to the masculine and feminine forms, of such terms:
"AMENDMENT" shall mean this Amendment to Amended and Restated Note A
between Maker and Payee, as the same may be amended, modified, extended, spread,
consolidated, restated or replaced from time to time.
"AMENDMENT DOCUMENTS" shall have the meaning of the same defined term set
forth in the Modification and Severance Agreement.
"BANKRUPTCY CODE" shall mean the United States Bankruptcy Code, as codified
at 11 U.S.C. Section 101 et. seq., as amended from time to time.
"CASH MANAGEMENT AGREEMENT" shall mean collectively, that certain Cash
Management Agreement dated as of September 1, 1994, by and among Maker, as
Borrower", Payee, as "Lender", and NPI-AP Management, L.P., as "Manager", as
modified by the First Amendment to Modification and Severance Agreement, and as
the same may be amended, modified, extended, spread, consolidated, restated or
replaced from time to time.
"CONTINGENT ADDITIONAL INTEREST" shall have the meaning set forth in
Section 2.1(d) of the Note and Paragraph 3(b) hereof.
"CONVERTED TREASURY YIELD" shall mean the yield available, or if there is
more than one yield available, the average yields, on United States Treasury
non-callable bonds (excluding Flower Bonds) and notes having a maturity date
closest to (before, on or after) the Maturity Date, as reported in the Wall
Street Journal or similar publication on the fifth (5th) business day preceding
the date prepayment will be made, converted to a monthly equivalent yield. As
used herein, the terms "Converted Treasury Yield" and monthly "equivalent yield"
are annualized rates which reflect the frequency of the interest payments made
during a calendar year.
"DEED OF TRUST OR DEED OF TRUST A" shall mean collectively, that certain
Amended and Restated Deed of Trust A dated as of September 1, 1994, executed and
delivered by Maker for the benefit of Payee, recorded in Volume 94180, Page
03686 in the Land Records, as modified by the Amendment to Amended and Restated
Deed of Trust A and Amended and Restated Assignment of Leases and Rents A of
even date herewith, and as the same may be amended, modified, extended, spread,
consolidated, restated or replaced from time to time.
"EFFECTIVE DATE" shall mean the day and year first above written, subject
to satisfaction of the conditions precedent to the effectiveness hereof on or
before such date, as determined by Payee.
"FEES AND EXPENSES" shall mean all fees, costs and expenses (including
reasonable attorneys fees and other professionals fees) incurred by Payee in
connection with the interpretation, enforcement and/or collection of this Note
and/or any of the other Loan Documents, the protection of or realization on the
Premises and any other collateral under the Loan Documents, enforcement of any
guaranty or indemnity and/or defense of any action relating to this Note and/or
any of the other Loan Documents, the Premises and any other collateral and/or
the indebtedness and obligations evidenced thereby, and whether the same were
incurred in connection with any nonjudicial, quasi-judicial, judicial or
administrative actions or proceedings, prior to trial, at trial, on appeal or
review or in settlement, or in any Insolvency Proceeding (as defined in the
Modification and Severance Agreement) and whether or not suit was filed thereon.
"FIRST AMENDMENT TO MODIFICATION AND SEVERANCE AGREEMENT" shall mean that
certain First Amendment to Modification and Severance Agreement of even date
herewith entered into by and between Maker and Payee.
"GUARANTIES" shall mean collectively, the Guaranty of Payment and Hazardous
Materials Guaranty.
"GUARANTY OF PAYMENT" shall mean collectively, that certain Guaranty of
Payment dated as of September 1, 1994, executed and delivered by the Responsible
Parties to and in favor of Payee, as ratified and confirmed by the joinder of
the Responsible Parties in the First Amendment to Modification and Severance
Agreement, and as the same may be amended, modified, extended, spread,
consolidated, restated or replaced from time to time.
"HAZARDOUS MATERIALS GUARANTY" shall mean collectively, that certain
Hazardous Material Guaranty and Indemnification Agreement dated as of September
1, 1994, executed and delivered by the Responsible Parties to and in favor of
Payee, as ratified and confirmed by the joinder of the Responsible Parties in
the First Amendment to Modification and Severance Agreement, and as the same may
be amended, modified, extended, spread, consolidated, restated or replaced from
time to time.
"INTEREST RATE" shall mean (a) for the period prior to the Effective Date,
eight and one-quarter percent (8.25%) per annum, (b) for the period from the
Effective Date to and including October 31, 2001, nine and fifteen one-
hundredths percent (9.15%) per annum, and (c) for the period from November 1,
2001, to the date on which the Outstanding Principal Balance and all other
amounts owed under the Loan Documents are paid in full, a fixed rate per annum
equal to 325 basis points plus the annualized yield, or if there is more than
one yield available, the average yields, on United States Treasury non-callable
bonds (excluding Flower Bonds) and notes having one-year maturity, as determined
by Payee on November 1, 2001, by reference to the Wall Street Journal or similar
publication, not to exceed in all cases the maximum interest rate allowed by
law.
"LATE CHARGE" shall mean four percent (4%) of the amount of any payment
(including any installment payments and deposits to reserves and escrows) not
received by Payee on the due date thereof.
"LOAN DOCUMENTS" shall mean have meaning of the same defined term set forth
in the Modification and Severance Agreement.
"LOAN DOCUMENTS A" shall mean have the meaning of the same defined term set
forth in the Modification and Severance Agreement.
"LOAN DOCUMENTS B" shall mean have the meaning of the same defined term set
forth in the Modification and Severance Agreement.
"MAKER" shall mean Century Properties Fund XIX, a California limited
partnership, and its legal representatives, successors and assigns. As used
herein and in each of the Loan Documents to which the Maker is a party, the term
Maker shall be synonymous with Borrower, Grantor and Assignor, as applicable.
"MANAGER'S LIABILITY LETTER" shall mean collectively, that certain
Manager's Liability Letter dated as of September 1, 1994, by and between NPI-AP
Management, L.P. and Payee, as modified by the First Amendment to Modification
and Severance Agreement, and as the same may be amended, modified, extended,
spread, consolidated, restated or replaced from time to time.
"MATURITY DATE" shall mean October 31, 2002, or such earlier date the
entire Outstanding Principal Balance and accrued and unpaid interest thereon,
and any other sums which are due and payable in full pursuant to the terms and
provisions of this Note, are due and payable by reason of the acceleration of
the maturity of this Note.
"MODIFICATION AND SEVERANCE AGREEMENT" shall mean collectively, that
certain Modification and Severance Agreement dated as of September 1, 1994,
between Maker and Payee, as modified by the First Amendment of Modification and
Severance Agreement, and as the same may be amended, modified, extended, spread,
consolidated, restated or replaced from time to time.
"NOTE OR NOTE A" shall mean collectively, that certain Amended and Restated
Note A dated as of September 1, 1994, executed and delivered by Maker, as
"Maker", payable to the order of Payee, as "Payee", in the restated principal
amount of Ten Million Eight Hundred Thousand Dollars ($10,800,000), as modified
by this Amendment, and as the same may be amended, modified, extended, spread,
consolidated, restated or replaced from time to time.
"NOTE B" shall mean collectively, that certain Amended and Restated Note B
dated as of September 1, 1994, executed and delivered by Maker, as "Maker",
payable to the order of Payee, as "Payee", in the restated principal amount of
Two Million One Hundred Thirty Eight Thousand Six Hundred Seventy Three Dollars
and Fifty Three Cents ($2,138,673.53), as modified by the Amendment to Amended
and Restated Note B of even date herewith, and as the same may be amended,
modified, extended, spread, consolidated, restated or replaced from time to
time.
"ORIGINAL PRINCIPAL AMOUNT" shall mean Ten Million Eight Hundred Thousand
Dollars ("$10,800,000").
"PAYEE" shall mean The Travelers Insurance Company and its legal
representatives, successors and assigns, including any subsequent owner and
holder of the Loan Documents. As used herein and in each of the other Loan
Documents to which Payee is a party, the term Payee shall be synonymous with
Lender, Beneficiary, and Assignee, as applicable.
"PERSON" shall mean an individual, estate, trust, trustee, receiver,
partnership, limited liability partnership, corporation, limited liability
company, depository institution (including federal or state savings banks,
savings and loan associations, and credit unions), governmental authorities, or
other legal entity.
"PREMISES" shall have the meaning of the same defined term set forth in the
Deed of Trust.
"RESPONSIBLE PARTIES" shall mean collectively, Maker, Fox Partners II, a
California general partnership, Fox Capital Management Corporation, a California
corporation, NPI Equity Investments II, Inc., a Florida corporation, and NPI-AP
Management, L.P., a Delaware limited partnership, and their respective legal
representatives, successors and assigns.
"TERM" shall mean the period commencing on September 1, 1994, and ending on
October 31, 2002.
"USE AND RETENTION LETTER" shall mean collectively, that certain Use and
Retention of Funds Letter dated as of September 1, 1994, by and among the
Responsible Parties and Payee, as modified by the First Amendment to
Modification and Severance Agreement, and as the same may be amended, modified,
extended, spread, consolidated, restated or replaced from time to time.
The definitions set forth in this Paragraph 1 are hereby incorporated in the
Note and shall supersede the definitions set forth in the Note for any of such
terms and shall, from and after the Effective Date, constitute the definitions
to be used for all purposes with respect to the Note. The words "herein",
"hereof", "hereunder" and other words of similar import refer to this Amendment
as a whole and not to any particular Section or Paragraph, unless specifically
designated otherwise. The use of the term "including" shall mean in all cases
"including but not limited to," unless specifically designated otherwise. No
rules of construction against the drafter of this Amendment shall apply in any
interpretation or enforcement of this Amendment, any documents or certificates
executed pursuant hereto, or any provisions of any of the foregoing.
2. OUTSTANDING PRINCIPAL AMOUNT. From and after the Effective Date, the
last paragraph of Page 3 of the Note is hereby revised in its entirety to read
as follows:
FOR VALUE RECEIVED, Maker hereby unconditionally and irrevocably
promises to pay to the order of Payee, at Payee's office, or at such
other place as Payee may designate from time to time, the Original
Principal Amount of Ten Million Eight Hundred Thousand Dollars
($10,800,000), together with interest (including Contingent Additional
Interest, if applicable), and other Fees and Expenses, charges and sums
(including any prepayment, premium, if applicable), in accordance with
the terms hereinafter set forth, in immediately available funds, in
lawful money of the United States of America, which shall be legal tender
in payment of all debts and dues, public and private, at the time of
payment.
As of the Effective Date, the Outstanding Principal Balance under the Note is
and shall conclusively be deemed to be Ten Million Two Hundred Nineteen Thousand
One Hundred Thirty Eight and 47/100 Dollars ($10,219,138.47).
3. PAYMENT SCHEDULE.
(A) From and after the Effective Date, Section 2.1 (b) of the Note is
hereby revised in its entirety to read as follows:
(b) Commencing on March 1, 1998 and continuing on the first day
of each consecutive calendar month thereafter, Maker shall make
monthly payments of interest only, in arrears, calculated at the
Interest Rate on the Outstanding Principal Balance.
(B) From and after the Effective Date, Section 2.1 of the Note is
hereby revised to include the following new provisions:
(c) If and to the extent there is any Excess Cash Collateral, as
defined in and pursuant to Paragraph 3(c) of the Cash Management
Agreement, Maker shall remit to Payee all Excess Cash Collateral on or
before the twentieth (20th) day after the end of each calendar year,
for the preceding calendar year, to be applied by Payee to principal,
interest, advances, and other sums or charges first, under the Loan
Documents A, and second, under Loan Documents B, in such order,
proportion and priority as Payee with respect to each of the Loan
Documents A and Loan Documents A, in its sole and absolute discretion,
deems appropriate.
(d) Additional interest under this Note ("Contingent Additional
Interest") shall be paid upon maturity of this Note (whether by
acceleration, upon sale of refinance, or otherwise) equal to 50% of
the Appreciated Fair Market Value. "Appreciated Fair Market Value"
shall mean the amount by which the (1) Fair Market Value of the
Premises determined as of the Maturity Date, exceeds (2) the fair
market value of the Premises as of the date of this Note, which value
is conclusively stipulated for purposes of this calculation to be
$12,860,000. For purposes of calculating Contingent Additional
Interest, Marker and Payee agree that "Fair Market Value" shall mean
the fair market value of the Premises as of the Maturity Date as
determined by one of the following methods: (i) in the case of a sale
or other transfer of the Premises or any interests therein or in the
Maker, in an arms length, bonafide third party sales transaction
approved by Payee ("Third Party Sale"), the gross sales price
(inclusive of all consideration to any of the Responsible Parties and
any Person related thereto, of whatsoever from or nature) attributed
to the Premises, less and except the actual, reasonable and necessary
costs of such sale allocable to the Premises payable to unrelated
third parties, not to exceed 2% unless approved in advance by Payee in
its sole discretion, and actual, customary prorations of income and
expenses of the Premises related thereto; (ii) in the case of any
transfer of the Premises or any interests therein or in the Maker in a
transaction approved by Payee which is other than a Third Party Sale
or in the event of payoff upon the Maturity Date that is not
accompanied by a transfer, such amount as is agreed upon by Payee and
Maker on or before sixty (60) days prior to the earlier of the date of
any such transfer or the Maturity Date, or in the absence of any such
agreement, the fair market value, as of the Maturity Date, of the
leased, fee interest in the Premises, free and clear of any liens and
encumbrances, as opined by a general real estate appraiser selected by
Payee, who is certified or licensed in the State of Texas, if the
State of Texas certifies or licenses appraisers at such time, and
holds an MAI (or equivalent) designation of the American Institute of
Real Estate Appraisers ("Appraisal Institute") (in the event of the
continued existence of the Appraisal Institute at such time), and in
accordance with the Appraisal Institute's then current Code of
Professional Ethics and Standards of Professional Appraisal Practice
(if and in the event the Appraisal Institute continues to exist at
such time) (the fees and expenses incurred by Payee for such appraiser
to be reimbursed by Borrower on demand and constitute additional
indebtedness secured by the Loan Documents); and, (iii) in the case of
any casualty or condemnation affecting all or substantially all of the
Premises, the aggregate amount of all awards, settlements or other
proceeds arising from all insurance policies relating to the Premises
plus the residual value of any remaining portion of the Premises less
and expect the actual, reasonable and necessary costs and expenses of
adjusting and collecting such awards, settlements and/or proceeds. In
the event more than one method may be applicable for determining Fair
Market Value, Payee shall have the right to select the applicable
method.
4. PREPAYMENT. From and after the Effective Date, Section 2.2 of the Note
is hereby revised in its entirety to read as follows:
(a) Except as expressly permitted in Section 2.1(c), no full or
partial prepayments of principal shall be allowed under this Note
prior to November 1, 2001.
(b) There shall be no privilege to prepay this Note prior to November
1, 2001 without payment of a prepayment premium. Payee agrees to
accept a prepayment of this Note prior to November 1, 2001, upon not
less than thirty (30) days' prior written notice to Payee of its
election to prepay this Note ("Prepayment Notice"), provided Maker
shall pay the entire remaining Outstanding Principal Balance of this
Note, all accrued and unpaid interest hereunder, all additional sums,
Fees and Expenses and charges due under the Loan Documents, and a
prepayment premium equal to the greater of:
(A) an amount equal to one percent (1%) of the portion of the
Outstanding Principal Balance being prepaid; or
(B) an amount determined by:
(i) calculating the sum of the present values as of the
date of prepayment of all unpaid principal and interest
payments required under the Loan Documents (including,
without limitation, the Contingent Additional Interest
determined as of the original scheduled Maturity Date) by
discounting such payments from their scheduled payment dates
back to the date of prepayment, utilizing a discount rate
equal to the Coverted Treasury Yield, divided by the
frequency of the interest payments made during a calendar
year; and
(ii) subtracting from such sum the Outstanding Principal
Balance as of the date prepayment will be made.
(c) Although Maker shall have the right to give one Prepayment Notice
which may be revoked by Maker upon notice of revocation given at least
five (5) days prior to the prepayment date specified in the Prepayment
Notice, any Prepayment Notice after the initial Prepayment Notice
shall be irrevocable. The Prepayment Notice shall specify the
intended date of prepayment, which date shall be a business day not
more than sixty (60) days after the date of the Prepayment Notice.
After delivery of a Prepayment Notice, the Outstanding Principal
Balance, together with the prepayment premium described above, shall
be absolutely and unconditionally due and payable in full on the date
specified in such notice, and failure to pay the same in full on such
date shall, at Payee's sole option, constitute a default, without
notice or opportunity to cure, subject to the Maker's one-time right
to revoke its initial Prepayment Notice at least five (5) days prior
to the date specified therein for prepayment. If the amounts
necessary to prepay the Note in accordance with the terms and
provisions hereof are received by Payee after 2:00 p.m., such
prepayment shall be deemed to have been made on the next occurring
business day and Payee shall be entitled to receive interest on the
Outstanding Principal Balance, calculated through the effective date
of such prepayment.
(d) Maker acknowledges that it possesses no right to prepay the Loan,
except as expressly provided herein. Maker further acknowledges and
agrees that, except as expressly provided herein, if the Loan is
prepaid prior to the Maturity Date, for any reason, including but not
limited to, acceleration of the Maturity Date by reason of a default
under the Loan Documents, any subsequent tender of payment of the Loan
made by Maker or by anyone on behalf of Maker or otherwise, including
any tender of payment at any time prior to or at foreclosure sale or
proceedings or during any redemption period following foreclosure, or
during any federal or state bankruptcy or insolvency proceedings,
shall constitute an evasion of the restrictions on prepayment set
forth herein, and shall be deemed a voluntary prepayment prior to the
Maturity Date requiring payment of the prepayment premium provided
for, if any, and Payee shall not be required to accept such payment if
it does not include payment of the prepayment premium provided for, if
any. Further, Payee's acceptance of such prepayment without the
requisite prepayment premium shall not constitute or be deemed to
constitute a waiver by Payee of its right to seek payment of the
required prepayment premium in accordance with the terms hereof or nay
rights and remedies Payee may have under this Note, and other Loan
Documents, at law or in equity on account of Maker's failure to timely
pay such prepayment premium as and when required hereunder. To the
extent permitted by law, Payee may bid at any foreclosure sale, as
part of the indebtedness evidenced by the Loan Documents, the amount
of the prepayment premium, if any, which is payable hereunder for
prepayment of the Loan occurring on the date of such foreclosure.
(e) Maker and Payee have negotiated the Modifications upon the
understanding that if the Loan is paid or prepaid prior to the
Maturity Date, for any reason, except as expressly provided herein,
Payee shall receive the prepayment premium provided for as partial
compensation for the cost of reinvesting the prepayment proceeds and
the loss of the contracted rate of return on the Loan. Maker agrees
that the prepayment premium provided for herein is reasonable. Maker
agrees that Payee shall not be obligated, as a condition precedent to
its receipt of the prepayment premium provided for, to actually
reinvest all or any part of the amount prepaid in any United States
Treasury instruments or obligations or otherwise.
5. CALCULATION OF INTEREST. From and after the Effective Date, the
following sentence shall be added to the end of Section 2.5 of the Note:
The foregoing provision shall not be applicable to Contingent Additional
Interest, the calculation of which shall be governed solely by Section 2.1(d) of
the Note.
6. PAYMENTS AFTER DEFAULT. From and after the Effective Date, the phrase
"Fees and Expenses or any other sums and charges," shall be inserted after the
defined term "Outstanding Principal Balance" in line 190 of the Note, and the
text commencing with the word "unless" in line 191 through the word "payment" in
line 193 of the Note are hereby deleted. The following provision shall be added
to the end of Section 2.6 of the Note:
Notwithstanding any other provision hereof or of any of the other Loan
Documents, from and after the occurrence of a Default, all payments,
Rents and other amounts received by Payee may be applied by Payee in
such manner and to such indebtedness (whether to payment of advances
made by Payee pursuant to any provision of any of the Loan Documents,
contributions to any reserves, interest, principal, Late Charges,
interest at the Default Rate, prepayment premiums, Fees and Expenses or
otherwise) and in such amounts and order of priority as Payee may
determine in the exercise of its sole and absolute discretion.
7. DEFAULT. From and after the Effective Date, the phrase "or Fees and
Expenses or any other sums and charges (including any prepayment premium if
applicable)" shall be inserted after the word "interest" in line 212 of the
Note. A reference to the "seventh (7th) day" shall be inserted in lieu of the
reference to the "fifth (5th) day" in line 213 of the Note. Further, the phrase
"interest (including Contingent Additional Interest, if applicable), Fees and
Expenses and other sums and charges (including any prepayment premium, if
applicable)" shall be inserted in lieu of the phrase "accrued interest thereon"
in lines 231 and 232 of the Note.
8. FEES AND EXPENSES. From and after the Effective Date, the following
sentence shall be added at the end of Section 3.4 of the Note:
Upon the occurrence of a Default, Maker promises to pay all Fees
and Expenses incurred by Payee. In the event that Maker fails to
make any payment of money due to Payee under this Note (other than
the payment of the then Outstanding Principal Balance due on the
Maturity Date or the date specified in any Prepayment Notice) with
seven (7) days after the due date thereof, Payee shall be entitled
to collect a Late Charge as liquidated damages, which Late Charge
shall be due in addition to any interest, whether or not calculated
at the Default Rate, in connection with each such delinquency in
payment. Because the actual damages suffered by Payee would be
impracticable or extremely difficult or impossible to determine,
Maker agrees the amount of the Late Charge shall be the amount of
damages to which Payee is entitled upon each such breach, in
compensation for such delinquent payment, and that the amount of
such liquidated damages is reasonable.
9. NOTICES. All notices given or required to be given to Maker and Payee
under Section 4.1 of the Note are hereby revised as follows:
If to Maker: c/o Insignia Properties Trust
One Insignia Financial Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
If to Payee: The Travelers Insurance Company
Real Estate Investments
Xxx Xxxxx Xxxxxx, 0-XXX
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attn: Loan No. 502262
With a Copy to: The Travelers Insurance Company
Real Estate Investments
Xxx Xxxxx Xxxxxx, 0-XXX
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
With a Copy to: Xxxxxxxxx Xxxxxxx Xxxxx, Esquire
Xxxxxxx & Xxxxx L.L.P.
A Registered Limited Liability Partnership
0000 Xxxxxxxxxxxx Xxx., X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000
The foregoing notice addresses shall be applicable for the Note and each and all
of the Loan Documents until such time as either party notifies the other of any
changes therein with respect to such party.
10. REFERENCES TO OTHER LOAN DOCUMENTS. From and after the Effective
Date, all references to the Hazardous Materials Guaranty and Indemnification
Agreement, Use and Retention Funds Letter, and Manager's Liability Letter
Agreement, are hereby revised to refer instead to the defined terms Guaranties,
Use and Retention Letter, and Manager's Liability Letter, respectively.
11. NO USURY. All agreements between Maker and Payee are expressly
limited so that in no contingency or event whatsoever, whether of advancement of
the proceeds hereof, acceleration of maturity of the remaining Outstanding
Principal Balance, upon a Default or otherwise, shall the amount paid or agreed
to be paid to Payee for the use, forbearance or detention of the money advanced
or to be advanced hereunder exceed the highest lawful rate permissible under the
laws of the State of Texas. Said highest lawful rate is determined by reference
to the indicated (weekly) rate ceiling (as defined and described in Texas
Revised Civil Statues Article 5069-1.04, as amended). If, from any circumstances
whatsoever, fulfillment of any provision hereof or of any of the Loan Documents
or of any other agreement referred to herein or pertaining hereto, at the time
when performance of such provisions shall be due, shall involve transcending the
highest rate prescribed by law, which a court of competent jurisdiction may deem
applicable hereto, the ipso facto, the obligation to be fulfilled shall be
reduced to the highest lawful rate, and if from any circumstances, Payee shall
ever receive as interest an amount which would exceed the highest lawful rate,
such amount which would be excessive interest shall be applied first, to the
reduction of the remaining Outstanding Principal Balance and other indebtedness
due hereunder (other than interest) or under the other Loan Documents without
any prepayment premium or charge and not to the payment of interest, with the
excess being deemed to have been a payment made by mistake to be refunded to
Maker. All sums paid or agreed to be paid to the holder of the Note for the
use, forbearance or detention or detention of the Indebtedness, outstanding from
time to time shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread from the date of disbursement of the proceeds of
the Note until payment in full of the Indebtedness so that the actual rate of
interest on account of the Indebtedness is uniform through the term thereof.
Neither Maker nor any other party obligated to pay all of any part of the
Indebtedness evidenced by the Note shall have any claim or remedy against Payee
for any damages whatsoever, or any defenses to enforcement of the Note or any of
the other Loan Documents, relating in any way to allegations that the interest
paid or collected thereunder was in excess of the lawful limit, and Maker, for
itself and for any and all parties claiming by, under or through it, hereby
waives any such claims, remedies or defenses. Neither Maker nor any other party
obligated to pay all or any part of the Indebtedness evidenced by this Note
shall have any claim or remedy against Payee for any damages whatsoever, or any
defenses to enforcement of this Note or any of the other Loan Documents,
relating in any way to allegations that the interest paid or collected hereunder
was in excess of the lawful limit, and Maker, for itself and for any and all
parties claiming by, under and through it, hereby waives any such claims,
remedies or defenses. This provision shall control every other provision of the
Loan Documents, Maker hereby represents and warrants to Payee that the interest
under this Note (including the Interest Rate, Default Rate and Contingent
Additional Interest) is not usurious without regard to the provisions of this
Paragraph.
12. NO NOVATION. This Amendment and the other Amendment Documents shall
not cause a novation of any of the indebtedness and obligations of Maker or any
of the Responsible Parties under the Loan Documents, including the Note, nor
shall the same extinguish, terminate or impair the indebtedness and obligations
of Maker or the Responsible Parties and Payee's rights and remedies under the
Loan Documents, including the Note. Maker hereby acknowledges, represents,
warrants and agrees that neither Maker nor any of the Responsible Parties has
any defenses, rights of set-off, counterclaims or other claims against Payee in
connection with the Loan Documents, including the Amendment Documents, or the
indebtedness or obligations evidenced and/or secured thereby.
13. RATIFICATION. Except as expressly modified herein, each and all of
the terms, covenants, representations, warranties and provisions of the Note are
and shall remain in full force and effect unmodified in any way. Maker hereby
ratifies and reaffirms each an all of the terms, covenants, representations,
warranties and provisions of the Note, as modified hereby, and confirms that the
Loan Documents shall continue as a first priority, valid and enforceable,
properly perfected lien upon the Premises and all other collateral described in
the Loan Documents to secure repayment of the Note, as modified hereby, and all
other indebtedness and obligations under the Loan Documents, including the
Amendment Documents.
14. MISCELLANEOUS.
(A) MISCELLANEOUS. This Amendment shall be construed under and
governed by the internal laws of the State of Texas, excluding conflicts of laws
principles. TIME IS OF THE ESSENCE under the Note and each of the other loan
Documents and each and every provision hereof and thereof.
(B) AMENDMENT/MODIFICATION. This Amendment and each of the other
Loan Documents, and the terms of each of them, may not be charged, waived,
modified, canceled, discharged or terminated orally, but only by an instrument
or instruments in writing signed by the party against which enforcement of the
change, wavier, modification, cancellation, discharge or termination is
asserted.
(C) COUNTERPARTS. This Amendment and each of the other Loan
Documents may be executed in any number of counterparts, each of which shall
constitute an original but all of which together will constitute one instrument.
(D) WAIVER OF TRIAL BY JURY. MAKER, FOR ITSELF, EACH OF THE
RESPONSIBLE PARTIES, AND ALL PERSONS OR ENTITIES CLAIMING BY, THROUGH OR UNDER
ANY OF THEM, HEREBY EXPRESSLY, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
ANY RIGHTS ANY OR ALL OF THEM MAY HAVE TO TRIAL BY JURY IN ANY LITIGATION OR
ACTION BROUGHT ON, UNDER OR BY VIRTUE OR RELATING IN ANY WAY TO THIS AMENDMENT
OR ANY OTHER OF THE LOAN DOCUMENTS, OR ANY CLAIMS, DEFENSES, RIGHTS OF SET-OFF
OR OTHER ACTIONS PERTAINING HERETO OR THERETO. THIS WAIVER MAY BE FILED WITH
THE CLERK OR JUDGE OF ANY COURT AS A WRITTEN CONSENT TO WAIVER OR JURY TRIAL.
MAKER ACKNOWLEDGES THAT IT HAS CONSULTED WITH LEGAL COUNSEL REGARDING THE
MEANING OF THIS WAIVER AND ACKNOWLEDGES THAT THIS WAIVER IS AN ESSENTIAL
INDUCEMENT FOR PAYEE'S ENTERING INTO THE LOAN DOCUMENTS. THIS WAIVER SHALL
SURVIVE THE REPAYMENT OF THE INDEBTEDNESS EVIDENCED BY THE LOAN DOCUMENTS.
(E). ENTIRE AGREEMENT. THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS
EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY
AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS,
WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND
MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO
ORAL AGREEMENTS AMONG THE PARTIES HERETO.
(F). NOTICE OF INVALIDITY OF ORAL AGREEMENTS. THIS AMENDMENT AND THE
OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OR PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first written above.
MAKER:
CENTURY PROPERTIES FUND XIX, a California
limited partnership, by its duly
authorized, sole general partner
BY: FOX PARTNERS II, a California
general partnership, by its
authorized, managing general partner
WITNESS: BY: FOX CAPITAL MANAGEMENT CORPORATION,
a California corporation, by its
duly authorized officer
/s/Xxxxxxx X. Xxxxx BY: /s/Xxxxxxx X. Xxxxxxx, Xx.
Name:Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: President
PAYEE:
ATTEST: THE TRAVELERS INSURANCE COMPANY
/s/Xxxxxx Xxxxxxxx By:/s/Xxxx X. Xxxxxx
Name:Xxxxxx Xxxxxxxx Name:Xxxx X. Xxxxxx
Title:Asst. Secretary Title:Vice President
