EXHIBIT 10.48
AMENDED AND RESTATED MORTGAGE NOTE
Date of Note: July 19, 2000
FOR VALUE RECEIVED, Port Bay Associates, LLC, a New York limited liability
company ("Maker"), does hereby covenant and promise to pay to the order of Fleet
Bank, National Association, a national banking association ("Payee"), at 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as
Payee may designate to Maker in writing from time to time, in lawful money of
the United States of America and in immediately available funds, the lesser of
the principal sum of Ten Million and 00/100 ($10,000,000.00) Dollars (the
"Principal Amount") or the Principal Amount from time to time outstanding
hereunder and to pay interest on the Principal Amount from time to time
outstanding hereunder and such other charges, costs and fees set forth under the
Loan Documents in like money and funds as hereinafter provided.
1. Definitions. The following terms, as used in this Note, shall have the
meanings indicated opposite them and terms capitalized herein and not otherwise
defined herein but defined in the Mortgage shall have the meaning set forth in
the Mortgage:
"Acadia" shall mean Acadia Realty Trust, a Maryland real estate investment
trust with offices at 00 Xxxxxxxxx Xxxxxxxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx
00000, and its successors and/or assigns.
"Accounting Principles" shall mean the accounting principles utilized in
the preparation of the operating statements for the Mortgaged Premises
heretofore delivered to Payee.
"Additional Advance" or "Earn-Out" shall have the meaning assigned to such
term in PARAGRAPH 5 of this Note.
"Applicable Rate" either the Floating Rate Option or the LIBOR Option in
effect at any given time.
"Appraised Value" shall mean the appraised value of the Mortgaged Premises,
as determined by an independent appraiser selected by Payee and reasonably
acceptable to Maker. Payee may require that such an appraisal be performed
at any time. Appraised Value shall be determined utilizing an appraisal
method consistent with that used in determining the Appraised Value for
Payee in connection with this Loan. Maker shall solely be responsible for
the cost of up to one appraisal per annum if requested by Xxxxx.
"Authorized Representative" - shall mean Xxxxx Xxxxxxxx, Xxxxxx
Xxxxxxxxxxx, Xxxxxx Xxx, Xxxxxx Xxxxxxx or any other person or persons
designated by Maker, in a writing delivered to Payee, as an Authorized
Representative.
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"Business Day" -As used herein the "Modified Following Business Day
Convention" shall mean the convention for adjusting any relevant date if it
would otherwise fall on a day that is not a Business Day. The following
terms, when used in conjunction with the term "Modified Following Business
Day Convention", and a date, shall mean that an adjustment will be made if
that date would otherwise fall on a day that is not a Business Day so that
date will be the first following day that is a Business Day. A "Business
Day" means, in respect of any date that is specified in this Note to be
subject to adjustment in accordance with applicable Business Day
Convention, a day on which commercial banks settle payments in (i) London
if the payment obligation is calculated by reference to any LIBOR rate, or
(ii) New York, if the payment obligation is calculated by reference to any
prime rate.
"Change in Control" shall mean and include any of the following:
(i) the full time active employment of Xxxx Xxxxxxx as chief executive
officer of Acadia and of Xxxxxxx X. Xxxxxxxxx, as President of Acadia,
shall be voluntarily terminated by Acadia or shall otherwise cease, unless
a successor acceptable to Xxxxx shall have been appointed or elected and
actually taken office within three months following any such termination or
cessation, in which case the name of such successor shall be substituted
for the name of the person he or she replaces for purposes of this clause
(i);
(ii) the shareholders of Acadia approve a plan of complete liquidation
of Acadia or an agreement or agreements for the sale or disposition by
Acadia of all or substantially all of Acadia's assets; and/or
(iii) any "change in control" or any similar term as defined in any of
the indentures, credit agreements or other instruments governing any
indebtedness of Acadia or any of its affiliates.
"Default" - shall mean any act or condition which with the giving of notice
or the lapse of time, or both, could become an Event of Default.
"Extended Maturity Date" shall mean the then applicable extended maturity
date pursuant to PARAGRAPH 3 of this Note.
"Event of Default" shall have the meaning assigned to such term in SECTION
6.1 of the Mortgage and PARAGRAPH 33 of this Note.
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"Floating Rate Option" shall mean the Prime Rate, floating plus fifty basis
points (.50%).
"Full Force and Effect" shall mean, as to any lease, that such lease shall
be in full force and effect, there shall be no material default by the
tenant thereunder or default by the landlord thereunder or other act or
condition or circumstance giving or which may give, without the giving of
any further notice, the tenant or the landlord the right to terminate any
lease and, if requested by Payee and required by its lease, the tenant
shall have delivered to Payee an estoppel certificate in form and substance
reasonably satisfactory to Payee.
"Guarantor" shall mean, individually, jointly, severally and collectively,
the Maker and Managing Member.
"Guaranty" or "Indemnity" means, individually, jointly, severally and
collectively, (i) that certain indemnity agreement dated of even date
hereof by the Indemnitor in favor of Xxxxx, as the same may be extended and
or otherwise modified from time to time, (ii) that certain hazardous
material guaranty and indemnity agreement dated of even date hereof by the
Indemnitor in favor of Xxxxx, as the same may be extended and or otherwise
modified from time to time, (iii) that certain ADA guaranty and indemnity
agreement dated of even date hereof by the Indemnitor in favor of Xxxxx, as
the same may be extended and or otherwise modified from time to time.
"Interest Period" with respect to LIBOR Advances, a period of 30, 60, 90,
120 or 180 days (or such other periods as Payee may elect to make
available); provided, however, that no such period shall extend beyond the
Maturity Date. Any Interest Period which terminates on a non-Business Day
shall be deemed, for purposes hereof, to terminate on the next succeeding
Business Day.
"LIBOR Advance" an advance with respect to which the Principal Amount bears
interest at the LIBOR Option.
"LIBOR Option" shall mean a rate per annum equal to one hundred
seventy-five basis points (1.75%) plus the LIBOR Rate with respect to the
applicable Interest Period. The term "LIBOR" shall mean, as applicable to
any LIBOR Advance, the rate per annum (rounded upward, if necessary, to the
nearest 1/32 of one percent) as determined on the basis of the offered
rates for deposits in U.S. dollars, for a period of time comparable to such
LIBOR Advance which appears on the Telerate page 3750 as of 11:00 a.m.
London time on the day that is two (2) London Banking Days preceding the
first day of such LIBOR Advance; provided, however, if the
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rate described above does not appear on the Telerate System on any
applicable interest determination date, the LIBOR rate shall be the rate
(rounded upwards as described above, if necessary) for deposits in dollars
for a period substantially equal to the interest period on the Reuters Page
"LIBO" (or such other page as may replace the LIBO Page on that service for
the purpose of displaying such rates) as of 11:00 a.m. (London Time) on the
day that is two (2) London Banking Days prior to the beginning of such
interest period. "Banking Day" shall mean, in respect of any city, any date
on which commercial banks are open for business in that city.
If both the Telerate and Reuters system are available Telerate and Reuters
system are available, then the rate for that date will be determination the
basis of the offered rates for deposits in U.S. dollars for a period of
time comparable to such LIBOR advance which are offered by four major banks
in the London interbank market at approximately 11:00 a.m. London time, on
the day that is two (2) London Banking Days preceding the first day of such
LIBOR Advance as selected by the calculation agent. The principal London
office of each of the four major London banks will be requested to provide
a quotation of its U.S. dollar deposit offered rate. If at least two such
quotations are provided, the rate for that date will be the arithmetic mean
of the quotations. If fewer than two quotations are provided as requested,
the rate for that date will be determined on the basis of the rated quoted
for loans in U.S. dollars to leading European banks for a period of time
comparable to such LIBOR Advance offered by major banks in New York City at
approximately 11:00 a.m. New York City time, on the day that is two (2)
London Banking Days preceding the first day of such LIBOR Advance. In the
event that Xxxxx is unable to obtain any such quotations as provided above,
it will be deemed that LIBOR pursuant to a LIBOR Advance cannot be
determined. In the event that the Board of Governors of the Federal Reserve
System shall impose a Reserve Percentage with respect to LIBOR deposits of
Bank then for any period during which such Reserve Percentage shall apply,
LIBOR shall be equal to the amount determined above divided by an amount
equal to 1 minus the Reserve Percentage. "Reserve Percentage" shall mean
the maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) which is imposed on member banks
of the Federal Reserve System against "Euro-currency Liabilities as defined
in Regulation D.
"LIBOR Acceptance Notice" shall have the meaning assigned to such term in
PARAGRAPH 4(b) hereof.
"LIBOR Notice" Maker's telephonic notice immediately confirmed in writing,
which writing may be delivered by telecopier, stating that Maker,
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subject to delivery by it of a LIBOR Acceptance Notice, elects to pay
interest on the whole or a portion of the Principal Amount at the LIBOR
Rate, as specified in such Notice, and specifying the applicable Interest
Period for the LIBOR Advance and the Business Day on which such Interest
Period is to begin.
"Loan" loans of up to the Principal Xxxxxx made and/or to be made to Maker
by Xxxxx and evidenced hereby.
"Loan Documents" means the Demand Note, the Note Modification Agreement,
this Note, the Demand Mortgage, the Agreement of Consolidation of Notes and
Mortgages and Modification of the Consolidated Mortgage, the Guaranty, the
Assignment of Leases and Rents and all other documents, including, without
limitation, collateral documents, security agreements, UCC financing
statements, assignments of leases and rents, guaranties, indemnities and
any other document, mortgage, agreement, assignment or other instrument
executed by Maker and/or Indemnitor, as the case may be, or any other third
party pursuant hereto or thereto or in connection herewith or in connection
with the loan evidenced by this Note and secured by this Mortgage, as the
same may be extended and or otherwise modified from time to time.
"Managing Member" shall mean Acadia Realty Limited Partnership, a Delaware
limited partnership having an office at 00 Xxxxxxxxx Xxxxxxxxxxx, Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000, and its successors and/or assigns.
"Maturity Date" shall mean the then applicable maturity date pursuant to
PARAGRAPH 3 of this Note.
"Mortgage" that certain Agreement of Consolidation of Notes and Mortgages
and Modification of the Consolidated Mortgage dated as of even date hereof,
including all exhibits thereto, by and between Maker and Payee in the
principal sum of $10,000,000, as the same may be amended or modified from
time to time. Whenever a section of the Mortgage is referred to herein, it
shall mean the sections contained in the Exhibit C to the Mortgage.
"Mortgaged Premises" or "Mortgaged Property" shall have the meaning
assigned to such term in the Mortgage.
"Net Operating Income" shall mean, with respect to the applicable period,
the aggregate rental and other receipts (unless excluded pursuant hereto)
of the Mortgaged Premises (actual results with respect to the preceding
six-months and pro forma with respect to the following six-months during
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such period less the aggregate amount of all operating expenses of the
Mortgaged Premises during such period, in each case determined in
accordance with the Accounting Principles. For purposes of the
determination of Net Operating Income, operating expenses shall include,
without limitation, all real estate taxes (but not in excess of the pro
rata portion of such real estate taxes applicable to the applicable period
covered by the statement), water and sewer charges, utility charges,
insurance premiums (but not in excess of the amounts applicable to the
applicable period covered by the statement), salaries and benefits of all
employees engaged in the operation, maintenance or management of Mortgaged
Premises, all costs of ordinary and necessary maintenance, cleaning and
repair, costs of snow and rubbish removal and security services. Net
Operating Income shall, however, (a) exclude from receipts all amounts paid
to the Maker for tenant alterations in connection with the leasing of space
at the Mortgaged Premises, all amounts payable to the Maker under leases
with Affiliates of the Maker, as tenant, or with Maker, as tenant (unless
the Payee otherwise agrees) and, with respect to any lease providing for a
reduction in the rentals payable under such lease at any time during the
term thereof, base rentals in excess of the lowest base rentals payable
under such lease (other than during any period of rent concessions made
with respect to consecutive monthly periods commencing with the first month
of the term of such lease), and (b) exclude from expenses payments of
principal and interest on this Note, capital expenditures, leasing
commissions, and other expenses payable to the Payee pursuant to this Note
or any of the other Loan Documents. Net Operating Income shall be
determined without regard to extraordinary items of income and of expense.
Each lease, the rental or other income from which was included in the
calculations of Net Operating Income, must be in Full Force and Effect as
of the date Net Operating Income is being determined
"Note" shall mean this Amended and Restated Mortgage Note, as the same may
be amended or otherwise modified from time to time.
"Person" shall mean and include any individual corporation, partnership
unincorporated association, trust, governmental agency or authority or
other entity.
"Prime Rate" shall mean the variable rate per annum so designated from time
to time by the Payee as its Prime Rate. The Prime Rate is a reference rate
and does not necessarily represent the lowest or best rate being charged to
any customer. Changes in the rate of interest resulting from changes in the
Prime Rate shall take place immediately without notice or demand of any
kind.
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"Prime Rate Advance" an advance with respect to which the Principal Amount
or a portion thereof bears interest at the Floating Rate Option.
"Regulation D" - Regulation D of the Board of Governors of the Federal
Reserve System from time to time in effect, including any successor or
other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
2. Amortization and Interest; Facility Fee. (a) The Principal Amount of
this Note shall be payable in accordance with the following provisions:
Commencing on September 1, 2000 and on the first day of each calendar month
thereafter, Maker will pay, on account of the Principal Amount, the amount which
would be payable on a self-liquidating mortgage-style amortization schedule
based on the Principal Amount then outstanding, a loan maturity of twenty-five
(25) years and an assumed interest rate of 8.5% per annum. Upon the making of
the Additional Advance, the amortization schedule shall be recalculated such
that immediately upon the making of the Additional Advance the monthly principal
payments shall be recalculated based on the Principal Amount outstanding after
the making of the Additional Advance, a loan maturity of twenty-five years less
the number of months which have elapsed since the first amortization payment
pursuant to this PARAGRAPH 2 and an assumed interest rate of 8.5% per annum and
such revised amortization schedule shall be applicable to the payment due on the
first day of the month immediately following the making of the Additional
Advance and each month thereafter, unless and until such schedule is revised in
accordance herewith. The prepayment premium provided for in PARAGRAPH 10 hereof
shall not be applicable to any such scheduled monthly payments. Any voluntary
prepayments applied to principal shall be applied in the inverse order of
maturity.
(b) Interest on the outstanding Principal Amount shall accrue from and
including the date of the advance to but excluding the date of any repayment or
prepayment thereof and shall be payable in arrears (i) on the first day of each
calendar month, commencing August 1, 2000, (ii) on the date of any prepayment
(on the amount prepaid), (iii) on the Maturity Date, or the Extended Maturity
Date, as the case may be (iv) after maturity (whether by acceleration or
otherwise) on demand. Interest shall be calculated on the basis of 1/360 of the
annual interest at the applicable rate on the outstanding principal balance for
each date such balance is outstanding and shall be paid for the actual number of
days elapsed, which will result in a higher effective annual rate.
(c) Concurrently with the execution and delivery of this Note, Maker shall
pay Payee a non-refundable facility fee of $75,000.00.
3. Maturity Date; Extended Maturity Date
(a) The outstanding Principal Xxxxxx and all accrued and unpaid interest
thereon shall be due and payable on August 1, 2003 (the "Maturity Date").
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(b) Provided that the Maker shall have notified the Payee sixty (60) days
prior to the Maturity Date (as defined in the Note) that the Maker wishes to
extend the term of the Note and Mortgage for an additional two (2) year period
("Extended Term"), and provided that the Maker shall have paid to the Payee
thirty (30) days prior to the Maturity Date the Extension Fee equal to one
quarter of one (.25%) percent of the outstanding balance of the Note due on the
Maturity Date, and provided further that the Maker shall have complied with all
of the conditions precedent as hereinafter set forth in the next paragraphs,
this Note shall be extended for an additional two (2) year period (the "Extended
Term") so that this Note shall mature on the Extended Maturity Date, at which
time the Principal Amount and interest at the applicable Interest Rate accrued
and unpaid herein shall be due and payable. During the Extended Term, monthly
payments of interest and principal shall continue to be due and payable as set
forth in this Note.
Notwithstanding anything to the contrary contained herein, the Payee's
obligation to extend the term of the Note and Mortgage for the Extended Term so
that this Note shall mature on the Extended Maturity Date, rather than the
Maturity Date, is conditioned upon the following:
(i) The Payee shall have received a recently dated appraisal of the
Mortgaged Property by an independent appraiser selected by the Payee
and paid for by the Maker, in form and substance satisfactory to the
Payee, which appraisal and results thereof must indicate a loan to
value ratio of not greater than sixty-five (65%) percent.
(ii) No default shall have occurred and be continuing under the Loan
Documents evidencing, securing, or guaranteeing payment of, the Note.
(iii) The "Debt Service Coverage Ratio" must be at least 1.50 to 1.
For purposes herein, Debt Service Coverage Ratio shall mean the ratio,
as of any date of calculation, for the immediately preceding six (6)
month period and the immediately succeeding six (6) month period,
calculated by dividing: (a) the Net Operating Income for the preceding
six (6) month period and the immediately six (6) month period; by (b)
principal and interest payments based on a 25 year self liquidating
mortgage amortization schedule, and the 10-year treasury rate plus
2.00% with a floor rate of 8.50%.
(iv) All representations and warranties contained herein, or otherwise
made in writing in connection herewith or in any of the Loan
Documents, by or on behalf of Maker or any other Person to Payee,
shall be true and correct, in all material respects, with the same
force and effect as if made on and as of the date of the initial date
of the Extended Term.
4. Selection of Rate.
(a) Except as provided in PARAGRAPHS 4(b), the outstanding Principal Amount
shall bear interest at a rate per annum equal to the Prime Rate Option.
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(b) Provided there is no Default and/or Event of Default under this Note,
the Loan Document(s) or any other document or instrument delivered as additional
security for this Note, Maker may elect to pay interest on the entire or any
portion of the outstanding Principal Amount (subject to the minimum amount
limitations set forth herein and the requirements set forth below) at a rate per
annum equal to the LIBOR Option for the Interest Period elected by Maker from
(and including) the first day of each Interest Period to (but not including) the
last day of such Interest Period. Maker shall, subject to delivery by it of a
LIBOR Acceptance Notice, elect that the entire or any portion of the outstanding
Principal Amount be treated as a LIBOR Advance pursuant to a LIBOR Notice. Payee
must receive such LIBOR Notice prior to 11:00 A.M., New York City time, on a
Business Day at least three (3) Business Days prior to:
(1) the last day of an Interest Period (in the case of an outstanding
LIBOR Advance); or
(2) any Business Day elected by Maker in its LIBOR Notice (in the case
of a conversion of a Prime Rate Advance to a LIBOR Advance) for the
commencement of the applicable Interest Period.
If Maker fails to give a LIBOR Notice at least three (3) Business Days prior to
the end of an Interest Period, then, on the last day of the Interest Period, the
outstanding LIBOR Advance shall convert to a Prime Rate Advance. On the date
specified in the LIBOR Notice as the date on which the applicable Interest
Period is to begin, Payee shall notify Maker's Authorized Representative by
telephone (such notice to be promptly confirmed in writing) or by telex, which
notice shall specify the date, the proposed LIBOR Rate and the period of time on
such date during which such rate is to be available. If Payee fails to specify
the period for which such quoted rate is available, then such rate shall be
deemed to be available only for thirty minutes from the time Payee, orally or in
writing, notifies Maker's Authorized Representative of such rate. If Maker then
wishes to obtain such Loan at such LIBOR Rate, it shall promptly give notice to
Payee to such effect (the "LIBOR Acceptance Notice"), which notice shall be
irrevocable and may be by telephone, promptly confirmed in writing.
(c) Without in any way limiting Maker's obligation to confirm in writing
any telephonic LIBOR Rate Notice or LIBOR Acceptance Notice, Payee may, prior to
receipt of written confirmation, act without liability on the basis of
telephonic notice which it believes in good faith to be from Maker and, in any
event, Payee may act without liability on the basis of telephonic or written
notice which it believes in good faith to be from Maker.
5. Conditions to Additional Advance. Maker shall have the option, subject
to the terms and conditions of this Note, of requesting from Payee an additional
advances in increments of $200,000 each, or any integral multiple thereof, with
the aggregate amount of all such additional advances not to exceed $1,000,000
(each, every and any one of such additional advances shall be referred to herein
as the "Additional Advance"). The obligation of Payee to make the Additional
Advance hereunder is subject to the satisfaction of each of the following
conditions precedent:
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(a) An Authorized Representative shall give Payee at least ten (10)
Business Days prior written notice, specifying the date of the proposed
borrowing. Any such notice which is oral shall promptly be confirmed in a
writing signed by an Authorized Representative and delivered to Payee.
Payee may rely on any oral or written request for a Loan which Xxxxx
believes to be genuine and shall be fully protected in doing so without any
requirement to make further inquiry.
(b) After giving effect to the Additional Advance, there shall exist
no Default and/or Event of Default, including, without limitation, default
of the provisions set forth in SUBPARAGRAPH 9(a) or 9(b) of this Note, and,
for this purpose, compliance with such covenants shall, prior to the making
of the proposed Additional Advance, be recalculated (using the most
recently available Appraised Value and Net Operating Income) as if the
Additional Advance has been made.
(c) All representations and warranties contained herein, or otherwise
made in writing in connection herewith or in any of the Loan Documents, by
or on behalf of Maker or any other Person to Payee, shall be true and
correct, in all respects, with the same force and effect as if made on and
as of the date of the Additional Advance.
(d) The Payee shall have received a recently dated appraisal of the
Mortgaged Property (less than one year old, or if older, accompanied by an
updated limited appraisal report) by an independent appraiser selected by
the Payee and paid for by the Maker, in form and substance satisfactory to
the Payee, which appraisal and results thereof must indicate a loan to
value ratio of not greater than sixty-five (65%) percent.
(e) The "Debt Service Coverage Ratio" must be at least 1.35 to 1. For
purposes herein, Debt Service Coverage Ratio shall mean the ratio, as of
any date of calculation, for the immediately preceding six (6) month period
and the immediately succeeding six (6) month period, calculated by
dividing: (a) the Net Operating Income for the preceding six (6) month
period and the immediately six (6) month period; by (b) principal and
interest payments based on a 25 year self liquidating mortgage amortization
schedule, and the 10-year treasury rate plus 2.00% with a floor rate of
8.50%.
(f) At the time of the payment of the Earn-out or a part thereof (with
the Earn-out funding capped at 18 months), a continuation of title shall
demonstrate that there are no encumbrances, unpaid Impositions or liens
assessed against the Mortgaged Premises except for Permitted Encumbrances
(such title continuations shall be at Maker's sole cost and expense)..
6. Payment of Interest on and Number of LIBOR Advances. If a LIBOR Advance
is outstanding, then in addition to the monthly payments of interest required
under PARAGRAPH 2(b) hereof, all accrued and unpaid interest, if any, on such
LIBOR Advance shall be due and payable on the last day of the Interest Period.
In no event may there be more than three (3) Interest Periods in effect at any
one time, and the entire Principal Amount outstanding need not bear interest at
the same Applicable Rate.
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7. Suspension of the LIBOR. If Payee determines that Xxxxx's making or
maintaining LIBOR Advances is unlawful for any reason, then Payee may suspend
the availability of the LIBOR Rate and immediately convert any outstanding LIBOR
Advance to a Prime Rate Advance. Payee shall immediately notify Maker of any
such conversion and Maker shall pay to Payee, on demand, (i) all accrued and
unpaid interest on the LIBOR Advance to the date of such conversion, plus (ii)
such amounts as Payee shall require to compensate it for the costs of converting
any such LIBOR Advance to a Prime Rate Advance. The certificate of Payee as to
any amounts payable pursuant to this PARAGRAPH shall, absent manifest error, be
final, conclusive and binding on Maker. No LIBOR Notices electing the LIBOR Rate
shall be given by Maker thereafter until Payee determines that LIBOR Advances
would be lawful.
8. Increases in Cost. In the event that at any time or from time to time
any domestic or foreign requirement of law, regulation, order or decree or any
change therein or in the interpretation or application thereof or compliance by
Payee with any request or directive (whether or not having the force of law)
from any governmental, fiscal, monetary or other authority (i) does or shall
subject Payee to any tax, duty, charge or withholding on or from payments due
from Maker (excluding taxation of the income of Payee); or (ii) does or shall
impose, modify or hold applicable or change any reserve (including, without
limitation, basic, supplemental, marginal, special or emergency reserves but not
including reserve requirements already taken into account in calculating the
LIBOR Rate), special deposit, compulsory deposit or similar requirement with
respect to assets of, deposits with or for the account of, advances or loans by,
or other credit extended by, or any other acquisition of funds by Payee; or
(iii) does or shall impose on Payee any other condition or change therein and
the result of any of the foregoing is to increase the cost to Payee of making
available to Maker, converting from or to, or maintaining LIBOR Advances, then,
and in any such event, Payee shall notify Maker in writing of such occurrence
setting forth in reasonable detail the basis for and amounts of such increased
costs, and Maker shall pay to Payee, on demand, such amounts as will compensate
Payee for such increased costs. The certificate of Payee as to any amounts
payable pursuant to this PARAGRAPH shall, absent manifest error, be final,
conclusive and binding on Maker.
9. Loan Covenants
(a) At all times while the indebtedness remains outstanding, the
outstanding Principal Amount shall not exceed 65% of the Appraised Value of the
Mortgaged Property, based upon the then most recent Appraised Value of the
Mortgaged Property reviewed and found acceptable by the Maker.
(b) At all times while the indebtedness remains outstanding, the Maker
shall maintain a "Debt Service Coverage Ratio" (as hereinafter defined) of not
less than 1.35 to 1, to be tested semi-annually, as of June 30, 2000 and each
subsequent December 31 and June 30 (the "Accounting Date"). Debt Service
Coverage Ratio shall mean, for purposes herein, the ratio, as of any date of
calculation, for the immediately preceding six (6) month period and
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the immediately succeeding six (6) month period, calculated by dividing: (a) the
Net Operating Income for the preceding six (6) month period and the immediately
succeeding six (6) month period; by (b) principal and interest payments based on
a 25 year self liquidating mortgage amortization schedule, and the 10-year
treasury rate plus 2.00% with a floor rate of 8.50%.
(c) At all times while the Indebtedness remains outstanding, Acadia shall
maintain a minimum "Net Worth" of at least $50,000,000.00, to be determined by
Maker based upon the financial statements required to be submitted to Maker
pursuant to SECTION 2.10.6 hereof.
(d) At all times while the Indebtedness remains outstanding, Acadia shall
maintain minimum liquidity of at least $3,000,000.00, to be determined by Maker
based upon the financial statements required to be submitted to Maker pursuant
to SECTION 2.10.6 hereof.
(e) In the event of the Maker's failure to comply with SUBPARAGRAPHS'
(a),(b) (c) or (d) directly hereinabove, the Maker shall have the following
options prior to the Maker's non-compliance resulting in an Event of Default
under the Mortgage:
(i) Within 45 days of notice by the Maker to the Maker that the Maker
has breached the applicable covenant(s), the Maker shall provide additional
collateral in the form of cash collateral, marketable securities, real
estate, and/or letter(s) of credit, acceptable in form, quality, value and
amounts to the Maker in its sole discretion so that after the delivery of
such collateral, the applicable covenant violation shall have been cured,
to the satisfaction of Lender, in its sole discretion, or
(ii) Within 45 days of notice by the Maker to the Maker that the Maker
has breached the applicable covenant(s), the Maker shall reduce the
Principal Amount so that after such prepayment, the applicable covenant
violation shall have been cured, to the satisfaction of the Maker, in its
sole discretion.
(f) Within ninety (90) days after the Accounting Date, Maker shall furnish
to Payee detailed calculations of Net Operating Income and Debt Service Coverage
Ratio for the current accounting period and upon which satisfaction of the
provisions of PARAGRAPH 9(b) are to be determined, and certified as true and
accurate, in a manner acceptable to Payee, by the chief financial officer of the
Guarantor as having been prepared under his supervision in accordance with the
Accounting Principles consistently applied and with the definitions of Net
Operating Income and Debt Service Coverage Ratio and that he knows of no facts
inconsistent with such calculations.
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10. Prepayment.
(a) On any Business Day during the term hereof that the Applicable Rate is
based upon the Prime Rate or on a date which is the last day of an Interest
Period, upon not less than three Business Days written notice to Payee
specifying the date on which prepayment is to be made, Maker shall have the
privilege of prepaying, without payment of a premium or penalty, that portion of
the unpaid balance of the Principal Amount, in whole or in part, as to which the
Applicable Rate is based upon the Prime Rate or as to which an Interest Period
is ending, which parts shall be in integral multiplies of $50,000 together with
all accrued and unpaid interest on the Principal Amount so prepaid to the date
of prepayment, and together also with accrued and unpaid interest or other sums
or charges, if any, then due and owing hereunder or under the Loan Document(s),
provided that any such prepayment shall be in a minimum amount of not less than
$250,000.
(b) At any time during the term hereof that the Applicable Rate is based
upon LIBOR upon not less than three Business Days prior written notice to Payee
(which notice shall be irrevocable), Maker shall have the privilege of prepaying
the unpaid balance of the Principal Amount, in whole or in part, which parts
shall be in integral multiples of $50,000, prior to the last day of an Interest
Period upon the required notice as aforesaid, provided that any such prepayment
shall be in a minimum amount of not less than $250,000 and provided further that
in addition to the payment of the whole or portion of the Principal Amount so to
be prepaid, all accrued and unpaid interest thereon and all other sums due
hereunder or under the Loan Document(s), Maker shall pay Payee such amount or
amounts as shall be sufficient (in the reasonable opinion of Payee) to
compensate Payee for any loss, costs or expenses Payee incurs with respect to
the termination of any LIBOR contract and/or Hedge Agreement (as such term is
defined in the Mortgage) that Payee or its designee has entered into to borrow
funds in order to fund the Loan plus the following yield maintenance premium:
Maker shall pay to Payee, upon request of Payee, such amount or amounts as shall
be sufficient (in the reasonable opinion of Payee) to compensate it for any
loss, cost or expense incurred as a result of: (i) any payment of a LIBOR Loan
on a date other than the last day of the Interest Period for such Loan; (ii) any
failure by Maker to borrow a LIBOR Loan on the date specified by Maker's written
notice; (iii) any failure by Maker to pay a LIBOR Loan on the date for payment
specified in Maker's written notice. Without limiting the foregoing, Maker shall
pay to Payee a "yield maintenance fee" in an amount computed as follows: The
current rate for United States Treasury securities (bills on a discounted basis
shall be converted to a bond equivalent) with a maturity date closest to the
term chosen pursuant to the Fixed Rate Election as to which the prepayment is
made, shall be subtracted from the LIBOR in effect at the time of prepayment. If
the result is zero or a negative number, there shall be no yield maintenance
fee. If the result is a positive number, then the resulting percentage shall be
multiplied by the amount of the principal balance being prepaid. The resulting
amount shall be divided by 360 and multiplied by the number of days remaining in
the term chosen pursuant to the Fixed Rate Elections as to which the prepayment
is made. Said amount shall be reduced to present value calculated by using the
above referenced United States Treasury securities rate and the number of days
remaining in the term chosen pursuant to the Fixed Rate Election as to which
prepayment is made. The resulting amount shall be the yield maintenance fee due
to Payee upon the payment of a LIBOR Loan. Each reference in this
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paragraph to "Fixed Rate Election" shall mean the election by Maker of the LIBOR
Rate. If by reason of an Event of Default Payee elects to declare the Note to be
immediately due and payable, then any yield maintenance fee with respect to a
LIBOR Loan shall become due and payable in the same manner as though the Maker
had exercised such right of prepayment.
(c) Any payment required of Maker of the Principal Amount or any portion
thereof after acceleration of the Maturity Date pursuant to any provisions
hereof or of the Loan Document(s) shall be deemed a voluntary prepayment for the
purposes hereof, and if a LIBOR Advance is then outstanding, Maker shall be
required, on demand, to pay the prepayment premium, if any, calculated as
aforesaid.
(d) Any payments of the Principal Amount received by Payee pursuant to the
terms of this PARAGRAPH 10 shall be applied in the following order of priority:
(i) first, to any accrued interest which is due and unpaid as of the date of
such payment; and (ii) second, to the outstanding Principal Amount in the
inverse order of maturity.
11. Involuntary Rate. Upon a default or after maturity or after judgment
has been rendered on this Note, Maker's right to select pricing options shall
cease. Overdue principal and, to the extent permitted by law, overdue interest
and all other overdue amounts owing hereunder, whether at maturity, upon a
Default, upon acceleration or otherwise, shall bear interest for each day that
such amounts are overdue (whether or not any required notice of default shall
have been given) at a rate per annum equal to four percent (4%) per annum in
excess of the Prime Rate in effect from time to time; provided, however, that no
overdue principal shall bear interest at a rate per annum less than four percent
(4%) in excess of the rate of interest applicable thereto immediately prior to
maturity (such rate, the "Involuntary Rate"). Interest shall continue to accrue
at the Involuntary Rate upon a default or upon maturity of this Note, whether by
expiration of its term, acceleration or otherwise, until this Note is paid in
full, including the period following entry of any judgment on or relating to
this Note or the Loan Documents. Interest on any such judgment shall accrue and
be payable at the Involuntary Rate, and not at the statutory rate of interest,
after judgment, any execution thereon, and until actual receipt by Xxxxx of
payment in full of this Note and said judgment. Interest at the Involuntary Rate
shall be collectible as part of any judgment hereunder and shall be secured by
the Mortgage and the other Loan Documents. Xxxxx's right to receive interest at
the Involuntary Rate shall be in addition to all other rights and remedies
provided herein or by law for the benefit of the holder hereof upon a default;
and the acceptance of the same by the holder hereof shall not restrict such
holder in any respect in the exercise of any other or further right or remedy,
nor shall the same be deemed to be, as to the holder hereof, a waiver or release
of Maker from any of its obligations herein contained or constitute an extension
of the time for payments due hereunder.
12. Late Fee. If the entire amount of any required principal and/or
interest under this Note is not paid in full within ten (10) days after the same
is due, Maker shall pay to the Payee a late fee equal to five (5%) percent of
the required payment, and such charge shall be deemed to be part of the
indebtedness evidence herein.
13. Security. This Note is secured by the Mortgage and all of the Loan
Documents
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(including any amendment, modification, extension or renewal thereof now or
hereafter executed in connection therewith or herewith). Document(s)." This Note
is entitled to the benefits of the Loan Documents.
14. Acceleration. It is hereby expressly agreed that the entire unpaid
balance of the Principal Amount shall, at the option of the holder hereof and
upon such notice as may be required by this Note or by the Mortgage, become
immediately due and payable without necessity for presentment and demand, notice
of protest, demand and dishonor or nonpayment of this Note, all of which are
hereby expressly waived, upon the happening of any Event of Default or any event
by which, under the terms of the Loan Document(s), said unpaid balance may or
shall become due and payable. Failure to exercise any such option at any time
shall not constitute a waiver of the right of the holder hereof to exercise the
same in the event of any subsequent default or acceleration event.
15. Notices. Except as otherwise provided herein, any notice to be given
hereunder shall be in writing and shall be either delivered or sent by
first-class registered or certified mail, return receipt requested postage
prepaid, addressed (a) if to Maker, to Maker's address set forth on the
signature page or (b) if to Payee, at Xxxxx's address set forth above,
Attention: Xxxxxx X. Xxxxx, Vice President or, as to any party, at such other
address as shall be designated by such party by notice to the other party given
in the manner set forth in this PARAGRAPH and each such notice shall be
effective (i) if delivered by hand, at the time of delivery to the address
specified in this PARAGRAPH, or (ii) if given by mail, on the fourth Business
Day following the time of mailing in the manner aforesaid, or (iii) on the
Business Day immediately following the delivery of such notice to an overnight
delivery service.
16. Funding Sources. Nothing contained herein shall be deemed to obligate
Payee to fund advances hereunder in any particular place or manner; and nothing
contained herein shall be deemed to constitute a representation by Payee that it
has funded or will fund advances in any particular place or manner.
17. Taxes and Attorneys' Fees. Maker shall pay to Payee, immediately upon
demand, any and all taxes assessed against Payee by reason of its holding of
this Note and the receipt by it of interest payments hereunder (other than
income, franchise and other similar taxes assessed by the United States
Government, any state or any political subdivision of either thereof on such
interest payments), and any and all other sums and charges that may at any time
become due and payable under the Loan Document(s). Maker also promises to pay,
on demand, all costs, title insurance premiums, mortgage recording taxes,
disbursements and reasonable attorneys' fees (including allocated costs of
internal counsel of Payee) and disbursements incurred in connection with the
negotiation, preparation, and execution of this Note and/or the Loan Documents
and any other documents and instruments prepared in connection herewith or
therewith and the consummation of the transactions contemplated hereby or
thereby and the administration of this Loan and in the preservation of rights
under, enforcement of, this Note and the Loan Document(s), any modification,
amendment, or consent related thereto and in any suit, action or proceeding to
protect or sustain the security interest of the holder of the Loan Document(s)
and
15
any refinancing or renegotiation of this Note and the Loan Document(s).
18. No Partnership or Joint Venture. Nothing contained in this Note or
elsewhere shall be deemed or construed as creating a partnership or joint
venture between Payee and Maker or between Payee and any other person, or cause
the holder hereof to be responsible in any way for the debts or obligations of
Maker or any other person.
19. Waiver. Maker hereby waives diligence, presentment, protest and demand,
notice of protest, dishonor and nonpayment of this Note, and expressly agrees
that, without in any way affecting the liability of Maker hereunder, Payee may
extend the Maturity Date or the time for payment of any amount due hereunder,
accept additional security, release any party liable hereunder and release any
security now or hereafter securing this Note without in any other way affecting
the liability and obligation of Maker or any other Person. Maker further waives,
to the full extent permitted by law, the right to plead any and all statutes of
limitations as a defense to any demand on this Note, under the Loan Document(s),
or on any guaranty or other agreement now or hereafter securing this Note.
20. Interest Rate Limitation. Notwithstanding anything contained herein to
the contrary, the holder hereof shall never be entitled to receive, collect or
apply as interest on the obligation evidenced hereby any amount in excess of the
maximum rate of interest permitted to be charged by applicable law; and in the
event the holder hereof ever receives, collects or applies as interest any such
excess, such amount which would be excessive interest shall be applied to the
reduction of the Principal Amount; and if the Principal Amount is paid in full,
any remaining excess shall forthwith be paid to Maker. In determining whether
the interest paid or payable in any specific case exceeds the highest lawful
rate, the holder hereof and Maker shall to the maximum extent permitted under
applicable law (i) characterize any non-principal payment as an expense, fee or
premium rather than as interest; (ii) exclude voluntary prepayments and the
effects thereof; and (iii) "spread" the total amount of interest throughout the
entire contemplated term of the obligation so that the interest rate is uniform
throughout said entire term.
21. Severability. Every provision of this Note is intended to be severable.
In the event any term or provision hereof is declared by a court of competent
jurisdiction to be illegal or invalid for any reason whatsoever, such illegality
or invalidity shall not affect the balance of the terms and provision hereof,
which terms and provisions shall remain binding and enforceable.
22. Number and Gender. In this Note the singular shall include the plural
and the masculine shall include the feminine and neuter gender, and vice versa,
if the context so requires.
23. Headings. Headings at the beginning of each numbered paragraph of this
Note are intended solely for convenience of reference and are not to be deemed
or construed to be a part of this Note.
24. Governing Law; Submission to Jurisdiction; Waivers, Etc.
(a) This Note, which, together with the Loan Documents, sets forth the
16
entire understanding of Maker and Payee with respect to the subject matter
hereof, shall be governed by and construed and enforced in accordance with the
laws (without giving effect to the conflict of law principles thereof) of the
State of New York.
(b) Any legal action or proceeding with respect to this Note or any of the
Loan Documents may be brought in the courts of the State of New York or, if the
requisites of jurisdiction obtain, of the United States of America for the
Southern or Eastern District of New York, and, by execution and delivery hereof,
Maker hereby accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Nothing herein,
however, shall affect the right of Payee to commence legal proceedings or
otherwise proceed against Maker in any other jurisdiction. MAKER KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE OR
ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR
ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT
FOR PAYEE TO ACCEPT THIS NOTE AND MAKE THE LOAN. ACCEPTANCE OF THIS NOTE BY
PAYEE BY THE PAYEE SHALL BE DEEMED TO CONSTITUTE A WAIVER BY THE PAYEE OF THE
RIGHT TO TRIAL BY JURY IN THE EVENT OF ANY LITIGATION IN RESPECT OF WHICH THE
MAKER HAS WAIVED THE RIGHT TO TRIAL BY JURY HEREUNDER
(c) No delay on the part of Payee in exercising any of its options, powers
or rights, or partial or single exercise thereof, whether arising hereunder,
under the Loan Documents or otherwise, shall constitute a waiver thereof or
affect any right hereunder or thereunder. No waiver of any of such rights and no
modification, amendment or discharge of this Note shall be deemed to be made
unless the same shall be in writing, duly signed by Payee and Maker. Each such
waiver (if any) shall apply only with respect to the specific instance involved
and shall in no way impair the rights of Payee or the obligations of Maker
hereunder in any other respect at any other time.
25. Brokerage. Payee and Maker each hereby represents to the other that it
did not deal with any broker or similar person in connection with this
financing.
26. Set-off. Maker hereby grants to Payee, a lien, security interest and
right of setoff as security for all liabilities and obligations to Payee,
whether now existing or hereafter arising, upon and against all deposits,
credits, collateral and property, now or hereafter in the possession, custody,
safekeeping or control of Payee or any entity under the control of FleetBoston
Financial Corporation, or in transit to any of them. At any time after an Event
of Default, without demand or notice, Payee may set off the same or any part
thereof and apply the same to any liability or obligation of Maker regardless of
the adequacy of any other collateral securing the Loan. ANY AND ALL RIGHTS TO
REQUIRE PAYEE TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER
COLLATERAL WHICH
17
SECURES THE LOAN, PRIOR TO EXERCISING ITS RIGHTS OF SETOFF WITH RESPECT TO SUCH
DEPOSITS, CREDITS OR OTHER PROPERTY OF MAKER ARE HEREBY KNOWINGLY, VOLUNTARILY
AND IRREVOCABLY WAIVED.
27. Miscellaneous. (a) This Note may not be changed orally but only by an
agreement in writing signed by Maker and Xxxxx.
(b) Should the indebtedness represented by this Note or any part thereof be
collected at law or in equity, or in bankruptcy, receivership or any other court
proceeding (whether at the trial or appellate level), or should this Note be
placed in the hands of attorneys for collection upon default, Maker agrees to
pay, in addition to the principal, interest and others sums due and payable
hereon, all costs of collecting or attempting to collect this Note, including
reasonable attorneys' fees and expenses.
(c) This Note may be signed in counterparts.
28. Replacement Documents. Upon receipt of an affidavit of an officer of
Payee as to the loss, theft, destruction or mutilation of this Note or any other
Loan Document which is not of public record, and, in the case of any such loss,
theft, destruction or mutilation, upon cancellation of this Note or such other
Loan Document, Maker will issue, in lieu thereof, a replacement Note or such
other Loan Document in the same principal amount thereof and otherwise of like
tenor.
29. Sell a Loan to a Third Party Provider Payee shall have the unrestricted
right at any time or from time to time, and without Maker's or Guarantor's
consent, to assign all or any portion of its rights and obligations hereunder to
one or more banks or other financial institutions (each, an "Assignee"), and a
Maker (and each guarantor, as applicable) agrees that it shall execute, or cause
to be executed, such documents, including, without limitation, amendments to
this Agreement and to any other documents, instruments and agreements instituted
in connection herewith as Payee shall deem necessary to effect the foregoing. In
addition, at the request of Payee and any such Assignee, Maker shall issue one
or more new promissory notes, as applicable, to any such Assignee and, if Payee
has retained any of its rights and obligations hereunder following such
assignment to Payee, which new promissory notes shall be issued in replacement
of, but not in discharge of, the liability evidenced by the promissory note held
by Payee prior to such assignment and shall reflect the amount of the respective
commitments and loans held by such appropriate assignment documentation,
amendments and any other documentation required by Payee in connection with such
assignment, and the payment by Assignee of the purchase price agreed to by Payee
and such Assignee, such Assignee shall be a party to this Agreement and shall
have all of the rights and obligations of Payee hereunder (and under any and all
other guaranties, documents, instruments and agreements executed in connection
herewith) to the extent that such rights and obligations have been assigned by
Payee pursuant to the assignment documentation between Payee and such Assignee
and Payee shall be released from its obligations hereunder and thereunder to a
corresponding extent.
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30. Sell a Loan to a Prospective Participant. Payee shall have the
unrestricted right at any time and from time to time and without the consent of
or notice to Maker (or any guarantor, if any) to grant to one or more banks or
other financial institutions (each, a "Participant") participating interests in
Xxxxx's obligation to lend hereunder and/or any or all of the loans held by
Payee hereunder. In the event of any such grant by Payee of a participating
interest to a Participant, whether or not upon notice to Maker, Payee shall
remain responsible for the performance of its obligations hereunder and Maker
shall continue to deal solely and directly with Payee in connection with Xxxxx's
rights and obligations hereunder.
31. Furnishing of Information to Prospective Participants and Assignees.
Payee may furnish any information concerning Maker in its possession from time
to time to prospective Assignees and Participants provided that Payee shall
require any such prospective Assignee or Participant to agree in writing to
maintain the confidentiality of such information.
32. Limited Recourse.
Payee expressly agrees that the extent of liability of the Maker for any
sums due or obligations to perform under this Note (except for the indemnities
and/or guarantees delivered to Payee by the Maker and/or the other Indemnitor
dated as of this date in connection with the loan evidenced by this Note, and
secured, in part, by the Mortgage) is limited to the Maker's estate, right,
title and interest in, to and under the Mortgaged Property, the Maker's right,
title and interest to the leases and all interest of undersigned thereto (the
"Leases"), as described in the Mortgage and/or any other document evidencing or
securing this Note, as the same may be amended from time to time (individually,
herein referred to as the "Instrument" and collectively, as "Instruments" or
"Loan Documents") and the assignment of leases in rents dated of even date
hereof by the Maker in favor of Xxxxx, as the same may be amended from time to
time (the "Assignment"), Payee agreeing not to look personally to the Maker or
to the other Indemnitor or to any principals, trustees members, partners,
shareholders, officers, directors, employees or agents of the Maker
(collectively, the "Affiliates") but to look solely to the Mortgaged Property,
the Leases and the Collateral and no other assets of the Maker, Indemnitor or
the Affiliates for payment of any of such sums; provided that the foregoing
shall not (i) constitute a waiver of any obligation evidenced by the Note, this
Mortgage, the Assignment and/or any other Instrument, (ii) limit the right of
the holder of the Note, this Mortgage, the Assignment, and/or any other
Instrument to name the Maker as a party defendant in any action or suit for
judicial or non-judicial foreclosure and sale under the Note, the Mortgage, the
Assignment and/or any other Instrument in any action or proceeding hereunder so
long as no judgment in the nature of a deficiency judgment or any other personal
or money judgment shall be asked for or taken against the Maker or the
Affiliates, (iii) affect in any way the validity of any guaranty or indemnity
from the Maker, the other Indemnitors and/or any other person of all or any of
the obligations evidenced and secured by the Note and/or the any of the other
Instruments, or the rights of the Payee in connection with such guaranties
and/or indemnities to look to the property and assets of the Maker, the other
Indemnitor, any guarantor, and/or any Affiliates, but only to the extent
provided in such guaranty and/or indemnity, as the case may be (iv) release or
impair this Note or the lien of the Mortgage, the Assignment, and/or other
Instrument, (v) prevent or in any way
19
hinder the Payee from exercising or constitute a defense, an affirmative
defense, a counterclaim or other basis for relief in respect of the exercise of,
any other remedy against the Mortgaged Property, the Leases and/or the
Collateral and/or the Mortgage, Assignment, Instrument and/or any other
instrument securing the Note including the other Loan Documents executed and
delivered to the Payee in connection with the transactions contemplated herein
or as prescribed by law or in equity in case of default, except that Payee shall
in no event seek any deficiency or other personal or money judgment against the
Maker or any Affiliates except to the extent provided for in such guarantees
and/or indemnities, (vi) prevent or in any way hinder the Payee from exercising,
or constitute a defense, an affirmative defense, a counterclaim or other basis
for relief in respect of the exercise of, its remedies in respect of any
deposits, insurance proceeds, condemnation awards or other monies or other
collateral or letters of credit securing this Note, or (vii) be applicable to
the responsible Person in the event of and to the extent of fraud,
misappropriation of funds or other property, or intentional damage to any of the
Mortgaged Premises or any other collateral securing this Note or any part
thereof intentionally inflicted in bad faith by Maker or any partner, principal,
shareholder, officer, director, agent or employee of Maker or any partner or
principal of any of the foregoing or (viii) be applicable to the liability
arising in respect of hazardous materials or ADA compliance.
Nothing herein shall be deemed to be a waiver of any right which the Payee
may have under Section 506(a), 506(b), 1111(b) or any other provision of the
Bankruptcy Reform Act of 1978 or any successor thereto or similar provisions
under applicable state law to file a claim for the full amount of the debt owing
to the Payee by the Maker or to require that all of the Mortgaged Property shall
continue to secure all of the indebtedness owing to the Payee in accordance with
this Note, this Mortgage, and the other Loan Documents.
33. Events of Default.
The occurrence of any one or more of the following events shall constitute
an event of default (an "Event of Default") hereunder and under the Loan
Documents:
(a) failure of Maker (x) to comply with any of the provisions of
PARAGRAPH 9 herein; or
(b) except as otherwise provided in SUBPARAGRAPH (a) directly
hereinabove, if Maker shall fail to perform or observe, or cause to be performed
or observed, any other term, obligation, covenant, condition or agreement
contained in this Note on its part to be performed and such failure shall have
continued for a period of thirty (30) days after notice thereof; provided,
however, if such default shall not have been occasioned by any willful act of
Maker, and if such default cannot with due diligence be cured within such thirty
(30) days period, the time within which to cure the same shall be extended for
such period as may be necessary to cure the same with due diligence if Maker
commences within such thirty (30) days and proceeds diligently to cure the same;
or
(c) if the Managing Member ceases (x) to own at least 49.9% of the
issued and outstanding equity interests in Maker or (y) to control (i.e., power
to direct or cause
20
the direction of the management and policies of a person, corporation,
partnership or other entity) Guarantor or (ii) if there is a Change in Control.
34. Distributions. During the continuance of an Event of Default, the Maker
shall be prohibited from making distributions to its members, and if no Events
of Default shall exist, the Maker may make distributions to its members.
21
IN WITNESS WHEREOF, Maker and Xxxxx have executed and delivered this Note
on the day and year first above written.
Address of Maker:
20 Soundview Marketplace Port Bay Associates, LLC
Port Washington, New York 11050 By: Acadia Realty Limited Partnership,
its Managing Member
By: Acadia Realty Trust, its General
Partner
By:
-------------------------------------
Xxxxxx Xxxxxxx
Senior Vice President
Witness:
----------------------------------------
Agreed and Accepted:
FLEET BANK, NATIONAL ASSOCIATION
By:
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
