EXHIBIT 10 (ii)
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AMENDED AND RESTATED NOTE
$20,000,000.00 Chicago, Illinois
Dated: As of April 29, 1997
FOR VALUE RECEIVED, the undersigned, Banyan Strategic Realty Trust, a
Massachusetts business trust ("Maker"), hereby promises to pay to the order
of American National Bank and Trust Company of Chicago, a national banking
association (hereinafter, together with its legal representatives,
successors and assigns, referred to as the "Bank" or as the "holder" of
this Amended and Restated Note), at its office at 00 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, or at such other place as the Bank may from time
to time designate in writing, the principal sum of Twenty Million and
00/100 Dollars ($20,000,000.00) (the "Loan Amount"), or so much thereof as
shall from time to time have been disbursed to or for the benefit of the
Maker or otherwise outstanding and remain unpaid, together with interest at
the Agreed Rate (defined below) per annum on the balance of said principal
remaining from time to time unpaid, to be paid in lawful money of the
United States of America as hereinafter provided.
1. Definitions
As used in this Amended and Restated Note, the following terms shall,
except where the context otherwise requires, have the following meanings
(such definitions to be equally applicable to the singular and plural forms
thereof):
A. "Advance". An advance of funds pursuant to or in respect of
this Amended and Restated Note, the Loan Agreement, the Letter of Credit,
the Reimbursement Agreement, the Mortgages or the Additional Collateral
Documents.
B. "Additional Collateral Documents". As defined in Paragraph 6.
C. "Agreed Rate". The agreed rate of interest to be paid
hereunder, namely, the Floating Rate for Floating Rate Funds, and the LIBOR
Based Rate for LIBOR Based Funds.
D. "Banking Day". A day on which banks are open for business in
the Interbank Market and in Chicago, Illinois and also on which dealings in
U.S. Dollar deposits are carried on in the Interbank Market.
E. "Base Rate". The rate of interest announced or published
publicly from time to time by the Bank as its prime or base rate of
interest. The "Base Rate" is a base reference rate of interest adopted by
the Bank as a general bench xxxx from which the Bank determines the
floating interest rates chargeable on various loans to borrowers with
varying degrees of creditworthiness, and Maker acknowledges and agrees that
the Bank has made no representations whatsoever that the "Base Rate" is the
interest rate actually offered by the Bank to borrowers of any particular
creditworthiness or that the Bank does not extend credit to some parties at
a lower interest rate.
F. "Contract". Any contract made by the Bank in the Interbank
Market to obtain the deposit with the Bank of the sum required to fund a
LIBOR Portion for the respective Contract Period.
G. "Contract Payment Date". For each Contract, the date on which
it matures, except that if the Contract matures on a day which is not a
Banking Day, the date shall be the next succeeding day which is a Banking
Day.
H. "Contract Period". The term of a Contract, which shall be the
period of time of either thirty (30), sixty (60), ninety (90), one hundred
twenty (120), one hundred fifty (150), one hundred eighty (180), two
hundred seventy (270) days or one (1) year (as available or any other
available period expressly agreed to by the Bank and Maker) for which Maker
elects to be charged interest on a LIBOR Portion at the LIBOR Based Rate.
For any LIBOR Portion in respect of which the Bank chooses not to accept a
deposit, the Contract Period thereof shall mean the period for which Maker
has elected to be charged at the LIBOR Rate for a LIBOR Portion. Each
Contract Period shall be subject to the following additional conditions:
(i) each such selection shall be irrevocable for the period so selected;
(ii) each Contract Period shall be selected in such a way that no Contract
Period shall extend beyond the Maturity Date; (iii) if any Contract Period
ends on a day other than a Banking Day, such Contract Period shall be
extended to the next succeeding day which is a Banking Day.
I. "Conversion Date". For interest computation purposes, and
as may be appropriate, the effective date on which:
(i) a LIBOR Portion (or a portion of the Loan funds included
therein) becomes part or all of the Floating Rate Funds;
(ii) the whole or a portion of the Floating Rate Funds becomes a
part or all of a LIBOR Portion; or
(iii) an expiring LIBOR Portion (or a portion of the Loan funds
included therein) is converted into all or part of another LIBOR Portion,
either because of the occurrence of the Contract Payment Date of the
Contract corresponding to such expiring LIBOR Portion or because of the
breakage, early termination, or other disposition of the Contract
corresponding to such LIBOR Portion, or otherwise.
J. "Default". As defined in Paragraph 5A.
K. "Default Interest Rate". Three percent (3%) per annum plus
the Floating Rate with respect to Floating Rate-Based Funds, and three
percent (3%) per annum plus the LIBOR-Based Rate with respect to any LIBOR
Portion.
L. "Floating Rate". A daily rate of interest equal to the
daily rate equivalent of one quarter of one percent (0.25%) per annum in
excess of the Base Rate (computed on the basis of a 360 day year and actual
days elapsed). Such rate shall fluctuate hereafter from time to time
concurrently with, and in an amount equal to, each increase or decease in
the Base Rate, whichever is applicable.
M. "Floating Rate Funds". At any time, the portion of the
outstanding principal balance of the Loan on which interest is being
charged at the Floating Rate.
N. "Funding Costs". Any and all costs, expenses, penalties
and/or charges incurred by the Bank arising directly from or relating
directly to, as the case may be, the early termination, breakage or other
disposition of a Contract because of prepayment of a LIBOR Portion prior to
the Contract Payment Date of the corresponding Contract or Maker's election
to terminate such LIBOR Portion, or otherwise, all as determined by the
Bank in its sole discretion.
O. "Interbank Market". The interbank market, located in
London, England, or, at the Bank's election, located in any other location
satisfactory to the Bank, where the Bank, or any branch, subsidiary, parent
or affiliate of the Bank, may purchase or sell to other banks deposits of
U.S. dollars for fixed periods.
P. "Letter of Credit". Any one or more letters of credit from
time to time issued by the Bank in respect of the Loan and all subsequent
amendments thereto, modifications and extensions thereof and replacements
and substitutions therefor.
Q. "LIBOR". For each Contract, the rate of interest per annum
at which a deposit in U.S. Dollars in the sum equal to the corresponding
LIBOR Portion is offered to the Bank in the Interbank Market for the
Contract Period two Banking Days prior to the first day of such Contract
Period. Each determination of LIBOR by the Bank shall be conclusive and
binding for all purposes of this Amended and Restated Note in the absence
of manifest error. The use of such offered interest rate to define LIBOR
shall not obligate the Bank to accept a deposit in order to charge interest
on a LIBOR Portion at the LIBOR Based Rate once Maker elects to be charged
interest at such rate on a LIBOR Portion for a definite period.
R. "LIBOR Based Funds". At any time, the portion of the
outstanding principal balance of the Loan on which interest is being
charged at the LIBOR Based Rate.
S. "LIBOR Based Rate". For any given LIBOR Portion for its
corresponding Contract Period, the rate of interest per annum obtained by
adding the sum of (1) the quotient of (a) LIBOR for that Contract Period
divided by (b) a percentage equal to 100% minus the Reserve Requirement
applicable during such Contract Period (rounded upward, if necessary, to
the next higher 1/100 of 1%), plus (2) 2.25% per annum, computed on the
actual number of days elapsed and a year computed on the basis of a three
hundred sixty (360) day year.
T. "LIBOR Portion". Each portion (if there is more than one
Contract in existence of the outstanding principal balance of the Loan on
which, as a result of Maker's election, Maker is charged interest at the
LIBOR Based Rate; each LIBOR Portion shall be in an amount which is an
increment of One Hundred Thousand Dollars ($100,000) and no LIBOR Portion
shall be less than One Million Dollars ($1,000,000).
U. "Loan". The loan evidenced by this Amended and Restated
Note issued pursuant to the Loan Agreement.
V. "Loan Agreement". That certain loan agreement between Maker
and the Bank dated as of December 1, 1994, as amended by (a) Amendment to
Loan Agreement dated as of December 1, 1994, (b) Second Amendment to Loan
Agreement dated as of December 21, 1994, (c) Third Amendment to Loan
Agreement dated as of December 18, 1995, (c) Fourth Amendment to Loan
Agreement dated as of January 7, 1997, (e) Fifth Amendment to Loan
Agreement dated as of March 7, 1997 and (f) Sixth Amendment to Loan
Agreement of even date herewith, as the same hereafter may be amended from
time to time.
W. "Loan Conversion". As defined in Paragraph 2G.
X. "Loan Conversion Date". As defined in Paragraph 2G.
Y. "Maturity Date". As defined in Paragraph 2G.
Z. "Mortgages". As defined in Paragraph 6A.
AA. "Mortgaged Premises". As defined in Paragraph 6A.
BB. "Regulation D". Regulation D of the Board of Governors of
the Federal Reserve System from time to time in effect, and 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.
CC. "Reimbursement Agreement". Any reimbursement agreements
which hereafter from time to time may be executed and delivered to Bank in
respect of the Loan, in request of any letters of Credit, and all
subsequent amendments thereto and modifications thereof.
DD. "Reserve Requirement". With respect to any Contract Period,
the reserve percentage applicable two (2) Banking Days before the first day
of such Contract Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, but not limited to,
any emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System, with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (as defined in
Regulation D or otherwise in such regulations) or with respect to any other
category of liabilities which includes deposits by reference to which the
interest rate on a LIBOR Portion is determined.
EE. "Transfer". As defined in Paragraph 7.
2. Principal and Interest
A. Pursuant to the Loan Agreement Maker may borrow from time to
time prior to the Loan Conversion Date amounts which, together with all
amounts drawn and available to be drawn under the Letter of Credit and
together with all other amounts then outstanding hereunder, do not exceed
the lesser of (i) $20,000,000, or (ii) an amount which, together with all
other amounts outstanding from time to time under the $10,000,000 Note
defined in Paragraph 5A(v) hereof, does not exceed sixty-five (65%) of the
"Collateral Value" of the "Designated Properties" and "Designated Debt
Instruments" (all as defined in the Loan Agreement), based upon and subject
to certain standards, restrictions, limitations and requirements as set
forth in
the Loan Agreement; and as maker repays all or a portion of the outstanding
balance thereof, and provided no Event of Default or Potential Event of
Default has occurred as defined in the Loan Agreement, and provided that
the additional standards, restrictions, limitations and requirements set
forth in the Loan Agreement have been complied with, Maker may (until the
Loan Conversion Date) borrow on a revolving loan basis additional funds up
to the limit of aggregate amount outstanding at any time as set forth above
(including certain additions to the Letter of Credit), and the amount so
reborrowed shall thereupon be and become part of the principal indebtedness
evidenced hereby.
B. Subject to the provisions of this Amended and Restated Note
governing the manner and method of determining, at any time and from time
to time, how the rate of interest on any particular portion of the
outstanding principal balance of the Loan shall be computed, charged and
paid, the Agreed Rate of interest on the outstanding principal balance of
the Loan from time to time remaining unpaid shall be paid at the Floating
Rate on Floating Rate Funds, and at the LIBOR Based Rate on each
corresponding LIBOR Portion. Loan funds shall always be deemed Floating
Rate Funds except to the extent of the aggregate sum of any then existing
LIBOR Portions, and except as otherwise expressly provided herein. Prior
to a Default, no interest shall be payable on amounts available to be drawn
under the Letter of Credit.
C. Subject to the provisions of this Amended and Restated Note,
Maker shall have the right to select as the applicable rate for the payment
of interest on the amount of any Advance a rate based upon the LIBOR or the
Floating Rate. The Bank must receive notification of such selection by
Maker at least two (2) Banking Days prior to each Advance and if a rate
based upon the LIBOR Based Rate is selected by Maker, then Maker must also
advise the Bank at the time of such selection of the duration of the
initial Contract Period applicable to such Advance. If Maker has not so
advised the Bank of its selection of an applicable rate and Contract Period
as aforesaid (or if the Bank shall make an Advance other than pursuant to a
request of Maker made in accordance with the terms of the Loan Agreement)
Maker shall be deemed to have selected a rate based upon the Floating Rate
as the applicable rate for such advance.
D. Any change in the Agreed Rate resulting from a change from
the Floating Rate or the LIBOR Based Rate to any other of the LIBOR Based
Rate or the Floating Rate shall be effective on the applicable Conversion
Date.
E. Interest at the Floating Rate on that portion of the unpaid
principal balance of the Loan which are Floating Rate Funds shall be due
and payable monthly in arrears, commencing on the first (1st) day of the
first (1st) calendar month succeeding the calendar month in which the first
(1st) Advance of Floating Rate Funds is made and continuing on the first
(1st) day of each month thereafter, with a final payment of all accrued and
unpaid interest in respect thereof due on the Maturity Date or any earlier
date that the final payment of principal is due or paid.
F. Interest at the LIBOR Based Rate on each portion of the
unpaid principal balance of the Loan which is a LIBOR Portion shall be due
and payable, in arrears, commencing on the first (1st) day of the first
(1st) calendar month following the calendar month in which the Contract
Period begins, and continuing on the first (1st) day of each month during
the Contract Period, and on the last day of such Contract Period, with a
final payment of all current and unpaid interest in respect thereof due on
the Maturity Date or any earlier date that the final payment of principal
is due or paid. Interest on each LIBOR Portion shall also be paid when
required as a result of the early termination, breakage or other
disposition of the corresponding Contract.
G.
(i) Effective as of the loan Conversion Date the Loan
will be automatically deemed converted (the "Loan Conversion") to a one (1)
year term loan with interest on the principal balance from time to time
outstanding payable monthly, in arrears, at the Agreed Rate. The Loan
Conversion Date will be November 30, 1997, or earlier as provided in the
Loan Agreement, subject to extension to May 31, 1998 as provided in the
Loan Agreement.
(ii) The final date on which the principal balance
hereunder, and all accrued and unpaid interest thereon, shall be due and
payable shall be November 30, 1998, which shall be deemed the Maturity
Date. The Maturity Date shall be subject to extension to May 31, 1999 as
provided in the Loan Agreement. The Loan shall nevertheless require
certain earlier principal payments as set forth in the Loan Agreement and
Reimbursement Agreement. Also, the Loan shall nevertheless be subject to
acceleration and payment in full at any earlier time upon the occurrence of
any Default hereunder.
H. Interest due on any LIBOR Portion on the Contract Payment
Date of its covering Contract, or on the date of termination, breakage, or
other disposition of its corresponding Contract, or any earlier date as
provided herein, and interest due in respect of Floating Rate Funds, and
principal payments, must and shall be paid to the Bank and received by the
Bank by 10:00 a.m. (Chicago, Illinois time) on the date such payment is due
in accordance with the foregoing.
I. All payments of principal and interest made on account of
the indebtedness evidenced by this Amended and Restated Note shall be made
in currency of the United States of America which shall be legal tender for
public and private debts at the time of payment in immediately available
funds.
3. LIBOR
A. Maker shall not have the right to cause the termination,
breakage or other disposition for all or any part of any one or more
Contracts without the prior express consent of the Bank; and Maker shall
cause such termination, breakage or other disposition upon express
direction by the Bank.
B. Unless otherwise expressly consented to by the Bank in each
instance Maker shall cause each LIBOR Contract to be in an amount which is
an increment of TEN THOUSAND and 00/100 DOLLARS ($10.000) and which amount
is not less than ONE MILLION AND 00/100 DOLLARS ($1,000,000).
C. Provided no Default has occurred hereunder, Maker shall have
the right to elect, from time to time during the term of the Loan, to
convert (1) all or one or more portions (but not less than $1,000,000) of
the then outstanding Floating Rate Funds and/or (2) the whole or any one or
more portions (but not less than $1,000,000) of any then-existing LIBOR
Portion (because the corresponding Contract Payment Date has occurred or
Maker has elected to cause the termination, breakage or other disposition
of the Contract, as permitted by, and subject to the conditions, including
payment of Funding Costs, provided hereinafter) to a new LIBOR Portion,
subject to:
(1) the Bank's receiving notice of the election not less than
two (2) Banking Days prior to the date requested by Maker for commencement
of the Contract Period of the new Contract required to cover the new LIBOR
Portion;
(2) the availability to the Bank of a Contract to cover such new
LIBOR Portion effective on the requested date of commencement for the
Contract Period;
(3) Maker paying any additional costs incurred by the Bank from
time to time which is attributable to such new LIBOR Portion;
(4) the Bank being able to terminate, break, or otherwise
dispose of the existing Contract;
(5) If required by the Bank because the Bank is obligated to pay
accrued interest on the existing Contract upon its termination, breakage or
other disposition, Maker paying all interest accrued on said LIBOR Portion;
and
(6) Maker paying any Funding Costs incurred by the Bank as a
result of the termination, breakage or other disposition of the existing
Contract.
If, on or before a date two (2) Banking Days before the end of the then
current Contract Period for any LIBOR Portion, Lender does not receive a
notice of election of a rate based upon the LIBOR Rate and the Contract
Period as to such LIBOR Portion, Maker shall be deemed to have elected to
convert such advance to Floating Rate Funds at the expiration of the then
current Contract Period.
D. Without the prior written consent of the Bank, the Contract
Periods must be selected so that at no time shall there be more than eight
(8) different "Interest Selections" (as such term is hereinafter defined)
in effect at the same time with respect to the principal balance
outstanding hereunder. For the purposes of this paragraph, an "Interest
Selection" shall mean each single applicable interest rate and the
corresponding Contract Period (unless the rate is the Floating Rate in
which case no Interest Period is selected) in effect from time to time
pursuant to the provisions of this Amended and Restated Note.
E. To further evidence any LIBOR Portion, Maker shall execute
such additional notes as may be requested by the Bank. Any such additional
notes shall be in form reasonably satisfactory to the Bank and thereupon
this Amended and Restated Note shall be endorsed to reflect the rate
allocation of principal to the notes representing the LIBOR Portion and the
fact that it is a duplicate of a portion of this Amended and Restated Note.
F. Maker from time to time, upon written request from Lender,
shall deliver a written acknowledgment in form reasonably satisfactory to
Lender and indicating, as of the date thereof: (a) the respective portions
of the Loan which bear interest at the Floating Interest Rate, (b) the
respective portions of the Loan which bear interest at the LIBOR Based Rate
and the respective LIBOR Based Rate(s) applicable thereto, and (c) the
respective Conversion Date(s) applicable to any and all LIBOR Portion(s).
G. It is understood that the cost to the bank of providing
Maker with LIBOR Based Rates may fluctuate as a result of the applicability
of, or changes in, any treaty, statute, rules and regulations, or in the
interpretation thereof, or any directive, guideline or requirement by a
central bank or fiscal authority (whether or not having the force of law),
including, without limitation, any reserve or special deposit requirements
imposed by the Board of Governors of the Federal Reserve System ("Board"),
including, but not limited to, reserve requirements under Regulation D of
the Board in connection with Eurocurrency Liabilities (as defined in
Regulation D) at the ratios provided for in Regulation D from time to time
(collectively, the "Imposition Requirements"). Maker agrees to pay the
Bank from time to time such additional amounts as shall be necessary to
compensate the Bank for the portion of the cost of providing Maker with
LIBOR Based Rates resulting from any and all such Imposition Requirements.
It is agreed that for purposes of this paragraph, upon elections of LIBOR
Based Rates by Maker, the LIBOR Portion then outstanding shall be deemed to
constitute Eurocurrency Liabilities as defined in Regulation D and to be
subject to the reserve requirements of Regulation D. Without limiting the
generality of the foregoing, if the Bank determines that compliance with
any one or more of such Imposition Requirements affects or would affect the
amount of capital required or expected to be maintained by the Bank, or any
corporation controlling the Bank, and that the amount of such capital is
required to be increased by or based upon the Loan or existence of the
commitment of the Bank to lend pursuant to the Loan Agreement and all other
commitments and loans of this type of the Bank and such other entity, then
upon demand by the Bank, Maker shall immediately pay to the Bank from time
to time as specified by the Bank, additional amounts sufficient to
compensate the Bank in the light of such circumstances, to the extent that
such increase in capital is reasonably determined by the Bank to be
allocated directly or indirectly to the existence of the commitment to
disburse amounts evidence hereby. In addition, in the event that after the
date hereof any one or more of the Imposition Requirements shall occur
which shall, exclusively as a result of Maker's election of LIBOR Based
Rates:
1. subject the Bank to any tax with respect to the LIBOR
Portions then outstanding other than any tax on the overall net income of
the Bank, imposed by the United States of America or by the jurisdiction in
which the Bank has its principal office or any political subdivision or
taxing authority therein); or
2. change the basis of taxation of any payment to the Bank of
principal of or interest on the LIBOR Portions then outstanding or other
fees and amounts payable under this Amended and Restated Note, or any
combination of the foregoing; or
3. impose, modify or deem applicable any reserve, deposit or
similar requirement against any assets held by, deposits with or for the
account of, or loans or commitments by, an office of the Bank; or
4. impose any other costs upon the Bank or impose upon the Bank
or the Interbank market any other condition with respect to the Loan or
this Amended and Restated Note,
and if the result of any of the foregoing shall be increase the actual cost
to the Bank of providing Maker with LIBOR Based Rates under this Amended
and restated Note or to reduce the amount of any payment (whether of
principal, interest or otherwise) received or receivable by the Bank under
this Amended and Restated Note, or to require the Bank to make any payment
in connection with the LIBOR Portions then outstanding, then in each such
case Maker shall pay to the Bank such amounts as shall be necessary to
compensate the Bank for such cost, reduction or payment. The Bank shall
deliver to Maker from time to time one or more remittance forms setting
forth the amounts due to the Bank under this Paragraph, and the changes in
the reserve requirements as a result of which such amounts are due and the
manner of computing such amounts. Maker shall pay to the Bank the amounts
shown as due on any such form within ten (10) days after its receipt of the
same. No failure on the part of the Bank to demand compensation under this
paragraph on any occasion shall constitute a waiver of its right to demand
such compensation on any other occasion. The protection of this paragraph
shall be available to the Bank regardless of any possible contention of the
invalidity or inapplicability of any law, regulation or other condition
which shall give rise to any demand by the Bank for compensation hereunder.
A certificate as to any such amounts submitted to the Maker by the Bank
pursuant to this Paragraph shall be conclusive and binding for all
purposes, absent manifest error.
H. If any change after the date hereof in law or regulation or
in the interpretation thereof by any governmental authority charged with
the administration thereof shall make it unlawful for the Bank to provide
Maker with LIBOR Based Rates or to give effect to its obligations as
contemplated hereby with respect to providing Maker with LIBOR Base Rates,
or if the Bank shall determine that by reason of circumstances affecting
the Interbank Market generally adequate and fair means do not or will not
exist for determining the LIBOR Based Rate, then, by written notice to
Maker, the Bank may declare that the Bank will not thereafter provide Maker
with LIBOR Based Rates, whereupon Maker shall be prohibited from electing
LIBOR Based Rates unless such declaration is subsequently withdrawn, and
interest on all principal from time to time outstanding hereunder shall
thereupon be paid at the Floating Rate.
I. The Bank may fund all or any portion of any LIBOR Portion as
it may see fit, whether by purchasing dollar deposits in the Interbank
Market, or otherwise. For purposes of this Amended and Restated Note, it
shall be conclusively presumed that the Bank has elected to fund all LIBOR
Portions by purchasing such dollar deposits, and the Maker shall be bound
to all provisions herein contained concerning LIBOR Based Rates whether or
not the Bank has in fact funded any LIBOR Portion in such manner.
4. Prepayment
A. The portion of this Amended and Restated Note comprised of
Floating Rate Funds may be prepaid, either in whole or in part, without
penalty or premium, at any time and from time to time as set forth below.
The portion of this Amended and Restated Note comprised of a Libor Portion
may be prepaid only on the Contract Payment Date applicable thereto. If
Maker shall now or hereafter have a right to prepay such LIBOR Portion by
operation of law or otherwise, such prepayment must be accompanied by a
simultaneous payment of all Funding Costs, and accrued interest on any
covering Contract which the Bank is obligated to pay, attributable to any
such LIBOR Portion which is being prepaid in whole or in part. For
purposes hereof, upon acceleration of this Amended and Restated Note, the
portion of this Amended and Restated Note comprised of a LIBOR Portion
having a Contract Payment Date subsequent to the date of acceleration shall
nevertheless be due and payable and payment therefor must be accompanied by
payment of any such Funding Costs and accrued interest on any covering
Contract attributable to any such LIBOR Portion and any foreclosure decree
entered with respect to the Loan shall include such Funding Costs and
accrued interest.
B. Prior to the occurrence of any Default hereunder, subject to
the foregoing provisions as to any LIBOR Portions, a prepayment may be made
on not less than fifteen (15) days' prior written notice of the principal
balance of this Amended and Restated Note, in whole or in part; provided,
however, that each prepayment shall be accompanied by a payment of all
interest accrued as of that date on the principal balance outstanding
hereunder. Any partial prepayment must be made in an amount which is an
integral multiple of One Hundred Thousand Dollars ($100,000.00).
5. Default; Default Interest Rate
A. The occurrence of any one or more of the following events
shall constitute a "Default" hereunder:
(i) if Maker shall fail to pay any principal or any interest when
due in accordance with the terms of this Amended and Restated Note,
(ii) if Maker shall fail to promptly comply with any of its other
agreements herein or with any other requirement herein,
(iii) if an Event of Default (as defined in the Loan Agreement, the
Reimbursement Agreement, any one or more of the Mortgages or any one or
more of the Additional Collateral Documents) shall occur,
(iv) if a Transfer shall occur, and/or
(v) if there shall occur a "Default" as defined in and under that
certain note of even date herewith made by Maker payable to the order of
Bank in the principal amount of Ten Million and 00/100 Dollars
($10,000,000) (the "$10,000,000 Note").
B. If a Default hereunder shall occur then the entire unpaid
principal balance due hereunder shall thereafter bear interest during the
period such Default shall continue at the Default Interest Rate. Upon any
such Default the Bank is expressly authorized to apply all payments
received on any amounts due hereunder or under the terms of any one or more
of the Loan Agreement, the Reimbursement Agreement, the Mortgages and any
one or more of the Additional collateral Documents, as the Bank may
determine. The Bank shall be entitled to receive payment in full of all
interest accruing hereon subsequent to the filing of a petition or the
taking of any other action commencing a bankruptcy, reorganization,
arrangement other similar proceeding or which would accrue but for such
proceeding or action.
C. If a Default hereunder shall occur then the whole of the
principal amount remaining unpaid under this amended and Restated Note,
together with all accrued interest thereon, at the election of the Bank and
without notice to Maker or any other person or entity, shall become
immediately due and payable, together with all costs, fees and expenses
incurred by the Bank on account of or in connection with the collection and
enforcement of this Amended and Restated Note and in connection with the
protection or realization on any security, and all other costs, fees and
expenses of the Bank described in Paragraphs 3, 8 and otherwise as provided
in this Amended and Restated Note, and the Bank may thereupon exercise any
one or more of the following remedies at any time and from time to time
singularly, successively or together and in such order and when and as
often as the Bank in its sole direction may from time to time may
determine; (i) bring an action against Maker for the whole or any part of
the indebtedness evidenced by this Amended and Restated Note plus any or
all of such costs, fees and expenses, (ii) proceed to foreclose any one or
more of the Mortgages, (iii) proceed to exercise any one or more of the
other rights and remedies available under any one or more of this Amended
and Restated Note, the Mortgages, the Reimbursement Agreement, the Loan
Agreement, and/or any one or more of Additional Collateral Documents, (iv)
proceed against any guaranty or guarantees, and/or (v) proceed to exercise
any other rights and remedies available at law or in equity.
6. Loan Agreement; Collateral
This Amended and Restated Note evidences advances of loan proceeds
pursuant to the Loan Agreement by and between Maker and the Bank. This
Amended and Restated Note is secured and in the future may be secured by
certain documents and instruments, including without limitation the
following:
A. One or more mortgages, deeds of trust and/or deeds to secure
debt (collectively the "Mortgages") heretofore, concurrently and/or
hereafter granted to the Bank by various mortgagors encumbering certain
real estate, the building and improvements and now or hereafter located
thereon, and certain other property (collectively, the "Mortgaged
Premises");
B. One or more collateral assignments, heretofore, concurrently
and/or hereafter granted to the Bank by the Maker or Maker's interest in
the partnerships and/or corporations owning various of the Mortgages
Premises, one or more pledges and assignments now to hereafter granted to
the Bank by Maker or its affiliates of their interests in Designated Debt
Instruments (as defined in the Loan Agreement), and certain other documents
and instruments creating a security interest in, pledging or otherwise
covering certain items of collateral
by certain persons and entities, including without limitation,
assignments of leases and rents, and security agreements, all as set forth
in the Loan Agreement (herein collectively referred to as the "Additional
Collateral Documents").
The Bank is entitled to the benefits of the Loan Agreement, the
Reimbursement Agreement, the Mortgages and the Additional Collateral
Documents and may enforce the agreements, obligations and undertakings of
Maker and others (or any of them) contained therein and exercise the rights
and remedies provided for thereby, or otherwise in respect thereof, all in
accordance with the terms thereof. Maker may not deduct, set off or
withhold from any payments of principal or interest under this Amended and
Restated Note the amount of any claim made by Maker against the Bank
pursuant to any agreement, instrument, document, litigation or settlement.
7. Transfer
One or more of the Mortgages provides that it shall be an immediate
Event of Default thereunder without notice if without the prior written
consent of the mortgages thereunder, the mortgagor thereunder shall create,
effect or consent to or suffer or permit any one or more of certain
conveyances, sales, assignments, transfer, liens, pledges, mortgages,
security interests or other encumbrances or alienations (any of the
foregoing hereinafter called a "Transfer") concerning or with respect to
certain of (a) the Mortgaged Premises which is the subject thereof, (b) the
beneficial interest of any trustee which is the mortgagor thereof, (c) the
shares of stock of any corporation which is (i) said mortgagor, (ii) the
owner of all or any part of said beneficial interest in said mortgagor or
all or any part of the interest in any partnership or joint venture which
is the said mortgagor or (iii) the owner of all or any part of the
beneficial interest of any trustee mortgagor, or (d) all or any part of the
interest of any partner or joint venturer in any partnership or joint
venture which is (i) said mortgagor or (ii) the owner of all or any part of
the beneficial interest of any trustee mortgagor. The said provisions of
the Mortgages are incorporated by reference herein as if fully set forth
herein. The Loan Agreement and/or one or more or the Collateral
Assignments of the Designated Debt Instruments (as defined in the Loan
Agreement), provides that it shall be an immediate Event of Default
thereunder without notice if without the prior written consent of the
assignee thereunder, the assignor thereunder shall create, effect, or
consent to or suffer or permit any certain transfers concerning or with
respect to certain of (a) the Designated Debt Instruments which are the
subject thereof, (b) the beneficial interest of any person or entity which
is the assignor thereof, (c) the shares of stock of any corporation which
is (i) said assignor, (ii) the owner of all or any part of said beneficial
interest in said assignor or all or any part of the interest in any
partnership or joint venture which is the said assignor or (iii) the owner
of all or any part of the beneficial interest of any trustee assignor, or
(d) all or any part of the interest of any partner or joint venturer in any
partnership or joint venture which is (i) said assignor or (ii) the owner
of all or any part of the beneficial interest of any trustee assignor. The
said provisions of said pledges and assignments are incorporated by
reference herein as if fully set forth herein.
8. Costs, Fees and Expenses
If at any time or times after the date of this Amended and Restated
Note, the Bank (a) employs counsel for advice or other representation (i)
with respect to any one or more of this Amended and Restated Note, the Loan
Agreement, the Reimbursement Agreement, the Letter of Credit, Mortgages or
any Additional Collateral Documents and/or any guaranty or guarantees, or
the administration hereof, (ii) to represent the Bank in any litigation,
contest, dispute, suit or proceeding or to commence, defend or intervene or
to take any other action in or with respect to any litigation, contest,
dispute, suit or proceeding (whether instituted by the Bank, Maker or any
other person or entity) in any way or respect relating to any one or more
of this Amended and Restated Note, the Loan Agreement, the Reimbursement
Agreement, the Letter of Credit, Mortgages, or any of them, or any
Additional Collateral Documents and/or any guaranty or guarantees, or (iii)
to enforce any rights of the Bank against Maker; (b) takes any action with
respect to the administration of any one or more of this Amended and
Restated Note, the Loan Agreement, the Reimbursement Agreement, the Letter
of Credit, any one or more of the Mortgages or any of the Additional
Collateral Documents and/or any guaranty or guarantees, or to protect,
collect, sell, liquidate or otherwise dispose of any collateral securing
the obligations of the undersigned hereunder; and/or (c) attempts to or
enforces any of Bank's rights or remedies against Maker, then the costs,
fees and expenses (including, without limitation, attorneys' fees) incurred
by the Bank in any manner or way with respect to any of the foregoing shall
be part of the obligations of Maker hereunder, payable by Maker to the Bank
on demand.
9. Business Loan
Maker represents and agrees that the proceeds of the loan evidences
by this Amended and Restated Note will be used solely for business purposes
and in accordance with all applicable laws, and that the principal
obligation evidenced hereby constitutes a business loan.
10. Application of Payments
All payments on account of the indebtedness evidenced by this
Amended and Restated Note shall be first applied to accrued and unpaid
interest on the unpaid principal balance and the remainder to installments
of the outstanding principal balance in the inverse order of the maturity
of such installments of principal. From and after the occurrence of a
Default hereunder, the Bank is expressly authorized to apply payments made
under this amended and Restated Note as the Bank may elect against any or
all amounts, or portions thereof, then due and payable hereunder or under
the Mortgages, the Reimbursement Agreement, the Loan Agreement or any of
the Additional Collateral Documents, the outstanding principal balance due
under this Amended and Restated Note, the unpaid and accrued interest due
under this Amended and Restated Note, or any combination of the foregoing.
11. Waivers; Amendments
A. If the Bank (i) grants any extension of time or forbearance
with respect to the payment of any of the indebtedness evidenced hereby or
with respect to the performance of any of the other obligations of Maker
hereunder or of Maker or others under any one or more of the Loan
Agreement, the Reimbursement Agreement, the Letter of Credit, the
Mortgages, or any of them, any of the Additional Collateral Documents or
any guaranty or guarantees; (ii) takes other or additional security and/or
any guaranty or guaranties for the payment hereof; (iii) waives or fails to
exercise any right granted herein or under the Mortgages, or any of them,
the Loan Agreement, the Letter of Credit, the Reimbursement Agreement, or
any one or more of the items of Additional Collateral Documents, or any
guaranty or guaranties; (iv) any release, with or without consideration, of
the whole or any part of the security and/or any guaranty or guaranties
held for the payment of the indebtedness evidenced hereby; (v) amends or
modifies in any respect with or without the consent of Maker any of the
agreements, obligations, terms, provisions and conditions hereof or of the
Mortgages, or any of them, the Loan Agreement, the Reimbursement Agreement,
the Letter of Credit, any one or more of the Additional Collateral
Documents, or any guaranty or guaranties; (iv) consents to the filing of
any map, plat, replat or condominium declaration affecting all or any part
of the mortgaged Premises; (vii) consents to the granting of any easement
or other right affecting all or any part of the Mortgaged Premises, (viii)
or makes or consents to any agreement subordinating the lien of the
Mortgages, or any of them or any of the Additional Collateral Documents,
then in any such event, such act or omission to act shall not release,
discharge, modify, or change or affect (except to the extent of changes
referred to in clause (v) above effected with the consent of the Bank) the
liability under this Amended and Restated Note, or under the Mortgages, or
any of them, the Loan Agreement, the Reimbursement Agreement, any of the
Additional Collateral Documents, or any guaranty or guaranties, and any
such act or omission to act shall not release Maker hereunder or under the
Loan Agreement or Reimbursement Agreement, or mortgagor under any one or
more of the Mortgages, or any other person or entity executing any of the
Additional Collateral Documents or any guarantor or guarantors of this
Amended and Restated Note, under any agreement, obligation, term, provision
or condition of this Amended and Restated Note or of the Mortgages, or any
of them, or of the Loan Agreement, or the Reimbursement Agreement, or of
any of the Additional Collateral Documents or of any guaranty or
guaranties, nor preclude the Bank from exercising any right, power, or
privilege herein or therein granted or intended to be granted. No right or
remedy of the holder of this Amended and Restate Note shall be exclusive
of, but shall be in addition to, every other right or remedy now or
hereafter existing at law or in equity. No delay in exercising, or
omission to exercise, any right or remedy accruing on any default or
failure shall impair any such right or remedy, or shall be construed to be
waiver of any such right or remedy, or acquiescence in such default or
failure, nor shall it affect any subsequent default or failure of the same
or a different nature. The rights and remedies of the Bank arising under
the agreements, obligations, terms, provisions and conditions contained in
this Amended and Restated Note and in the Mortgages, and each of them, the
Loan Agreement, the Reimbursement Agreement, all of the Additional
Collateral Documents and any guaranty or guaranties, and each of them,
shall be separate, distinct and cumulative and none of them shall be in
exclusion of the others and no act of the Bank shall be construed as an
election to proceed under any of the provisions herein or in such other
documents to the exclusion of any other provision, anything herein or
otherwise to the
contrary notwithstanding, and every such right or remedy may be exercised
concurrently or independently, and when as often as the Bank may determine.
A waiver in one or more instances of any of the agreements, obligations,
terms, provisions or conditions hereof or of the Mortgages, or any of them,
the Loan Agreement, the Reimbursement Agreement any of the Additional
Collateral Documents or any guaranty or guaranties, shall apply to the
particular instance or instances and at the particular time or times only,
and no such waiver shall be deemed a continuing waiver, but all of the
agreements, obligations, terms, provisions and conditions of this Amended
and Restated Note and of such other documents shall survive and continue to
remain in full force and effect.
B. Without limiting the generality of the provisions of
Paragraph 11A hereof, Maker, for itself and for all others who may become
liable for all or any part of the indebtedness evidenced hereby, whether
primarily or secondarily, and for the heirs, legal representatives,
successors and assigns of each and all of the foregoing, expressly, to the
fullest extent permitted by law, (i) waives and renounces any and all
homestead and exemption rights and the benefit of all valuation and
appraisement rights in respect thereof, (ii) waives presentment and demand
for payment, demand notice of dishonor, non-payment, notice of protest and
diligence in collection, and all other notices in connection with the
performance, default or enforcement of the payment and performance
hereunder, (iii) consents to any extension of time, release of any party
liable for this obligation, release of any security for this Amended and
Restated Note, acceptance of other security therefore and any other
compromise, settlement, renewal, indulgence or forbearance whatsoever, and
any such extension, release, compromise, settlement, renewal, indulgence or
forbearance may be made without notice to any party and without affecting
the personal liability of Maker or any other party or the lien of the
Mortgages, (iv) agrees that the liability of Maker shall be unconditional
and without regard to the liability of any other person or entity for the
payment hereof and (v) consents to the addition of any and all other
makers, indorsers, guarantors, and other obligors for the payment hereof,
and to the acceptance of any and all other security for the payment hereof,
and agrees that the addition of any such obligors or security shall not
affect the liability of Maker for the payment hereof.
C. All amounts payable under this Amended and Restated Note are
payable without relief from valuation or appraisement laws.
12. Savings Clause
A. Maker and the Bank intend and believe that each provision in
this Amended and Restated Note comports with all applicable law. However,
if any provision in this Amended and Restated Note is found by a court of
law to be in violation of any applicable law, and if such court should
declare such provision of this Amended and Restated Note to be unlawful,
void or unenforceable as written, then it is the intent of all parties
hereto that such provision shall be given full force and effect to the
fullest possible extent that it is legal, valid and enforceable, that the
remainder of this Amended and Restated Note shall be construed as if such
unlawful, void or unenforceable provision were not contained, and that the
rights, obligations and interests of the Maker and the Bank under the
remainder of this Amended and restated Note shall continue in full force
and effect; provided, however, that if any provision of this Amended and
Restated Note which is found to be in violation of any
applicable law concerns the imposition of interest hereunder, the rights,
obligations and interests of Maker and the Bank with respect to the
imposition of interest hereunder shall be governed and controlled by the
provision of the following paragraph.
B. Nothing in this Amended and Restated Note or in the Loan
Agreement, Reimbursement Agreement, Mortgages or Additional Collateral
Documents shall be construed or shall so operate, either presently or
prospectively, (a) to require Maker to pay interest at a rate greater than
is at any time lawful in such case to contract for but shall require
payment of interest only to the extent of such lawful rate, or (b) to
require Maker to make any payment or do any such act contrary to law. If
it should be held that the interest payable under this Amended and Restated
Note or in the Loan Agreement, the Reimbursement Agreement, Mortgages, or
any of them, or any of the Additional Collateral Documents is in excess of
the maximum permitted by law, the interest chargeable hereunder (whether
included in the face amount or otherwise) shall be reduced to the maximum
amount permitted by law, and any excess of the said maximum amount
permitted by law shall be cancelled automatically and, at the option of the
Bank, if theretofore or thereafter paid, shall be either refunded to Maker
or credited to the principal balance of this Amended and Restated Note and
applied to the payment of the last maturing installment or installments of
the indebtedness evidenced hereby (whether or not then due and payable and
not to the payment of interest.
13. Applicable Law; Venue
A. This Amended and Restated Note and the Loan Agreement,
Mortgages, Reimbursement Agreement and Additional Collateral Documents have
been negotiated and delivered at Chicago, Illinois and all funds disbursed
to or for the benefit of Maker have been disbursed in Chicago, Illinois.
The Loan is being administered in Illinois. Maker and the Bank have
bargained for and expressly do hereby agree that this Amended and Restated
Note shall be governed by and construed under the internal substantive laws
of the State of Illinois.
ANY LITIGATION BASED ON OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS AMENDED AND RESTATED NOTE, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE BANK OR
MAKER IN RESPECT HEREOF, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE
COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT
BANK'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR
OTHER PROPERTY MAY BE FOUND. MAKER HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS AND OF
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, AND
THE COURTS OF ANY SUCH OTHER STATE, FOR THE PURPOSE OF SUCH LITIGATION AS
SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH SUCH LITIGATION. MAKER FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY CERTIFIED OR REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE AT THE ADDRESS OF MAKER STATED ABOVE OR AT
ANY OTHER ADDRESS OF MAKER WITHIN OR WITHOUT THE STATE OF ILLINOIS. MAKER
HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE PLACE OR
VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE
AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. TO THE EXTENT THAT MAKER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY
FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL
PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, MAKER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THIS AMENDED AND RESTATED NOTE.
THE BANK AND MAKER HEREBY VOLUNTARILY, IRREVOCABLY AND
UNCONDITIONALLY WAIVE ALL RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN MAKER
AND BANK ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED BETWEEN MAKER AND BANK IN CONNECTION WITH THIS
AGREEMENT OR ANY OF THE DOCUMENTS EXECUTED OR DELIVERED IN CONNECTION
HEREWITH OR THEREWITH OR THE TRANSACTIONS RELATED HERETO OR THERETO. THIS
PROVISION IS A MATERIAL INDUCEMENT TO BANK TO ENTER INTO THE FINANCING
TRANSACTIONS WITH MAKER. IT SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT,
AMEND OR MODIFY BANK'S ABILITY TO PURSUE ITS REMEDIES.
14. Notices
All notices and demands required to be given to or by and/or served
upon Maker under this Amended and Restated Note shall be in writing and
shall be delivered in person or by United States Registered Mail, return
receipt requested, postage prepaid, addressed to Maker in care of
In the case of Maker, to:
Banyan Strategic Realty Trust
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Xxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
In the case of Lender, to:
American National Bank and Trust Company of Chicago
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Vice President
with a copy to:
Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Attention: Xxxxx X. Xxxx
Notices and demands served in the manner aforementioned shall be deemed
sufficiently given or served for all purposes under this Amended and
Restated Note at the time any such notice or demand shall be delivered, or
on the date shown on the return receipt, as the case may be. Maker and/or
the Bank may change the address at which notice may be served by notice to
the other as above required.
Maker hereby authorizes the Bank to effect Adjusted LIBOR Rate
selection choices or choices based on telephonic notices made by any person
or persons whom the Bank in good faith believes to be authorized to act on
behalf of Maker. Maker agrees to confirm to the Bank promptly any
telephonic rate selection notice in writing signed by an authorized officer
or other person designated by Maker in writing. If the written
confirmation differs in any material respect from the action taken by the
Bank, the records of the Bank shall govern. Maker hereby agrees to
indemnify and hold Lender harmless from any loss or expense the Bank might
incur in acting in good faith as provided in this paragraph on the request
of any unauthorized person.
15. Assignment
Upon any endorsement, assignment, or other transfer of this Amended
and Restated Note by the Bank or by operation of law, the term "Bank" as
used herein shall mean such endorsee, assignee, or other transferee or
successor to the Bank then becoming the holder of this Amended and Restated
Note. This Amended and Restated Note shall inure to the benefit of the
Bank and its legal representatives, successors and assigns and shall be
binding upon Maker and its legal representatives, successors and assigns.
The term "Maker" as used herein shall include the respective successors,
assigns, and legal representatives of Maker.
16. Time of Essence
Time is of the essence hereof and of the performance of each and all
of the obligations of Maker hereunder.
17. Headings
The seventeen (17) numbered paragraph heading hereunder are for
reference and convenience only and are not intended to be substantive and
shall not be deemed to limit or otherwise affect the remainder of this
Amended and Restated Note.
18. Amendment and Restatement
This Amended and Restated Note reevidences and sets forth modified
terms with respect to the indebtedness heretofore evidenced by that certain
initial Note dated as of December 1, 1994 made by Maker and payable to the
order of Bank in the original principal amount of $15,000,000, as said
initial Note of December 1, 1994 was amended by First Amendment to Note
dated as of December 18, 1995 and by Second Amendment to Note dated as of
January 7, 1997 (said initial Note, as so amended, is herein in this
paragraph referred to as the "Prior Note"). The Prior Note is being
amended and restated hereby. This Amended and Restated Note is not in
payment or satisfaction of the Prior Note and is no way intended to
constitute a novation of the Prior Note.
IN WITNESS WHEREOF, the undersigned has executed this Amended and
Restated Note as of the date and year first set forth above.
MAKER
Banyan Strategic Realty Trust, a
Massachusetts business trust
By:
Its:
NOTE
$10,000,000.00 Chicago, Illinois
Dated: As of April 29, 1997
FOR VALUE RECEIVED, the undersigned, Banyan Strategic Realty Trust, a
Massachusetts business trust ("Maker"), hereby promises to pay to the order
of American National Bank and Trust Company of Chicago, a national banking
association (hereinafter, together with its legal representatives,
successors and assigns, referred to as the "Bank" or as the "holder" of
this Note), at its office at 00 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, or at such other place as the Bank may from time to time designate
in writing, the principal sum of Ten Million and 00/100 Dollars
($10,000,000.00) (the "Loan Amount"), or so much thereof as shall from time
to time have been disbursed to or for the benefit of the Maker or otherwise
outstanding and remain unpaid, together with interest at the Agreed Rate
(defined below) per annum on the balance of said principal remaining from
time to time unpaid, to be paid in lawful money of the United States of
America as hereinafter provided.
1. Definitions.
As used in this Note, the following terms shall, except where the
context otherwise requires, have the following meanings (such definitions
to be equally applicable to the singular and plural forms thereof):
A. "Advance". An advance of funds pursuant to or in respect of
this Note, the Loan Agreement, the Letter of Credit, the Reimbursement
Agreement, the Mortgages or the Additional Collateral Documents.
B. "Additional Collateral Documents". As defined in Paragraph
6.
C. "Agreed Rate". The agreed rate of interest to be paid
hereunder, namely, the Floating Rate for Floating Rate Funds, and the LIBOR
Based Rate for LIBOR Based Funds.
D. "Banking Day". A day on which banks are open for business in
the Interbank Market and in Chicago, Illinois and also on which dealings in
U.S. Dollar deposits are carried on in the Interbank Market.
E. "Base Rate". The rate of interest announced or published
publicly from time to time by the Bank as its prime or base rate of
interest. The "Base Rate" is a base reference rate of interest adopted by
the Bank as a general bench xxxx from which the Bank determines the
floating interest rates chargeable on various loans to borrowers with
varying degrees of creditworthiness, and Maker acknowledges and agrees that
the Bank has made no representations whatsoever that the "Base Rate" is the
interest rate actually offered by the Bank to borrowers of any particular
creditworthiness or that the Bank does not extend credit to some parties at
a lower interest rate.
F. "Contract". Any contract made by the Bank in the Interbank
Market to obtain the deposit with the Bank of the sum required to fund a
LIBOR Portion for the respective Contract Period.
G. "Contract Payment Date". For each Contract, the date on
which it matures, except that if the Contract matures on a day which is not
a Banking Day, the date shall be the next succeeding day which is a Banking
Day.
H. "Contract Period". The term of a Contract, which shall be
the period of time of either thirty (30), sixty (60), ninety (90), one
hundred twenty (120), one hundred fifty (150), one hundred eighty (180),
two hundred seventy (270) days or one (1) year (as available or any other
available period expressly agreed to by the Bank and Maker) for which Maker
elects to be charged interest on a LIBOR Portion at the LIBOR Based Rate.
For any LIBOR Portion in respect of which the Bank chooses not to accept a
deposit, the Contract Period, thereof shall mean the period for which Maker
has elected to be charged at the LIBOR Rate for a LIBOR Portion. Each
Contract Period shall be subject to the following additional conditions:
(i) each such selection shall be irrevocable for the period so selected;
(ii) each Contract Period shall be selected in such a way that no Contract
Period shall extend beyond the Maturity Date; (iii) if any Contract Period
ends on a day other than a Banking Day, such Contract Period shall be
extended to the next succeeding day which is a Banking Day.
I. "Conversion Date". For interest computation purposes, and as
may be appropriate, the effective date on which:
(i) a LIBOR Portion (or a portion of the Loan funds included
therein) becomes part or all of the Floating Rate Funds;
(ii) the whole or a portion of the Floating Rate Funds becomes a
part or all of a LIBOR Portion; or
(iii) an expiring LIBOR Portion (or a portion of the Loan funds
included therein) is coverted into all or part of another LIBOR Portion,
either because of the occurrence of the Contract Payment Date of the
Contract corresponding to such expiring LIBOR Portion or because of the
breakage, early termination, or other disposition of the Contract
corresponding to such LIBOR Portion, or otherwise.
J. "Default". As defined in Paragraph 5A.
K. "Default Interest Rate". Three percent (3%) per annum plus
the Floating Rate with respect to Floating Rate-Based Funds, and three
percent (3%) per annum plus the LIBOR-Based Rate with respect to any LIBOR
Portion.
L. "Floating Rate". A daily rate of interest equal to the daily
rate equivalent of one quarter of one percent (0.25%) per annum in excess
of the Base Rate (computed on the basis of a 360 day year and actual days
elapsed). Such rate shall fluctuate hereafter from time to time
concurrently with, and in an amount equal to, each increase or decease in
the Base Rate, whichever is applicable.
M. "Floating Rate Funds". At any time, the portion of the
outstanding principal balance of the Loan on which interest is being
charged at the Floating Rate.
N. "Funding Costs". Any and all costs, expenses, penalties
and/or charges incurred by the Bank arising directly from or relating
directly to, as the case may be, the early termination, breakage or other
disposition of a Contract because of prepayment of a LIBOR Portion prior to
the Contract Payment Date of the corresponding Contract or Maker's election
to terminate such LIBOR Portion, or otherwise, all as determined by the
Bank in its sole discretion.
O. "Interbank Market". The interbank market, located in London,
England, or, at the Bank's election, located in any other location
satisfactory to the Bank, where the Bank, or any branch, subsidiary, parent
or affiliate of the Bank, may purchase or sell to other banks deposits of
U.S. dollars of fixed periods.
P. "Letter of Credit". Any one or more letters of credit from
time to time issued by the Bank in respect of the Loan and all subsequent
amendments thereto, modifications and extensions thereof and replacements
and substitutions therefor.
Q. "LIBOR". For each Contract, the rate of interest per annum
at which a deposit in U.S. Dollars in the sum equal to the corresponding
LIBOR Portion is offered to the Bank in the Interbank Market for the
Contract Period two Banking Days prior to the first day of such Contract
Period. Each determination of LIBOR by the Bank shall be conclusive and
binding for all purposes of this Note in the absence of manifest error.
The use of such offered interest rate to define LIBOR shall not obligate
the Bank to accept a deposit in order to charge interest on a LIBOR Portion
at the LIBOR Based Rate once Maker elects to be charged interest at such
rate on a LIBOR Portion for a definite period.
R. "LIBOR Based Funds". At any time, the portion of the
outstanding principal balance of the Loan on which interest is being
charged at the LIBOR Based Rate.
S. "LIBOR Base Rate". For any given LIBOR Portion for its
corresponding Contract Period, the rate of interest per annum obtained by
adding the sum of (1) the quotient of (a) LIBOR for that Contract Period
divided by (b) a percentage equal to 100% minus the Reserve Requirement
applicable during such Contract Period (rounded upward, if necessary, to
the next higher 1/100 of 1%), plus (2) 2.25% per annum, computed on the
actual number of days elapsed and a year computed on the basis of a three
hundred sixty (360) day year.
T. "LIBOR Portion". Each portion (if there is more than one
Contract in existence) of the outstanding principal balance of the Loan on
which, as a result of Maker's election, Maker is charged interest at the
LIBOR Based Rate; each LIBOR Portion shall be in an amount which is an
increment of One Hundred Thousand Dollars ($100,000) and no LIBOR Portion
shall be less than One Million Dollars ($1,000,000).
U. "Loan". The loan evidenced by this issued pursuant to the
Loan Agreement.
V. "Loan Agreement". That certain loan agreement between Maker
and the Bank dated as of December 1, 1994, as amended by (a) Amendment to
Loan Agreement dated as of December 1, 1994, (b) Second Amendment to Loan
Agreement dated as of December 21, 1994, (c) Third Amendment to Loan
Agreement dated as of December 18, 1995, (d) Fourth Amendment to Loan
Agreement date as of January 7, 1997, (e) Fifth Amendment to Loan Agreement
dated as of March 7, 1997 and (f) Sixth Amendment to Loan Agreement of even
date herewith, as the same hereafter may be amended from time to time.
W. "Loan Conversion". As defined in Paragraph 2G.
X. "Loan Conversion Date". As defined in Paragraph 2G.
Y. "Maturity Date". As defined in Paragraph 2G.
Z. "Mortgages". As defined in Paragraph 6A.
AA. "Mortgaged Premises". As defined in Paragraph 6A.
BB. "Regulation D". Regulation D of the Board of Governors of
the Federal Reserve System from time to time in effect, and any successor
or other official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve
System.
CC. "Reimbursement Agreement". Any reimbursement agreements
which hereafter from time to time may be executed and delivered to Bank in
respect of the Loan, in request of any Letters of Credit, and all
subsequent amendments thereto and modifications thereof.
DD. "Reserve Requirement". With respect to any Contract Period,
the reserve percentage applicable two (2) Banking Days before the first day
of such Contract Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, but not limited to,
any emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System, with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (as defined in
Regulation D or otherwise in such regulations) or with respect to any other
category of liabilities which includes deposits by reference to which the
interest rate on a LIBOR Portion is determined.
EE. "Transfer". As defined in Paragraph 7.
2. Principal and Interest
A. Pursuant to the Loan Agreement Maker may borrow from time to
time prior to the Loan Conversion Date amounts which, together with all
amounts drawn and available to be drawn under the Letter of Credit and
together with all other amounts then outstanding hereunder, do not exceed
the lesser of (i) $10,000,000, or (ii) an amount which, together with all
other amounts outstanding from time to time under the Amended and Restated
$20,000,000 Note defined in Paragraph 5A(v) hereof, does not exceed sixty-
five percent (65%) of the "Collateral Value" of the "Designated Properties"
and "Designated Debt Instruments" (all as defined in the Loan Agreement),
based upon and subject to certain standards, restrictions, limitations and
requirements as set forth in the Loan Agreement; and as Maker repays all or
a portion of the outstanding balance thereof, and provided no
Event of Default or Potential Event of Default has occurred as defined in
the Loan Agreement, and provided that the additional standards,
restrictions, limitations and requirements set forth in the Loan Agreement
have been complied with, Maker may (until the Loan Conversion Date) borrow
on a revolving loan basis additional funds up to the limit of aggregate
amount outstanding at any time as set forth above (including certain
additions to the Letter of Credit), and the amount so reborrowed shall
thereupon be and become part of the principal indebtedness evidenced
hereby.
B. Subject to the provisions of this Note governing the manner
and method of determining, at any time and from time to time, how the rate
of interest on any particular portion of the outstanding principal balance
of the Loan shall be computed, charged and paid, the Agreed Rate of
interest on the outstanding principal balance of the Loan from time to time
remaining unpaid shall be paid at the Floating Rate on Floating Rate Funds,
and at the LIBOR Based Rate on each corresponding LIBOR Portion. Loan
funds shall always be deemed Floating Rate Funds except to the extent of
the aggregate sum of any then existing LIBOR Portions, and except as
otherwise expressly provided herein. Prior to a Default, no interest shall
be payable on amounts available to be drawn under the Letter of Credit.
C. Subject to the provisions of this Note, Maker shall have the
right to select as the applicable rate for the payment of interest on the
amount of any Advance a rate based upon the LIBOR Based Rate or the
Floating Rate. The Bank must receive notification of such selection by
Maker at least two (2) Banking Days prior to each Advance and if a rate
based upon the LIBOR Based Rate is selected by Maker, then Maker must also
advise the Bank at the time of such selection of the duration of the
initial Contract Period applicable to such Advance. If Maker has not so
advised the Bank of its selection of an applicable rate and Contract Period
as aforesaid (or if the Bank shall make an Advance other than pursuant to a
request of Maker made in accordance with the terms of the Loan Agreement)
Maker shall be deemed to have selected a rate based upon the Floating Rate
as the applicable rate for such advance.
D. Any change in the Agreed Rate resulting from a change from
the Floating Rate or the LIBOR Based Rate to any other of the LIBOR Based
Rate or the Floating Rate shall be effective on the applicable Conversion
Date.
E. Interest at the Floating Rate on that portion of the unpaid
principal balance of the Loan which are Floating Rate Funds shall be due
and payable monthly in arrears, commencing on the first (1st) day of the
first (1st) calendar month succeeding the calendar month in which the first
(1st) Advance of Floating Rate Funds is made and continuing on the first
(1st) day of each month thereafter, with a final payment of all accrued and
unpaid interest in respect thereof due on the Maturity Date or any earlier
date that the final payment of principal is due or paid.
F. Interest at the LIBOR Based Rate on each portion of the
unpaid principal balance of the Loan which is a LIBOR Portion shall be due
and payable, in arrears, commencing on the first (1st) day of the (1st)
calendar month following the calendar month in which the Contract period
begins, and continuing on the first (1st) day of each month during the
Contract Period, and on the last day of such Contract Period, with a final
payment of all current and unpaid interest in respect thereof due on the
Maturity Date or any earlier date that the final payment of principal is
due or paid. Interest on
each LIBOR Portion shall also be paid when required as a result of the
early termination, breakage or other disposition of the corresponding
Contract.
G.
(i) Effective as of the Loan Conversion Date the Loan will
be automatically deemed converted (the "Loan Conversion") to a one (1) year
term loan with interest on the principal balance from time to time
outstanding payable monthly, in arrears, at the Agreed Rate. The Loan
Conversion Date will be November 30, 1997, subject to extension to May 31,
1998 as provided in the Loan Agreement, or earlier as provided in the Loan
Agreement.
(ii) The final date on which the principal balance hereunder, and
all accrued and unpaid interest thereon, shall be due and payable shall be
November 30, 1998, which shall be deemed the Maturity Date. The Maturity
Date shall be subject to extension to May 31, 1999 as provided in the Loan
Agreement. The Loan shall nevertheless require certain earlier principal
payments as set forth in the Loan Agreement and Reimbursement Agreement.
Also, the Loan shall nevertheless be subject to acceleration and payment in
full at any earlier time upon the occurrence of any Default hereunder.
H. Interest due on any Libor Portion on the Contract Payment
Date of its covering Contract, or on the date of termination, breakage, or
other disposition of its corresponding Contract, or any earlier date as
provided herein, and interest due in respect of Floating Rate Funds, and
principal payments, must and shall be paid to the Bank and received by the
Bank by 10:00 a.m. (Chicago, Illinois time) on the date such payment is due
in accordance with the foregoing.
I. All payments of principal and interest made on account of the
indebtedness evidenced by this Note shall be made in currency of the United
States of America which shall be legal tender for public and private debts
at the time of payment in immediately available funds.
3. LIBOR
A. Maker shall not have the right to cause the termination,
breakage or other disposition of all or any part of any one or more
Contracts without the prior express consent of the Bank; and Maker shall
cause such termination, breakage or other disposition upon express
direction by the Bank.
B. Unless otherwise expressly consented to by the Bank in each
instance Maker shall cause each LIBOR Contract to be in an amount which is
an increment of TEN THOUSAND AND 00/100 DOLLARS ($10,000) and which amount
is not less than ONE MILLION AND 00/100 DOLLARS ($1,000,000).
C. Provided no Default has occurred hereunder, Maker shall have
the right to elect, from time to time during the term of the Loan, to
convert (1) all or one or more portions (but not less than $1,000,000) of
the then outstanding Floating Rate Funds and/or (2) the whole or any one or
more portions (but not less than $1,000,000) of any then-existing LIBOR
Portion (because the corresponding Contract Payment Date has occurred or
Maker has elected to cause the termination, breakage or other disposition
of the Contract, as permitted by, and subject to the conditions, including
payment of Funding Costs, provided hereinafter) to a new LIBOR Portion,
subject to:
(1) the Bank's receiving notice of the election not less than two
(2) Banking Days prior to the date requested by Maker for commencement of
the Contract Period of the new Contract required to cover the new LIBOR
Portion;
(2) the availability to the Bank of a Contract to cover such new
LIBOR Portion effective on the requested date of commencement for the
Contract Period;
(3) Maker paying any additional costs incurred by the Bank from
time to time which is attributable to such new LIBOR Portion;
(4) the Bank being able to terminate, break, or otherwise dispose
of the existing Contract;
(5) If required by the Bank because the Bank is obligated to pay
accrued interest on the existing Contract upon its termination, breakage or
other disposition, Maker paying all interest accrued on said LIBOR Portion;
and
(6) Maker paying any Funding Costs incurred by the Bank as a
result of the termination, breakage or other disposition of the existing
Contract.
If, on or before a date two (2) Banking Days before the end of the then
current Contract Period for any LIBOR Portion, Lender does not receive a
notice of election of a rate based upon the LIBOR Rate and the Contract
Period as to such LIBOR Portion, Maker shall be deemed to have elected to
convert such advance to Floating Rate Funds at the expiration of the then
current Contract Period.
D. Without the prior written consent of the Bank, the Contract
Periods must be selected so that at no time shall there be more than eight
(8) different "Interest Selections" (as such term is hereinafter defined)
in effect at the same time with respect to the principal balance
outstanding hereunder. For the purposes of this paragraph, an "Interest
Selection" shall mean each single applicable interest rate and the
corresponding Contract Period (unless the rate is the Floating Rate in
which case no Interest Period is selected) in effect from time to time
pursuant to the provisions of this Note.
E. To further evidence any LIBOR Portion, Maker shall execute
such additional notes as may be requested by the Bank. Any such additional
notes shall be in form reasonably satisfactory to the Bank and thereupon
this shall be endorsed to reflect the rate allocation of principal to the
notes representing the LIBOR Portion and the fact that it is a duplicate of
a portion of this Note.
F. Maker from time to time, upon written request from Lender,
shall deliver a written acknowledgement in form reasonably satisfactory to
Lender and indicating, as of the date thereof: (a) the respective
portions of the Loan which bear interest at the Floating Interest Rate, (b)
the respective portions of the Loan which bear interest at the LIBOR Based
Rate and the respective LIBOR Based Rate(s) applicable thereto, and (c) the
respective Conversion Date(s) applicable to any and all LIBOR Portion(s).
G. It is understood that the cost to the Bank of providing Maker
with LIBOR Based Rates may fluctuate as a result of the applicability of,
or changes in, any treaty, statute, rules and regulations, or in the
interpretation thereof, or any directive, guideline or requirement by a
central bank or fiscal authority (whether or not having the force of law),
including, without limitation, any reserve or special deposit requirements
imposed by the Board of Governors of the Federal Reserve System ("Board"),
including, but not limited to, reserve requirements under Regulation D of
the Board in connection with Eurocurrency Liabilities (as defined in
Regulation D) at the ratios provided for in Regulation D from time to time
(collectively, the "Imposition Requirements"). Maker agrees to pay the
Bank from time to time such additional amounts as shall be necessary to
compensate the Bank for the portion of the cost of providing Maker with
Libor Based Rates resulting from any and all such Imposition Requirements.
It is agreed that for purposes of this paragraph, upon election of LIBOR
Based Rates by Maker,the Libor Portion then outstanding shall be deemed to
constitute Eurocurrency Liabilities as defined in Regulation D and to be
subject to the reserve requirements of Regulation D. Without limiting the
generality of the foregoing, if the Bank determines that compliance with
any one or more of such Imposition Requirements affects or would affect the
amount of capital required or expected to be maintained by the Bank, or any
corporation controlling the Bank, and that the amount of such capital is
required to be increased by or based upon the Loan or existence of the
commitment of the Bank to lend pursuant to the Loan Agreement and all other
commitments and loans of this type of the Bank and such other entity, then
upon demand by the Bank, Maker shall immediately pay to the Bank from time
to time as specified by the Bank, additional amounts sufficient to
compensate the Bank in the light of such circumstances, to the extent that
such increase in capital is reasonably determined by the Bank to be
allocable directly or indirectly to the existence of the commitment to
disburse amounts evidenced hereby. In addition, in the event that after
the date hereof any one or more of the Imposition Requirements shall occur
which shall, exclusively as a result of Maker's election of LIBOR Based
Rates:
1. subject the Bank to any tax with respect to the LIBOR
Portions then-outstanding (other than any tax on the overall net income of
the Bank, imposed by the United States of America or by the jurisdiction in
which the Bank has its principal office or any political subdivision or
taxing authority therein); or
2. change the basis of taxation of any payment to the Bank of
principal of or interest on the LIBOR Portions then outstanding or other
fees and amounts payable under this Note, or any combination of the
foregoing; or
3. impose, modify or deem applicable any reserve, deposit or
similar requirement against any assets held by, deposits with or for the
account of, or loans or commitments by, an office of the Bank; or
4. impose any other costs upon the Bank or impose upon the Bank
or the Interbank Market any other condition with respect to
the Loan or this Note,
and if the result of any of the foregoing shall be to increase the actual
cost to the Bank of providing Maker with LIBOR Based Rates under this Note
or to reduce the amount of any payment (whether of principal, interest or
otherwise) received or receivable by the Bank under this Note, or to
require the Bank to make any payment in connection with the LIBOR Portions
then outstanding, then in each such case Maker shall pay to the Bank such
amounts as shall be necessary to compensate the Bank for such cost,
reduction or payment. The Bank shall deliver to Maker from time to time
one or more remittance forms setting forth the amounts due to the Bank
under this Paragraph, and the changes in the reserve requirements as a
result of which such amounts are due and the manner of computing such
amounts. Maker shall pay to the Bank the amounts shown as due on any such
form within ten (10) days after its receipt of the same. No failure on the
part of the Bank to demand compensation under this paragraph on any
occasion shall constitute a wavier of its right to demand such compensation
on any other occasion. The protection of this paragraph shall be available
to the Bank regardless of any possible condition of the invalidity or
inapplicability of any law, regulation or other condition which shall give
rise to any demand by the Bank for compensation hereunder. A certificate
as to any such amounts submitted to the Maker by the Bank pursuant to this
paragraph shall be conclusive and binding for all purposes, absent manifest
error.
H. If any change after the date hereof in law or regulation or
in the interpretation thereof by any governmental authority charged with
the administration thereof shall make it unlawful for the Bank to provide
Maker with LIBOR Based Rates or to give effect to its obligations as
contemplated hereby with respect to providing Maker with LIBOR Based Rates,
or if the Bank shall determine that by reason of circumstances affecting
the Interbank Market generally adequate and fair means do not or will not
exist for determining the LIBOR Based Rate, then, by written notice to
Maker, the Bank may declare that the Bank will not thereafter provide Maker
with LIBOR Based Rates, whereupon Maker shall be prohibited from electing
LIBOR Based Rates unless such declaration is subsequently withdrawn, and
interest on all principal from time to time outstanding hereunder shall
thereupon be paid at the Floating Rate.
I. The Bank may fund all or any portion of any LIBOR Portion as
it may see fit, whether by purchasing dollar deposits in the Interbank
Market, or otherwise. For purposes of this Note, it shall be conclusively
presumed that the Bank has elected to fund all LIBOR Portions by purchasing
such dollar deposits, and the Maker shall be bound to all provisions herein
contained concerning LIBOR Based Rates whether or not the Bank has in fact
funded any LIBOR Portion in such manner.
4. Prepayment
A. The portion of this Note comprised of Floating Rate Funds may
be prepaid, either in whole or in part, without penalty or premium, at any
time and from time to time as set forth below. The portion of this Note
comprised of a LIBOR Portion may be prepaid only on the Contract Payment
Date applicable thereto. If Maker shall now or hereafter have a right to
prepay such LIBOR Portion by operation of law or otherwise, such prepayment
must be accompanied by a simultaneous payment of all Funding Costs, and
accrued interest on any covering Contract which the Bank is obligated to
pay, attributable to any such LIBOR Portion which is being prepaid in whole
or in part. For purposes hereof, upon acceleration of this Note, the
portion of this Amended and Restated Note comprised of a LIBOR Portion
having a Contract Payment Date subsequent to the date
of acceleration shall nevertheless be due and payable and payment therefor
must be accompanied by payment of any such Funding Costs and accrued
interest on any covering Contract attributable to any such LIBOR Portion
and any foreclosure decree entered with respect to the Loan shall include
such Funding Costs and accrued interest.
B. Prior to the occurrence of any Default thereunder, subject to
the foregoing provisions as to any LIBOR Portions, a prepayment may be made
on not less than fifteen (15) days' prior written notice of the principal
balance of this Note, in whole or in part; provided, however, that each
prepayment shall be accompanied by a payment of all interest accrued as of
that date on the principal balance outstanding hereunder. Any partial
prepayment must be made in an amount which is an integral multiple of One
Hundred Thousand Dollars ($100,000.00).
5. Default; Default Interest Rate
A. The occurrence of any one or more of the following events
shall constitute a "Default" hereunder:
(i) if Maker shall fail to pay any principal or any interest
when due in accordance with the terms of this Note,
(ii) if Maker shall fail to promptly comply with any of its
other agreements herein or with any other requirement herein,
(iii) if an Event of Default (as defined in the Loan Agreement, the
Reimbursement Agreement, any one or more of the Mortgages or any one or
more of the Additional Collateral Documents) shall occur,
(iv) if a Transfer shall occur, and/or
(v) if there shall occur a "Default" as defined in and under
that certain Amended and Restated Note of even date herewith made by Maker
payable to the order of Bank in the principal amount of Twenty Million and
00/100 Dollars ($20,000,000) (the "Amended and Restated $20,000,000 Note");
B. If a Default hereunder shall occur then the entire unpaid
principal balance due hereunder shall thereafter bear interest during the
period such Default shall continue at the Default Interest Rate. Upon any
such Default the Bank is expressly authorized to apply all payments
received on any amounts due hereunder or under the terms of any one or more
of the Loan Agreement, the Reimbursement Agreement, the Mortgages and any
one or more of the Additional Collateral Documents, as the Bank may
determine. The Bank shall be entitled to receive payment in full of all
interest accruing hereon subsequent to the filing of a petition or the
taking of any other action commencing a bankruptcy, reorganization,
arrangement or other similar proceeding or which would accrue but for such
proceeding or action.
C. If a Default hereunder shall occur then the whole of the
principal amount remaining unpaid under this Note, together with all
accrued interest thereon, at the election of the Bank and without notice to
Maker or any other person or entity, shall become immediately due and
payable, together with all costs, fees and expenses incurred by the Bank on
account of or in connection with the collection and enforcement of this
note and in connection with the protection or realization on any security,
and all other costs, fees and expenses of the Bank described in Paragraphs
3, 8 and otherwise as provided in this Note, and the Bank may thereupon
exercise any one or more of the following remedies at any time and from
time to time singularly, successively or together and in such order and
when and as often as the Bank in its sole direction may from time to time
may determine: (i) bring an action against Maker for the whole or any part
of the indebtedness evidenced by this Note plus any or all of such costs,
fees and expenses, (ii) proceed to foreclose any one or more of the
Mortgages, (iii) proceed to exercise any one or more of the other rights
and remedies available under any one or more of this Note, the Mortgages,
the Reimbursement Agreement, the Loan Agreement, and/or any one or more of
Additional Collateral Documents, (iv) proceed against any guaranty or
guarantees, and/or (v) proceeds to exercise any other rights and remedies
available at law or in equity.
6. Loan Agreement; Collateral
This Note evidences advances of loan proceeds pursuant to the Loan
Agreement by and between Maker and the Bank. This Note is secured and in
the future may be secured by certain documents and instruments, including
without limitation the following:
A. One or more mortgages, deeds of trust and/or deeds to
secure debt (collectively the "Mortgages") heretofore, concurrently and/or
hereafter granted to the Bank by various mortgagors encumbering certain
real estate, the buildings and improvements now or hereafter located
thereon, and certain other property (collectively, the "Mortgaged
Premises");
B. One or more collateral assignments heretofore,
concurrently and/or hereafter granted to the Bank by the Maker of Maker's
interest in the partnerships and/or corporations owning various of the
Mortgaged Premises, one or more pledges and assignments now or hereafter
granted to the Bank by Maker or its affiliates of their interests in
Designated Debt Instruments (as defined in the Loan Agreement), and certain
other documents and instruments creating a security interest in, pledging
or otherwise covering certain items of collateral by certain persons and
entities, including, without limitation, assignments of leases and rents,
and security agreements, all as set forth in the Loan Agreement (herein
collectively referred to as the "Additional Collateral Documents").
The Bank is entitled to the benefits of the Loan Agreement, the
Reimbursement Agreement, the Mortgages and the Additional Collateral
Documents and may enforce the agreements, obligations and undertakings of
Maker and others (or any of them) contained therein and exercise the rights
and remedies provided for thereby, or otherwise in respect thereof, all in
accordance with the terms thereof. Maker may not deduct, set off or
withhold from any payments of principal or interest under this Note the
amount of any claim made by Maker against the Bank pursuant to any
agreement, instrument, document, litigation or settlement.
7. Transfer
One or more of the Mortgages provides that it shall be an immediate
Event of Default thereunder without notice if without the prior written
consent of the mortgagee thereunder, the mortgagor thereunder shall create,
effect or consent to or suffer or permit any one or more of certain
conveyances, sales, assignments, transfers, liens, pledges, mortgages,
security interests or other encumbrances or alienations (any of the
foregoing hereinafter called a "Transfer") concerning or with respect to
certain of (a) the Mortgaged Premises which is the subject thereof, (b) the
beneficial interest of any trustee which is the mortgagor thereof, (c) the
shares of stock of any corporation which is (i) said mortgagor, (ii) the
owner of all or any part of said beneficial interest in said mortgagor or
all or any part of the interest in any partnership or joint venture which
is the said mortgagor or (iii) the owner of all or any part of the
beneficial interest of any trustee mortgagor, or (d) all or any part of the
interest of any partner or joint venturer in any partnership or joint
venture which is (i) said mortgagor or (ii) the owner of all or any part of
the beneficial interest of any trustee mortgagor. The said provisions of
the Mortgages are incorporated by reference herein as if fully set forth
herein. The Loan Agreement and/or one or more of the Collateral
Assignments of the Designated Debt Instruments (as defined in the Loan
Agreement), provides that it shall be an immediate Event of Default
thereunder without notice if without the prior written consent of the
assignee thereunder, the assignor thereunder shall create, effect, or
consent to or suffer or permit any certain Transfers concerning or with
respect to certain of (a) the Designated Debt Instruments which are the
subject thereof, (b) the beneficial interest of any person or entity which
is the assignor thereof, (c) the shares of stock of any corporation which
is (i) said assignor, (ii) the owner of all or any part of said beneficial
interest in said assignor or all or any part of the interest in any
partnership or joint venture which is the said assignor or (iii) the owner
of all or any part of the beneficial interest of any trustee assignor, or
(d) all or any part of the interest of any partner or joint venturer in any
partnership or joint venture which is (i) said assignor or (ii) the owner
of all or any part of the beneficial interest or any trustee assignor. The
said provisions of said pledges and assignments are incorporated by
reference herein as if fully set forth herein.
8. Costs, Fees and Expenses
If at any time or times after the date of this Note, the Bank (a)
employs counsel for advice or other representation (i) with respect to any
one or more of this Note, the Loan Agreement, the Reimbursement Agreement,
the Letter of Credit, Mortgages or any Additional Collateral Documents
and/or any guaranty or guarantees, or the administration hereof, (ii) to
represent the Bank in any litigation, contest, dispute, suit or proceeding
or to commence, defend or intervene or to take any other action in or with
respect to any litigation, contest, dispute, suit or proceeding (whether
instituted by the Bank, Maker or any other person or entity) in any way or
respect relating to any one or more of this Note, the Loan Agreement, the
Reimbursement Agreement, the Letter of Credit, Mortgages, or any of them,
or any Additional Collateral Documents and/or any guaranty or guarantees,
or (iii) to enforce any rights of the Bank against Maker; (b) takes any
action with respect to the administration of any one or more of this Note,
the Loan Agreement, the Reimbursement Agreement, the Letter of Credit, any
one or more of
the Mortgages or any of the Additional Collateral Documents and/or any
guaranty or guarantees, or to protect, collect, sell, liquidate or
otherwise dispose of any collateral securing the obligations of the
undersigned hereunder; and/or (c) attempts to or enforces any of Bank's
rights or remedies against Maker, then the costs, fees and expenses
(including, without limitation, attorneys' fees) incurred by the Bank in
any manner or way with respect to any of the foregoing shall be part of the
obligations of Maker hereunder, payable by Maker to the Bank on demand.
9. Business Loan
Maker represents and agrees that the proceeds of the loan evidenced
by this Note will be used solely for business purposes and in accordance
with all applicable laws, and that the principal obligation evidenced
hereby constitutes a business loan.
10. Application of Payments
All payments on account of the indebtedness evidenced by this Note
shall be first applied to accrued and unpaid interest on the unpaid
principal balance and the remainder to installments of the outstanding
principal balance in the inverse order of the maturity of such installments
of principal. From and after the occurrence of a Default hereunder, the
Bank is expressly authorized to apply payments made under this Amended and
Restated Note as the Bank may elect against any or all amounts, or portions
thereof, then due and payable hereunder or under the Mortgages, the
Reimbursement Agreement, the Loan Agreement or any of the Additional
Collateral Documents, the outstanding principal balance due under this
Note, the unpaid and accrued interest due under this Note, or any
combination of the foregoing.
11. Waivers; Amendments
A. If the Bank (i) grants any extension of time or forbearance
with respect to the payment of any of the indebtedness evidenced hereby or
with respect to the performance of any of the other obligations of Maker
hereunder or of Maker or others under any one or more of the Loan
Agreement, the Reimbursement Agreement, the Letter of Credit, the
Mortgages, or any of them, any of the Additional Collateral Documents or
any guaranty or guarantees; (ii) takes other or additional security and/or
any guaranty or guaranties for the payment hereof; (iii) waives or fails to
exercise any right granted herein or under the Mortgages, or any of them,
the Loan Agreement, the Letter of Credit, the Reimbursement Agreement, or
any one or more of the items of Additional Collateral Documents, or any
guaranty or guaranties; (iv) any release, with or without consideration, of
the whole or any part of the security and/or any guaranty or guaranties
held for the payment of the indebtedness evidenced hereby; (v) amends or
modifies in any respect with or without the consent of Maker any of the
agreements, obligations, terms, provisions and conditions hereof or of the
Mortgages, or any of them, the Loan Agreement, the Reimbursement Agreement,
the Letter of Credit, any one or more of the Additional Collateral
Documents, or any guaranty or guaranties; (vi) consents to the filing of
any map, plat, replat or condominium declaration affecting all or any part
of the Mortgaged Premises; (vii) consents to the granting of any easement
or other right affecting all or any part of the Mortgaged Premises; (viii)
or makes or consents to any agreement subordinating
the lien of the Mortgages, or any of them, or any of the Additional
Collateral Documents, then and in any such event, such act or omission to
act shall not release, discharge, modify, change or affect (except to the
extent of changes referred to in clause (v) above effected with the consent
of the Bank) the liability under this Note, or under the Mortgages, or any
of them, the Loan Agreement, the Reimbursement Agreement, any of the
Additional Collateral Documents, or any guaranty or guaranties, and any
such act or omission to act shall not release Maker hereunder or under the
Loan Agreement or Reimbursement Agreement, or mortgagor under any one or
more of the Mortgages, or any other person or entity executing any of the
Additional Collateral Documents or any guarantor or guarantors of this
Note, under any agreement, obligation, term, provision or condition of this
Amended and Restated Note or of the Mortgages, or any of them, or of the
Loan Agreement, or the Reimbursement Agreement, or of any of the Additional
Collateral Documents or of any guaranty or guaranties, nor preclude the
Bank from exercising any right, power, or privilege herein or therein
granted or intended to be granted. No right or remedy of the holder of
this Note shall be exclusive of, but shall be in addition to, every other
right or remedy now or hereafter existing at law or in equity. No delay in
exercising, or omission to exercise, any right or remedy accruing on any
default or failure shall impair any such right or remedy, or shall be
construed to be a waiver of any such right or remedy, or acquiescence in
such default or failure, nor shall it affect any subsequent default or
failure of the same or a different nature. The rights and remedies of the
Bank arising under the agreements, obligations, terms, provisions and
conditions contained in this Note and in the Mortgages, and each of them,
the Loan Agreement, the Reimbursement Agreement, all of the Additional
Collateral Documents and any guaranty or guaranties, and each of them,
shall be separate, distinct and cumulative and none of them shall be in
exclusion of the others and no act of the Bank shall be construed as an
election to proceed under any of the provisions herein or in such other
documents to the exclusion of any other provision, anything herein or
otherwise to the contrary notwithstanding, and every such right or remedy
may be exercised concurrently or independently, and when and as often as
the Bank may determine. A waiver in one or more instances of any of the
agreements, obligations, terms, provisions or conditions hereof or of the
Mortgages, or any of them, the Loan Agreement, the Reimbursement Agreement
any of the Additional Collateral Documents or any guaranty or guaranties,
shall apply to the particular instance or instances and at the particular
time or times only, and no such waiver shall be deemed a continuing waiver,
but all of the agreements, obligations, terms, provisions and conditions of
this Amended and Restated Note and of such other documents shall survive
and continue to remain in full force and effect.
B. Without limiting the generality of the provisions of
Paragraph 11A hereof, Maker, for itself and for all others who may become
liable for all or any part of the indebtedness evidenced hereby, whether
primarily or secondarily, and for the heirs, legal representatives,
successors and assigns of each and all of the foregoing, expressly, to the
fullest extent permitted by law, (i) waives and renounces any and all
homestead and exemption rights and the benefit of all valuation and
appraisement rights in respect thereof, (ii) waives presentment and demand
for payment, demand, notice of dishonor, non-payment, protest, notice of
protest and diligence in collection, and all other notices in connection
with the performance, default or enforcement of the payment and performance
hereunder, (iii) consents to any extension of time, release of any party
liable for this obligation, release of any security for this Note,
acceptance of other security therefor and any other compromise,
settlement, renewal, indulgence or forbearance whatsoever, and any such
extension, release, compromise, settlement, renewal, indulgence or
forbearance may be made without notice to any party and without affecting
the personal liability of Maker or any other party or the lien of the
Mortgages, (iv) agrees that the liability of Maker shall be unconditional
and without regard to the liability of any other person or entity for the
payment hereof and (v) consents to the addition of any and all other
makers, indorsers, guarantors, and other obligors for the payment hereof,
and to the acceptance of any and all other security for the payment hereof,
and agrees that the addition of any such obligors or security shall not
affect the liability of Maker for the payment hereof.
C. All amounts payable under this Note are payable without
relief from valuation or appraisement laws.
12. Savings Clause
A. Maker and the Bank intend and believe that each provision in
this Note comports with all applicable law. However, if any provision in
this Amended and Restated Note is found by a court of law to be in
violation of any applicable law, and if such court should declare such
provision of this Note to be unlawful, void or unenforceable as written,
then it is the intent of all parties hereto that such provision shall be
given full force and effect to the fullest possible extent that it is
legal, valid and enforceable, that the remainder of this Note shall be
construed as if such unlawful, void or unenforceable provision were not
contained, and that the rights, obligations and interests of the Maker and
the Bank under the remainder of this Amended and Restated Note shall
continue in full force and effect; provided, however, that if any provision
of this Note which is found to be in violation of any applicable law
concerns the imposition of interest hereunder, the rights, obligations and
interests of Maker and the Bank with respect to the imposition of interest
hereunder shall be governed and controlled by the provisions of the
following paragraph.
B. Nothing in this Amended and Restated Note or in the Loan
Agreement, Reimbursement Agreement, Mortgages or Additional Collateral
Documents shall be construed or shall so operate, either presently or
prospectively, (a) to require Maker to pay interest at a rate greater than
is at any time lawful in such case to contract for but shall require
payment of interest only to the extent of such lawful rate, or (b) to
require Maker to make any payment or do any act contrary to law. If it
should be held that the interest payable under this Note or in the Loan
Agreement, the Reimbursement Agreement, Mortgages, or any of them, or any
of the Additional Collateral Documents is in excess of the maximum
permitted by law, the interest chargeable hereunder (whether included in
the face amount or otherwise) shall be reduced to the maximum amount
permitted by law, and any excess of the said maximum amount permitted by
law shall be cancelled automatically and, at the option of the Bank, if
theretofore or thereafter paid, shall be either refunded to Maker or
credited to the principal balance of this Note and applied to the payment
of the last maturing installment or installments of the indebtedness
evidenced hereby (whether or not then due and payable) and not to the
payment of interest.
13. Applicable Law; Venue
A. This Note and the Loan Agreement, Mortgages, Reimbursement
Agreement and Additional Collateral Documents have been negotiated and
delivered at Chicago, Illinois and all funds disbursed to or for the
benefit of Maker have been disbursed in Chicago, Illinois. The Loan is
being administered in Illinois. Maker and the Bank have bargained for and
expressly do hereby agree that this Note shall be governed by and construed
under the internal substantive laws of the State of Illinois.
ANY LITIGATION BASED ON OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE BANK OR MAKER IN
RESPECT HEREOF, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS
OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT
BANK'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR
OTHER PROPERTY MAY BE FOUND. MAKER HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS AND OF
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, AND
THE COURTS OF ANY SUCH OTHER STATE, FOR THE PURPOSE OF SUCH LITIGATION AS
SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH SUCH LITIGATION. MAKER FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY CERTIFIED OR REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE AT THE ADDRESS OF MAKER STATED ABOVE OR AT
ANY OTHER ADDRESS OF MAKER WITHIN OR WITHOUT THE STATE OF ILLINOIS. MAKER
HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE PLACE OR
VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE
AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. TO THE EXTENT THAT MAKER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY
FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH
SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, MAKER
HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER THIS NOTE.
THE BANK AND MAKER HEREBY VOLUNTARILY, IRREVOCABLY AND
UNCONDITIONALLY WAIVE ALL RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN MAKER
AND BANK ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED BETWEEN MAKER AND BANK IN CONNECTION WITH THIS
AGREEMENT OR ANY OF THE DOCUMENTS EXECUTED OR DELIVERED IN CONNECTION
HEREWITH OR THEREWITH OR THE TRANSACTIONS RELATED HERETO OR THERETO. THIS
PROVISION IS A MATERIAL INDUCEMENT TO BANK TO ENTER INTO THE FINANCING
TRANSACTIONS WITH MAKER. IT SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT,
AMEND OR MODIFY BANK'S ABILITY TO PURSUE ITS REMEDIES.
14. Notices
All notices and demands required to be given to or by and/or served
upon Maker under this Note shall be in writing and shall be delivered in
person or by United States Registered Mail, return receipt requested,
postage prepaid, addressed to Maker in care of
In the case of Maker, to:
Banyan Strategic Realty Trust
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Xxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
In the case of Lender, to:
American National Bank and Trust Company of Chicago
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Vice President
with a copy to:
Altheimer & Xxxx
00 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx
Notices and demands served in the manner aforesaid shall be deemed
sufficiently given or served for all purposes under this Note at the time
any such notice or demand shall be delivered, or on the date shown on the
return receipt, as the case may be. Maker and/or the Bank may change the
address at which notice may be served by notice to the other as above
required.
Maker hereby authorizes the Bank to effect Adjusted LIBOR Rate
selection choices or choices based on telephonic notices made by any person
or persons whom the Bank in good faith believes to be authorized to act on
behalf of Maker. Maker agrees to confirm to the Bank promptly any
telephonic rate selection notice in writing signed by an authorized officer
or other person designated by Maker in writing. If the written
confirmation differs in any material respect from the action taken by the
Bank, the records of the Bank shall govern. Maker hereby agrees to
indemnify and hold Lender harmless from any loss or expense the Bank might
incur in acting in good faith as provided in this paragraph on the request
of any unauthorized person.
15. Assignment
Upon any endorsement, assignment, or other transfer of this Note by
the Bank or by operation of law, the term "Bank" as used herein shall mean
such endorsee, assignee, or other transferee or successor to the Bank then
becoming the holder of this Note. This Note shall inure to the benefit of
the Bank and its legal representatives, successors and assigns and shall be
binding upon Maker and its legal representatives, successors and assigns.
The term "Maker" as used herein shall include the respective successors,
assigns, and legal representatives of Maker.
16. Time of Essence
Time is of the essence hereof and of the performance of each and all
of the obligations of Maker hereunder.
17. Headings
The seventeen (17) numbered paragraph headings hereunder are for
reference and convenience only and are not intended to be substantive and
shall not be deemed to limit or otherwise affect the remainder of this
Note.
IN WITNESS WHEREOF, the undersigned has executed this Note as of the
date and year first set forth above.
MAKER
Banyan Strategic Realty Trust, a
Massachusetts business trust
By: /s/ Xxx X. Xxxxxxx
Its: Vice President
