EXHIBIT 10XX
AMENDED AND RESTATED NOTE
$830,000.00
As of November 21, 1996
FOR VALUE RECEIVED, BIG VALLEY ASSOCIATES LIMITED PARTNERSHIP,
a Delaware limited partnership having an address c/o Proskauer Xxxx Xxxxx &
Xxxxxxxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Maker"), promises to
pay to the order of RESOURCES ACCRUED MORTGAGE INVESTORS L.P. - SERIES 86,
having an office at c/o Wexford Management Company L.P., 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000 ("Payee"), at such office of Payee, or at such
other place as may be designated, from time to time, in writing by Xxxxx, (a)
the principal sum of EIGHT HUNDRED THIRTY THOUSAND AND 00/100 ($830,000) DOLLARS
in lawful money of the United States of America, with interest thereon from the
dates set forth below to and including November 21, 2016 (the "Maturity Date")
calculated at the rates of interest set forth below, and (b) Participation
Interest (as hereinafter defined), if any, pursuant to the provisions of
paragraph 7 below. This Note amends and restates in its entirety that certain
Registered Note, dated as of December 16, 1987, made by Maker to Payee in the
original principal amount of $975,000 (the "Original Note").
The following capitalized terms used in this Note shall have
the respective meanings ascribed to them below:
"Affiliate" shall mean an entity which controls, is controlled
by, or is under common control with, Maker.
"Appraised Value" shall mean the fair market value of the
Property as of the date of the subject Participation Interest Event (without
regard to the assumed costs of sale or the unpaid costs and expenses of Maker
incurred in connection with the Property), as determined by the agreement of two
appraisers each having at least ten (10) years experience in the business of
appraising commercial properties, one of whom shall be selected by Maker and one
of whom shall be selected by Payee. In the event that the two appraisers so
selected cannot agree as to the fair market value of the Property, the two
appraisers shall jointly select a third appraiser and shall each advise the
third appraiser of its determination of the Property's fair market value. The
third appraiser shall select either the fair market value determination of the
appraiser selected by Payee or the fair market value determination of the
appraiser selected by Maker as the Appraised Value for purposes of this
agreement.
"Available New Funds Cash Flow", with respect to any calendar
year, shall mean (i) until the Consulting Fee has been paid in full, 19.56% of
the Net Cash Flow allocable to such calendar year, and (ii) after the Consulting
Fee has been paid in full, 20.99% of the Net Cash Flow allocable to such
calendar year.
"Available New Funds Refinancing Proceeds" shall mean (i)
until the Consulting Fee has been paid in full, 19.56% of the Refinancing
Proceeds with respect to any Refinancing or Related Sale, and (ii) after the
Consulting Fee has been paid in full, 20.99% of the Refinancing Proceeds with
respect to any Refinancing or Related Sale.
"Available New Funds Unrelated Sale Proceeds" shall mean (i)
until the Consulting Fee has been paid in full, 19.56% of the Net Sale Proceeds
of an Unrelated Sale, and (ii) after the Consulting Fee has been paid in full,
20.99% of the Net Sale Proceeds of an Unrelated Sale.
"Available Old Debt Cash Flow", with respect to any calendar
year, shall mean fifty percent (50%) of the amount, if any, by which (i) the Net
Cash Flow with respect to such calendar year exceeds (ii) the aggregate of (a)
payments to Payee from such Net Cash Flow pursuant to paragraph 3(a) below in
respect of outstanding New Funds and unpaid interest accrued thereon, and (b)
amounts retained by Maker from such Net Cash Flow pursuant to paragraph 3(a)
below (inclusive of amounts to be paid by Maker to the Consultant pursuant to
the provisions of paragraph 10 below, if any) in respect of the Maker Funds and
Maker Funds Interest.
"Available Old Debt Refinancing Proceeds" shall mean fifty
percent (50%) of the amount, if any, by which (i) Refinancing Proceeds exceed
(ii) the aggregate of (a) payments to Payee from such Refinancing Proceeds
pursuant to paragraph 4(a) below in respect of outstanding New Funds and unpaid
interest accrued thereon, and (b) amounts retained by Maker from such
Refinancing Proceeds pursuant to paragraph 4(a) below (inclusive of amounts to
be paid by Maker to the Consultant pursuant to the provisions of paragraph 10
below, if any) in respect of the Maker Funds and unpaid Maker Funds Interest.
"Available Old Debt Unrelated Sale Proceeds" shall mean the
amount, if any, by which (i) Net Sale Proceeds exceed (ii) the aggregate of (a)
payments to Payee from such Net Sale Proceeds pursuant to paragraph 5(a) below
in respect of outstanding New Funds and unpaid interest accrued thereon, and (b)
amounts retained by Maker from such Net Sale Proceeds pursuant to paragraph 5(a)
below (inclusive of amounts to be paid by Maker to the Consultant pursuant to
the provisions of paragraph 10 below, if any) in respect of the Maker Funds and
unpaid Maker Funds Interest.
"Consultant" shall mean the party entitled to receive the
Consulting Fee pursuant to the terms of the Consulting Agreement.
"Consulting Agreement" shall mean that certain Consulting
Agreement dated as of November 21, 1996 among Maker, X. Xxxxxx Xxxx and New
Potomac Associates, Ltd.
"Consulting Fee" shall mean the $100,000 consulting fee
payable to the Consultant pursuant to the Consulting Agreement.
"Deferred Portion" shall have the meaning set forth in
paragraph 8 below.
"Distribution" shall have the meaning set forth in paragraph
16(b) below.
"Distribution Notice" shall have the meaning set forth in
paragraph 16(b) below.
"First Mortgage" shall mean the first priority mortgage
encumbering the Property held by General Electric Capital Corporation and any
amendment, modification, extension, replacement or refinancing thereof permitted
hereunder.
"Maker Funds" shall mean $1,342,033, comprised of (i)
$1,242,033 advanced by Maker prior to or simultaneously with the execution and
delivery of this Note ($1,062,462 of Maker Funds, together with a portion of the
New Funds, have been used by Maker to cause the Second Mortgage to be satisfied
and released from the Property), and (ii) $100,000 to be paid by Maker to the
Consultant pursuant to the Consulting Agreement.
"Maker Funds Interest" shall mean interest accrued on the
outstanding Maker Funds (except the portion of Maker Funds that constitutes the
outstanding Consulting Fee) from and after the respective dates of disbursement
of portions thereof at the rate of twelve percent (12%) per annum, compounded
annually.
"Maximum Payment" shall mean, as of any date, an amount equal
to the aggregate of (i) the then outstanding New Funds and unpaid interest
accrued thereon, (ii) the then outstanding Old Debt and unpaid interest accrued
thereon, and (iii) the Write-Down Amount, together with interest accrued thereon
from and after the date hereof at the Old Debt Rate, all such interest
compounded annually.
"Net Cash Flow" shall mean the amount, in any calendar year,
by which (i) rent paid to Maker by the tenants of the Property and all other
amounts collected by Maker with respect to the Property from all sources (other
than Refinancing Proceeds and Net Sale Proceeds) in such year exceeds (ii) all
costs and expenses incurred by Maker in connection with the Property in such
year, whether ordinary or capital in nature, including debt service payments
made pursuant to the First Mortgage (provided that costs and expenses incurred
by Maker to Affiliates shall not exceed commercially reasonable amounts), and
all reserves established by Maker in such year.
"Net Property Value" shall mean the amount by which (i) the
Appraised Value exceeds (ii) the sum of (a) the then outstanding amount of the
First Mortgage, (b) the aggregate costs which would have been incurred by Maker
if the Property were sold for the Appraised Value and (c) an amount equal to the
unpaid costs and expenses of Maker incurred in connection with the Property
(provided that costs and expenses incurred by Maker to Affiliates shall not
exceed commercially reasonable amounts).
"Net Sale Proceeds" shall mean the amount by which (i) the
gross proceeds of an Unrelated Sale exceeds (ii) the sum of (a) the amount paid
in reduction of the First Mortgage in connection with such transaction, (b) the
aggregate costs incurred by Maker in connection with such transaction (provided
that costs incurred by Maker to Affiliates shall not exceed commercially
reasonable amounts) and (c) any portion of such proceeds applied to unpaid costs
and expenses of Maker incurred in connection with the Property (provided that
costs and expenses incurred by Maker to Affiliates shall not exceed commercially
reasonable amounts).
"New Funds" shall mean $330,000 composed of (i) $310,000
advanced by Payee to Maker simultaneously with the execution and delivery of
this Note which, together with the Maker Funds, have been used by Maker to cause
the Second Mortgage to be satisfied and released from the Property, and (ii)
$20,000 of legal and other expense incurred by Xxxxx in connection with the
execution and delivery of this Note.
"New Funds Rate" shall mean the rate of twelve percent (12%)
per annum.
"Notice of Dispute" shall have the meaning set forth in
paragraph 16(b) below.
"Old Debt" shall mean $500,000 of the outstanding principal
amount of the Original Note.
"Old Debt Rate" shall mean seven percent (7%) per annum.
"Old Debt Repayment Participation Interest Amount" shall mean
fifty percent (50%) of the amount (but only if a positive number) by which the
Net Property Value exceeds the sum of (i) an amount equal to the outstanding New
Funds and unpaid interest accrued thereon on the date of the subject
Participation Interest Event, (ii) an amount equal to the outstanding Maker
Funds and Maker Funds Interest (i.e., Maker Funds and Maker Funds Interest less
the aggregate amount retained by Maker pursuant to the provisions of this Note
in respect thereof (net of all payments made by Maker pursuant to the provisions
of paragraph 10 below, if any)), and (iii) an amount equal to 200% of the
outstanding Old Debt and unpaid interest accrued thereon immediately prior to
the subject Participation Interest Event.
"Participation Interest" shall mean additional interest
payable pursuant to paragraph 7, if any.
"Participation Interest Event" shall mean the earliest to
occur of (i) the date of an Unrelated Sale, (ii) the date upon which the entire
unpaid balance of New Funds and unpaid interest accrued thereon, and the entire
unpaid balance of Old Debt and unpaid interest accrued thereon, are repaid in
full, and (iii) the Maturity Date.
"Property" shall mean that certain property owned by Maker
known as the Pike Creek Shopping Center, Mill Creek Hundred, New Castle County,
Delaware and more particularly described on Exhibit A attached hereto;
"Refinancing" shall mean an amendment, modification,
extension, replacement or refinancing of the First Mortgage.
"Refinancing Proceeds" shall mean the amount by which (i) the
gross proceeds of a Refinancing or Related Sale, as the case may be, exceeds
(ii) the sum of (a) the amount paid in reduction of the First Mortgage in
connection with such transaction, (b) the aggregate costs incurred by Maker in
connection with such transaction (provided that costs incurred by Maker to
Affiliates shall not exceed commercially reasonable amounts), (c) any portion of
such proceeds applied to the payment of costs and expenses of Maker incurred in
connection with the Property (provided that costs and expenses incurred by Maker
to Affiliates shall not exceed commercially reasonable amounts), and (d) any
reserves established by Maker from such proceeds.
"Related Sale" shall mean (i) a sale, conveyance,
sale-leaseback or other transfer of all or any portion of the Property to an
Affiliate, (ii) a sale, conveyance, sale-leaseback or other transfer of a
portion, but not all, of the Property to an entity which is not an Affiliate, or
(iii) a transfer of all of the partnership interests in Maker to an Affiliate.
It shall be a condition to a Related Sale to an Affiliate that the Affiliate to
which all or any portion of the Property (or all of the partnership interests in
Maker, as the case may be) is transferred agrees to be bound by the terms and
conditions of this Note.
"Second Mortgage" shall mean the second priority mortgage
formerly encumbering the Property held by X. Xxxxxx Xxxx and New Potomac
Associates, Ltd.
"Unrelated Sale" shall mean a sale, conveyance, sale-leaseback
or other transfer of all of the Property to an entity which is not an Affiliate,
or a transfer of all of the partnership interests in Maker to an entity which is
not an Affiliate.
"Unrelated Sale Participation Interest Amount" shall mean
fifty percent (50%) of the amount (but only if a positive number) by which the
Net Sale Proceeds exceed the sum of (i) payments to Payee from such Net Sale
Proceeds pursuant to paragraph 5(a) below in respect of outstanding New Funds
and unpaid interest accrued thereon, (ii) amounts retained by Maker from such
Net Sale Proceeds pursuant to paragraph 5(a) below in respect of the Maker Funds
and unpaid Maker Funds Interest (net of payments to be made by Maker pursuant to
the provisions of paragraph 10 below, if any); and (iii) an amount equal to 200%
of the outstanding Old Debt and unpaid interest accrued thereon immediately
prior to the Unrelated Sale.
"Write Down Amount" shall mean $2,707,912.63, composed of (i)
the outstanding principal amount of the Original Note in excess of $500,000 and
(ii) all unpaid interest accrued on the principal amount of the Original Note.
1. (a) The principal amount of this Note consists of the Old
Debt and the New Funds.
(b) Payee hereby waives its right to receive, and hereby
forgives, (i) the outstanding principal amount of the Original Note in excess of
$500,000 and (ii) all unpaid interest accrued on the principal amount of the
Original Note. The provisions of this paragraph 1(b) are not intended to, and
shall not, prevent Payee from receiving, in accordance with the provisions
hereof, up to the maximum amount set forth in paragraph 9 below.
2. (a) Interest shall accrue on the outstanding balance of the
New Funds from the date hereof at the New Funds Rate, compounded annually.
(b) Interest shall accrue on the outstanding balance of the
Old Debt from the date hereof at the Old Debt Rate, compounded annually.
3. (a) On March 31st of each year, Available New Funds Cash
Flow with respect to the preceding calendar year shall be paid to Payee and
applied in reduction of the outstanding New Funds and unpaid interest accrued
thereon until the entire amount of the New Funds and all unpaid interest accrued
thereon have been paid in full. To the extent that such payments of Available
New Funds Cash Flow to Payee are insufficient to pay in full interest accrued on
the New Funds, payment of the unpaid interest shall be deferred and the unpaid
interest shall be added annually to the principal balance of the New Funds. Net
Cash Flow in excess of Available New Funds Cash Flow shall be retained by Maker
pursuant to this paragraph 3(a) and, subject to the provisions of paragraph 10
below, applied to the then outstanding Maker Funds and Maker Funds Interest
until Maker has retained, from Net Cash Flow, Refinancing Proceeds and/or Net
Sale Proceeds, an aggregate amount (net of payments to be made by Maker pursuant
to the provisions of paragraph 10 below, if any) equal to the Maker Funds and
Maker Funds Interest. It is intended that Net Cash Flow be shared by Payee and
Maker (net of payments to be made by Maker pursuant to the provisions of
paragraph 10 below, if any), on a pari passu basis in the ratio of 20.99% to
Payee and 79.01% to Maker, until (i) the entire amount of the New Funds and all
unpaid interest accrued thereon have been paid in full to Payee pursuant to the
provisions of this Note and (ii) the entire amount of the Maker Funds and Maker
Funds Interest have been retained by Maker (net of payments to be made by Maker
pursuant to the provisions of paragraph 10 below) pursuant to the provisions of
this Note.
(b) On March 31st of each year, Available Old Debt Cash
Flow with respect to the preceding calendar year shall be paid to Payee and
applied in reduction of the outstanding Old Debt and unpaid interest accrued
thereon until the entire amount of the Old Debt and all unpaid interest accrued
thereon have been paid in full, provided that no payments in respect of the
outstanding Old Debt and unpaid interest accrued thereon shall be payable until
the entire amount of the New Funds and all unpaid interest accrued thereon have
been paid in full (it being intended that payment of Available Old Debt Cash
Flow pursuant to this paragraph 3(b) shall not occur until after the payment and
application of funds pursuant to paragraph 3(a) above). To the extent that such
payments of Available Old Debt Cash Flow to Payee are insufficient to pay in
full interest accrued on the Old Debt, payment of the unpaid interest shall be
deferred and the unpaid interest shall be added annually to the principal
balance of the Old Debt. Subject to the payment of (i) Available New Funds Cash
Flow pursuant to the provisions of paragraph 3(a) above, (ii) Participation
Interest pursuant to the provisions of paragraph 7(a) below and (iii) payments
in respect of the Consulting Fee pursuant to the provisions of paragraph 10
below, Net Cash Flow in excess of Available Old Debt Cash Flow shall be retained
by Maker.
4. (a) Simultaneously with and as a condition to each
Refinancing and each Related Sale which occurs on or prior to the date of a
Participation Interest Event, Available New Funds Refinancing Proceeds shall be
paid to Payee and applied in reduction of the outstanding New Funds and unpaid
interest accrued thereon until the entire amount of the New Funds and all unpaid
interest accrued thereon have been paid in full. Refinancing Proceeds in excess
of Available New Funds Refinancing Proceeds shall be retained by Maker pursuant
to this paragraph 4(a) and, subject to the provisions of paragraph 10 below,
applied to the then outstanding Maker Funds and Maker Funds Interest until Maker
has retained, from Net Cash Flow, Refinancing Proceeds, and/or Net Sale
Proceeds, an aggregate amount (net of payments to be made by Maker pursuant to
the provisions of paragraph 10 below, if any) equal to the Maker Funds and Maker
Funds Interest. It is intended that Refinancing Proceeds be shared by Payee and
Maker (net of payments to be made by Maker pursuant to the provisions of
paragraph 10 below), on a pari passu basis in the ratio of 20.99% to Payee and
79.01% to Maker, until (i) the entire amount of the New Funds and all unpaid
interest accrued thereon have been paid in full to Payee pursuant to the
provisions of this Note and (ii) the entire amount of the Maker Funds and Maker
Funds Interest have been retained by Maker (net of payments to be made by Maker
pursuant to the provisions of paragraph 10 below) pursuant to the provisions of
this Note.
(b) Simultaneously with and as a condition to each
Refinancing and each Related Sale which occurs on or prior to the date of a
Participation Interest Event, Available Old Debt Refinancing Proceeds shall be
paid to Payee and applied in reduction of the outstanding Old Debt and unpaid
interest accrued thereon until the entire amount of the Old Debt and all unpaid
interest accrued thereon have been paid in full; provided that no payments in
respect of the outstanding Old Debt and unpaid interest accrued thereon shall be
payable until the entire amount of the New Funds and all unpaid interest accrued
thereon have been paid in full (it being intended that payment of Available Old
Debt Refinancing Proceeds pursuant to this paragraph 4(b) shall not occur until
after the payment and application of funds pursuant to paragraph 4(a) above).
Subject to the payment of (i) Available New Funds Refinancing Proceeds pursuant
to the provisions of paragraph 4(a) above, (ii) Participation Interest pursuant
to the provisions of paragraph 7(a) below and (iii) payments in respect of the
Consulting Fee pursuant to the provisions of paragraph 10 below, Refinancing
Proceeds in excess of Available Old Debt Refinancing Proceeds shall be retained
by Maker.
(c) Simultaneously with and as a condition to each
Refinancing and each Related Sale which occurs on or prior to the date of a
Participation Interest Event, Participation Interest, if any, payable pursuant
to paragraph 7(a) shall be paid by Maker to Payee.
5. (a) Simultaneously with and as a condition to an Unrelated
Sale, Available New Funds Unrelated Sale Proceeds shall be paid to Payee until
the entire amount of the New Funds and all unpaid interest accrued thereon have
been paid in full. Net Sale Proceeds in excess of Available New Funds Unrelated
Sale Proceeds shall be retained by Maker pursuant to this paragraph 5(a) and,
subject to the provisions of paragraph 10 below, applied to the then outstanding
Maker Funds and Maker Funds Interest until Maker has retained, from Net Cash
Flow, Refinancing Proceeds and/or Net Sale Proceeds, an aggregate amount equal
to the Maker Funds and Maker Funds Interest. It is intended that Net Sale
Proceeds be shared by Payee and Maker (net of payments to be made by Maker
pursuant to the provisions of paragraph 10 below), on a pari passu basis in the
ratio of 20.99% to Payee and 79.01% to Maker, until (i) the entire amount of the
New Funds and all unpaid interest accrued thereon have been paid in full to
Payee pursuant to the provisions of this Note and (ii) the entire amount of the
Maker Funds and Maker Funds Interest have been retained by Maker (net of
payments to be made by Maker pursuant to the provisions of paragraph 10 below)
pursuant to the provisions of this Note.
(b) Simultaneously with and as a condition to an Unrelated
Sale, Available Old Debt Unrelated Sale Proceeds shall be paid to Payee until
the entire amount of the Old Debt and all unpaid interest accrued thereon have
been paid in full.
(c) Simultaneously with and as a condition to an Unrelated
Sale, Participation Interest, if any, payable pursuant to paragraph 7(b) shall
be paid by Maker to Payee.
(d) If, upon consummation of an Unrelated Sale, (i)
Available New Funds Unrelated Sale Proceeds are insufficient to pay in full the
entire amount of the New Funds and all unpaid interest accrued thereon, or (ii)
Available Old Debt Unrelated Sale Proceeds are insufficient to pay in full the
entire amount of the Old Debt and all unpaid interest accrued thereon, then the
provisions of paragraph 8 shall be applicable.
6. The entire unpaid balance of New Funds and unpaid interest
accrued thereon, and the entire unpaid balance of Old Debt and unpaid interest
accrued thereon, and any Participation Interest payable on the Maturity Date
pursuant to paragraph 7(c), shall be due and payable in full on the Maturity
Date. If Maker has insufficient funds on the Maturity Date to pay the entire
unpaid balance of New Funds and unpaid interest accrued thereon, and the entire
unpaid balance of Old Debt and unpaid interest accrued thereon, and any
Participation Interest payable on the Maturity Date pursuant to paragraph 7(c),
then the provisions of paragraph 8 shall be applicable.
7. Participation Interest, if any, shall be payable by Maker
to Payee subject to the following terms and conditions:
(a) Simultaneously with and as a condition to each
Refinancing and each Related Sale which occurs on or prior to the date of a
Participation Interest Event, Participation Interest shall be payable in an
amount, if any, equal to the amount by which (i) Available Old Debt Refinancing
Proceeds exceeds (ii) the then outstanding Old Debt and unpaid interest accrued
thereon.
(b) Simultaneously with and as a condition to an Unrelated
Sale, Participation Interest shall be payable in an amount, if any, equal to the
Unrelated Sale Participation Interest Amount.
(c) If, prior to the consummation of an Unrelated Sale, (i)
the Maturity Date occurs or (ii) the entire unpaid balance of the Old Debt and
unpaid interest accrued thereon is paid in full, Participation Interest shall be
payable (on the Maturity Date or on the date that the entire unpaid balance of
Old Debt and unpaid interest accrued thereon is paid in full, as the case may
be) in an amount, if any, equal to the Old Debt Repayment Participation Interest
Amount.
8. In the event that:
(a) upon consummation of an Unrelated Sale or the
occurrence of the Maturity Date, Maker has insufficient funds to pay in full, in
accordance with the provisions of this Note, (i) the entire unpaid balance of
the New Funds and unpaid interest accrued thereon, and/or (ii) the entire unpaid
balance of the Old Debt and unpaid interest accrued thereon, and/or
(b) prior to the consummation of an Unrelated Sale, (i) the
Maturity Date occurs or the entire unpaid balance of Old Debt and unpaid
interest accrued thereon is paid in full, and (ii) Maker has insufficient funds
to pay the Old Debt Repayment Participation Interest Amount,
then, Maker shall be permitted to pay any such deficiency with
respect to unpaid New Funds and unpaid interest thereon and/or unpaid Old Debt
and unpaid interest thereon and/or unpaid Participation Interest payable
pursuant to paragraph 7(c) (any such deficiency or deficiencies are collectively
referred to as the "Deferred Portion") over the succeeding ten (10) year period
in monthly installments sufficient to fully amortize the unpaid balance of the
Deferred Portion, together with interest on the Deferred Portion (i) at the New
Funds Rate with respect to any amount of the Deferred Portion that constitutes
unpaid New Funds and/or unpaid interest thereon, and (ii) at the Old Debt Rate
with respect to any other amount of the Deferred Portion; provided however that
the Deferred Portion shall be due and payable and must be paid in full upon any
subsequent sale or refinancing of the Property by Maker. Maker's obligation to
pay the Deferred Portion shall be an unsecured obligation of Maker enforceable
against any property of Maker, but not against any partner of Maker.
9. Anything herein to the contrary notwithstanding, in no
event shall Maker be obligated to pay to Payee hereunder an aggregate amount
greater than the sum of (i) the New Funds, together with interest accrued
thereon at the New Funds Rate, compounded annually, as provided above, (ii) the
Old Debt, together with interest accrued thereon on the Old Debt Rate,
compounded annually, as provided above, and (iii) the Write-Down Amount,
together with interest accrued thereon from and after the date hereof at the Old
Debt Rate, compounded annually.
10. Maker agrees that, until the Consulting Fee has been paid
in full, Maker shall promptly pay to the Consultant in respect of the Consulting
Fee (i) 8.4659% of Net Cash Flow retained by Maker pursuant to the provisions of
paragraph 3(a) above, (ii) 8.4659% of Refinancing Proceeds retained by Maker
pursuant to the provisions of paragraph 4(a) above, and (iii) 8.4659% of Net
Sale Proceeds retained by Maker pursuant to the provisions of paragraph 5(a)
above. Maker shall provide to Payee evidence of the payments required to be made
to the Consultant pursuant to this paragraph 10 contemporaneously with such
payments (which evidence may consist of a copy of the transmittal letter and
check sent to the Consultant with any such payment).
11.(a) All payments hereunder in respect of the New Funds and
interest accrued thereon shall first be applied to interest and then to the
reduction of principal.
(b) All payments hereunder in respect of the Old Debt and
interest accrued thereon shall first be applied to interest and then to the
reduction of principal.
(c) All amounts retained hereunder by Maker in respect of
the Maker Funds and Maker Funds Interest (net of payments to be made by Maker
pursuant to the provisions of paragraph 10 above) shall first be applied in
reduction of the outstanding amount of Maker Funds Interest and then to the
reduction of the outstanding amount of Maker Funds.
12.(a) Maker agrees that it shall engage in no business other
than the acquisition, construction, operation, management, financing, selling,
leasing or other disposition of the Property or any portion thereof.
(b) Maker agrees that it shall not enter into a Related
Sale with an Affiliate without the prior written consent of Xxxxx.
(c) Maker agrees that is shall not enter into a Refinancing
with an Affiliate prior to the ninetieth (90th) day preceding the maturity date
of the First Mortgage unless the terms of such Refinancing are not materially
different than, or are more favorable to Maker than, the terms of the First
Mortgage.
(d) Maker agrees that is shall not enter into a Refinancing
with an Affiliate on or after the ninetieth (90th) day preceding the maturity
date of the First Mortgage unless (i) the terms of such Refinancing are
commercially reasonable and (ii) comparable or more favorable terms are not
available from an unaffiliated lender.
(e) Maker shall not enter into a Refinancing prior to
August 1, 2016 without the prior written consent of Payee if the Refinancing
Proceeds therefrom would exceed an amount equal to the aggregate of the
following on the date of the Refinancing: (i) the outstanding New Funds and
unpaid interest accrued thereon, (ii) the outstanding Maker Funds and Maker
Funds Interest (i.e., Maker Funds and Maker Funds Interest less the aggregate
amount retained by Maker pursuant to the provisions of this Note in respect
thereof (net of payments to be made by Maker pursuant to the provisions of
paragraph 10 above)), (iii) the outstanding Consulting Fee, and (iv) the
outstanding Old Debt and unpaid interest accrued thereon. The provisions of this
paragraph 12(d) shall not be applicable if Maker pays to Payee the Maximum
Payment in full satisfaction of this Note.
(f) After (i) the entire amount of the New Funds and all
unpaid interest accrued thereon have been paid in full to Payee pursuant to the
provisions of this Note and (ii) the entire amount of the Maker Funds and Maker
Funds Interest (net of payments to be made by Maker pursuant to the provisions
of paragraph 10 above) have been retained by Maker pursuant to the provisions of
this Note, Maker shall not, prior to August 1, 2016, enter into a Refinancing or
an Unrelated Sale, or incur any indebtedness for borrowed money (including both
unsecured debt and debt secured by the Property), without the prior written
consent of Payee, which consent shall not be unreasonably withheld, delayed or
conditioned. The provisions of this paragraph 12(e) shall not be applicable if
Maker pays to Payee the Maximum Payment in full satisfaction of this Note.
13. In the event Maker fails to make when due in accordance
with this Note any payment in respect of (i) the New Funds or interest thereon,
(ii) the Old Debt or interest thereon, or (iii) Participation Interest, and such
failure continues without cure for (10) days after notice thereof from Payee to
Maker, Payee may proceed to exercise any rights or remedies that it may have
under this Note or such other rights and remedies which Payee may have at law,
in equity or otherwise. The election of any one or more remedies by Payee shall
not preclude Payee from exercising any other remedy it may have at law or in
equity.
14. Maker, for itself and its successors and assigns, hereby
waives presentment, protest, demand, diligence, notice of dishonor and of
nonpayment (except to the extent that notice is required to be given to Maker
under the terms of this Note), and waives and renounces all rights to the
benefits of any moratorium, appraisement, and exemption now provid ed or which
may hereafter be provided by any federal or state statute, including but not
limited to exemptions provided by or allowed under federal or state bankruptcy
or insolvency laws, both as to itself and as to all of its property securing
payment of the loan, whether real or personal, against the enforcement and
collection of the obligations evidenced by this Note and any and all extensions,
renewals and modifications hereof.
15. It is the intention of the parties to conform strictly to
the usury laws from time to time in force, and all agreements between Maker and
Payee, whether now existing or hereafter arising and whether oral or written,
are hereby expressly limited so that in no contingency or event whatsoever,
whether by acceleration of maturity hereof or otherwise, shall the amount paid
or agreed to be paid to Payee, or collected by Payee or for the use, forbearance
or detention of the money to be loaned hereunder or otherwise, or for the
payment or performance of any covenant or obligation contained herein, or in any
other document evidencing or pertaining to the indebtedness evidenced hereby,
exceed the maximum amount permissible under applicable usury laws. If under any
circumstances whatsoever fulfillment of any provision hereof or any other
document, at the time performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by law, then the obligation to be
fulfilled shall be reduced to the limit of such validity; and if under any
circumstances Payee shall ever receive an amount deemed interest, by applicable
law, which would exceed the highest lawful rate, such amount that would be
excessive interest under applicable usury laws shall be applied to the reduction
of the principal amount owing hereunder and not to the payment of interest, or
if such excessive interest exceeds the unpaid balance of principal of this Note,
and such other indebtedness, the excess shall be deemed to have been a payment
made by mistake and shall be refunded to Maker or to any other person making
such payment on Maker's behalf. For the purposes of calculating the actual
amount of interest paid and/or payable hereunder, in respect of laws pertaining
to usury, all sums paid or agreed to be paid to the holder hereof for the use,
forbearance or detention of the indebtedness of Maker evidenced hereby,
outstanding from time to time shall, to the extent permitted by applicable law,
be amortized, prorated, allocated and spread from the date of disbursement of
the proceeds of this Note until payment in full of such indebtedness so that the
actual rate of interest on account of such indebtedness is uniform through the
term hereof. The terms and provisions of this paragraph shall control and
supersede every other provision of all agreements between Maker, any enforcer or
guarantor and Payee.
16. (a) Notwithstanding anything to the contrary contained in
this Note or any other document or certificate delivered by Maker in connection
with the loan evidenced hereby (each, a "Certificate"), except as expressly
provided in paragraph 16(b) below, no partner (limited or general) in Maker, nor
any legal representative, heir, estate, successor or assign of any such partner,
nor any partner, officer, director, shareholder or employee of any such partner,
nor any other principal in Maker, disclosed or undisclosed, shall have any
personal liability for (i) the payment of any sum that is or that may be payable
hereunder, or any Certificate, or (ii) the performance or discharge of any
covenants or undertakings of Maker hereunder, or under any Certificate, or (iii)
any claim based on, arising under or otherwise in respect of this Note or any
Certificate. In no event shall Payee seek or obtain a judgment against any
person or party hereinabove referred to as being exculpated from personal
liability, or seek or obtain any attachment, execution or other writ upon any
assets, properties or funds of Maker or such other person or party except for
the Property.
(b) As long as any amounts remain outstanding under this
Note, Maker shall provide notice to Payee (a "Distribution Notice") of any
proposed distribution of funds by Maker to its partners (a "Distribution"). A
Distribution Notice shall set forth (i) the aggregate amount proposed to be
distributed by Maker to its partners and (ii) the amount due and payable by
Maker to Payee pursuant to this Note on or about the date of the Distribution
described in the Distribution Notice. If (A) Maker makes a Distribution without
providing Payee with a Distribution Notice, or (B) Maker makes a Distribution
sooner than ten (10) business days after Payee's receipt of a Distribution
Notice, or (C) Maker makes Distribution in an amount greater than the amount set
forth in the Distribution Notice provided to Payee, or (D) Payee notifies Maker
in writing (a "Notice of Dispute") within ten (10) business days of Payee's
receipt of a Distribution Notice that Payee disputes the amount described in the
Distribution Notice as due and payable by Maker to Payee pursuant to this Note
on or about the date of the proposed Distribution, and Maker makes the
Distribution described in the Distribution Notice notwithstanding receipt of
such Notice of Dispute, then, in the case of any of the events described in
clauses (A), (B), (C) or (D), the general partner of Maker on the date of the
Distribution (but not any predecessor general partner or any individual partner
of the general partner) shall be personally liable to Payee for an amount equal
to the lesser of (i) the amount of such Distribution, and (ii) the amount, if
any, by which the amount due and payable by Maker to Payee pursuant to this Note
on or about the date of such Distribution exceeds the amount of any payment made
by Maker to Payee on or about the date of such Distribution.
17. (a) All notices and other communications hereunder shall
be in writing and shall be sent to the parties hereto at their respective
business addresses first hereinabove given (or at such other address or
addresses as any party shall hereafter designate by written notice). A copy of
any notice to Maker shall be sent to Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP, 1585
Broadway, New York, New York 10036, Attention: Xxxxx X. Xxxxxx, Esq. A copy of
any notice to Xxxxx shall be sent to Xxxxxxxxx, Xxxxxxx, Xxxxxxx, Xxxxxx, Xxxxx
& Xxxxxxx, 000 Xxxx 00xx Xxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxx, Esq. To be effective, any notice addressed as aforesaid
must be (1) delivered by hand with receipt acknowledged in writing, or (2) sent
by overnight mail by a nationally recognized courier guaranteeing overnight
delivery such as Federal Express. Any notice sent as aforesaid shall be
effective upon receipt or upon the intended recipient's refusal to accept
delivery.
(b) Maker agrees to provide to Payee copies of all
financial statements required to be provided to the holder of the First Mortgage
in accordance with the provisions of Section 7.1 of the Loan Agreement between
Maker and General Electric Capital Corporation dated as of November 20, 1996.
18. This Note shall be governed by and construed according to
the laws of the State of New York. Maker hereby submits to personal jurisdiction
in said State for the enforcement of Maker's obligations hereunder and under all
other documents executed by Maker in connection with the loan and waives any and
all personal rights under the law of any other state to object to jurisdiction
within such State for the purposes of litigation to enforce such obligations of
Maker.
19. This Note may not be changed or terminated orally, but
only by an agreement in writing signed by the party against whom enforcement of
such change or termination is sought.
20. The relationship between Maker and Payee is, and at all
times shall remain, solely that of debtor and creditor. No covenant or provision
of this Note is intended, nor shall it be deemed or construed, to create a
partnership, joint venture, agency or common interest in profits or income
between Maker and Payee or to create an equity in the Property in Payee.
21. This Note is subordinated to the rights of the holder of
the First Mortgage pursuant to a certain Subordination Agreement dated as of
November 20, 1996 between Payee and General Electric Capital Corporation.
IN WITNESS WHEREOF, Maker and Xxxxx have duly executed this
Amended and Restated Note as of the day and year first above written.
BIG VALLEY ASSOCIATES LIMITED PARTNERSHIP
By: Fivzar Associates, General Partner
By: Fivzar I Limited Partnership,
General Partner
By: Fivzar Corp., General Partner
By: /s/
---------------------
Name:
Title: Presidenet
RESOURCES ACCRUED MORTGAGE INVESTORS L.P. -
SERIES 86
By: Resources Capital Corp.,
Administrative General Partner
By: /s/Xxxx X. Xxxxxxxx
-----------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
