EXHIBIT 10.32
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER REGULATION D PROMULGATED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION OR EXCLUSION FROM
THE REGISTRATION REQUIREMENTS THEREUNDER AND IN COMPLIANCE WITH APPLICABLE STATE
SECURITIES LAWS.
THIS NOTE IS SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER SET FORTH IN A NOTE
PURCHASE AGREEMENT DATED JULY __, 1999, BETWEEN THE COMPANY AND THE ORIGINAL
HOLDER HEREOF. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF
THE COMPANY.
SENIOR PARTICIPATING NOTE
$ XXXXXX, XXXXX , 0000
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For value received, the undersigned, MERIDIAN MULTI-FAMILY INVESTORS
99-IV, L.P., a Texas limited partnership (hereinafter called "Maker"), promises
to pay unto the order of _______________________________________________
(hereinafter called "Purchaser"), the sum of _____________________________ AND
NO/100 DOLLARS ($_______________) (or such lesser amount as shall equal the
aggregate unpaid principal amount of the Notes acquired by Purchasers from the
Maker under the Note Purchase Agreement referred to below) in lawful money of
the United States of America and in immediately available funds, on the dates
and in the principal amounts provided in the Note Purchase Agreement, and to pay
interest on the unpaid principal amount of each such Note, in like money and
funds, for the period commencing on the date of such Note until such Note shall
be paid in full at the rates per annum and on the dates provided in the Note
Purchase Agreement.
The date and amount of each payment made on account of the principal of
this Note shall be recorded by the Purchaser on its books and, prior to any
transfer of this Note, endorsed by the Purchaser on the schedule attached hereto
or any continuation thereof, provided that the failure of the Purchaser to make
any such recordation or endorsement shall not affect the obligations of the
Maker to make a payment when due of any amount owing under the Note Purchase
Agreement or hereunder in respecting of the loans made by the Purchaser.
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This Note is one of the Senior Participating Notes referred to in the
Note Purchase Agreement dated as of _________________________, 1999 (as modified
and supplemented and in effect from time to time, the "Note Purchase Agreement")
among the Maker, the Purchasers and Xxxxxx, Xxxxxxx & Mock, P.C., as Agent.
Terms used but not defined in this Note have the respective meanings assigned to
them in the Note Purchase Agreement.
The Note Purchase Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and upon the terms
and conditions specified therein.
Pursuant to the terms of the Note Purchase Agreement, upon the
consummation of the sale, other disposition or refinancing of the Property (as
defined in the Note Purchase Agreement), the Net Proceeds (as defined in the
Note Purchase Agreement) of such sale, disposition or refinancing shall be
distributed by the Property Owner to its members in accordance with its
membership agreement. Upon receipt by the Maker of its portion of such Net
Proceeds, the Maker shall disburse such Net Proceeds as follows: (i) first, the
Maker shall repay in full the remaining unpaid principal amount of the Notes
plus all accrued but unpaid interest thereon, (ii) next, the Maker shall repay
to all of its partners the amount of such partners' capital invested in the
Maker, in accordance with the Makers partnership agreement, (iii) of the
remaining amount, the Maker shall distribute 30% of such amount (the "Payout")
to the Purchasers (including the holder of this Note), pro rata according to
their respective ownership of Notes, and (iv) finally, the Maker shall
distribute any remaining amounts to its partners in accordance with the Maker's
partnership agreement.
It is the intent of Purchaser and Maker in the execution of this Note
and all other Loan Documents to contract in strict compliance with applicable
usury law. In furtherance thereof Purchaser and Maker stipulate and agree that
none of the terms and provisions contained herein or in any other Loan Document
shall ever be construed to create a contract to pay for the use, forbearance or
detention of money, interest at a rate in excess of the Maximum Rate. Neither
Maker nor any co-makers, endorsers, sureties, guarantors or other parties now or
hereafter becoming liable for payment of this Note shall ever be required to pay
interest or finance charges at a rate in excess of the Maximum Rate, and the
provisions of this paragraph shall control over all other provisions of this
Note and any other Loan Document which may be in apparent conflict herewith.
Purchaser and any other holder of this Note expressly disavow any intention to
charge or collect excessive unearned interest or finance charges in the event
the maturity of this Note is accelerated. If demand is made or if the maturity
of this Note shall be accelerated for any reason or if any of the principal of
this Note is prepaid, and as a result thereof the interest or finance charge
received for the actual period of existence of the loan evidenced by this Note
exceeds the Maximum Rate, the holder of this Note shall, at its option, either
refund to Maker the amount of such excess or credit the amount of such excess
against the principal balance of this Note then outstanding, and thereby shall
render inapplicable any and all penalties of any kind provided by applicable law
as a result of such excess interest. In the event that Purchaser or any other
holder of this Note shall collect monies and/or any other thing of value which
are deemed to constitute interest which would increase the effective interest
rate on this Note to a rate in excess of the Maximum Rate, all such sums deemed
to constitute interest in excess of the lawful rate shall, upon such
determination, at the option of the holder of this Note, be either immediately
returned to Maker or credited against the principal balance of this Note then
outstanding, in which event any and all penalties of any kind under applicable
law as a result of such excess interest shall be
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inapplicable. In determining whether or not the interest paid or payable, under
any specific circumstance, exceeds the maximum amount permitted under applicable
law, Purchaser and Maker shall to the greatest extent permitted by applicable
law, (i) characterize any non-principal payment as an expense, fee or premium
rather than as interest, (ii) exclude voluntary prepayments and the effects
thereof and (iii) amortize, prorate, allocate and spread the total amount of
interest throughout the entire contemplated term hereof in accordance with the
amounts outstanding from time to time thereunder and the Maximum Rate from time
to time in effect under applicable law in order to lawfully charge the maximum
amount of interest permitted under applicable law. By execution of this Note,
Maker acknowledges that it believes the loan evidenced hereby to be
non-usurious.
This Note shall be governed by, and construed in accordance with, the
applicable laws of the United States of America and the substantive laws of the
State of Texas. To the extent that Chapter 303 of the Texas Finance Code is
applicable to this Note, the "weekly ceiling" specified in Chapter 303 is the
applicable ceiling, provided that, if any applicable law permits greater
interest, the law permitting the greater interest shall apply.
THIS WRITTEN NOTE, THE NOTE PURCHASE AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.
EXECUTED as of the date first written above.
Meridian Multi-Family Investors 99-IV,
L.P.
By: Meridian Equity Investors, L.P., its
general partner
By: Meridian Equities, Inc., its general
partner
By:
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Name:
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Title:
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