EXHIBIT (b)(14)
PROMISSORY NOTE
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U.S. $1,425,000.00 December 1, 2000
FOR VALUE RECEIVED, and at the times hereinafter specified, N'TANDEM
PROPERTIES, L.P., a Delaware limited partnership ("Maker"), whose address is
0000 Xxxxx Xxxxxxxx Xxx, Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000, hereby promises to
pay to the order of ANCHOR NATIONAL LIFE INSURANCE COMPANY, an Arizona
corporation (hereinafter referred to, together with each subsequent holder
hereof, as "Holder"), at 1 SunAmerica Center, Century City, Los Angeles,
California 90067-6022, or at such other address as may be designated from time
to time hereafter by any Holder, the principal sum of ONE MILLION FOUR HUNDRED
TWENTY-FIVE THOUSAND AND NO/100THS DOLLARS ($1,425,000.00), together with
interest on the principal balance outstanding from time to time, as hereinafter
provided, in lawful money of the United States of America.
By its execution and delivery of this promissory note (this "Note"),
Maker covenants and agrees as follows:
1. Interest Rate and Payments.
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(a) The balance of principal outstanding from time to time under
this Note shall bear interest at the rate of seven and sixty-three one-
hundredths percent (7.63%) per annum (the "Original Interest Rate"), computed on
the basis of a three hundred sixty (360) day year for the actual number of days
elapsed.
(b) Interest only shall be payable on the date the loan
evidenced by this Note (the "Loan") is funded by Xxxxxx, in advance, for the
period from and including the date of funding through and including December 31,
2000.
(c) Commencing on February 1, 2001 and on the first day of each
month thereafter through and including December 1, 2005 combined payments of
principal and interest shall be payable, in arrears, in the amount of $10,090.96
each (such amount representing an amount that would be sufficient to fully
amortize the original principal amount of this Note over a thirty (30) year
period (the "Amortization Period"), if such amortization were based on a three
hundred sixty (360) day year composed of twelve (12) months of thirty (30) days
each).
(d) The entire outstanding principal balance, together with all
accrued and unpaid interest and all other sums due hereunder, shall be due and
payable in full on January 1, 2006 (the "Original Maturity Date").
2. Holder's Extension Option; Net Operating Income.
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(a) If Maker shall fail to pay the outstanding principal balance
of this Note and all accrued interest and other charges due hereon at the
Original Maturity Date, Holder shall have the right, at Holder's sole option and
discretion, to extend the term of
the Loan for an additional period of five (5) years (the "Extension Term"). If
Holder elects to extend the term of the Loan, Maker shall pay all fees of Holder
incurred in connection with such extension, including, but not limited to,
attorneys' fees and title insurance premiums. Maker shall execute all documents
reasonably requested by Xxxxxx to evidence and secure the Loan, as extended, and
shall obtain and provide to Holder any title insurance policy or endorsement
requested by Xxxxxx.
(b) Should Holder elect to extend the term of the Loan as
provided above, Holder shall (i) reset the interest rate borne by the then-
existing principal balance of the Loan to a rate per annum (the "New Rate")
equal to the greater of (A) the Original Interest Rate, or (B) Holder's (or
comparable lenders', if Holder is no longer making such loans) then-prevailing
interest rate for five (5) year loans secured by properties similar to the
Property, as determined by Holder in its sole discretion; (ii) re-amortize the
then-existing principal balance of the Loan over the remaining portion of the
Amortization Period (the "New Amortization Period"); (iii) have the right to
require Maker to enter into modifications of the non-economic terms of the Loan
Documents as Holder may request (the "Non-Economic Modifications"); and (iv)
notwithstanding any provision set forth in the Loan Documents to the contrary,
have the right to require Maker to make monthly payments into escrow for
insurance premiums and real property taxes, assessments and similar governmental
charges. Hence, monthly principal and interest payments during the Extension
Term shall be based upon the New Rate, in an amount that would be sufficient to
fully amortize the outstanding principal balance of the Loan over the New
Amortization Period, if such amortization were based on a three hundred sixty
(360) day year composed of twelve (12) months of thirty (30) days each.
(c) If Holder elects to extend the term of the Loan, Holder
shall advise Maker of the New Rate on or prior to the Original Maturity Date.
(d) In addition to the required monthly payments of principal
and interest set forth above, commencing on the first day of the second month
following the Original Maturity Date and continuing on the first day of each
month thereafter during the Extension Term (each an "Additional Payment Date"),
Maker shall make monthly payments to Holder in an amount equal to all Net
Operating Income (hereinafter defined) attributable to the Property for the
calendar month ending on the last day of the month that is two months preceding
each such Additional Payment Date. For example, assuming the Original Maturity
Date is January 1, then Net Operating Income for the period from January 1
through January 31 shall be payable to Holder on March 1; Net Operating Income
for the period from February 1 through February 28 shall be payable to Holder on
April 1, and so on.
(e) Holder shall deposit all such Net Operating Income received
from Maker into an account or accounts maintained at a financial institution
chosen by Holder or its servicer in its sole discretion (the "Deposit Account")
and all such funds shall be invested in a manner acceptable to Holder in its
sole discretion. All interest, dividends and earnings credited to the Deposit
Account shall be held and applied in accordance with the terms hereof.
(f) On the third Additional Payment Date and on each third
Additional Payment Date thereafter, Holder shall apply all Excess Funds
(hereinafter defined), if any, to prepayment of amounts due under this Note,
without premium or penalty.
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(g) As security for the repayment of the Loan and the
performance of all other obligations of Maker under the Loan Documents, Maker
hereby assigns, pledges, conveys, delivers, transfers and grants to Holder a
first priority security interest in and to: all Maker's right, title and
interest in and to the Deposit Account; all rights to payment from the Deposit
Account and the money deposited therein or credited thereto (whether then due or
in the future due and whether then or in the future on deposit); all interest
thereon; any certificates, instruments and securities, if any, representing the
Deposit Account; all claims, demands, general intangibles, choses in action and
other rights or interests of Maker in respect of the Deposit Account; any monies
then or at any time thereafter deposited therein; any increases, renewals,
extensions, substitutions and replacements thereof; and all proceeds of the
foregoing.
(h) From time to time, but not more frequently than monthly,
Maker may request a disbursement (a "Disbursement") from the Deposit Account for
capital expenses, tenant improvement expenses, leasing commissions and special
contingency expenses. Holder may consent to or deny any such Disbursement in its
reasonable discretion.
(i) Upon the occurrence of any Event of Default (hereinafter
defined) (i) Maker shall not be entitled to any further Disbursement from the
Deposit Account; and (ii) Holder shall be entitled to take immediate possession
and control of the Deposit Account (and all funds contained therein) and to
pursue all of its rights and remedies available to Holder under the Loan
Documents, at law and in equity.
(j) All of the terms and conditions of the Loan shall apply
during the Extension Term, except as expressly set forth above, and except that
no further extensions of the Loan shall be permitted.
(k) For the purposes of the foregoing:
(i) "Excess Funds" shall mean, on any Additional Payment
Date, the amount of funds then existing in the Deposit Account (including
any Net Operating Income due on the applicable Additional Payment Date),
less an amount equal to the sum of three regularly scheduled payments of
principal and interest due on this Note;
(ii) "Net Operating Income" shall mean, for any particular
period of time, Gross Revenue for the relevant period, less Operating
Expenses for the relevant period; provided, however, that if such amount is
equal to or less than zero (0), Net Operating Income shall equal zero (0);
(iii) "Gross Revenue" shall mean all payments and other
revenues (exclusive, however, of any payments attributable to sales taxes)
received by or on behalf of Maker from all sources related to the ownership
or operation of the Property, including, but not limited to, rents, room
charges, parking fees, interest, security deposits (unless required to be
held in a segregated account), business interruption insurance proceeds,
operating expense pass-through revenues and common area maintenance
charges, for the relevant period for which the calculation of Gross Revenue
is being made; and
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(iv) "Operating Expenses" shall mean the sum of all
ordinary and necessary operating expenses actually paid by Maker in
connection with the operation of the Property during the relevant period
for which the calculation of Operating Expenses is being made, including,
but not limited to, (a) payments made by Maker for taxes and insurance
required under the Loan Documents, and (b) monthly debt service payments as
required under this Note.
3. Budgets During Extension Term.
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(a) Within fifteen (15) days following the Original Maturity
Date and on or before December 1 of each subsequent calendar year, Maker shall
deliver to Holder a proposed revenue and expense budget for the Property for the
remainder of the calendar year in which the Original Maturity Date occurs or the
immediately succeeding calendar year (as applicable). Such budget shall set
forth Maker's projection of Gross Revenue and Operating Expenses for the
applicable calendar year, which shall be subject to Holder's reasonable
approval. Once a proposed budget has been reviewed and approved by Xxxxxx, and
Maker has made all revisions requested by Xxxxxx, if any, the revised budget
shall be delivered to Holder and shall thereafter become the budget for the
Property hereunder (the "Budget") for the applicable calendar year. If Maker and
Holder are unable to agree upon a Budget for any calendar year, the budgeted
Operating Expenses (excluding extraordinary items) provided in the Budget for
the Property for the preceding calendar year shall be considered the Budget for
the Property for the subject calendar year until Maker and Holder agree upon a
new Budget for such calendar year.
(b) During the Extension Term, Maker shall operate the Property
in accordance with the Budget for the applicable calendar year, and the total of
expenditures relating to the Property exceeding one hundred and five percent
(105%) of the aggregate of such expenses set forth in the Budget for the
applicable time period shall not be treated as Operating Expenses for the
purposes of calculating "Net Operating Income," without the prior written
consent of Holder except for emergency expenditures which, in the Maker's good
faith judgment, are reasonably necessary to protect, or avoid immediate danger
to, life or property.
4. Reports During Extension Term.
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(a) During the Extension Term, Maker shall deliver to Holder all
financial statements reasonably required by Xxxxxx to calculate Net Operating
Income, including, without limitation, a monthly statement to be delivered to
Holder concurrently with Maker's payment of Net Operating Income that sets forth
the amount of Net Operating Income accompanying such statement and Maker's
calculation of Net Operating Income for the relevant calendar month. Such
statements shall be certified by an executive officer of Maker or Maker's
manager, managing member or general partner (as applicable) as having been
prepared in accordance with the terms hereof and to be true, accurate and
complete in all material respects.
(b) In addition, on or before February 1 of each calendar year
during the Extension Term, Maker shall submit to Holder an annual income and
expense statement for the Property which shall include the calculation of Gross
Revenue, Operating Expenses and Net Operating Income for the preceding calendar
year and shall be accompanied by Maker's
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reconciliation of any difference between the actual aggregate amount of the Net
Operating Income for such calendar year and the aggregate amount of Net
Operating Income for such calendar year actually remitted to Holder. All such
statements shall be certified by an executive officer of Maker or Maker's
manager, managing member or general partner (as applicable) as having been
prepared in accordance with the terms hereof and to be true, accurate and
complete in all material respects. If any such annual financial statement
discloses any inconsistency between the calculation of Net Operating Income and
the amount of Net Operating Income actually remitted to Holder, Maker shall
immediately remit to Holder the amount of any underpayment of Net Operating
Income for such calendar year or, in the event of an overpayment by Maker, such
amount may be withheld from any subsequent payment of Net Operating Income
required hereunder.
(c) Holder may notify Maker within ninety (90) days after
receipt of any statement or report required hereunder that Holder disputes any
computation or item contained in any portion of such statement or report. If
Holder so notifies Maker, Xxxxxx and Maker shall meet in good faith within
twenty (20) days after Xxxxxx's notice to Maker to resolve such disputed items.
If, despite such good faith efforts, the parties are unable to resolve the
dispute at such meeting or within ten (10) days thereafter, the items shall be
resolved by an independent certified public accountant designated by Holder
within fifteen (15) days after such ten (10) day period. The determination of
such accountant shall be final. All fees of such accountant shall be paid by
Maker. Maker shall remit to Holder any additional amount of Net Operating Income
found to be due for such periods within ten (10) days after the resolution of
such dispute by the parties or the accountant's determination, as applicable.
The amount of any overpayment found to have been made for such periods may be
withheld from any required future remittance of Net Operating Income.
(d) Maker shall at all times keep and maintain full and accurate
books of account and records adequate to reflect correctly all items required in
order to calculate Net Operating Income.
5. Prepayment.
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(a) During the first thirty (30) months after the date of this
Note, Maker shall have no right to prepay all or any part of this Note.
(b) At any time after the date that is thirty (30) months
following the date of this Note, Maker shall have the right to prepay the full
principal amount of this Note and all accrued but unpaid interest hereon as of
the date of prepayment, provided that (i) Maker gives not less than thirty (30)
days' prior written notice to Holder of Maker's election to prepay this Note,
and (ii) Maker pays a prepayment premium to Holder equal to the greater of (A)
one percent (1%) of the outstanding principal amount of this Note or (B) the
Present Value of this Note (hereinafter defined), less the amount of principal
being prepaid, calculated as of the prepayment date.
(c) Holder shall notify Maker of the amount and basis of
determination of the prepayment premium. Holder shall not be obligated to accept
any prepayment of the principal balance of this Note unless such prepayment is
accompanied by the
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applicable prepayment premium and all accrued interest and other sums due under
this Note. Maker may not prepay the Loan on a Friday or on any day preceding a
public holiday, or the equivalent for banks generally under the laws of the
State in which the Property (hereinafter defined) is located (the "State").
(d) Except for (i) the application of all or any portion of an
Additional Principal Payment to the principal balance of this Note in connection
with a "Permitted Release" (as such term is defined in the Loan and Partial
Release Agreement of even date herewith by and between Holder and Maker (the
"Loan Agreement")), (ii) payments of Net Operating Income, as required above,
and (iii) the application of insurance proceeds or condemnation awards to the
principal balance of this Note, as provided in the Deed to Secure Debt
(hereinafter defined), in no event shall Maker be permitted to make any partial
prepayments of this Note.
(e) If Holder accelerates this Note for any reason, then in
addition to Maker's obligation to pay the then outstanding principal balance of
this Note and all accrued but unpaid interest thereon, Maker shall pay an
additional amount equal to the prepayment premium that would be due to Holder if
Maker were voluntarily prepaying this Note at the time that such acceleration
occurred, or if under the terms hereof no voluntary prepayment would be
permissible on the date of such acceleration, Maker shall pay a prepayment
premium calculated as set forth in the Deed to Secure Debt.
(f) For the purposes of the foregoing:
(i) The "Present Value of this Note" with respect to any
prepayment of this Note, as of any date, shall be determined by discounting
all scheduled payments of principal and interest remaining to maturity of
this Note, attributed to the amount being prepaid, at the Discount Rate. If
prepayment occurs on a date other than a regularly scheduled payment date,
the actual number of days remaining from the prepayment date to the next
regularly scheduled payment date will be used to discount within such
period;
(ii) The "Discount Rate" is the rate which, when compounded
monthly, is equivalent to the Treasury Rate, when compounded semi-annually;
(iii) The "Treasury Rate" is the semi-annual yield on the
Treasury Constant Maturity Series with maturity equal to the remaining
weighted average life of this Note, for the week prior to the prepayment
date, as reported in Federal Reserve Statistical Release H.15 - Selected
Interest Rates, conclusively determined by Holder on the prepayment date.
The rate will be determined by linear interpolation between the yields
reported in Release H.15, if necessary. In the event Release H.15 is no
longer published, Holder shall select a comparable publication to determine
the Treasury Rate.
(g) Holder shall not be obligated actually to reinvest the
amount prepaid in any treasury obligations as a condition precedent to receiving
any prepayment premium.
(h) Notwithstanding the foregoing, (i) no prepayment premium
shall be due in connection with the application of any insurance proceeds or
condemnation awards to
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the principal balance of this Note, as provided in the Deed to Secure Debt, and
(ii) Maker shall have the right to prepay the full principal amount of this Note
and all accrued but unpaid interest thereon as of the date of prepayment,
without prepayment premium thereon, (A) at any time after the date that is one
hundred twenty (120) days prior to the Original Maturity Date, and (B) at any
time during the Extension Term.
6. Payments. Whenever any payment to be made under this Note shall
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be stated to be due on a Saturday, Sunday or public holiday or the equivalent
for banks generally under the laws of the State (any other day being a "Business
Day"), such payment may be made on the next succeeding Business Day.
7. Default Rate.
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(a) The entire balance of principal, interest, and other sums
due upon the maturity hereof, by acceleration or otherwise, shall bear interest
from the date due until paid at the greater of (i) eighteen percent (18%) per
annum and (ii) a per annum rate equal to five percent (5%) over the prime rate
(for corporate loans at large United States money center commercial banks)
published in The Wall Street Journal on the first business day of each month
(the "Default Rate"); provided, however, that such rate shall not exceed the
maximum permitted by applicable state or federal law. In the event The Wall
Street Journal is no longer published or no longer publishes such prime rate,
Holder shall select a comparable reference.
(b) If any payment under this Note is not made within five (5)
days following its due date, then interest shall accrue at the Default Rate from
the date such payment was due until payment is actually made.
8. Late Charges. In addition to interest as set forth herein, Maker
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shall pay to Holder a late charge equal to four percent (4%) of any amounts due
under this Note in the event any such amount is not paid within five (5) days
following its due date. Such late charge is intended to compensate Holder for
the administrative expense of processing late payments and not as a penalty.
9. Application of Payments. All payments hereunder shall be applied
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first to the payment of late charges, if any, then to the payment of prepayment
premiums, if any, then to the repayment of any sums advanced by Holder for the
payment of any insurance premiums, taxes, assessments, or other charges against
the property securing this Note (together with interest thereon at the Default
Rate from the date of advance until repaid), then to the payment of accrued and
unpaid interest, and then to the reduction of principal.
10. Immediately Available Funds. Payments under this Note shall be
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payable in immediately available funds without setoff, counterclaim or deduction
of any kind, and shall be made by electronic funds transfer from a bank account
established and maintained by Maker for such purpose.
11. Security. This Note is secured by, among other things, (a) the
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Plantation Deed to Secure Debt encumbering the Plantation Property (as both such
terms are defined in the Loan Agreement; such terms also being referred to
herein sometimes as the "Deed to Secure
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Debt" and the "Property," respectively), and (b) the Loan Documents and the
Other Loan Documents (as such terms are defined in the Deed to Secure Debt).
12. Certain Definitions. Capitalized terms used herein and not
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otherwise defined shall have the meanings set forth in the Deed to Secure Debt.
13. Event of Default. Each of the following events will constitute an
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event of default (an "Event of Default") under this Note and under each of the
other Loan Documents and Other Loan Documents, and any Event of Default under
any Loan Document or Other Loan Document shall constitute an Event of Default
hereunder and under each of the other Loan Documents and Other Loan Documents:
(a) any failure to pay when due any sum hereunder;
(b) any failure of Maker to properly perform any obligation
contained herein or in any of the other Loan Documents (other than the
obligation to make payments under this Note or the other Loan Documents) and the
continuance of such failure for a period of ten (10) days following written
notice thereof from Holder to Maker; provided, however, that if such failure is
not curable within such ten (10) day period, then, so long as Maker commences to
cure such failure within such ten (10) day period and is continually and
diligently attempting to cure to completion, such failure shall not be an Event
of Default unless such failure remains uncured for sixty (60) days after such
written notice to Maker; or
(c) if, at any time during the Extension Term, Gross Revenue for
any calendar month shall be less than ninety-three percent (93%) of the amount
of projected Gross Revenue for such month set forth in the applicable Budget.
14. Acceleration. Upon the occurrence of any Event of Default, the
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entire balance of principal, accrued interest, and other sums owing hereunder
shall, at the option of Xxxxxx, become at once due and payable without notice or
demand. Upon the occurrence of an Event of Default described in Section 13(c)
hereof, Holder shall have the option, in its sole discretion, to either (a)
exercise any remedies available to it under the Loan Documents or Other Loan
Documents, at law or in equity, or (b) require Maker to submit a new proposed
budget for Holder's approval. If Xxxxxx agrees to accept such new proposed
budget, then such budget shall become the Budget for all purposes hereunder.
15. Conditions Precedent. Maker hereby certifies and declares that
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all acts, conditions and things required to be done and performed and to have
happened precedent to the creation and issuance of this Note, and to constitute
this Note the legal, valid and binding obligation of Maker, enforceable in
accordance with the terms hereof, have been done and performed and happened in
due and strict compliance with all applicable laws.
16. Certain Waivers and Consents.
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(a) Maker and all parties now or hereafter liable for the
payment hereof, primarily or secondarily, directly or indirectly, and whether as
endorser, guarantor, surety, or otherwise, hereby severally (i) waive
presentment, demand, protest, notice of protest and/or dishonor, and all other
demands or notices of any sort whatever with respect to this Note,
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(ii) consent to impairment or release of collateral, extensions of time for
payment, and acceptance of partial payments before, at, or after maturity, (iii)
waive any right to require Holder to proceed against any security for this Note
before proceeding hereunder, (iv) waive diligence in the collection of this Note
or in filing suit on this Note, and (v) agree to pay all costs and expenses,
including reasonable attorneys' fees, which may be incurred in the collection of
this Note or any part thereof or in preserving, securing possession of, and
realizing upon any security for this Note.
(b) No failure to accelerate the debt evidenced hereby by reason
of default hereunder, acceptance of a past due installment, or indulgence as
granted from time to time shall be construed as a novation of this Note or as a
reinstatement of the indebtedness evidenced hereby or as a waiver of such right
of acceleration or the right of Holder thereafter to insist upon strict
compliance with the terms of this Note, or to prevent the right of such
acceleration or any right granted hereunder or under the laws of the State of
Georgia; and Maker hereby expressly waives, to the extent possible, the benefit
of any statute or rule of law or equity, now provided or which shall be provided
which would produce a result contrary or in conflict with the foregoing. No
extension of time for the payment of this Note or any installment due hereunder
made by agreement with any person now or hereafter liable for the payment of
this Note shall operate to release, discharge, modify, change or affect the
original liability of Maker under this Note, either in whole or in part, unless
Holder specifically and expressly agrees otherwise in writing. This Note may not
be changed orally, but only by an agreement in writing signed by the parties
against whom enforcement of any waiver, change, modification or discharge is
sought.
(c) Maker hereby waives and renounces, to the extent same may be
waived and renounced for itself, its representatives, successors and assigns,
all rights for the benefit of any statute of limitations or any moratorium,
reinstatement, marshalling, forbearance, valuation, stay, extension, redemption,
appraisement, exemption and homestead, now provided or which may hereafter be
provided by the Constitution and the laws of the United States of America and of
any State thereof, both as to itself and in and to all of its property, real and
personal, against the enforcement and collection of the obligations evidenced by
this Note. To the extent Maker has the power to do so, Maker hereby transfers,
conveys and assigns to Holder a sufficient amount such homestead and exemption
as may be set apart in bankruptcy to pay this Note in full, with all costs of
collection and does hereby direct any trustee in bankruptcy having possession of
such homestead or exemption to deliver to Holder a sufficient amount of property
or money set apart as exempt to pay the indebtedness evidenced hereby or any
renewal thereof, and does, to the extent possible hereby appoint Holder the
attorney-in-fact for Maker to claim any and all homesteads and exemptions
allowed by law.
17. Usury Savings Clause. The provisions of this Note and of all
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agreements between Maker and Holder are, whether now existing or hereinafter
made, hereby expressly limited so that in no contingency or event whatever,
whether by reason of acceleration of the maturity hereof, prepayment, demand for
payment or otherwise, shall the amount paid, or agreed to be paid, to Holder for
the use, forbearance, or detention of the principal hereof or interest hereon,
which remains unpaid from time to time, exceed the maximum amount permissible
under applicable law, it particularly being the intention of the parties hereto
to conform strictly to the laws of the State and Federal law, whichever is
applicable. If from any circumstance whatever,
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the performance or fulfillment of any provision hereof or of any other agreement
between Maker and Holder shall, at the time performance or fulfillment of such
provision is due, involve or purport to require any payment in excess of the
limits prescribed by law, then the obligation to be performed or fulfilled is
hereby reduced to the limit of such validity, and if from any circumstance
whatever Holder should ever receive as interest an amount which would exceed the
highest lawful rate, the amount which would be excessive interest shall be
applied to the reduction of the principal balance (without prepayment premium or
other penalty) owing hereunder (or, at Xxxxxx's option, be paid over to Maker)
and shall not be counted as interest. To the extent permitted by applicable law,
determination of the legal maximum amount of interest shall at all times be made
by amortizing, prorating, allocating and spreading in equal parts during the
period of the full stated term of this Note, all interest at any time contracted
for, charged, or received from Maker in connection with this Note and all other
agreements between Maker and Holder, so that the actual rate of interest on
account of the indebtedness represented by this Note is uniform throughout the
term hereof.
18. Non-Recourse; Exceptions to Non-Recourse. Except as expressly
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hereinafter set forth, the recourse of Holder with respect to the obligations
evidenced by this Note shall be solely to the Property, Chattels, and Intangible
Personalty (as such terms are defined in the Deed to Secure Debt and in the
Other Loan Documents). Notwithstanding anything to the contrary contained in
this Note or in any Loan Document or in any Other Loan Document, nothing shall
be deemed in any way to impair, limit or prejudice the rights of Holder (a) in
foreclosure proceedings or in any ancillary proceedings brought to facilitate
Holder's foreclosure on the Property or any portion thereof; (b) to recover from
Maker damages or costs (including without limitation reasonable attorneys' fees)
incurred by Holder as a result of waste by Maker; (c) to recover from Maker any
condemnation or insurance proceeds attributable to the Property which were not
paid to Holder or used to restore the Property in accordance with the terms of
the Deed to Secure Debt; (d) to recover from Maker any rents, profits, security
deposits, advances, rebates, prepaid rents or other similar sums attributable to
the Property collected by or for Maker following an Event of Default under any
Loan Document and not properly applied to the reasonable fixed and operating
expenses of the Property, including payments of this Note; (e) to pursue the
personal liability of Maker under the provisions of Section 5.10 of the Deed to
Secure Debt, including any indemnification provisions under such Section; (f)
subject to the limitations set forth in this Section, to exercise any specific
rights or remedies afforded Holder under any other provisions of the Loan
Documents or by law or in equity (or to recover under any guarantee agreement
given in connection with this Note); (g) to recover from Maker the amount of any
accrued taxes, assessments, and/or utility charges affecting the Property
(whether or not the same have been billed to Maker) that are either unpaid by
Maker or paid by Holder under the Deed to Secure Debt (provided however, that
Maker shall not have any personal liability to the extent of amounts on deposit
in any real estate escrow account required under the Loan Documents) and to
collect from Maker any sums expended by Xxxxxx in fulfilling the obligations of
Maker, as lessor, under any leases affecting the Property; (h) to pursue any
personal liability of Maker and/or Guarantor under the Environmental Indemnity
Agreement; and (i) to recover from Maker the amount of any loss suffered by
Holder (that would otherwise be covered by insurance) as a result of Maker's
failure to maintain any insurance required under the terms of any Loan Document.
The agreement contained in this paragraph to limit the personal liability of
Maker shall become null and void and be of no further force and effect in the
event (i) that the Property or any part thereof or any interest therein, or any
interest in Maker, shall be
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further encumbered by a voluntary lien securing any obligation upon which Maker
or any direct or indirect general partner, manager or managing member of Maker,
any guarantor, or any principal or affiliate of Maker shall be personally liable
for repayment, whether as obligor or guarantor; (ii) of any breach or violation
of Section 5.4, 5.5 or 5.7 of the Deed to Secure Debt; (iii) of any fraud or
material misrepresentation by Maker in connection with the Property, the Loan
Documents or the application made by Maker for the Loan; or (iv) of any
execution, amendment, modification or termination of any lease of any portion of
the Property without the prior written consent of Holder if such consent is
required under the terms of the Loan Documents. For purposes of the foregoing,
"affiliate" shall mean any individual, corporation, trust, partnership or any
other person or entity controlled by, controlling or under common control with
Maker. A person or entity of any nature shall be presumed to have control when
it possesses the power, directly or indirectly, to direct, or cause the
direction of, the management or policies of another person or entity, whether
through ownership of voting securities, by contract, or otherwise.
19. Severability. If any provision hereof or of any other document
------------
securing or related to the indebtedness evidenced hereby is, for any reason and
to any extent, invalid or unenforceable, then neither the remainder of the
document in which such provision is contained, nor the application of the
provision to other persons, entities, or circumstances, nor any other document
referred to herein, shall be affected thereby, but instead shall be enforceable
to the maximum extent permitted by law.
20. Transfer of Note. Each provision of this Note shall be and remain
----------------
in full force and effect notwithstanding any negotiation or transfer hereof and
any interest herein to any other Holder or participant.
21. Governing Law. Regardless of the place of its execution, this
-------------
Note shall be construed and enforced in accordance with the laws of the State.
22. Time of Essence. Time is of the essence of this Note.
---------------
23. Remedies Cumulative. The remedies provided to Holder in this
-------------------
Note, the Deed to Secure Debt, the Loan Documents and the Other Loan Documents
are cumulative and concurrent and may be exercised singly, successively or
together against Maker, the Property, and other security, or any guarantor of
this Note, at the sole and absolute discretion of the Holder.
24. No Waiver. Holder shall not by any act or omission be deemed to
---------
waive any of its rights or remedies hereunder unless such waiver is in writing
and signed by the Holder and then only to the extent specifically set forth
therein. A waiver of one event shall not be construed as continuing or as a bar
to or waiver of any right or remedy granted to Holder hereunder in connection
with a subsequent event.
25. Joint and Several Obligation. If Maker is more than one person or
----------------------------
entity, then (a) all persons or entities comprising Maker are jointly and
severally liable for all of the Maker's obligations hereunder; (b) all
representations, warranties, and covenants made by Maker shall be deemed
representations, warranties, and covenants of each of the persons or entities
11
comprising Maker; (c) any breach, Default or Event of Default by any of the
persons or entities comprising Maker hereunder shall be deemed to be a breach,
Default, or Event of Default of Maker; and (d) any reference herein contained to
the knowledge or awareness of Maker shall mean the knowledge or awareness of any
of the persons or entities comprising Maker.
26. WAIVER OF JURY TRIAL. MAKER AND HOLDER KNOWINGLY, IRREVOCABLY,
--------------------
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED ON THIS NOTE, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE DEED TO SECURE DEBT,
OR ANY OTHER LOAN DOCUMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENT (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO OR TO ANY
LOAN DOCUMENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR MAKER AND HOLDER TO
ENTER INTO THE LOAN TRANSACTION EVIDENCED BY THIS NOTE.
27. WAIVER OF PREPAYMENT RIGHT WITHOUT PREMIUM. MAKER HEREBY
------------------------------------------
EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE UNDER APPLICABLE LAW TO PREPAY THIS NOTE,
IN WHOLE OR IN PART, WITHOUT PREPAYMENT PREMIUM, UPON ACCELERATION OF THE
MATURITY DATE OF THIS NOTE, AND AGREES THAT, EXCEPT AS OTHERWISE PROVIDED IN
THIS NOTE OR IN THE OTHER LOAN DOCUMENTS, IF FOR ANY REASON A PREPAYMENT OF ALL
OR ANY PART OF THIS NOTE IS MADE, WHETHER VOLUNTARILY OR FOLLOWING ANY
ACCELERATION OF THE MATURITY DATE OF THIS NOTE BY HOLDER ON ACCOUNT OF THE
OCCURRENCE OF ANY EVENT OF DEFAULT ARISING FOR ANY REASON, INCLUDING, WITHOUT
LIMITATION, AS A RESULT OF ANY PROHIBITED OR RESTRICTED TRANSFER, FURTHER
ENCUMBRANCE OR DISPOSITION OF THE PROPERTY OR ANY PART THEREOF SECURING THIS
NOTE, THEN MAKER SHALL BE OBLIGATED TO PAY, CONCURRENTLY WITH SUCH PREPAYMENT,
THE PREPAYMENT PREMIUM PROVIDED FOR IN THIS NOTE OR, IN THE EVENT OF PREPAYMENT
FOLLOWING ACCELERATION OF THE MATURITY DATE HEREOF WHEN THIS NOTE IS CLOSED TO
PREPAYMENT, AS PROVIDED IN THE DEED TO SECURE DEBT. MAKER XXXXXX DECLARES THAT
HOLDER'S AGREEMENT TO MAKE THE LOAN AT THE INTEREST RATE AND FOR THE TERM SET
FORTH IN THIS NOTE CONSTITUTES ADEQUATE CONSIDERATION, GIVEN INDIVIDUAL WEIGHT
BY MAKER, FOR THIS WAIVER AND AGREEMENT.
[Balance of page intentionally left blank]
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IN WITNESS WHEREOF and intending to be legally bound, Maker has duly
executed this Note as of the date first above written.
N'TANDEM PROPERTIES, L.P., a Delaware
limited partnership
By: N'Tandem Trust, a California business
trust, its General Partner
By: /s/ Xxxxx Xxxxx
_________________________________
Xxxxx Xxxxx, Authorized Agent
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