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EXHIBIT 10.5
Loan No. V_06437
FIXED RATE NOTE
$4,300,000.00 November 16, 1999
FOR VALUE RECEIVED, XXXXXXXX COLORADO, LLC, a Minnesota limited
liability company (hereinafter referred to as "BORROWER"), promises to pay to
the order of XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, a New York banking
corporation, its successors and assigns (hereinafter referred to as "LENDER"),
at the office of Lender or its agent, designee, or assignee at 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Loan Servicing, or at such place as
Lender or its agent, designee, or assignee may from time to time designate in
writing, the principal sum of FOUR MILLION THREE HUNDRED THOUSAND AND NO/100THS
DOLLARS ($4,300,000.00), in lawful money of the United States of America, with
interest thereon to be computed on the unpaid principal balance from time to
time outstanding at the Applicable Interest Rate (hereinafter defined) at all
times prior to the occurrence of an Event of Default (as defined in the Security
Instrument [hereinafter defined]), and to be paid in installments as set forth
below. Unless otherwise herein defined, all initially capitalized terms shall
have the meanings given such terms in the Security Instrument.
1. PAYMENT TERMS
Principal and interest due under this Note shall be paid as follows:
(a) A payment of interest only on the date hereof for the
period from the date hereof through November 30, 1999, both inclusive;
(b) A constant payment of $34,711.74, on the first day of
January, 2000, and on the first day of each calendar month thereafter, up to and
including the first day of November 2009; and
(c) On the Anticipated Repayment Date and on the first
day of each calendar month thereafter until this Note is paid in full, in the
manner set forth in Section 18 of this Note;
with payments under this Note to be applied pursuant to the provisions of
Section 18 of this Note, or if the provisions of Section 18 of this Note are not
yet effective, as follows:
(i) First, to the payment of interest and other costs
and charges due in connection with this Note or the Debt, as Lender may
determine in its sole discretion; and
(ii) The balance shall be applied toward the
reduction of the principal sum;
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and on the first day of December, 2009 (the "MATURITY DATE" or the "ANTICIPATED
REPAYMENT DATE"), the entire outstanding principal balance hereof, together with
all accrued but unpaid interest thereon, shall be due and payable in full,
provided, however, that in the event such amounts are not paid in full on such
date, the Maturity Date shall be extended to the first day of December, 2024
(the "EXTENDED MATURITY DATE"). Interest on the principal sum of this Note shall
be calculated on the basis of a three hundred sixty (360) day year and paid for
the actual number of days elapsed. All amounts due under this Note shall be
payable without setoff, counterclaim or any other deduction whatsoever.
2. INTEREST
The term "APPLICABLE INTEREST RATE" as used in this Note shall mean (a)
from the date of this Note through but not including the Anticipated Repayment
Date, a rate per annum equal to eight and fifty-three hundredths percent (8.53%)
(the "INITIAL INTEREST RATE"), and (b) from and after the Anticipated Repayment
Date through and including the date this Note is paid in full, a rate per annum
equal to the greater of (i) the Initial Interest Rate plus two percent (2.0%),
or (ii) the Treasury Index (as hereinafter defined) plus two and one-half
percent (2.50%) plus two percent (2.0%) ((i) or (ii), as applicable, the
"REVISED INTEREST RATE"). The term "TREASURY INDEX" for purposes of this Section
2 means the yield calculated by the linear interpolation of the yields, as
reported in Federal Reserve Statistical Release H.15-Selected Interest Rates
under the heading "U.S. Government Securities/Treasury Constant Maturities" for
the week ending prior to the Anticipated Repayment Date, of U.S. Treasury
constant maturities with maturity dates (one longer and one shorter) most nearly
approximating ten (10) years after the Anticipated Repayment Date. (In the event
Release H.15 is no longer published, Lender shall select a comparable
publication to determine the Treasury Rate.)
3. SECURITY
This Note is secured by, and Xxxxxx is entitled to the benefits of, the
Security Instrument, the Assignment, the Environmental Agreement, and the other
Loan Documents (hereinafter defined). The term "SECURITY INSTRUMENT" means the
Deed of Trust and Security Agreement dated the date hereof given by Borrower for
the use and benefit of Lender covering the estate of Borrower in certain
premises as more particularly described therein (which premises, together with
all properties, rights, titles, estates and interests now or hereafter securing
the Debt and/or other obligations of Borrower under the Loan Documents, are
collectively referred to herein as the "PROPERTY"). The term "ASSIGNMENT" means
the Assignment of Leases and Rents of even date herewith executed by Xxxxxxxx in
favor of Xxxxxx. The term "ENVIRONMENTAL AGREEMENT" means the Environmental
Indemnity Agreement of even date herewith executed by Xxxxxxxx in favor of
Xxxxxx. The term "ESCROW AGREEMENT" means the Escrow Agreement for Reserves and
Impounds of even date herewith executed by Xxxxxxxx in favor of Xxxxxx. The term
"LOAN DOCUMENTS" refers collectively to this Note, the Security Instrument, the
Assignment, the Environmental Agreement, the Escrow Agreement and any and all
other documents executed in connection with this Note or now or hereafter
executed by Xxxxxxxx and/or others and by or in favor of Lender, which wholly or
partially secure or guarantee payment of this Note or pertains to indebtedness
evidenced by this Note.
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4. LATE FEE
If any installment payable under this Note is not received by Lender
within ten (10) days after the date on which it is due (without regard to any
applicable cure and/or notice period), Borrower shall pay to Lender upon demand
an amount equal to the lesser of (a) five percent (5%) of such unpaid sum, or
(b) the maximum amount permitted by applicable law to defray the expenses
incurred by Lender in handling and processing such delinquent payment and to
compensate Lender for the loss of the use of such delinquent payment, and such
amount shall be secured by the Loan Documents.
5. DEFAULT AND ACCELERATION
So long as an Event of Default exists, Lender may, at its option,
without notice or demand to Borrower, declare the Debt immediately due and
payable. All remedies hereunder, under the Loan Documents and at law or in
equity shall be cumulative. In the event that it should become necessary to
employ counsel to collect the Debt or to protect or foreclose the security for
the Debt or to defend against any claims asserted by Borrower arising from or
related to the Loan Documents, Xxxxxxxx also agrees to pay to Lender on demand
all costs of collection or defense incurred by Xxxxxx, including reasonable
attorneys' fees for the services of counsel whether or not suit be brought.
6. DEFAULT INTEREST
Upon the occurrence of an Event of Default Borrower shall pay interest
on the entire unpaid principal sum and any other amounts due under the Loan
Documents at the rate equal to the lesser of (a) the maximum rate permitted by
applicable law, or (b) the greater of (i) five percent (5%) above the Applicable
Interest Rate or (ii) five percent (5%) above the Prime Rate (hereinafter
defined), in effect at the time of the occurrence of the Event of Default (the
"DEFAULT RATE"). The term "PRIME RATE" means the prime rate reported in the
Money Rates section of The Wall Street Journal. In the event that The Wall
Street Journal should cease or temporarily interrupt publication, the term
"PRIME RATE" shall mean the daily average prime rate published in another
business newspaper, or business section of a newspaper, of national standing and
general circulation chosen by Xxxxxx. In the event that a prime rate is no
longer generally published or is limited, regulated or administered by a
governmental or quasi-governmental body, then Lender shall select a comparable
interest rate index which is readily available and verifiable to Borrower but is
beyond Lender's control. The Default Rate shall be computed from the occurrence
of the Event of Default until the actual receipt and collection of a sum of
money determined by Xxxxxx to be sufficient to cure the Event of Default.
Amounts of interest accrued at the Default Rate shall constitute a portion of
the Debt, and shall be deemed secured by the Loan Documents. This clause,
however, shall not be construed as an agreement or privilege to extend the date
of the payment of the Debt, nor as a waiver of any other right or remedy
accruing to Lender by reason of the occurrence of any Event of Default.
7. PREPAYMENT
(a) The principal balance of this Note may not be prepaid in whole or
in part (except with respect to the application of casualty or condemnation
proceeds) prior to the Maturity Date.
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If following the occurrence of any Event of Default, Borrower shall tender
payment to Lender or Lender shall receive proceeds (whether through foreclosure
or the exercise of the other remedies available to Lender under the Security
Instrument or the other Loan Documents), Borrower shall pay in addition to
interest accrued and unpaid on the principal balance of this Note and all other
sums then due under this Note and the other Loan Documents a prepayment
consideration in an amount equal to the greater of (A) one percent (1%) of the
outstanding principal balance of this Note at the time such payment or proceeds
are received, or (B) (x) the present value as of the date such payment or
proceeds are received of the remaining scheduled payments of principal and
interest from the date such payment or proceeds are received through the
Maturity Date (including any balloon payment) determined by discounting such
payments at the Discount Rate (as hereinafter defined), less (y) the amount of
the payment or proceeds received. The term "DISCOUNT RATE" means the rate which,
when compounded monthly, is equivalent to the Treasury Rate (as hereinafter
defined), when compounded semi-annually. The term "TREASURY RATE" means the
yield calculated by the linear interpolation of the yields, as reported in
Federal Reserve Statistical Release H.15-Selected Interest Rates under the
heading "U.S. Government Securities/Treasury Constant Maturities" for the week
ending prior to the date the payment of such proceeds are received, of U.S.
Treasury constant maturities with maturity dates (one longer and one shorter)
most nearly approximating the Maturity Date. (In the event Release H.15 is no
longer published, Lender shall select a comparable publication to determine the
Treasury Rate.) Lender shall notify Borrower of the amount and the basis of
determination of the required prepayment consideration, which shall be
conclusive except in the case of manifest error. Notwithstanding the foregoing,
Borrower shall have the additional privilege to prepay the entire principal
balance of this Note (together with any other sums constituting the Debt) on any
scheduled payment date occurring on or after that date which is three (3) months
preceding the Maturity Date without any fee or consideration for such privilege.
(b) If the prepayment results from the application to the Debt
of the casualty or condemnation proceeds from the Property, no prepayment
consideration will be imposed. Partial prepayments of principal resulting from
the application of casualty or condemnation proceeds to the Debt shall not
change the amounts of subsequent monthly installments nor change the dates on
which such installments are due, unless Lender shall otherwise agree in writing.
(c) (i) Notwithstanding any provision of this Section 7 to the
contrary, at any time during which voluntary prepayment of this Note is
prohibited by Section 7(a) hereof and after the earlier of (1) the date which is
two (2) years after the "startup day," within the meaning of Section 860G(a)(9)
of the Internal Revenue Code of 1986, as amended from time to time or any
successor statute (the "Code"), of a "real estate mortgage investment conduit,"
within the meaning of Section 860D of the Code, that holds this Note, and (2) a
regularly scheduled payment date on or after that date which is four (4) years
after the date of the first monthly payment due under Section 1(b), and provided
no Event of Default (or any event which with the passage of time or the giving
of notice, or both, could become an Event of Default) has occurred under the
Security Instrument or under any of the Loan Documents, Borrower may cause the
release of the Property (in whole but not in part) from the lien of the Security
Instrument and the other Loan Documents upon the satisfaction of the following
conditions precedent:
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(A) not less than thirty (30) days prior
written notice to Lender specifying a regularly scheduled
payment date (the "Release Date") on which the Defeasance
Deposit (hereinafter defined) is to be made;
(B) the payment to Lender of interest
accrued and unpaid on the principal balance of this Note to
and including the Release Date;
(C) the payment to Lender of all other sums,
not including scheduled interest or principal payments, due
under this Note, the Security Instrument and the other Loan
Documents;
(D) the payment to Lender of the
Defeasance Deposit; and
(E) the delivery to Lender of:
(1) a security agreement, in form
and substance satisfactory to Lender,
creating a first priority lien on the
Defeasance Deposit and the U.S. Obligations
(hereinafter defined) purchased on behalf of
Borrower with the Defeasance Deposit in
accordance with this subparagraph (the
"Security Agreement");
(2) a release of the Property from
the lien of the Security Instrument (for
execution by Xxxxxx) in a form appropriate
for the jurisdiction in which the Property
is located;
(3) an officer's certificate of
Borrower certifying that the requirements
set forth in this subparagraph (i) have been
satisfied;
(4) an opinion of counsel for
Xxxxxxxx in form satisfactory to Xxxxxx
stating, among other things, that Xxxxxx has
a perfected first priority security interest
in the Defeasance Deposit and the U.S.
Obligations purchased by Xxxxxx on behalf of
Borrower;
(5) an opinion of a certified public
accountant acceptable to Lender to the
effect that the Defeasance Deposit is
adequate to provide payment on or prior to,
but as close as possible to, all successive
scheduled payment dates after the Release
Date upon which interest and principal
payments are required under this Note
(including the amounts due on the Maturity
Date) and in amounts equal to the scheduled
payments due on such dates under this Note;
(6) evidence in writing from the
applicable Rating Agencies to the effect
that such release will not result in a
re-qualification, reduction or withdrawal of
any rating in effect immediately prior to
such defeasance for any Securities;
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(7) payment of all of Xxxxxx's
expenses incurred in connection with the
defeasance including, without limitation,
reasonable attorneys fees; and
(8) such other certificates,
documents or instruments as Lender may
reasonably request.
In connection with the conditions set forth in subsection (c)(i)(E)
above, Borrower hereby appoints Lender as its agent and attorney-in-fact for the
purpose of using the Defeasance Deposit to purchase U.S. Obligations which
provide payment on or prior to, but as close as possible to, all successive
scheduled payment dates after the Release Date upon which interest and principal
payments are required under this Note (including the amounts due on the Maturity
Date) and in amounts equal to the scheduled payments due on such dates under
this Note (the "Scheduled Defeasance Payments"). Borrower, pursuant to the
Security Agreement or other appropriate document, shall authorize and direct
that the payments received from the U.S. Obligations may be made directly to
Lender and applied to satisfy the obligations of the Borrower under this Note.
(ii) Upon compliance with the requirements of
this subsection (c), the Property shall be released from the lien of the
Security Instrument and the pledged U.S. Obligations shall be the sole source of
collateral securing this Note. Any portion of the Defeasance Deposit in excess
of the amount necessary to purchase the U.S. Obligations required by
subparagraph (c)(i) above and satisfy the Borrower's obligations under this
subsection (c) shall be remitted to the Borrower with the release of the
Property from the lien of the Security Instrument.
(iii) For purposes of this subsection (c), the
following terms shall have the following meanings:
(A) The term "Defeasance Deposit" shall
mean an amount equal to 100% of the remaining principal amount
of this Note, the Yield Maintenance Premium, any costs and
expenses incurred or to be incurred in the purchase of the
U.S. Obligations necessary to meet the Scheduled Defeasance
Payments and any revenue, documentary stamp or intangible
taxes or any other tax or charge due in connection with the
transfer of this Note or otherwise required to accomplish the
agreements of this subsection;
(B) The term "Yield Maintenance Premium"
shall mean the amount (if any) which, when added to the
remaining principal amount of this Note, will be sufficient to
purchase U.S. Obligations providing the required Scheduled
Defeasance Payments; and
(C) The term "U.S. Obligations" shall
mean direct non-callable obligations of the United States of
America.
(iv) Upon the release of the Property in
accordance with this subsection (c), Borrower shall, at Xxxxxx's request, assign
all its obligations and rights under this Note, together with the pledged
Defeasance Deposit, to a successor special purpose entity designated
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by Xxxxxxxx and approved by Lender in its sole discretion. Such successor entity
shall execute an assumption agreement in form and substance satisfactory to
Lender in its sole discretion pursuant to which it shall assume Borrower's
obligations under this Note and the Security Agreement. In connection with such
assignment and assumption, Borrower shall (x) deliver to Lender an opinion of
counsel in form and substance and delivered by counsel satisfactory to Lender in
its sole discretion stating, among other things, that such assumption agreement
is enforceable against Borrower and such successor entity in accordance with its
terms and that this Note, the Security Agreement and the other Loan Documents,
as so assumed, are enforceable against such successor entity in accordance with
their respective terms, and (y) pay all costs and expenses incurred by Lender or
its agents in connection with such assignment and assumption (including, without
limitation, the review of the proposed transferee and the preparation of the
assumption agreement and related documentation). In connection with such
assignment and assumption, Borrower and any Guarantor may be released of
personal liability under the Note and the other Loan Documents, but only as to
acts or events occurring after the closing of such assignment and assumption.
(v) Upon the release of the Property in
accordance with this subsection (c), Borrower shall have no further right to
prepay this Note pursuant to the other provisions of this Section 7 or
otherwise.
8. SAVINGS CLAUSE
This Note is subject to the express condition that at no time shall
Borrower be obligated or required to pay interest on the principal balance due
hereunder at a rate which could subject Lender to either civil or criminal
liability as a result of being in excess of the maximum interest rate which
Borrower is permitted by applicable law to contract or agree to pay. If by the
terms of this Note, Borrower is at any time required or obligated to pay
interest on the principal balance due hereunder at a rate in excess of such
maximum rate, the Applicable Interest Rate or the Default Rate, as the case may
be, shall be deemed to be immediately reduced to such maximum rate and all
previous payments in excess of the maximum rate shall be deemed to have been
payments in reduction of principal and not on account of the interest due
hereunder. All sums paid or agreed to be paid to Lender for the use,
forbearance, or detention of the Debt, shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the
full stated term of this Note until payment in full so that the rate or amount
of interest on account of the Debt does not exceed the maximum lawful rate of
interest from time to time in effect and applicable to the Debt for so long as
the Debt is outstanding. Notwithstanding anything to the contrary contained
herein or in any of the other Loan Documents, it is not the intention of Lender
to accelerate the maturity of any interest that has not accrued at the time of
such acceleration or to collect unearned interest at the time of such
acceleration.
9. WAIVERS
(a) Except as specifically provided in the Loan
Documents, Borrower and any endorsers, sureties or guarantors hereof jointly and
severally waive presentment and demand for payment, notice of intent to
accelerate maturity, notice of acceleration of maturity, protest and notice of
protest and non-payment, all applicable exemption rights, valuation and
appraisement, notice of demand, and all other notices in connection with the
delivery, acceptance, performance,
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default or enforcement of the payment of this Note and the bringing of suit and
diligence in taking any action to collect any sums owing hereunder or in
proceeding against any of the rights and collateral securing payment hereof.
Borrower and any surety, endorser or guarantor hereof agree (i) that the time
for any payments hereunder may be extended from time to time without notice and
consent, (ii) to the acceptance by Lender of further collateral, (iii) the
release by Lender of any existing collateral for the payment of this Note, (iv)
to any and all renewals, waivers or modifications that may be granted by Lender
with respect to the payment or other provisions of this Note, and/or (v) that
additional Borrowers, endorsers, guarantors or sureties may become parties
hereto all without notice to them and without in any manner affecting their
liability under or with respect to this Note. No extension of time for the
payment of this Note or any installment hereof shall affect the liability of
Borrower under this Note or any endorser or guarantor hereof even though the
Borrower or such endorser or guarantor is not a party to such agreement.
(b) Failure of Lender to exercise any of the options
granted herein to Lender upon the happening of one or more of the events giving
rise to such options shall not constitute a waiver of the right to exercise the
same or any other option at any subsequent time in respect to the same or any
other event. The acceptance by Lender of any payment hereunder that is less than
payment in full of all amounts due and payable at the time of such payment shall
not constitute a waiver of the right to exercise any of the options granted
herein to Lender at that time or at any subsequent time or nullify any prior
exercise of any such option without the express written acknowledgment of the
Lender.
10. EXCULPATION
(a) Notwithstanding anything in the Loan Documents to the
contrary, but subject to the qualifications below, Xxxxxx and Borrower agree
that:
(i) Borrower shall be liable upon the Debt and
for the other obligations arising under the Loan Documents to the full
extent (but only to the extent) of the security therefor; provided,
however, that in the event (A) of fraud, willful misconduct or material
misrepresentation by Borrower, its general partners, if any, its
members, if any, its principals, its affiliates, its agents or its
employees or by any Guarantor or any Indemnitor in connection with the
loan evidenced by this Note, (B) of Borrower's breach or default under
Sections 4.3 or 8.2 of the Security Instrument, or (C) the Property or
any part thereof becomes an asset in a voluntary bankruptcy or
insolvency proceeding, the limitation on recourse set forth in this
Subsection 10(a) will be null and void and completely inapplicable, and
this Note shall be with full recourse to Borrower.
(ii) If a default occurs in the timely and proper
payment of all or any part of the Debt, Lender shall not enforce the
liability and obligation of Borrower to perform and observe the
obligations contained in this Note or the Security Instrument by any
action or proceeding wherein a money judgment shall be sought against
Borrower, except that Lender may bring a foreclosure action, action for
specific performance or other appropriate action or proceeding to
enable Lender to enforce and realize upon the Security Instrument, the
Other Loan Documents and the interest in the Property, the
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Rents and any other collateral given to Lender created by the Security
Instrument and the Other Loan Documents; provided, however, that any
judgment in any action or proceeding shall be enforceable against
Borrower only to the extent of Xxxxxxxx's interest in the Property, in
the Rents and in any other collateral given to Lender. Xxxxxx, by
accepting this Note and the Security Instrument, agrees that it shall
not, except as otherwise herein provided, sue for, seek or demand any
deficiency judgment against Borrower in any action or proceeding, under
or by reason of or under or in connection with this Note, the Other
Loan Documents or the Security Instrument.
(iii) The provisions of this Subsection 10(a)
shall not (A) constitute a waiver, release or impairment of any
obligation evidenced or secured by this Note, the Other Loan Documents
or the Security Instrument; (B) impair the right of Lender to name
Borrower as a party defendant in any action or suit for judicial
foreclosure and sale under the Security Instrument; (C) affect the
validity or enforceability of any indemnity, guaranty, master lease or
similar instrument made in connection with this Note, the Security
Instrument, or the Other Loan Documents; (D) impair the right of Lender
to obtain the appointment of a receiver; (E) impair the enforcement of
the Assignment executed in connection herewith; (F) impair the right of
Lender to enforce the provisions of Article 11 of the Security
Instrument; or (G) impair the right of Lender to obtain a deficiency
judgment or judgment on this Note against Borrower if necessary to
obtain any insurance proceeds or condemnation awards to which Xxxxxx
would otherwise be entitled under the Security Instrument; provided,
however, Lender shall only enforce such judgment against the insurance
proceeds and/or condemnation awards.
(iv) Notwithstanding the provisions of this
Article to the contrary, Borrower shall be personally liable to Lender
for the Losses it incurs due to: (A) the misapplication or
misappropriation of Rents; (B) the misapplication or misappropriation
of insurance proceeds or condemnation awards; (C) Borrower's failure to
return or to reimburse Lender for all Personal Property taken from the
Property by or on behalf of Borrower and not replaced with Personal
Property of the same utility and of the same or greater value; (D) any
act of actual waste or arson by Borrower, any principal, affiliate,
general partner or member thereof or by any Indemnitor or any
Guarantor; (E) any fees or commissions paid by Borrower to any
principal, affiliate, general partner or member of Borrower, any
Indemnitor or any Guarantor in violation of the terms of this Note, the
Security Instrument or the Other Loan Documents; (F) Borrower's failure
to comply with the provisions of Section 11.2 of the Security
Instrument; or (G) any breach of the Environmental Indemnity.
(b) Nothing herein shall be deemed to be a waiver of any
right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other
provisions of the Bankruptcy Code to file a claim for the full amount of the
Debt or to require that all collateral shall continue to secure all of the Debt,
owing to Lender in accordance with this Note, the Security Instrument and the
Other Loan Documents.
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11. AUTHORITY
Borrower (and the undersigned representative of Borrower, if any)
represents that Borrower has full power, authority and legal right to execute,
deliver and perform its obligations pursuant to this Note and the other Loan
Documents and that this Note and the other Loan Documents constitute legal,
valid and binding obligations of Borrower. Borrower further represents that the
loan evidenced by the Loan Documents was made for business or commercial
purposes and not for personal, family or household use.
12. NOTICES
All notices or other communications required or permitted to be given
pursuant hereto shall be given in the manner and be effective as specified in
the Security Instrument, directed to the parties at their respective addresses
as provided therein.
13. TRANSFER
Lender shall have the unrestricted right at any time or from time to
time to sell this Note and the loan evidenced by this Note and the Loan
Documents or participation interests therein. Borrower shall execute,
acknowledge and deliver any and all instruments requested by Xxxxxx to satisfy
such purchasers or participants that the unpaid indebtedness evidenced by this
Note is outstanding upon the terms and provisions set out in this Note and the
other Loan Documents. To the extent, if any, specified in such assignment or
participation, such assignee(s) or participant(s) shall have the rights and
benefits with respect to this Note and the other Loan Documents as such
assignee(s) or participant(s) would have if they were the Lender hereunder.
14. WAIVER OF TRIAL BY JURY
BORROWER HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE
TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE
EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS NOTE
OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING
IN CONNECTION THEREWITH INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO (A)
ALLEGATIONS THAT A PARTNERSHIP EXISTS BETWEEN XXXXXX AND BORROWER; (B) USURY OR
PENALTIES OR DAMAGES THEREFOR; (C) ALLEGATIONS OF UNCONSCIONABLE ACTS, DECEPTIVE
TRADE PRACTICE, LACK OF GOOD FAITH OR FAIR DEALING, LACK OF COMMERCIAL
REASONABLENESS, OR SPECIAL RELATIONSHIPS (SUCH AS FIDUCIARY, TRUST OR
CONFIDENTIAL RELATIONSHIP); (D) ALLEGATIONS OF DOMINION, CONTROL, ALTER EGO,
INSTRUMENTALITY, FRAUD, REAL ESTATE FRAUD, MISREPRESENTATION, DURESS, COERCION,
UNDUE INFLUENCE, INTERFERENCE OR NEGLIGENCE; (E) ALLEGATIONS OF TORTIOUS
INTERFERENCE WITH PRESENT OR PROSPECTIVE BUSINESS RELATIONSHIPS OR OF ANTITRUST;
OR (F) SLANDER, LIBEL OR DAMAGE TO REPUTATION. THIS WAIVER OF RIGHT TO TRIAL BY
JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY XXXXXXXX, AND IS INTENDED TO
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ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A
TRIAL BY JURY WOULD OTHERWISE ACCRUE. XXXXXX IS HEREBY AUTHORIZED TO FILE A COPY
OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY
BORROWER.
15. APPLICABLE LAW
This Note shall be governed by and construed in accordance with the
laws of the state in which the real property encumbered by the Security
Instrument is located (without regard to any conflict of laws or principles) and
the applicable laws of the United States of America.
16. JURISDICTION
BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY COURT OF
COMPETENT JURISDICTION LOCATED IN THE STATE IN WHICH THE PROPERTY IS LOCATED IN
CONNECTION WITH ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE.
17. NO ORAL CHANGE
The provisions of this Note and the Loan Documents may be amended or
revised only by an instrument in writing signed by the Borrower and Lender. This
Note and all the other Loan Documents embody the final, entire agreement of
Xxxxxxxx and Lender and supersede any and all prior commitments, agreements,
representations and understandings, whether written or oral, relating to the
subject matter hereof and thereof and may not be contradicted or varied by
evidence of prior, contemporaneous or subsequent oral agreements or discussions
of Xxxxxxxx and Xxxxxx. There are no oral agreements between Borrower and
Lender.
18. ANTICIPATED REPAYMENT DATE PROVISIONS
(a) The following subsections shall apply from and after
the "ANTICIPATED REPAYMENT DATE":
(i) For the calendar year in which the
Anticipated Repayment Date occurs and for each calendar year thereafter
until this Note is paid in full, Borrower shall submit to Lender for
Lender's written approval an annual budget (an "ANNUAL BUDGET") not
later than (i) 60 days prior to the Anticipated Repayment Date for the
calendar year in which the Anticipated Repayment Date occurs and (ii)
sixty (60) days prior to the commencement of each calendar year
thereafter, in form satisfactory to Lender setting forth in reasonable
detail budgeted monthly operating income and monthly operating capital
and other expenses for the Property. Each Annual Budget shall contain,
among other things, limitations on management fees, third party service
fees and other expenses as Lender may reasonably determine. Each Annual
Budget must be satisfactory to Lender in its sole discretion and each
such Annual Budget approved by Lender in accordance with the terms
hereof shall hereinafter be referred to as an "APPROVED BUDGET." Until
such time as Lender approves a proposed Annual Budget, the most
recently Approved Budget shall apply; provided, that such Approved
Budget shall be
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adjusted to reflect actual increases in real estate taxes, insurance
premiums and utilities expenses.
(ii) In the event that Borrower must incur any
extraordinary operating expense or capital expense not set forth in the
applicable Approved Budget or reserved for in the On-going Replacement
Fund (each, an "EXTRAORDINARY EXPENSE"), then Borrower shall promptly
deliver to Lender a reasonably detailed explanation of such proposed
Extraordinary Expense for Xxxxxx's approval.
(iii) For the purposes of this Note, "OPERATING
EXPENSES" shall mean, for any period, the operating expenses for the
operation and maintenance of the Property as set forth in an Approved
Budget to the extent such expenses are actually paid by Borrower and
excluding (1) expenses for which Borrower shall be reimbursed from, or
which shall be paid for out of, any Funds (as defined in the Escrow
Agreement), and (2) any management fees payable to affiliates of the
Borrower unless Lender has approved the same in its sole discretion
pursuant to an Approved Budget.
(iv) From and after the Anticipated Repayment
Date, interest shall accrue on the unpaid principal balance from time
to time outstanding under this Note at the Revised Interest Rate.
Interest accrued at the Revised Interest Rate and not paid pursuant to
this Section 18 shall be deferred and added to the principal balance of
this Note and shall earn interest at the Revised Interest Rate to the
extent permitted by applicable law (such accrued interest and any
interest thereon is hereinafter referred to as "ACCRUED Interest"). All
of the unpaid principal balance of this Note, including, without
limitation, any Accrued Interest, if not sooner paid pursuant to the
provisions hereof shall be due and payable on the Extended Maturity
Date.
(v) Borrower shall be obligated to pay, and
Lender shall collect from the Deposit Account (as defined in the Cash
Management Agreement of even date herewith among Borrower and Lender)
to the extent of funds on deposit in such account, on the first day of
December, 1999, and on the first day of each calendar month thereafter
to and including the Extended Maturity Date, the following payments
from amounts in the Deposit Account to be applied in the listed order
of priority:
(1) First, to the payment of the amount
set forth in Section 1(b) of this Note (the "MONTHLY DEBT
SERVICE PAYMENT AMOUNT") to be applied first to the payment of
interest computed at the Initial Interest Rate with the
remainder applied to the reduction of the outstanding
principal balance of this Note;
(2) Second, to payments to the Tax and
Insurance Funds (as defined in the Escrow Agreement) in
accordance with the terms and conditions of the Escrow
Agreement;
(3) Third, to payments to the On-going
Replacement Funds (as defined in the Escrow Agreement) in
accordance with the terms and conditions of the Escrow
Agreement;
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(4) Fourth, to payments to the TI&LC
Funds (as defined in the Escrow Agreement) in accordance with
the terms and conditions of the Escrow Agreement;
(5) Fifth, to payments for monthly
Operating Expenses pursuant to the terms and conditions of the
related Approved Budget;
(6) Sixth, to payment for Extraordinary
Expenses approved by Xxxxxx, if any;
(7) Seventh, to payment of the
outstanding principal balance of this Note until such
outstanding principal balance is paid in full; and
(8) Eighth, payments to Lender of the
balance of the funds then on deposit in the Deposit Account to
be applied to (x) any other amounts due under the Loan
Documents, and (y) Accrued Interest in whatever proportion and
priority as Lender may determine.
(vi) Nothing in this Article 18 shall limit,
reduce or otherwise affect Borrower's obligations to make payments of
the Monthly Debt Service Payment Amount, payments to the Tax and
Insurance Funds, On-going Replacement Funds, TI&LC Funds and payments
of other amounts due hereunder and under the other Loan Documents,
whether or not Rents (as defined in the Security Instrument) are
available to make such payments.
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Executed as of the day and year first above written.
BORROWER:
SHELDAHL COLORADO, LLC, a Minnesota
limited liability company
By: XXXXXXXX, INC., a Minnesota corporation,
its sole Member
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, Vice Pres. & CFO
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