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EXHIBIT 10.2
PROMISSORY NOTE
U.S. $4,000,000 December 29, 2000
FOR VALUE RECEIVED, WRD Holding Corporation, a Delaware
corporation ("Borrower"), hereby promises to pay to the order of Apollo Real
Estate Investment Fund III, L.P., having an office at 2 Manhattanville Road,
Purchase, New York 10577 ("Lender"), the principal sum of FOUR MILLION DOLLARS
($4,000,000), together with interest on the unpaid principal amount of this Note
pursuant to the terms hereof, Additional Interest (as hereinafter defined) and
all other amounts due hereunder. All such principal, interest, Additional
Interest and such other amounts due hereunder (collectively, the "Debt"), shall
be payable, without set-off or counterclaim, in lawful money of the United
States of America in immediately available funds to Lender at the address of
Lender set forth herein or at such other place as Lender may from time to time
designate in writing. The entire unpaid principal amount of this Note and any
accrued and unpaid interest thereon shall be due and payable on the Maturity
Date, unless otherwise earlier prepaid or accelerated in accordance with the
terms hereof. This Note is issued pursuant to the terms of the Interest Purchase
Agreement, dated the date hereof, between Borrower and Lender (as the same may
be amended, supplemented or restated from time to time, the "Interest Purchase
Agreement"), and other documents, instruments and agreements described or
referred to therein and/or executed as of the date hereof (such documents,
instruments and agreements, as the same may be amended, supplemented or restated
from time to time, are collectively referred to herein as the "Loan Documents").
1. Definitions. Capitalized terms not otherwise defined in this
Note shall have the meanings ascribed to such terms in the Interest Purchase
Agreement. For purposes of this Note, the following terms shall have the
meanings set forth below.
(a) "Appraised Net Asset Value" means the value of the Company, after deducting
all liabilities of the Company, as agreed to by Borrower and Lender, or if
Borrower and Lender cannot agree on the value of the Company within a reasonable
period of time, the value of the Company, after deducting all liabilities of the
Company, determined as set forth herein. Each of Borrower and Lender shall
within 30 days after the occurrence of an event giving rise to the determination
of Appraised Net Asset Value appoint by notice a professional appraiser with
significant experience in the appraisal of real estate and/or companies engaged
in the real estate business in Russia (a "Qualified Appraiser"). The two
Qualified Appraisers so appointed shall, within 30 days of their appointment,
appoint a third Qualified Appraiser by notice to Borrower and Lender, and the
three Qualified Appraisers shall determine the net proceeds that would have been
received by the Company if the Company (i) sold all of its assets for cash at
their then fair market value (less all costs and expenses of such sale,
including closing costs, real estate brokerage commissions and fees, title
premiums and escrow fees, reserves in respect of specified matters and legal and
other expenses incident to such sale) and (ii) paid all of its liabilities. The
value of the Company shall equal the average of the appraised values determined
by each of the two Qualified Appraisers whose appraisals are closest to each
other (or, if either of Borrower or Lender fails to promptly
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appoint its Qualified Appraiser as provided above, the appraised value
determined by the Qualified Appraiser appointed).
(b) "Available Cash Flow" means the net operating income of Borrower commencing
on the date hereof (including, without limitation, Company Distributions
received by Borrower), after payment of all operating expenses commencing after
the date hereof and any taxes related to the Company Distributions.
(c) "Company Distributions" means any and all distributions made by the Company
to Borrower after the date hereof.
(d) "Company" means Western Realty Development LLC.
(e) "Liquidity Event" means the occurrence of any of the following in one
transaction or series of related transactions: (i) the direct or indirect sale
by Borrower of all or substantially all of the equity interests of the Company;
(ii) the contribution of all or substantially all of the equity interests of the
Company to another entity in exchange for consideration including securities of
such entity (or any of such entity's affiliates); (iii) a merger or
consolidation of the Company into another entity in connection with which the
holders of equity interests of the Company receive cash from, and/or securities
of, such entity; (iv) the direct or indirect sale of any of the real property
assets owned directly or indirectly by the Company; (v) the consummation of an
offering of securities by the Company; (vi) the refinancing of any existing
indebtedness of the Company (except to the extent the proceeds of such
refinancing are used by the Company in connection with its operations); and
(vii) any similar transaction.
(f) "Maturity Date" means November 30, 2005.
(g) "Net Liquidation Proceeds" means all amounts received by Borrower or the
Company, as the case may be, from a Liquidity Event after deducting from such
proceeds all expenses incurred by Borrower and/or the Company in connection
therewith, and all taxes related thereto, provided, however, that any proceeds
received by the Company and distributed to Borrower shall only be considered
"Net Liquidation Proceeds" received by the Company but not Borrower.
(h) "Participation Amount" means (i) upon the occurrence of any Liquidity Event
prior to the Maturity Date, the proceeds of which are received directly by the
Company, an amount equal to 30% of the amount by which Net Liquidation Proceeds
exceed the Threshold Amount, (ii) upon the occurrence of any Liquidity Event
prior to the Maturity Date, the proceeds of which are received directly by
Borrower, an amount equal to the amount by which Net Liquidation Proceeds exceed
the Threshold Amount, and (iii) in connection with the repayment of the Debt at
maturity, an amount equal to 30% of the amount by which the Appraised Net Asset
Value exceeds the Threshold Amount as of the Maturity Date, less any amounts
previously paid by Borrower to Lender in connection with a Liquidity Event.
(i) "Threshold Amount" means $13,750,000.
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2. Payment of Debt. Borrower covenants and agrees with Lender
that Borrower shall punctually pay the Debt in U.S. dollars to Lender on the
Maturity Date (or earlier, as provided herein) by wire transfer of immediately
available funds.
3. Prepayments. (a) Borrower shall not prepay the principal
amount of the Debt without Lender's prior written consent other than as set
forth in clause (b) of this Section 3.
(b) If any Liquidity Event shall occur, Borrower shall
apply all Net Liquidation Proceeds received by Borrower to prepay the Debt. Such
Net Liquidation Proceeds shall be applied first to pay accrued interest to the
date of prepayment, and then to the principal amount of the Debt in accordance
with this Note.
4. Interest Rate. The principal amount of the Debt shall bear
interest at a rate per annum equal to 7%, compounded annually. Interest shall be
payable to the extent of Available Cash Flow.
5. Computation of Interest. Interest shall be calculated on the
basis of a 360-day year for the actual days elapsed.
6. Additional Interest. On the Maturity Date or, if earlier, upon
the occurrence of a Liquidity Event, Borrower agrees that Lender shall be
entitled to receive and Borrower shall pay to Lender an amount equal to the
Participation Amount as additional interest ("Additional Interest") hereunder.
7. Events of Default. (a) The occurrence of any one or more of
the following events with respect to Borrower shall constitute an event of
default hereunder ("Event of Default"):
(i) If Borrower shall fail to pay when due any payment of
principal, interest or Additional Interest on this Note and such failure
continues for 10 days after Lender notifies Borrower in writing; or
(ii) If, pursuant to or within the meaning of the United
States Bankruptcy Code or any other federal or state law relating to insolvency
or relief of debtors (a "Bankruptcy Law"), Borrower or the Company shall (i)
commence a voluntary case or proceeding; (ii) consent to the entry of an order
for relief against it in an involuntary case; (iii) consent to the appointment
of a trustee, receiver, assignee, liquidator or similar official; (iv) make an
assignment for the benefit of its creditors; or (v) admit in writing its
inability to pay its debts as they become due; or
(iii) If a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that (i) is for relief against Borrower or
the Company in an involuntary case; (ii) appoints a trustee, receiver, assignee,
liquidator or similar official for Borrower or the Company or substantially all
of Borrower's or the Company's properties; or (iii) orders the liquidation of
Borrower or the Company, and in each case the order or decree is not dismissed
within 120 days; or
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(iv) If at any time Lender shall cease to have a perfected
first priority lien in the Collateral (as defined in the Pledge Agreement).
(b) Borrower shall notify Lender in writing within five
days after the occurrence of any Event of Default of which Borrower acquires
knowledge.
(c) Upon the occurrence of an Event of Default hereunder
(unless all Events of Default have been cured or waived in writing by Lender),
Lender may, at its option, (i) by written notice to Borrower, declare the entire
unpaid principal balance of this Note, together with all accrued interest
thereon, immediately due and payable regardless of any prior forbearance, and
(ii) exercise any and all rights and remedies available to it under applicable
law, including, without limitation, the right to collect from Borrower all sums
due under this Note and exercise all rights and remedies of a secured party
pursuant to the Pledge Agreement.
8. Lender's Expenses. Borrower agrees to pay or reimburse Lender
for all its reasonable costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Note including, without
limitation, reasonable fees and disbursements of counsel to Lender (the
"indemnified liabilities"); provided, however, that Borrower shall have no
obligation hereunder to Lender with respect to indemnified liabilities arising
from the gross negligence or willful misconduct of Lender. The agreements in
this Section 8 shall survive repayment of the Debt.
9. Cumulative Remedies; No Waiver. To the extent permitted by
law, every remedy given hereunder to Lender shall not be exclusive of any other
remedy or remedies, and every such remedy shall be cumulative and in addition to
every remedy provided by statute, law, equity or otherwise.
10. Waiver of Presentment. Borrower hereby waives presentment for
payment, demand, notice of nonpayment, notice of protest, notice of intent to
accelerate, notice of acceleration and protest of this Note, and all other
notices in connection with the delivery, acceptance, performance, default or
enforcement of the payment of this Note, and agrees that its liability shall not
be in any manner affected by any indulgence, extension of time, renewal, waiver
or modification granted or consented to by Lender and consents to any and all
such extensions of time, renewals, waivers and modifications as may be granted
by Lender with respect to the payment or other provisions of this Note without
notice to Borrower and without affecting its liability hereunder.
11. Compliance with Usury Laws. It is the intent of Lender and
Borrower to comply at all times with applicable usury laws. If at any time such
laws would render usurious any amounts called for under this Note, then it is
the express intention of Borrower and Lender that such excess amount be
immediately credited on the principal balance of this Note (or, if this Note has
been fully paid, refunded by Lender to Borrower, and Borrower shall accept such
refund), and the provisions hereof and thereof be immediately deemed to be
reformed and the amounts thereafter collectible hereunder reduced to comply with
the then applicable laws, without the necessity of the execution of any further
documents, but so as to permit the recovery of the fullest amount otherwise
called for hereunder and thereunder. To the extent permitted by
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law, any such crediting or refund shall not cure or waive any Default. If at any
time following any such reduction in the interest rate payable by Borrower,
there remains unpaid any principal amount under this Note and the maximum
interest rate permitted by applicable law is increased or eliminated, then the
interest rate payable hereunder shall be readjusted, to the extent permitted by
applicable law, so that the total dollar amount of interest payable hereunder
shall be equal to the dollar amount of interest which would have been paid by
Borrower without giving effect to the reduction in interest resulting from
compliance with the applicable usury laws theretofore in effect. Borrower
agrees, however, that in determining whether or not any interest payable under
this Note is usurious, any non-principal payment (except payments specifically
stated in this Note to be "interest"), including, without limitation, prepayment
fees and late charges, shall be deemed to the extent permitted by law, to be an
expense, fee, premium or penalty rather than interest.
12. Governing Law. (a) This Note shall be construed in accordance
with, and governed by, the laws of the State of New York without regard to the
conflicts of law principles thereof other than New York General Obligations Law
Section 5-1401.
(b) Borrower agrees that this Note shall be executed in
the county and state of New York and that there are sufficient minimum contacts
of Borrower with New York County and the State of New York for the purpose of
conferring jurisdiction upon the federal and state courts presiding in such
county and state. Borrower consents that any legal action or proceeding arising
hereunder may be brought in the Supreme Court of the State of New York, New York
County, New York or the United States District Court for the Southern District
of New York and assents and submits to personal jurisdiction of any such court
in any action or proceeding involving Borrower or this Note.
(c) BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS NOTE OR
ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
13. Amendment; Entire Agreement. (a) This Note may not be changed,
waived, modified or discharged orally but only by an agreement in writing,
signed by the party against whom enforcement of any such change, waiver,
modification or discharge is sought. This Note may not be assigned by Borrower
or Lender. This Note shall be binding on Borrower and shall inure to the benefit
of Lender.
(b) This Note represents the agreement of Borrower and
Lender with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by Lender relative to the subject
matter hereof not expressly set forth or referred to herein or in the other Loan
Documents.
14. Severability. If any term or provision of this Note or the
application thereof to any person or circumstance shall to any extent be
invalid, illegal or unenforceable, the remainder of this Note or the application
of such term or provision to persons or circumstances other than those as to
which it is invalid or unenforceable shall not be affected thereby.
Notwithstanding
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anything to the contrary in this Note, Lender shall not be deemed to have waived
any right which Lender may have under any provisions of the U.S. Bankruptcy Code
to file a claim for the full amount of the Debt.
15. Survival. All representations and warranties made hereunder,
in the other Loan Documents and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Note.
16. Termination of the Note. Notwithstanding any provision of this
Note to the contrary, if Lender exercises its right to take ownership in the
Interest pledged under the Pledge Agreement, this Note shall be deemed satisfied
to the extent of 30% of the Appraised Net Asset Value of the Company, determined
as of the date of the exercise by Lender of such right in the manner set forth
in the definition of Appraised Net Asset Value.
[SIGNATURE APPEARS ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, Borrower has duly executed this Note as of
the date first written above.
WRD HOLDING CORPORATION
By:/s/ Bennett Borko
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Name: Bennett Borko
Title: Vice President
