<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
[X] Quarterly report under Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended June 30, 1998
[ ] Transition report under Section 13 or 15(d) of the
Exchange Act
For the transition period from ________ to ________
Commission file number 0-8901
CASA MUNRAS HOTEL PARTNERS, L.P.
-----------------------------------------------------------------
(Exact name of small business issuer as specified in its charter)
California 95-3235634
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5525 Oakdale Avenue, Suite 300, Woodland Hills, California 91364
(Address of principal executive offices)
(818) 888-6500
(Issuer's telephone number, including Area Code)
Check whether the issuer: (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes X No
--- ---
Transitional Small Business Disclosure Format: Yes No X
---- ----
<PAGE> 2
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
The accompanying unaudited financial statements of Casa Munras Hotel
Partners, L.P. have been prepared in accordance with generally accepted
accounting principles for interim financial information and with the
instructions to Form 10-QSB. Accordingly, these statements do not include all of
the information and footnotes required by generally accepted accounting
principles for complete financial statements. In the opinion of the General
Partners of the Registrant, all adjustments necessary for a fair presentation
have been included. The financial statements presented herein have been prepared
in accordance with the accounting policies described in the Registrant's Annual
Report on Form 10-KSB for the year ended December 31, 1997 and should be read in
connection therewith. The results of operations for the three and six month
periods ended June 30, 1998 are not necessarily indicative of the results to be
expected for the full year.
1
<PAGE> 3
CASA MUNRAS HOTEL PARTNERS, L.P.
(A LIMITED PARTNERSHIP)
BALANCE SHEETS
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
June 30, December 31,
1998 1997
(Unaudited)
- ---------------------------------------------------------------------------------------------
ASSETS
<S> <C> <C>
CURRENT ASSETS:
Cash $ 1,152,625 $ 367,327
Accounts receivable 71,025 55,151
Food and beverage inventories 16,579 15,908
Prepaid expenses 36,668 33,566
----------- -----------
Total current assets 1,276,897 471,952
----------- -----------
LAND, PROPERTY AND EQUIPMENT - at cost:
Building and improvements 4,793,731 4,793,731
Hotel furnishings and equipment 1,514,878 1,480,980
Restaurant furnishings and equipment 39,400 37,479
Construction in progress 1,183,719 143,435
Less accumulated depreciation (4,010,939) (3,849,939)
----------- -----------
3,520,789 2,605,686
Land 700,000 700,000
----------- -----------
Land, property and equipment - net 4,220,789 3,305,686
----------- -----------
OTHER ASSETS:
Liquor License 40,000 40,000
Loan commitment fees 196,095 172,667
Escrow impound accounts 66,550
----------- -----------
Total other assets 302,645 212,667
----------- -----------
TOTAL $ 5,800,331 $ 3,990,305
=========== ===========
LIABILITIES AND PARTNERS' (DEFICIT) EQUITY
CURRENT LIABILITIES:
Accounts payable - trade $ 432,086 $ 58,592
Accounts payable - related parties 46,040 34,712
Accrued incentive management fees - related parties 50,910 144,190
Accrued salaries and wages 46,150 45,923
Accrued room tax and other 66,427 32,937
Current portion of long-term debt 96,065 98,625
Distributions payable 90,000
Note payable - affiliate 366,210
----------- -----------
Total current liabilities 737,678 871,189
LONG-TERM DEBT 6,903,935 172,594
----------- -----------
Total liabilities 7,641,613 1,043,783
----------- -----------
PARTNERS' (DEFICIT) EQUITY:
General Partners (45 units issued and outstanding) (231,918) 29,467
Limited Partners (4,455 units issued and outstanding) (1,609,364) 2,917,055
----------- -----------
Total Partners' (deficit) equity (1,841,282) 2,946,522
----------- -----------
TOTAL $ 5,800,331 $ 3,990,305
=========== ===========
</TABLE>
2
<PAGE> 4
CASA MUNRAS HOTEL PARTNERS, L.P.
(A LIMITED PARTNERSHIP)
STATEMENTS OF OPERATIONS
FOR THE THREE AND SIX MONTHS ENDED JUNE 30, 1998 AND 1997
(Unaudited)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
Three Months Ended Six Months Ended
June 30, June 30,
1998 1997 1998 1997
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
REVENUES:
Room $ 925,229 $ 835,189 $1,470,072 $1,371,036
Food and beverage 180,816 175,898 307,308 297,741
Lease 22,586 23,084 45,679 42,526
Telephone 12,357 10,174 23,452 19,882
Other 5,235 5,316 9,596 14,154
---------- ---------- ---------- ----------
Total 1,146,223 1,049,661 1,856,107 1,745,339
---------- ---------- ---------- ----------
OPERATING EXPENSES:
Rooms 240,155 225,837 448,974 411,507
Food and beverage 157,174 154,210 290,816 283,291
Administrative and general 99,611 90,069 183,604 169,982
Management fees 91,711 82,349 124,026 118,150
Depreciation and amortization 83,000 87,000 161,000 174,000
Marketing 80,862 66,647 152,045 126,477
Repairs and maintenance 64,724 63,315 132,899 124,997
Interest 51,286 17,093 67,079 34,278
Energy cost 41,761 37,607 85,524 73,843
Partnership administration
and professional fees 16,680 21,100 48,502 57,183
Property taxes 15,793 16,464 31,648 31,586
Insurance 7,809 13,197 15,618 24,630
Telephone 6,705 4,989 11,012 9,868
---------- ---------- ---------- ----------
Total (including reimbursed
costs and payments for
services to related parties
of $275,743 and $158,890
and $462,165 and $327,704
for the three and six months
ended June 30, 1998 and 1997,
respectively) 957,271 879,877 1,752,747 1,639,792
---------- ---------- ---------- ----------
NET INCOME $ 188,952 $ 169,784 $ 103,360 $ 105,547
========== ========== ========== ==========
</TABLE>
3
<PAGE> 5
CASA MUNRAS HOTEL PARTNERS, L.P.
(A LIMITED PARTNERSHIP)
STATEMENTS OF OPERATIONS
FOR THE THREE AND SIX MONTHS ENDED JUNE 30, 1998 AND 1997
(Unaudited)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
Three Months Ended Six Months Ended
June 30, June 30,
1998 1997 1998 1997
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
ALLOCATION OF NET INCOME:
General Partners $ 1,890 $ 1,698 $ 1,034 $ 1,055
Limited Partners (4,455 Limited
Partnership units outstanding) 187,062 168,086 102,326 104,492
---------- ---------- ---------- ----------
Total $ 188,952 $ 169,784 $ 103,360 $ 105,547
========== ========== ========== ==========
DISTRIBUTION TO PARTNERS:
Distribution to Partners $4,675,500 $ 90,000 $4,675,500 $ 135,000
Special distribution of refinance
proceeds 215,644 215,644
---------- ---------- ---------- ----------
Total Distribution to Partners $4,891,144 $ 90,000 $4,891,144 $ 135,000
========== ========== ========== ==========
PER UNIT INFORMATION (based upon 4,500
total units outstanding):
Net Income $ 41.99 $ 37.73 $ 22.97 $ 23.45
========== ========== ========== ==========
Distribution $ 1,039.00 $ 20.00 $ 1,039.00 $ 30.00
========== ========== ========== ==========
</TABLE>
4
<PAGE> 6
CASA MUNRAS HOTEL PARTNERS, L.P.
(A LIMITED PARTNERSHIP)
STATEMENTS OF CASH FLOWS
FOR THE SIX MONTHS ENDED JUNE 30, 1998 AND 1997
(Unaudited)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------
1998 1997
- ------------------------------------------------------------------------------------------------------
<S> <C> <C>
OPERATING ACTIVITIES:
Net income $ 103,360 $ 105,547
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization 161,000 174,000
Change in assets and liabilities:
Accounts receivable (15,874) (15,991)
Food and beverage inventories (671) 4,258
Prepaid expenses (3,102) (3,737)
Account payable an accrued expenses 235,259 (25,977)
----------- -----------
Net cash provided by operating activities 479,972 238,100
----------- -----------
INVESTING ACTIVITIES:
Acquisition of property and equipment (1,076,103) (187,505)
----------- -----------
FINANCING ACTIVITIES:
Borrowings from affiliates 222,210 16,924
Payments on notes from affiliates (588,420)
Distributions paid to Partners (4,891,164) (216,000)
Long-term borrowings 7,250,000
Payment of long-term debt (521,219) (49,313)
Loan commitment fee (23,428)
Impound escrow accounts (66,550)
----------- -----------
Net cash (used in) provided by financing activities 1,381,429 (248,389)
----------- -----------
NET (DECREASE) INCREASE IN CASH 785,298 (197,794)
CASH AT BEGINNING OF PERIOD 367,327 569,371
----------- -----------
CASH AT END OF PERIOD $ 1,152,625 $ 371,577
=========== ===========
</TABLE>
5
<PAGE> 7
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
Results of Operations for the Three and Six Months Ended June 30, 1998 and 1997
For the three and six months ended June 30, 1998 as compared to the same
period of the prior year, occupancy rates at the Registrant's hotel were 75% and
63% versus 72% and 61% and average room rates were $88.37 and $84.99 versus
$84.12 and $81.29, resulting in an increase in room revenue totaling $90,040 and
$99,036 for the three and six months ended June 30, 1998 as compared to the
comparable periods in 1997, respectively. Food and beverage revenues increased
$4,918 and $9,567 for the three and six months ended June 30, 1998 as compared
to 1997, respectively. The increase in room rates reflects management's decision
to charge more for rooms as a result of the capital improvements program. The
increase in occupancy is attributed to increased leisure travel in the second
quarter of 1998 as compared to 1997.
Operating expenses totaled $957,271 and $1,752,747 for the for the three
and six months ended June 30, 1998 as compared to $879,877 and $1,639,792 for
the three and six months ended June 30, 1997. The principal reason for the
increase in rooms, marketing and interest expenses is due to improved occupancy
with additional costs directly related to occupancy increases, additional
expenditures to promote the hotel, and increased interest expense as a result of
the new first mortgage, respectively.
Net income increased (decreased) $19,169 and $(2,187) to $188,952 and
$103,360 for the three and six months ended June 30, 1998 as compared to 1997,
respectively, principally due to increased revenue during the periods partially
offset by the increases in operating expenses described above.
Liquidity and Capital Resources
The Registrant's primary source of cash is revenues from the operation
and leasing of the hotel facility. The Registrant's primary uses of cash are to
fund hotel operating expenses, payments on the first mortgage, renovations and
to pay distributions to Partners.
During the six months ended June 30 1998, the Registrant generated
$479,972 in net cash provided by operating activities.
In June 1998, the Partnership obtained a First Mortgage payable for
$7,000,000 at 7.7% interest, secured by the Casa Munras, with a ten year term;
subject to certain conditions, the principal may be amortizable for 25 years.
Monthly principal and interest payments totaling $52,643 are due beginning
August 1, 1998. The terms and conditions of the loan also require that certain
amounts be held in escrow for property taxes, insurance and repairs, which
amounts are required to be deposited monthly.
6
<PAGE> 8
From the proceeds of the first mortgage payable of $7,000,000, the
Registrant paid loan fees of $196,095, notes payable to affiliates of $588,420,
the notes due the bank of $480,125, a distribution to the general and limited
partners totaling $4,891,164 and the balance of $844,195 to fund the
construction of the 14 additional guest rooms. The distribution paid from
refinancing proceeds includes $215,664 paid to the General Partners as their 25%
share of the refinancing proceeds in excess of the return to the general and
limited partners of their original investment plus a 12% per year return from
the Partnership inception (partial year pro-rated) less previous distributions
from the Partnerships inception paid to date.
The Partnership has substantially completed construction of the 14
additional guest rooms at an approximate cost of $1,185,000.
Acquisition of property and equipment during the six months ended June
30, 1998 totaled $1,076,103 ($1,040,283 related to the 14 additional guest
rooms). It is estimated that approximately $150,000 more will be expended in
1998 for ongoing renovations of existing assets.
The General Partners intend, to the extent cash is available upon
completion of the 14 additional guest rooms, upon repayment of current long-term
debt outstanding or other obligations under the first mortgage payable and after
necessary cash reserves are determined by the General Partners, to distribute
remaining cash to the Limited and General Partners in accordance with the
Partnership Agreement at amounts approximating the Registrant's net income.
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits:
10.9 Fixed Rate Note dated June 12, 1998, executed by Casa Munras
Hotel Partners, L.P. and Amresco Capital, L.P..
27 Financial Data Schedule
(b) Reports on Form 8-K:
None.
7
<PAGE> 9
SIGNATURE
In accordance with the requirements of the Exchange Act, the Registrant has
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
CASA MUNRAS HOTEL PARTNERS, L.P.
By JOHN F. ROTHMAN
-------------------------------
John F. Rothman
General Partner
Dated: August 10, 1998
By RONALD A. YOUNG
------------------------------
Ronald A. Young
General partner
Dated: August 10, 1998
8
<PAGE> 10
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description Page
- ------- ----------- ------------
<S> <C> <C>
27 Financial Data Schedule
10.9 Fixed Rate Note dated June 12, 1998,
executed by Casa Munras Hotel Partners, L.P.
and Amresco Capital, L.P..
</TABLE>
<PAGE> 1
EXHIBIT 10.9
FIXED RATE NOTE
[With Defeasance and Lockbox Provisions]
$7,000,000.00 June 12, 1998
FOR VALUE RECEIVED CASA MUNRAS HOTEL PARTNERS, L.P., a California limited
partnership (hereinafter referred to as "Maker"), promises to pay to the order
of AMRESCO CAPITAL, L.P., a Delaware limited partnership, its successors and
assigns (hereinafter referred to as "Payee"), at the office of Payee or its
agent, designee, or assignee at 700 North Pearl Street, Suite 2400, LB#342,
Dallas, Texas 75201-7424, Attention: Loan Servicing, or at such place as Payee
or its agent, designee, or assignee may from time to time designate in writing,
the principal sum of SEVEN MILLION and No/100 Dollars ($7,000,000.00), 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 Deed of Trust [hereinafter defined]), and to
be paid in instalments as follows:
1. A payment of interest only on the date hereof for the period from the
date hereof through the last day of the current calendar month, both
inclusive;
2. A constant payment (the "Monthly Payment"), in arrears, of $52,643.44,
on the first day of August, 1998 and on the first day of each calendar
month thereafter up to and including the month immediately preceding
the Scheduled Maturity Date stated below, which Monthly Payment is
calculated using an amortization period of twenty-five (25) years (the
"Amortization Period")
and the balance of said principal sum, together with accrued and unpaid interest
and any other amounts due under this Note shall be due and payable on the first
day of July 2008 (the "Scheduled Maturity Date") or upon earlier maturity hereof
whether by acceleration or otherwise (together with the Scheduled Maturity Date,
collectively, the "Maturity Date"). Interest on the principal sum of this Note
shall be calculated on the basis of a three hundred sixty (360) day year
composed of twelve (12) months of thirty (30) days each, except that (i)
interest due and payable for a period less than a full month shall be calculated
by multiplying the actual number of days elapsed in such period by a daily rate
based on said 360 day year, and (ii) in any event interest calculated with
reference to the maximum rate permitted by applicable law shall be calculated by
multiplying the actual number of days elapsed in such period by a daily rate
based on a year of 365/366 days (as applicable). Monthly Payments under this
Note shall be applied first, to the payment of interest and other costs and
charges due in connection with this Note or the Debt (as hereinafter defined),
in such order as Payee may determine in its sole discretion, and the balance
shall be applied toward the reduction of the principal sum or as otherwise
provided below with respect to funds received after the Scheduled Maturity Date.
All amounts due under this Note
<PAGE> 2
shall be payable without setoff, counterclaim or any other deduction whatsoever.
The term "Applicable Interest Rate" means (a) from the date of this Note
through but not including the Scheduled Maturity Date, a rate of 7.70% per annum
(the "Initial Interest Rate"), or (b) from and after the Scheduled Maturity Date
through and including the date this Note is paid in full, a rate (the "Revised
Interest Rate") equal to the lesser of (x) the maximum rate pennitted by
applicable law, or (y) the greater of (i) two percent (2%) above the Initial
Interest Rate or (ii) two percent (2%) above the Extended Treasury Rate
(hereinafter defined), subject, however, to the provisions below for the Default
Rate (hereinafter defined). The term "Extended 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 Scheduled Maturity Date, of U.S. Treasury constant maturities with maturity
dates (one longer and one shorter) most nearly approximating the date which is
end of the Amortization Period. (In the event Release H. 15 is no longer
published, Payee shall select a comparable publication to determine the Extended
Treasury Rate.) In the event that (A) Maker does not pay the full amount of the
Debt on or before the Scheduled Maturity Date and no other Event of Default
shall have occurred which has not been cured to Payee's satisfaction within any
applicable notice and cure period, and (B) Maker has executed the Disbursement
Agreement (as hereinafter defined) and taken all actions required by Payee for
the institution of the lockbox arrangement described therein, and (C) Payee has
not made final demand for the payment of the Debt, then in such event, and until
the date on which Payee makes final demand for the payment of the Debt or two
(2) years after the Scheduled Maturity Date, whichever is earlier (the "Final
Demand Date"), or until the occurrence of an Event of Default (other than
Maker's failure to pay the full amount of the Debt on the Scheduled Maturity
Date) interest shall accrue on the unpaid principal balance of this Note from
and after the Scheduled Maturity Date at the Revised Interest Rate, although the
Monthly Payment will continue to be payable at the Initial Interest Rate, and
the difference between the interest accrued at the Revised Interest Rate and the
interest payable at the Initial Interest Rate (which difference is referred to
as "Accrued Interest") shall not be due and payable until the remainder of the
Debt is due and payable, that is on the Final Demand Date, unless sooner paid as
hereinafter provided. To the extent permitted under applicable law, any accrued
and unpaid Accrued Interest shall be capitalized monthly and shall accrue
interest at the Revised Interest Rate.
This Note is evidenced andlor secured by, and Payee is entitled to the
benefits of, the Deed of Trust, the Assignment, Security Agreement the
Environmental Agreement, and the other Loan Documents (hereinafter defined). The
term "Deed of Trust" means the Deed of Trust, Assignment of Leases and Rents,
Security Agreement and Fixture Filing, dated the date hereof given by Maker for
the use and benefit of Payee covering the estate of Maker in certain premises as
more particularly described therein and all other collateral for the loan
evidenced by this Note (collectively the "Mortgaged Property"). The term
"Assignment" means the Assignment of Leases and Rents of even date herewith
executed by Maker in favor of Payee. The term "Security Agreement" means the
Security Agreement of even date herewith executed by Maker in favor of
2
<PAGE> 3
Payee covering a security interest in all collateral as more particularly
described therein. The term "Environmental Agreement" means the Environmental
Liabilities Agreement of even date herewith executed by Maker in favor of Payee.
The term "Loan Documents" refers collectively to this Note, the Deed of Trust,
the Assignment, the Security Agreement, the Environmental Agreement and any and
all other documents executed in connection with this Note, including, but not
limited to, certain terms and provisions of the Term Loan Commitment issued by
Payee on January 9, 1998 and accepted by Maker (the "Commitment") that by its
terms expressly survive the execution and delivery of the Loan Documents, or now
or hereafter executed by Maker and/or others and by or in favor of Payee which
evidence the obligations of Maker in connection with this loan being made to
Maker or which wholly or partially secure or guarantee payment of this Note or
pertains to indebtedness evidenced by this Note (as same may be amended,
renewed, and restated from time to time).
If any installment payable under this Note (other than Maker's failure to
pay the full amount of the Debt on the Scheduled Maturity Date but including the
final installment due on the Final Demand Date or upon maturity by acceleration
or otherwise) is not received by Payee within ten (10) days after the date on
which it is due (without regard to any applicable cure and/or notice period),
Maker shall pay to Payee 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 Payee in handling and
processing such delinquent payment and to compensate Payee for the loss of the
use of such delinquent payment, and such amount shall be secured by the Loan
Documents. The term "Debt" means, collectively, (i) the unpaid principal balance
of and the accrued but unpaid interest on this Note, (ii) all other sums due,
payable or reimbursable to Payee under the Loan Documents (including, without
limitation, sums due or payable by Maker for deposit into the Tax and Insurance
Escrow Fund [as defined in the Deed of Trust], the Replacement Escrow Fund [as
defined in the Deed of Trust], and any other escrows established or required
under the Loan Documents), and (iii) any and all other liabilities and
obligations of Maker under this Note or the other Loan Documents, and (iv) after
the Scheduled Maturity Date, any Accrued Interest and interest legally permitted
to accrue thereon.
So long as an Event of Default exists, Payee may, at its option, without
notice or demand to Maker, accelerate the maturity of this Note and the
obligations of Maker under the Loan Documents and 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 Maker arising from or
related to the Loan Documents, Maker also agrees to pay to Payee on demand all
costs of collection or defense incurred by Payee, including reasonable
attorneys' fees and expenses for the services of counsel whether or not suit be
brought. Provided, however, if suit is filed by Payee against Maker to
3
<PAGE> 4
enforce any terms of this Note, and Payee fails to prevail in whole or in part
pursuant to a final judgment and after the expiration of any appeal rights, then
Maker shall not be liable for Payees expenses.
RAY
JFR
--------
INITIALS
Upon the occurrence of an Event of Default, and beginning in any event no
later than the Final Demand Date, Maker 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 Initial 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 Payee. 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
Payee shall select a comparable interest rate index which is readily available
and verifiable to Maker but is beyond Payee'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 Payee 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 Payee by reason of the occurrence of any Event
of Default.
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)
until after the Permitted Prepayment Date (hereinafter defined). At any time
after the date occurring three years after the first scheduled payment date
under this Note (the "Permitted Prepayment Date") and provided no Event of
Default exists, Maker may voluntarily defease all or any portion of the Debt
(hereinafter, a "Defeasance Event") by providing Payee with the Defeasance
Collateral (as defined below) that produce payments which replicate the
Scheduled Defeasance Payments (as defined below). Each Defeasance Event by the
Maker shall be subject to the satisfaction of the following conditions
precedent:
(1) Maker shall provide not less than thirty (30) days prior written
notice to Payee specifying a regularly scheduled payment date (the
"Defeasance Date") on which the Defeasance Event is to occur. Such notice
shall indicate the principal amount of the Note to be defeased;
4
<PAGE> 5
(2) Maker shall pay to Payee all accrued and unpaid interest on the
principal balance of the Note to but not including the Defeasance Date. If
for any reason the Defeasance Date is not a regularly scheduled payment
date, the Maker shall also pay interest that would have accrued on the Note
through the next regularly scheduled payment date;
(3) Maker shall pay to Payee all other sums, not including scheduled
interest or principal payments, due under the Note, the Deed of Trust, and
the other Loan Documents;
(4) Maker shall pay to Payee the principal amount of the Note to be
defeased together with an additional amount (the "Yield Maintenance
Premium") such that the aggregate amount (the "Defeasance Deposit") is
sufficient to purchase direct, non-callable obligations of the United
States of America (the "Defeasance Collateral") that provide payments on or
prior, but as close as possible, to all successive scheduled payment dates
after the Defeasance Date upon which interest and/or principal payments are
due under the Note (including the amounts due on the Maturity Date), in the
case of a Defeasance Event for the entire outstanding principal balance of
the Note, or the Defeased Note (as defined below), in the case of a
Defeasance Event for only a portion of the outstanding principal balance of
the Note, as applicable, and in amounts equal to the scheduled payments due
on such dates and on the Maturity Date under the Note or the Defeased Note,
as applicable (the "Scheduled Defeasance Payments"), for the Defeasance
Event;
(5) In the event only a portion of the principal balance of the Note
is the subject of the Defeasance Event, Maker shall prepare all necessary
documents to amend and restate the Note and issue two substitute notes, one
note having a principal balance equal to the defeased portion of the
original Note (the "Defeased Note") and the other note having a principal
balance equal to the undefeased portion of the Note (the "Undefeased
Note"). The Defeased Note and Undefeased Note shall have identical terms as
the Note except for the principal balance. A Defeased Note cannot be the
subject of any further Defeasance Event;
(6) Maker shall deliver to Payee on or prior to the Defeasance Date:
(A) an executed security agreement, in form and substance
satisfactory to Payee, creating a first priority lien on the
Defeasance Deposit and the Defeasance Collateral (the "Defeasance
Security Agreement")
(B) an opinion of counsel for Maker in form and substance
satisfactory to Payee in its sole discretion stating, among other
things, that Maker has legally and validly transferred and
assigned the Defeasance Collateral and all obligations, rights
and duties under and to the Note or Defeased Note (as applicable)
to the Successor Borrower (as defined below), that Payee has a
perfected first priority security interest in the Defeasance
Deposit and the Defeasance Collateral delivered
5
<PAGE> 6
by Maker, and that any REMIC Trust formed pursuant to Section
860D of the Internal Revenue Code of 1986, as amended from time
to time, or any successor statute (the "Code") that holds the
Note will not fail to maintain its status as a "real estate
mortgage investment conduit" (a "REMIC") within the meaning of
Section 860D of the Code as a result of such Defeasance Event;
(C) a certificate of Maker certifying that all requirements
relating to defeasance set forth in this Note and any other Loan
Documents have been satisfied;
(D) such other certificates, documents or instruments as
Payee may reasonably request; and
(7) Maker shall pay all costs and expenses of Payee incurred in connection
with the Defeasance Event, including any costs and expenses associated with a
release of the lien of the Deed of Trust as provided below as well as reasonable
accountants' and attorneys' fees and expenses.
In connection with each Defeasance Event, Maker hereby appoints Payee as
its agent and attorney-in-fact for the purpose of using the Defeasance Deposit
to purchase the Defeasance Collateral. Payee shall receive written confirmation
from independent accountants as to the sufficiency of such Defeasance Collateral
to provide the payments as described above. Maker, pursuant to the Defeasance
Security Agreement or other appropriate document, shall authorize and direct
that the payments received from the Defeasance Collateral may be made directly
to the account maintained by, or for the benefit of, Payee (unless otherwise
directed by Payee) and applied to satisfy the obligations of Maker or Successor
Borrower under the Note or the Defeased Note, as applicable. Any portion of the
Defeasance Deposit in excess of the amount necessary to purchase the Defeasance
Collateral and satisfy Maker's obligations shall be remitted to Maker.
Except as set forth in this Note, no repayment, prepayment or defeasance of
all or any portion of the Note shall cause, give rise to a right to require, or
otherwise result in, the release of the lien of the Deed of Trust on the
Mortgaged Property.
If the Maker has elected to defease the entire Note and the conditions
precedent listed above and all other terms and conditions set forth herein have
been satisfied, the Mortgaged Property shall be released from the lien of the
Deed of Trust, and the Assignment of Leases and Rents and the Guaranty shall be
released (to the same extent it would have been released upon payment in full of
this Note) and the Defeasance Collateral, pledged pursuant to the Defeasance
Security Agreement, shall be the sole source of collateral securing the Note.
In connection with the release of the lien, the Maker shall submit to
Payee, not less than thirty (30) days prior to the Defeasance Date, a release of
lien for the Deed of Trust and related Loan Documents (including any guaranty)
for execution by Payee. Such release shall be in form appropriate in the
jurisdiction in which the Mortgaged Property is located and satisfactory to
6
<PAGE> 7
Payee in its sole discretion. In addition, Maker shall pay all recording costs,
fees and expenses associated with recording the release of lien. Maker shall
provide all other documentation Payee reasonably requires to be delivered by
Maker in connection with such release, together with a certificate certifying
that such documentation (i) is in compliance with all applicable laws, and (ii)
will effect such release in accordance with the terms of this Note.
Payee, at Maker's expense, may form or, at Payee's request, Maker shall
form a special-purpose bankruptcy remote entity (the "Successor Borrower") to be
the obligor under the Note or the Defeased Note, as applicable. Maker shall, at
Payee's request, assign all of its obligations and rights under the Note to the
Successor Borrower. In connection therewith, the Successor Borrower shall
execute an assumption agreement in form and substance satisfactory to Payee in
its sole discretion pursuant to which it shall assume Maker's obligations under
the Note or the Defeased Note, as applicable, and the Defeasance Security
Agreement and Maker and any guarantors shall be released from their obligations
with respect to such assumed documents. The sole assets of the Successor
Borrower shall be Defeasance Collateral. In connection with such assignment and
assumption, Maker shall:
(1) deliver to Payee an opinion of counsel in form and substance and
delivered by counsel satisfactory to Payee in its sole discretion stating,
among other things, that such assumption agreement is enforceable against
Maker and the Successor Borrower in accordance with its terms, that the
Note, the Defeasance Security Agreement and any other documents executed in
connection with such defeasance are enforceable against the Successor
Borrower in accordance with their respective terms and that the delivery of
the Defeasance Deposits and transfer of the Defeasance Collateral to
Successor Borrower does not constitute a fraudulent conveyance or a
preference payment under applicable bankruptcy law;
(2) pay all costs and expenses incurred by Payee or its agents in
connection with such assignment and assumption (including, without
limitation, any fees and disbursements of legal counsel); and
(3) pay $1,000 to the Successor Borrower as consideration for assuming
the obligations under the Note and the Defeasance Security Agreement and a
defeasance processing fee in an amount equal to one-half of one percent
(.5%) of the original outstanding principal balance of the Note but in no
event less than (a) $10,000 or greater than (b) $20,000, to the servicer of
the Note; provided, notwithstanding anything to the contrary herein or in
the Loan Documents, no other assumption fee shall be payable by Maker in
connection with such assumption.
7
<PAGE> 8
BY INITIALING BELOW, MAKER EXPRESSLY ACKNOWLEDGES AND UNDERSTANDS THAT, PURSUANT
TO THE TERMS OF THIS NOTE, IT HAS AGREED THAT IT HAS NO RIGHT TO PREPAY THIS
NOTE N WHOLE OR IN PART WITHOUT PENALTY EXCEPT AS OTHERWISE PROVIDED N THE NOTE
AND THAT IT SHALL BE LIABLE FOR THE PAYMENT OF A PENALTY FOR PREPAYMENT OF THIS
NOTE ON ACCELERATION OF THE NOTE IN ACCORDANCE WITH ITS TERMS. FURTHERMORE, BY
INITIALING BELOW, MAKER WAIVES ANY RIGHTS IT MAY HAVE UNDER SECTION 2954.10 OF
THE CALIFORNIA CIVIL CODE, OR ANY SUCCESSOR STATUTE, AND EXPRESSLY ACKNOWLEDGES
AND UNDERSTANDS THAT THE PAYEE HAS MADE OR ACQUIRED THE LOAN EVIDENCED IN
RELIANCE ON THE AGREEMENTS AND WAIVER OF MAKER AND THAT THE PAYEE WOULD NOT HAVE
MADE OR ACQUIRED THIS LOAN WITHOUT SUCH AGREEMENTS AND WAIVER OF MAKER.
RAY
JFR
--------
INITIALS
Maker acknowledges that, in establishing the Applicable Interest Rate,
Payee has assumed and taken into account the fact that the loan evidenced by
this Note will not be prepaid (other than at the times, and on the terms, herein
provided) and that there will be no prohibited transfer of all or any part of
the Mortgaged Property or any other event which would cause Payee to accelerate
the Maturity Date. The following provisions relating to Maker's payment of a
premium in the event of an acceleration are intended to compensate Payee in the
event that this assumption proves to be incorrect. If Payee exercises its option
to declare the entire unpaid principal balance due and payable and/or causes to
be recorded a notice of default in accordance with Section 2924 of the
California Civil Code (or any comparable statute or law) after the occurrence of
an Event of Default, there shall be due and payable (in the absence of
reinstatement in accordance with Section 2424c of the California Civil Code or
any comparable statute or law), in addition to the unpaid principal balance and
accrued interest and any other sums due under this Note or any of the other Loan
Documents, equal to the lesser of: (i) a prepayment consideration equal to the
prepayment consideration that would have been payable as of the first day of the
period during which prepayment would have been permitted; or (ii) the prepayment
consideration that would be payable as of the date of the occurrence of the
Event of Default if such Event of Default occurs after the date on which
prepayment would have been permitted.
RAY
JFR
--------
INITIALS
If, prior to the Scheduled Maturity Date and following the occurrence of
any Event of Default, Maker shall tender payment of an amount sufficient to
satisfy all or any portion of the Debt, such tender by Maker shall be deemed to
be a voluntary prepayment under this Note in the
8
<PAGE> 9
amount tendered and Maker shall pay, in addition to the Debt, an amount equal
to the Yield Maintenance Premium that would be required if a Defeasance Event
had occurred, together with all other amounts Maker is obligated to pay if a
Defeasance Event had occurred. If a complete or partial prepayment results from
the application to the Debt of the casualty or condemnation proceeds from the
Mortgaged Property, no prepayment consideration will be imposed. Partial
prepayments of principal resulting from the application of casualty or insurance
proceeds to the Debt shall not change the amounts of subsequent monthly
installments nor change the dates on which such installments are due, unless
Payee shall otherwise agree in writing. Notwithstanding any provision herein to
the contrary, Maker 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 during the six (6) months preceding the
Scheduled Maturity Date (the "Open Prepayment Period") without any fee or
consideration for such privilege. If any such notice of prepayment is given, the
principal balance of this Note and the other sums required under this paragraph
shall be due and payable on the selected prepayment date.
RAY
JFR
--------
INITIALS
It is expressly stipulated and agreed to be the intent of Maker and Payee
at all times to comply with applicable state law or applicable United States
federal law (to the extent that it permits Payee to contract for, charge, take,
reserve or receive a greater amount of interest than under state law) and that
this section shall control every other covenant and agreement in this Note and
the other Loan Documents. If the applicable law (state or federal) is ever
judicially interpreted so as to render usurious any amount called for under this
Note or under any of the other Loan Documents, or contracted for, charged,
taken, reserved or received with respect to the indebtedness evidenced by this
Note and the other Loan Documents, or if Payee's exercise of the option to
accelerate the maturity of this Note, or if any prepayment by Maker results in
Maker having paid any interest in excess of that permitted by applicable law,
then it is Maker's and Payee's express intent that all excess amounts
theretofore collected by Payee be credited on the principal balance of this Note
(or, if this Note has been or would thereby be paid in full, refunded to Maker),
and the provisions of this Note and the other Loan Documents immediately be
deemed reformed and the amounts thereafter collectible hereunder and thereunder
reduced, without the necessity of the execution of any new document, so as to
comply with the applicable law, but so as to permit the recovery of the fullest
amount otherwise called for hereunder and thereunder. All sums paid or agreed to
be paid to Payee for the use, forbearance and detention of the indebtedness
evidenced hereby and by the other Loan Documents shall, to the extent permitted
by applicable law, be amortized, prorated, allocated and spread throughout the
full term of such indebtedness until payment in full so that the rate or amount
of interest on account of such indebtedness does not exceed the maximum rate
permitted under applicable law from time to time in effect and applicable to the
indebtedness evidenced hereby for so long as such indebtedness remains
outstanding. Notwithstanding anything to the contrary contained herein or in any
of the other Loan Documents, it is not the intention of Payee to accelerate the
maturity of any interest
9
<PAGE> 10
that has not accrued at the time of such acceleration or to collect unearned
interest at the time of such acceleration.
Except as specifically provided in the Loan Documents, Maker 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,
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
Maker 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 of further collateral, (iii) to the release of
any existing collateral for the payment of this Note and/or release of any party
liable for the obligations under the Loan Documents, (iv) to any and all
renewals, waivers or modifications that may be granted by Payee with respect to
the payment or other provisions of this Note, and/or (v) that additional makers,
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 Maker under this Note or any
surety, endorser or guarantor hereof even though the Maker or such surety,
endorser or guarantor hereof is not a party to such agreement. Maker
specifically waives any rights it may have under California Civil Code Sections
2819 and 2822.
Failure of Payee to exercise any of the options granted herein to Payee
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 Payee 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 Payee at
that time or at any subsequent time or nullify any prior exercise of any such
option without the express written acknowledgment of the Payee.
Notwithstanding anything in the Loan Documents to the contrary, but subject
to the qualifications below, Payee and Maker agree that:
(A) Maker 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, the same being all properties (whether real or personal),
rights, estates and interests now or at any time hereafter securing the payment
of the Debt and/or the other obligations of Maker under the Loan Documents
(collectively with the Mortgaged Property, the "Security Property"), provided,
however, the limitation on recourse set forth in this Section A.) will be null
and void and completely inapplicable, and this Note shall be with full recourse
to Maker, in the event (i) of fraud or material misrepresentation by Maker or
guarantors in connection with the loan evidenced by this Note, or (ii) the first
full monthly payment on the Note is not paid when due, or (iii) any
10
<PAGE> 11
default under the Subordination and Standstill Agreement by and among Maker,
John F. Rothman, Ronald A. Young and Payee of even date herewith or (iv) any
default under Sections 9(d) or 9(e) of the Deed of Trust, or (v) a default under
the Escrow for Debt Service by and between Maker and Payee of even date
herewith, or (vi) Maker pays partnership dividends or distributions at any time
that the cash flow from the Mortgaged Property (exclusive of any extraordinary
cash flow) is insufficient to pay: (aa) the Monthly Payment, and (bb) all taxes,
insurance premiums, capital replacements due during such month, including
required monthly payments into escrows for such purposes, and (cc) all other
operating expenses due during such month (excluding any management fee or
payments to any affiliates), or (vii) except as may be permitted in the
following sentence, Maker's failure to maintain at least $50,000.00 at all times
in the Maker's bank account while the Debt remains outstanding and not paid in
full. If Maker provides evidence to Payee, satisfactory to Payee in its sole
discretion, tat all rental and other revenues actually collected from the
Mortgaged Property during any month is insufficient to pay: (aa) the Monthly
Payment, (bb) all taxes, insurance premiums, capital replacements due during
such month, including required monthly payments into escrows for such purposes,
and (cc) all other operating expenses (excluding any management fee or payments
to any affiliates) then Maker may use so much of the $50,000.00 as may be
necessary to make such payments, provided, however, Maker will immediately use
any rental and other revenues actually collected from the Mortgaged Property in
excess of such payments, to replenish the account to at least $50,000.00.
(B) if a default occurs in the timely and proper payment of all or any part
of the Debt, any judicial proceedings brought by Payee against Maker shall be
limited to the preservation, enforcement and foreclosure, or any thereof, of the
liens, security titles, estates, assignments, rights and security interests now
or at any time hereafter securing the payment of the Debt and/or the other
obligations of Maker under the Loan Documents, and no attachment, execution or
other writ of process shall be sought, issued or levied upon any assets,
properties or funds of Maker other than the Security Property, except with
respect to the liability described in Section (A) above and in Section (C)
below; and
(C) in the event of a foreclosure of such liens, security titles, estates,
assignments, rights or security interests securing the payment of the Debt, no
judgment for any deficiency upon the Debt shall be sought or obtained by Payee
against Maker, except with respect to the liability described in Section (A)
above and below in this Section (C); provided that, notwithstanding the
foregoing provisions of this section, nothing contained therein shall in any
manner or way release, affect or impair the right of Payee to recover, and Maker
shall be fully and personally liable and subject to legal action for any loss,
cost, expense, damage, claim or other obligation (including without limitation
reasonable attorneys' fees and court costs) incurred or suffered by Payee
arising out of or in connection with the following:
1. any breach of the Environmental Agreement, including the
indemnification provisions contained therein;
2. Except as may be expressly provided in Section 9(d) of the Deed
of Trust, Maker's
11
<PAGE> 12
failure to obtain Payee's prior written consent to (a) any
subordinate financing or any other encumbrance on the Mortgaged
Property, or (b) any transfer of the Mortgaged Property or
majority ownership in Maker in violation of the Deed of Trust;
3. any litigation or other legal proceeding related to the Debt that
delays or impairs Payee's ability to preserve, enforce or
foreclose its lien on the Security Property, including, but not
limited to, the filing of a voluntary or involuntary petition
concerning Maker under 11 U.S.C. Section 101 et seq. (the
"Bankruptcy Code"), in which action a claim, counterclaim, or
defense is asserted against Payee, other than any litigation or
other legal proceeding in which a final, non-appealable judgment
for money damages or injunctive relief is entered against Payee;
4. Maker's failure to pay required taxes, assessments, and insurance
premiums payable with respect to the Mortgaged Property or to
maintain the required escrows therefor, to the extent that monies
are not paid by Maker in escrow for the payment of such amounts,
except for any amounts applicable to the period after foreclosure
of Payee's lien on the Mortgaged Property, or the delivery by
Maker of a deed to the Mortgaged Property in lieu of foreclosure
(which deed has been accepted by Payee in writing), or the
appointment of a receiver for the Mortgaged Property;
5. the gross negligence or willful misconduct of Maker, its agents,
affiliates, officers or employees which causes or results in a
diminution, or loss of value, of the Security Property that is
not reimbursed by insurance or which gross negligence or willful
misconduct exposes Payee to claims, liability or costs of defense
in any litigation or other legal proceeding;
6. the seizure or forfeiture of the Security Property, or any
portion thereof, or Payee's interest therein, resulting from
criminal wrongdoing by any person or entity other than Payee
under any federal, state or local law;
7. (a) any physical waste of the Mortgaged Property caused by the
intentional or grossly negligent act(s) or omission(s) of Maker,
its agents, affiliates, officers and employees, (b)the failure by
Maker to maintain, repair or restore any part of the Mortgaged
Property as may be required by the Deed of Trust or any of the
other Loan Documents to the extent of all gross revenues that
have been generated by the Mortgaged Property following the date
which is eighteen (18) months prior to notice to Maker from Payee
of such failure to maintain, repair or restore any part of the
Mortgaged Property and that have not been applied to pay any
portion of the Debt, reasonable and customary operating expenses
and capital expenditures for the Mortgaged Property paid to third
parties not affiliated (directly or indirectly) with Maker, taxes
and insurance premiums for the Mortgaged Property and escrows
deposited with Payee, or (c) the removal or disposal of any
portion of the
12
<PAGE> 13
Mortgaged Property after an Event of Default under
the Loan Documents to the extent such Mortgaged Property is not
replaced by Maker with like property of equivalent value,
function and design;
8. Maker's misapplication or conversion of any insurance proceeds
paid by reason of any loss, damage or destruction to the
Mortgaged Property and any awards or amounts received in
connection with the condemnation of all or a portion of the
Mortgaged Property and not used by Maker for restoration or
repair of the Mortgaged Property;
9. Maker's failure to pay in accordance with the terms of the Deed
of Trust any charges for labor or materials or other charges for
work performed or materials furnished prior to foreclosure that
can create liens on any portion of the Mortgaged Property, to the
extent of the amount rightfully claimed by the lien claimant, or
found in any legal proceeding to be owed to the lien claimant,
and not so paid;
10. Maker's failure to deliver any security deposits collected with
respect to the Mortgaged Property to Payee or any other party
entitled to receive such security deposits under the Loan
Documents, following an Event of Default; and
11. any rents (including advanced or prepaid rents), issues, profits,
accounts or other amounts generated by or related to the
Mortgaged Property attributable to, or accruing after an Event of
Default, which amounts were collected by Maker or its property
manager and not turned over to the Payee or used to pay
unaffiliated third parties for reasonable and customary operating
expenses and capital expenditures for the Mortgaged Property,
taxes and insurance premiums with respect to the Mortgaged
Property and any other amounts required to be paid under the Loan
Documents with respect to the Mortgaged Property.
Nothing contained in the foregoing Sections (A), (B) or (C) shall (1) be deemed
to be a release or impairment of the Debt or the lien of the Loan Documents upon
the Security Property, or (2) preclude Payee from foreclosing under the Loan
Documents in case of any default or from enforcing any of the other rights of
Payee, including naming Maker as a party defendant in any action or suit for
foreclosure and sale under the Deed of Trust, or obtaining the appointment of a
receiver, except as stated in this section, or (3) limit or impair in any way
whatsoever the Guaranty (the "Guaranty") of even date executed and delivered in
connection with the indebtedness evidenced by this Note or release, relieve,
reduce, waive or impair in any way whatsoever, any obligation of any party to
the Guaranty.
Nothing herein shall be deemed to be a waiver of any right which Payee 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 secured by the
Loan Documents or to require that all collateral shall continue to secure all of
the Debt owing to Payee in accordance with this Note and the other Loan
Documents.
13
<PAGE> 14
Maker hereby covenants and agrees to enter into a Collection and
Disbursement Agreement (together with any modification, amendment, substitution
or replacement thereof, hereinafter collectively referred to as the
"Disbursement Agreement") on or before July 1, 2007 for the purpose of creating
a lockbox arrangement acceptable to Payee, including a clearing and deposit
account with a financial institution to be named by Payee (the "Disbursement
Account"), which Disbursement Agreement shall be in Payee's then current form
and shall provide, among other things, as follows:
(1) Beginning on the Scheduled Maturity Date, all Rents (as defined
in the Deed of Trust) and other revenue, income and sums
collected from, or arising with respect to, the Mortgaged
Property shall be deposited in the Disbursement Account
established in connection with the Disbursement Agreement, to be
disbursed in accordance with the provisions of this Note.
(2) Upon the occurrence of an Event of Default under the Loan
Documents or at any time on or after the Final Demand Date, Payee
may apply any sums then held in the Disbursement Account to the
payment of the Debt in any order, in Payee's sole discretion.
(3) Until expended or applied, amounts held in the Disbursement
Account shall constitute additional security for the Debt.
(4) Upon notice to Maker, Payee may in its discretion permit or
require Maker to pay the Monthly Operating Expenses (as defined
below) pursuant to a draw request submitted to Payee monthly (or
otherwise as permitted by Payee) for a distribution from the
Disbursement Account. This shall be in addition to the
requirements of the Deed of Trust as to distributions from the
Replacement Escrow Fund for capital expenditures.
Maker shall pay all costs and expenses in connection with the Disbursement
Agreement, including without limitation reasonable attorney's fees of Payee. The
Disbursement Agreement when executed shall be a "Loan Document" for all purposes
under this Note and the other Loan Documents; however, the foregoing provisions
and Payee's rights thereunder, as well as the provisions for disbursement and
application set forth below, shall not be contingent upon the execution by Maker
of the Disbursement Agreement. Payee may also require Maker to execute an
agreement in recordable form to toll or extend the applicable statute of
limitations after the Scheduled Maturity Date and to obtain at Borrower's
expense such title policy endorsements as Payee may deem necessary to reflect
such agreement and such additional engineering report on the Mortgaged Property
as Payee may deem necessary to confirm the adequacy of the Capital Expenditures
Budget (as defined below) beyond the Scheduled Maturity Date.
Under the provisions of the Deed of Trust, it is understood that on or
before November 30 of each calendar year Maker must deliver to Payee for the
next succeeding calendar year, on a
14
<PAGE> 15
month-by-month basis an itemized budget of capital expenditures (defined in the
Deed of Trust as the "Budget" and sometimes hereinafter referred to as the
"Capital Expenditures Budget"). During the Operating Budget Period, as
hereinafter defined, Maker will prepare a management plan
together with an itemized operating budget for the Mortgaged Property
("Operating Budget"). For the purposes of this paragraph the "Operating Budget
Period" shall mean the period beginning upon the earlier of: (i) an Event of
Default, which has not been cured within any applicable notice and cure period
granted in the Loan Documents or (ii) the calendar year in which the Scheduled
Maturity Date occurs. Each such plan and budgets shall be in such format and in
such detail as Payee may request and shall be subject to Payee's review and
approval, and beginning with the Operating Budget and Capital Expenditures
Budget for the calendar year in which the Scheduled Maturity Date occurs, Payee
may require additional detail as to, among other items, budgeted monthly
operating income, operating expenses, management fees, third-party service fees
and proposed capital expenditures and cash uses for the Mortgaged Property.
After the Scheduled Maturity Date (a) taxes, insurance and capital replacements
shall be paid or reimbursed out of the Tax and Insurance Escrow Fund or (as
applicable, and subject to the Capital Expenditures Budget and other
requirements of the Deed of Trust) the Replacement Escrow Fund, both of which
escrows shall be funded as provided below, (b) the payment of other expenses of
operating the Mortgaged Property shall be subject to the provisions of the
Disbursement Agreement and the Operating Budget (which is an itemized budget for
the Mortgaged Property submitted by Maker and approved in writing by Payee
("Approved Operating Budget"), and (c) the payment of costs of tenant
improvements and leasing commissions shall be subject to the provisions not only
of such agreement and budget but also the provisions of the escrow agreement for
such purposes executed by Maker. During the Operating Budget Period, and until
such time that Payee approves a proposed Operating Budget, the most recently
Approved Operating Budget shall apply; provided that such Approved Operating
Budget shall be adjusted to reflect actual changes as determined by Payee as to
the amounts of real estate taxes, insurance premiums and utilities expenses and
to defer, as provided below, any management fees, leasing commissions or other
payments to, or any personal expenses of, Maker or any person or entity which is
directly or indirectly controlling, controlled by, or under common control with,
Maker or any guarantor of this Note ("Affiliate Expenses"). During the Operating
Budget Period, and in the event that Maker proposes to incur an extraordinary
operating expense or capital expense not set forth in the Approved Operating
Budget or Capital Expenditures Budget then in effect and not specifically
provided for in the escrows created pursuant to the Deed of Trust (an
"Extraordinary Expense"), then Maker shall promptly deliver to Payee a
reasonably detailed explanation of such proposed Extraordinary Expense for the
Payee's written approval. Maker covenants and agrees to incur costs only in
accordance with the Approved Operating Budget and Capital Expenditures Budget.
On the first day of the each calendar month following the Scheduled
Maturity Date, all funds in the Disbursement Account created pursuant to the
Disbursement Agreement shall be disbursed, unless Payee in its discretion
determines otherwise, by Payee from such account for the payment of the
following items in the specified order of payment:
15
<PAGE> 16
1st, to the payment required to be made to the Tax and Insurance
Escrow Fund in accordance with the terms and conditions of the Deed of
Trust;
2nd, to the payment of the Monthly Payment (with interest payable at the
Initial Interest Rate and principal payable in the scheduled installment
amount);
3rd, to the payment required to be made to the Replacement Escrow Fund in
accordance with the terms and conditions of the Deed of Trust;
4th, to the payment of operating expenses incurred for the Mortgaged Property
pursuant to the terms and conditions of the applicable Approved
Operating Budget ("Monthly Operating Expenses"), including the funding
of the reserve for tenant improvements and leasing commissions and the
payment of expenses for such purposes, but excluding any Affiliate
Expenses, as defined above;
5th, to the payment of Extraordinary Expenses approved in writing by Payee,
if any;
6th, to the payment of any other amounts due under the Loan Documents,
including without limitation (a) any advances made by Payee thereunder
for the protection of the Mortgaged Property and Payee's lien thereon
and (b) any escrows or reserves which are established or required under
the Loan Documents and whose funding is not provided for above; and
7th, to the principal amount outstanding under this Note until such principal
amount is paid in full;
8th, to the payment of Accrued Interest, including interest legally permitted
to accrue thereon;
9th, to the payment of Affiliate Expenses; and
Last, the remaining funds, if any, shall be disbursed to Maker.
Nothing provided above in connection with the Disbursement Account shall
limit, reduce or otherwise affect Maker's obligations under the Loan Documents,
including without limitation the obligations of Maker (i) to operate and
maintain (and to pay currently all expenses to operate and maintain) the
Mortgaged Property, to make the Monthly Payment, (ii) to fund the Tax and
Insurance Escrow Fund, the Replacement Escrow Fund and any other escrows or
reserves established or required under the Loan Documents for tenant
improvements and leasing commissions or other purposes, and (iii) to pay all
other amounts due at any time under this Note, the Deed of Trust and the other
Loan Documents (all of the amounts in items [i], [ii] and [iii] of this
paragraph being referred to as "Amounts Due"), even though the sums available in
the Disbursement Account may be insufficient on the Scheduled Maturity Date or
at other times to pay all such Amounts Due; and the failure by Maker to (a) pay
directly and timely all Amounts
16
<PAGE> 17
Due through and including the Scheduled Maturity Date and (b) deposit
immediately at all times on and after the Scheduled Maturity Date such
additional sums in the Disbursement Account as may be required to pay all
Amounts Due and all Extraordinary Expenses approved in writing by Payee shall
constitute an Event of Default as provided herein. It is also understood that
the existence or continuation of the Disbursement Account upon or after the
Scheduled Maturity Date or the Final Demand Date shall constitute neither a
waiver of any of Payee's rights and remedies under the Loan Documents (including
without limitation foreclosure on the Mortgaged Property) and applicable law
(including without limitation the appointment of a receiver) nor a limitation on
the exercise thereof by Payee or its designee.
Maker (and the undersigned representative of Maker, if any) represents
that Maker 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 Maker. Maker 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.
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 Deed of Trust, directed to the parties at their respective addresses as
provided therein.
References to particular sections of the Loan Documents shall be deemed
references to such sections as affected by other provisions of the Loan
Documents relating thereto.
Payee 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. Maker shall execute, acknowledge and deliver
any and all instruments requested by Payee 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 Payee hereunder.
MAKER 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 PAYEE AND MAKER; (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,
17
<PAGE> 18
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 MAKER, AND IS INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A
TRIAL BY JURY WOULD OTHERWISE ACCRUE. PAYEE IS HEREBY AUTHORIZED TO FILE A COPY
OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY
MAKER.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE IN WHICH THE REAL PROPERTY ENCUMBERED BY THE DEED OF TRUST IS
LOCATED (WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES) AND THE APPLICABLE
LAWS OF THE UNITED STATES OF AMERICA. MAKER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY COURT OF COMPETENT JURISDICTION LOCATED IN THE STATE IN
WHICH THE MORTGAGED PROPERTY IS LOCATED IN CONNECTION WITH ANY PROCEEDING OUT OF
OR RELATING TO THIS NOTE.
THE PROVISIONS OF THIS NOTE AND THE LOAN DOCUMENTS MAY BE AMENDED OR
REVISED ONLY BY AN INSTRUMENT IN WRITING SIGNED BY THE MAKER AND PAYEE. THIS
NOTE AND ALL THE OTHER LOAN DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT OF
MAKER AND PAYEE 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 MAKER AND PAYEE. THERE ARE NO ORAL AGREEMENTS BETWEEN MAKER AND PAYEE.
To the extent allowed by applicable law, Maker covenants and agrees that
upon the commencement of a voluntary or involuntary bankruptcy proceeding by or
against Maker, Maker shall not seek a supplemental stay or otherwise seek,
pursuant to 11 U.S.C. Section 105 or any other provision of the Bankruptcy
Reform Act of 1978, as amended, or any other debtor relief law (whether
statutory, common law, case law, or otherwise) of any jurisdiction whatsoever,
now or hereafter in effect, which may be or become applicable, to stay,
interdict, condition, reduce, or inhibit the ability of Payee to enforce any
rights of Payee against Maker by virtue of this Note or otherwise.
18
<PAGE> 19
Maker acknowledges that the subject transaction evidenced by this Note
and the Loan Documents has been arranged by a real estate broker licensed by the
State of California, and is therefore exempt under California usury laws.
Executed as of the day and year first above written.
MAKER:
CASA MUNRAS HOTEL PARTNERS, L.P.
A CALIFORNIA LIMITED PARTNERSHIP
BY: CASA MUNRAS GP, LLC,
A CALIFORNIA LIMITED LIABILITY COMPANY
BY: JOHN F. ROTHMAN
-------------------------------
NAME: JOHN F. ROTHMAN
ITS: MANAGING MEMBER
BY: RONALD A. YOUNG
-------------------------------
NAME: RONALD A. YOUNG
ITS: MANAGING MEMBER
STATE OF CALIFORNIA )
)
COUNTY OF LOS ANGELES)
On June 8, 1998, before me, personally appeared JOHN F. ROTHMAN,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity as
managing member of CASA MUNRAS GP, LLC, a California limited liability company,
on behalf of such company in its authorized capacity as general partner of CASA
MUNRAS HOTEL PARTNERS, L.P., a California limited partnership, on behalf of such
partnership.
WITNESS my hand and official seal.
IRMA LOPEZ
----------------------------------
Notary Public, State of California
My Commission Expires: 9/22/98
19
<PAGE> 20
STATE OF CALIFORNIA )
)
)
COUNTY OF LOS ANGELES )
On June 8, 1998, before me, personally appeared RONALD A. YOUNG,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity as
managing member of CASA MUNRAS GP, LLC, a California limited liability company,
on behalf of such company in its authorized capacity as general partner of CASA
MUNRAS HOTEL PARTNERS, L.P, a California limited partnership, on behalf of such
partnership.
WITNESS my hand and official seal.
IRMA LOPEZ
----------------------------------
Notary Public, State of California
My Commission Expires: 9/22/98
20
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> JUN-30-1998
<CASH> 1,152,625
<SECURITIES> 0
<RECEIVABLES> 71,025
<ALLOWANCES> 0
<INVENTORY> 16,579
<CURRENT-ASSETS> 1,276,897
<PP&E> 3,520,789
<DEPRECIATION> (4,010,939)
<TOTAL-ASSETS> 5,800,331
<CURRENT-LIABILITIES> 737,678
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> (1,841,282)
<TOTAL-LIABILITY-AND-EQUITY> 5,800,331
<SALES> 1,856,107
<TOTAL-REVENUES> 1,856,107
<CGS> 0
<TOTAL-COSTS> 1,752,747
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 67,079
<INCOME-PRETAX> 103,360
<INCOME-TAX> 0
<INCOME-CONTINUING> 103,360
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 103,360
<EPS-PRIMARY> 22.97
<EPS-DILUTED> 0
</TABLE>
