U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-KSB
(Mark One)
[X] ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES AND EXCHANGE ACT
OF 1934 [NO FEE REQUIRED]
For the fiscal year ended December 31, 1996
[] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934 [NO FEE REQUIRED]
For the transition period from to
Commission file number 0-11766
ANGELES PARTNERS XI
California 95-3788040
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Insignia Financial Plaza, P.O. Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices) (Zip Code)
Issuer's telephone number (864) 239-1000
Securities registered under Section 12(b) of the Exchange Act:
None
Securities registered under Section 12(g) of the Exchange Act:
Limited Partnership Units
(Title of class)
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]
Check if there is no disclosure of delinquent filers in response to Item 405 of
Regulation S-B contained in this form, and no disclosure will be contained, to
the best of Registrant's knowledge in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-KSB or any amendment to
this Form 10-KSB.[X]
State issuer's revenues for its most recent fiscal year. $6,940,000
State the aggregate market value of the voting stock held by non-affiliates of
the Registrant. The aggregate market value shall be computed by reference to
the price at which the stock was sold, or the average bid and asked prices of
such stock, as of a specified date within the past 60 days. Market value
information for Registrant's Partnership Interests is not available. Should a
trading market develop for these Units, it is the Registrant's belief that such
trading would not exceed $25,000,000.
DOCUMENTS INCORPORATED BY REFERENCE
None
PART I
ITEM 1. DESCRIPTION OF BUSINESS
Angeles Partners XI (the "Partnership" or "Registrant") is a publicly-held
limited partnership organized under the California Uniform Limited Partnership
Act pursuant to the Agreement of Limited Partnership dated February 14, 1983,
and amended on April 4, 1983 ("Agreement"). The Partnership's Managing General
Partner is Angeles Realty Corporation II, a California corporation. The Elliott
Accommodation Trust, the Elliott Family Partnership, Ltd. and ARC II/AREMCO
Partners, Ltd., are the Non-Managing General Partners. The Managing General
Partner and the Non-Managing General Partners are herein collectively referred
to as the "General Partners".
The Partnership, through its public offering of Limited Partnership Units, sold
40,000 units aggregating $40,000,000. The General Partner contributed capital
in the amount of $30,000 for a 1% interest in the Partnership. The Partnership
was formed for the purpose of acquiring fee interests in various types of real
property. The Managing General Partner of the Partnership intends to maximize
the operating results and, ultimately, the net realizable value of the
Partnership's remaining property in order to achieve the best possible return
for the investors. Such results may best be achieved through a property sale,
refinancing, debt restructuring or relinquishment of the asset. The Managing
General Partner intends to evaluate its holding periodically to determine the
most appropriate strategy for the asset. The Managing General Partner's policy
is to only commit cash from operations and financing secured by the real
property to support operations, capital improvements and repayment of debt.
The Partnership has no full time employees. The Managing General Partner is
vested with full authority as to the general management and supervision of the
business and affairs of the Partnership. The Non-Managing General Partners and
the Limited Partners have no right to participate in the management or conduct
of such business and affairs. Insignia Residential Group, L.P. provides day-to-
day management services to the investment property.
The business in which the Partnership is engaged is highly competitive. The
investment property is located in Plainsboro, New Jersey and, accordingly,
competes for rentals not only with similar projects in its immediate area, but
with the hundreds of similar projects throughout the urban area. Such
competition is primarily on the basis of locations, rents, services and
amenities. In addition, the Partnership competes with significant numbers of
individuals and organizations (including similar partnerships, real estate
investment trusts and financial institutions) with respect to the sale of
improved real properties, primarily on the basis of the prices and terms of such
transactions.
ITEM 2. DESCRIPTION OF PROPERTY:
The following table sets forth the Partnership's investment in property:
Date of
Property Purchase Type of Ownership Use
Fox Run Apartments 5/27/83 Fee ownership subject Residential Rental
to first and second 776 units
mortgages
The Partnership also has a 41.1% investment in the Princeton Meadows Golf Course
Joint Venture ("Joint Venture"). The Partnership entered into a General
Partnership Agreement with Angeles Income Properties, Ltd. II and Angeles
Partners XII, both of which are California partnerships and affiliates of the
Managing General Partner, to form the Joint Venture. The property owned by the
Joint Venture, as of December 31, 1996, is summarized as follows:
Date of
Property Purchase Type of Ownership Use
Princeton Meadows Golf Course 7/26/91 Fee ownership, subject Golf Course
to a first mortgage
Princeton Meadows Golf Course is accounted for by the Partnership on the equity
method of accounting in accordance with its ownership percentage and is included
on the balance sheet as an "Investment in joint venture".
SCHEDULE OF PROPERTY:
(dollar amounts in thousands)
Gross
Carrying Accumulated Federal
Property Value Depreciation Rate Method Tax Basis
Fox Run Apartments $ 28,928 $ 15,795 5-20 yrs S/L $ 9,449
See "Note A" of the financial statements included in "Item 7." for a description
of the Partnership's depreciation policy.
SCHEDULE OF MORTGAGES:
(dollar amounts in thousands)
Principal Principal
Balance At Balance
December 31, Interest Period Maturity Due At
Property 1996 Rate Amortized Date Maturity
Fox Run Apartments
1st mortgage $ 28,000 8.32% 27 years (1) 1/2002 $ 26,984
2nd mortgage 2,400 15.28% 15 years (1) 1/2002 2,204
3rd mortgage 875 11.25% 30 years 1/2002 852
Total $ 31,275 $ 30,040
1) Interest only payments, until February 1999, at which time the monthly
payment will be increased to include principal and interest.
2) Payable to Angeles Mortgage Investment Trust ("AMIT). This note is
collateralized by the Partnership's general partner interest in the Joint
Venture.
Average annual rental rate and occupancy for 1996 and 1995 for the property:
Average Annual Average Annual
Rental Rates Occupancy
Property 1996 1995 1996 1995
Fox Run Apartments $8,919/unit $8,672/unit 95% 96%
As noted under "Item 1. Description of Business," the real estate industry is
highly competitive. The investment property of the Partnership is subject to
competition from other residential apartment complexes in the area. The
Managing General Partner believes that this property is adequately insured.
The multi-family residential property's lease terms are for one year or less.
No residential tenant leases 10% or more of the available rental space.
Real estate taxes and rates in 1996 were:
(dollar amounts in thousands)
1996 1996
Billing Rate
Fox Run Apartments $ 717 2.31
ITEM 3. LEGAL PROCEEDINGS
The Registrant is unaware of any pending or outstanding litigation that is not
of a routine nature. The Managing General Partner of the Registrant believes
that all such pending or outstanding litigation will be resolved without a
material adverse effect upon the business, financial condition, or operations
of the Partnership.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Unit holders of the Partnership did not vote on any matter during the fourth
quarter of the fiscal year covered by this report.
PART II
ITEM 5. MARKET FOR THE PARTNERSHIP'S COMMON EQUITY AND RELATED SECURITY HOLDER
MATTERS
The Partnership, a publicly-held limited partnership, sold 40,000 Limited
Partnership Units during its offering period through February 1982, and
currently has 39,637 Limited Partnership Units outstanding and has 4,261 Limited
Partners of record. In 1996, the number of Limited Partnership Units decreased
by 205 units due to Limited Partners abandoning their units. In abandoning his
or her Limited Partnership Unit(s), a Limited Partner relinquishes all right,
title and interest in the Partnership as of the date of abandonment. There is
no intention to sell additional Limited Partnership Units nor is there an
established market for these Units.
The Partnership has discontinued making cash distributions from operations until
the financial condition of the Partnership and other relevant factors warrant
resumption of distributions.
ITEM 6. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION
This item should be read in conjunction with the financial statements and other
items contained elsewhere in this report.
Results of Operations
The Partnership recognized a net loss of $1,320,000 for the year ended December
31, 1996, as compared to net income of $776,000 for the year ended December 31,
1995. The decrease in net income is primarily due to the $2,336,000 gain
recognized on the sale of the Harbour Landing Apartments investment property in
1995 (see discussion below).
Total revenues for the year ended December 31, 1996, decreased as compared to
the year ended December 31, 1995, as a result of the sale of Harbour Landing
Apartments in 1995. The decrease in rental income was partially offset by an
increase in average rental rates at Fox Run Apartments. Operating, depreciation
and property tax expenses decreased primarily due to the aforementioned sale of
Harbour Landing Apartments. Partially offsetting the decrease in depreciation
expense was an increase due to the completion of certain property improvements
at Fox Run Apartments in 1995 and in the first half of 1996. An increase in tax
rates at Fox Run Apartments for 1996 offset the overall decrease in property tax
expense related to the sale. Maintenance expense increased for the year ended
December 31, 1996, as compared to the year ended December 31, 1995, as a result
of parking lot repairs, increased snow removal costs due to the harsh winter,
and exterior building maintenance completed at Fox Run Apartments. The default
interest incurred on the AMIT debt that matured September 1, 1996, led to an
increase in interest expense. General and administrative expense increased for
the year ended December 31, 1996, versus the year ended December 31, 1995, as a
result of the payment of a franchise tax by the Partnership incurred due to the
creation of a new lower tier entity as a result of the refinance (see discussion
below). Bad debt expense in 1995 is due to doubtful accounts relating to
Harbour Landing Apartments.
As mentioned previously, the Partnership has a 41.1% investment in the Princeton
Meadows Golf Course Joint Venture. For 1996, the Partnership realized an equity
in losses of the Joint Venture of $62,000 versus $129,000 in equity in losses of
the Joint Venture in 1995 (see "Note B - Investment in Joint Venture"). The
decreased loss for the year ended December 31, 1996, versus the year ended
December 31, 1995, can be attributed to an increase in revenue. These revenue
increases can be attributed to maintenance upgrades at the golf course that have
improved the appearance of the property. The increase in expense can be
attributed to the purchase of liability insurance, necessitated by the
environmental issue at the property (see "Note B"). Also, advertising expense
increased as a result of an aggressive advertising campaign and salary expense
increased due to the hiring of additional personnel, including a full time golf
pro for the course. The Partnership also implemented a preventative maintenance
program and repairs were made to the cart paths and course.
During the second quarter of 1996, there were two separate fires at Fox Run
Apartments. Sixteen units received extensive damage, while four were completely
destroyed. The insurance proceeds to be received are $189,000. As a result of
the fires, the Partnership recognized a casualty gain of $25,000.
In December 1996, the Partnership refinanced the mortgages and indebtedness
encumbering its investment property. The total indebtedness refinanced was
$29,897,000. The new indebtedness in the principal amount of $31,275,000 carries
stated interest rates of 8.32% (1st mortgage), 15.28% (2nd mortgage), and 11.25%
(3rd mortgage). The proceeds from the refinancing enabled the Partnership to
pay off its previous 1st mortgage and its working capital loan to Angeles
Acceptance Pool, L.P. (see "Note E"). In addition, the Partnership's previous
indebtedness to AMIT of $6,969,000, which had been in default due to non-payment
upon maturity, was extinguished with the proceeds from the refinancing. The
Partnership recognized a gain of $646,000 upon extinguishment of debt,
primarily due to debt forgiveness. Additionally, the Partnership capitalized
loan costs of $551,000 related to the refinancing.
In 1995, the Partnership negotiated amendments to the mortgages held by AMIT and
as a result incurred $330,000 of debt restructure costs (See "Note H" for
further discussion).
On September 6, 1995, the Managing General Partner sold the Harbour Landing
Apartments property to an unaffiliated third party. The total consideration
paid to the Partnership was $4,900,000. The total gain on the sale was
$2,336,000. Also, as a result of the sale, $220,000 of debt was forgiven.
Included in maintenance expense is $111,000 of major repairs and maintenance
mainly comprised of parking lot repairs, interior building improvements and
swimming pool repairs for the year ended December 31, 1996.
The Managing General Partner continues to monitor the rental market environment
at its investment property to assess the feasibility of increasing rents, to
maintain or increase the occupancy level and to protect the Partnership from
increases in expense. The Managing General Partner expects to be able, at a
minimum, to continue protecting the Partnership from inflation-related increases
in expenses by increasing rents and maintaining a high overall occupancy level.
However, rental concessions and rental reductions needed to offset softening
market
conditions could affect the ability to sustain this plan.
Liquidity and Capital Resources
The Partnership's primary source of cash is from the operations of its property
and from financing placed on the property. Cash from these sources is utilized
for property operations, capital improvements, and/or repayment of debt.
The Partnership had unrestricted cash and cash equivalents of $662,000 at
December 31, 1996, versus $870,000 at December 31, 1995. Net cash flow from
operating activities decreased primarily due to the decrease in income and a
decrease in other liabilities. Net cash provided by investing activities
decreased due to the proceeds received from the sale of Harbour Landing
Apartments in 1995. Net cash flow from financing activities increased due to
the proceeds received from the refinance of the debt secured by the Fox Run
Apartments property. During the year ended December 31, 1996, there was a
distribution paid for the withholding tax imposed by the State of South Carolina
on the taxable income of non-resident limited partners. This tax amounted to
$24,000.
The sufficiency of existing liquid assets to meet future liquidity and capital
expenditure requirements is directly related to the level of capital
expenditures required at the property to adequately maintain the physical assets
and other operating needs of the Partnership. Such assets are currently thought
to be sufficient for any near-term needs of the Partnership. The mortgage
indebtedness of $31,275,000 matures January 2002, at which time the property
will either be sold or refinanced. Future cash distributions will depend on the
levels of net cash generated from operations, refinancings, property sales and
the availability of cash reserves.
ITEM 7. FINANCIAL STATEMENTS
ANGELES PARTNERS XI
LIST OF FINANCIAL STATEMENTS
Report of Independent Auditors
Consolidated Balance Sheet - December 31, 1996
Consolidated Statements of Operations - Years ended December 31, 1996 and
1995
Consolidated Statement of Changes in Partners' Deficit - Years ended December
31, 1996 and 1995
Consolidated Statements of Cash Flows - Years ended December 31, 1996 and
1995
Notes to Consolidated Financial Statements
Report of Ernst & Young LLP, Independent Auditors
The Partners
Angeles Partners XI
We have audited the accompanying balance sheet of Angeles Partners XI as of
December 31, 1996, and the related consolidated statements of operations,
changes in partners' deficit and cash flows for each of the two years in the
period ended December 31, 1996. These financial statements are the
responsibility of the Partnership's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by the
Partnership's management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of Angeles Partners
XI as of December 31, 1996, and the consolidated results of its operations and
its cash flows for each of the two years in the period ended December 31, 1996,
in conformity with generally accepted accounting principles.
/S/ ERNST & YOUNG LLP
Greenville, South Carolina
February 25, 1997
ANGELES PARTNERS XI
CONSOLIDATED BALANCE SHEET
(in thousands, except unit data)
December 31, 1996
Assets
Cash and cash equivalents:
Unrestricted $ 662
Restricted--tenant security deposits 521
Accounts receivable, net of allowance
of $31 164
Escrows for taxes 179
Other assets 562
Investment in, and advances of $156 to,
joint venture (Note B) 156
Investment properties (Notes C and F):
Land $ 3,998
Buildings and related personal property 24,930
28,928
Less accumulated depreciation (15,795) 13,133
$ 15,377
Liabilities and Partners' Deficit
Liabilities
Accounts payable $ 643
Due to affiliates (Note E) 488
Tenant security deposits 511
Other liabilities 345
Notes payable, (Notes C, E and F) 31,275
Partners' Deficit
General partners $ (494)
Limited partners (39,637 units
issued and outstanding) (17,391) (17,885)
$ 15,377
See Accompanying Notes to Consolidated Financial Statements
ANGELES PARTNERS XI
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except unit data)
Years Ended December 31,
1996 1995
Revenues:
Rental income $ 6,598 $ 7,204
Other income 342 357
Total revenues 6,940 7,561
Expenses:
Operating 1,857 2,233
General and administrative 343 260
Maintenance 738 721
Depreciation 1,511 1,583
Interest 3,703 3,322
Property taxes 717 732
Bad debt -- 31
Total expenses 8,869 8,882
Loss before equity in loss of joint venture, casualty
gain, gain on sale of investment property,
debt restructure costs and extraordinary item (1,929) (1,321)
Equity in loss of joint venture (Note B) (62) (129)
Casualty gain (Note H) 25 --
Gain on sale of investment property (Note H) -- 2,336
Debt restructure costs (Note H) -- (330)
(Loss) income before extraordinary item (1,966) 556
Extraordinary item-gain on extinguishment of
debt (Notes C and H) 646 220
Net (loss) income $ (1,320) $ 776
Net (loss) income allocated to
general partners (1%) $ (13) $ 8
Net (loss) income allocated to
limited partners (99%) (1,307) 768
Net (loss) income $ (1,320) $ 776
Per limited partnership unit:
(Loss) income before extraordinary item $ (48.85) $ 13.81
Extraordinary item 16.05 5.48
Net (loss) income $ (32.80) $ 19.29
See Accompanying Notes to Consolidated Financial Statements
ANGELES PARTNERS XI
CONSOLIDATED STATEMENT OF CHANGES IN PARTNERS' DEFICIT
(in thousands, except unit data)
Limited
Partnership General Limited
Units Partners Partners Total
Original capital contributions 40,000 $ 30 $ 40,000 $ 40,030
Partners' deficit at
December 31, 1994 39,842 $ (489) $ (16,828) $ (17,317)
Net income for the year
ended December 31, 1995 -- 8 768 776
Partners' deficit at
December 31, 1995 39,842 (481) (16,060) (16,541)
Distributions to partners -- -- (24) (24)
Net loss for the year
ended December 31, 1996 -- (13) (1,307) (1,320)
Abandonment of limited
Partnership units (Note G) (205) -- -- --
Partners' deficit at
December 31, 1996 39,637 $ (494) $ (17,391) $ (17,885)
See Accompanying Notes to Consolidated Financial Statements
ANGELES PARTNERS XI
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
<TABLE>
<CAPTION>
Years Ended December 31,
1996 1995
<S> <C> <C>
Cash flows from operating activities:
Net (loss) income $ (1,320) $ 776
Adjustments to reconcile net (loss) income to net cash
(used in) provided by operating activities:
Equity in loss of joint venture 62 129
Depreciation 1,511 1,583
Amortization of loan costs and discounts 42 98
Bad debt expense -- 31
Gain on sale of investment property -- (2,336)
Extraordinary item - gain on extinguishment of debt (646) (220)
Casualty gain (25)
Change in accounts:
Restricted cash (10) (15)
Accounts receivable (11) (18)
Escrows for taxes (66) 112
Other assets (6) (5)
Accounts payable 415 (241)
Tenant security deposit liabilities 11 (16)
Accrued taxes -- (74)
Due to affiliates 138 78
Other liabilities (100) 731
Net cash (used in) provided by operating activities (5) 613
Cash flows from investing activities:
Proceeds from sale of investment property -- 4,717
Property improvements and replacements (533) (1,674)
Advances to joint venture (118) --
Deposits to restricted escrows -- (615)
Withdrawals from restricted escrows 75 540
Net cash (used in) provided by investing activities (576) 2,968
Cash flows from financing activities:
Proceeds of notes payable 31,275 330
Repayment of notes payable (29,897) (3,987)
Principal payments on notes payable (381) (660)
Loan costs (600) --
Distributions to partners (24) --
Net cash provided by (used in) financing activities 373 (4,317)
Decrease in cash and cash equivalents (208) (736)
Unrestricted cash and cash equivalents at beginning of period 870 1,606
Unrestricted cash and cash equivalents at end of period $ 662 $ 870
Supplemental disclosure of cash flow information:
Cash paid during this period for interest $ 3,826 $ 2,586
Supplemental disclosure of non-cash investing
and financing activities:
Interest capitalized into mortgage notes payable $ 50 $ 1,610
<fn
At December 31, 1996, in connection with a fire at Fox Run Apartments, accounts
receivable and accounts payable were adjusted by $139,000 and $114,000,
respectively, for non-cash activity.
See Accompanying Notes to Consolidated Financial Statements
</TABLE>
ANGELES PARTNERS XI
Notes to Consolidated Financial Statements
December 31, 1996
NOTE A - ORGANIZATION AND SIGNIFICANT ACCOUNTING POLICIES
Organization: Angeles Partners XI (the "Partnership" or "Registrant") is a
California limited partnership organized on February 14, 1983, to acquire and
operate residential and commercial real estate properties. The Partnership's
Managing General Partner is Angeles Realty Corporation II ("ARC II"), an
affiliate of Insignia Financial Group, Inc. ("Insignia"). As of December 31,
1996, the Partnership operates one residential property located in Plainsboro,
New Jersey.
Principles of Consolidation: The financial statements include all the accounts
of the Partnership and its majority owned partnerships. All significant
interpartnership balances have been eliminated. Minority interest is
immaterial and is not shown separately in the financial statements.
Unrestricted Cash and Cash Equivalents: The Partnership considers all highly
liquid investments with a maturity when purchased of three months or less to be
cash and cash equivalents. At certain times, the amount of cash deposited at a
bank may exceed the limit on insured deposits.
Restricted Cash - Tenant Security Deposits: The Partnership requires security
deposits from all apartment lessees for the duration of the lease and considers
the deposits to be restricted cash. Deposits are refunded when the tenant
vacates the apartment if there has been no damage to the unit.
Loan Costs: Loan costs of $551,000 are included in "Other assets" on the
balance sheet and will be amortized on a straight-line basis over the life of
the loan.
Investment in Joint Venture: The Partnership accounts for its 41.1% investment
in Princeton Meadows Golf Course Joint Venture (the "Joint Venture") using the
equity method of accounting (see "Note B"). Under the equity method of
accounting, the Partnership records its equity interest in earnings or losses of
the Joint Venture; however, the investment in the Joint Venture will be recorded
at an amount less than zero (a liability) to the extent of the Partnership's
share of net liabilities of the Joint Venture.
Investment Properties: Prior to the fourth quarter of 1995, investment
properties were carried at the lower of cost or estimated fair value, which was
determined using the higher of the property's non-recourse debt amount, when
applicable, or the net operating income of the investment property capitalized
at a rate deemed reasonable for the type of property. During the fourth quarter
of 1995, the Partnership adopted "FASB Statement No. 121, Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of",
which requires impairment losses to be recorded on long-lived assets used in
operations when indicators of impairment are present and the undiscounted cash
flows estimated to be generated by those assets are less than the assets'
carrying amount. The impairment loss is measured by comparing the fair value of
the asset to its carrying amount. The effect of adoption was not material.
Depreciation: Depreciation is calculated by the straight-line and accelerated
methods over the estimated lives of the rental properties and related personal
property. For Federal income tax purposes, the accelerated cost recovery method
is used (1) for real property over 18 years for additions after March 15, 1984,
and before May 9, 1985, and 19 years for additions after May 8, 1985, and before
January 1, 1987, and (2) for personal property over 5 years for additions prior
to January 1, 1987. As a result of the Tax Reform Act of 1986, for additions
after December 31, 1986, the alternative depreciation system is used for
depreciation of (1) real property additions over 40 years, and (2) personal
property additions over 6-20 years.
Allocations and Distributions to Partners: In accordance with the Agreement,
any gain from the sale or other disposition of Partnership assets will be
allocated first to the Managing General Partner to the extent of the amount of
any Brokerage Compensation and Incentive Interest to which the Managing General
Partner is entitled. Any gain remaining after said allocation will be allocated
to the General Partners and Limited Partners in proportion to their interests in
the Partnership.
The Partnership will allocate other profits and losses 1% to the General
Partners and 99% to the Limited Partners.
Except as discussed below, the Partnership will allocate distributions 1% to the
General Partners and 99% to the Limited Partners.
Upon the sale or other disposition, or refinancing, of any asset of the
Partnership, the Distributable Net Proceeds shall be distributed as follows: (i)
First, to the Partners in proportion to their Original Capital Investment
applicable to the property; (ii) Second, to the Partners until the Limited
Partners have received distributions from all sources equal to their 6%
Cumulative Distribution; (iii) Third, to the Managing General Partner until it
has received an amount equal to the difference between (a) 3% of the Aggregate
Disposition Prices (as defined in Partnership Agreement) of all properties and
investments sold or otherwise disposed of, or refinanced by the Partnership, on
a cumulative basis and (b) all distributions previously received by the Managing
General Partner pursuant to this clause; (iv) Fourth, to the Partners until the
Limited Partners have received distributions from all sources equal to an
additional cumulative return of 4% per annum on their Adjusted Capital
Investment; and (v) Thereafter, 85% to the Limited Partners and Non-Managing
General Partners in proportion to their interests and 15% ("Incentive Interest")
to the Managing General Partner.
Leases: The Partnership generally leases apartment units for twelve-month terms
or less.
Use of Estimates: The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates.
Fair Value: In 1995, the Partnership implemented "Statement of Financial
Accounting Standards No. 107, Disclosure about Fair Value of Financial
Instruments," which requires disclosure of fair value information about
financial instruments for which it is practicable to estimate that value. The
carrying amount of the Partnership's cash and cash equivalents approximates fair
value due to short-term maturities. The Partnership estimates the fair value of
its mortgages by discounted cash flow analysis, based on estimated borrowing
rates currently available to the Partnership (see "Note C").
Reclassifications: Certain reclassifications have been made to the 1995
balances to conform to the 1996 presentation.
NOTE B - INVESTMENT IN JOINT VENTURE
Condensed balance sheet information of the Joint Venture at December 31, 1996,
is as follows (in thousands):
Assets
Cash $ 76
Deferred charges and other assets 124
Investment property, net 1,894
Total $ 2,094
Liabilities and Partners' Capital
Note payable to AMIT, (Note E) $ 1,567
Other liabilities 527
Partners' capital --
$ 2,094
The condensed profit and loss statement of the Joint Venture is summarized as
follows:
Years Ended
December 31,
(in thousands)
1996 1995
Revenue $ 1,417 $ 1,158
Costs and expenses (1,567) (1,472)
Net loss $ (150) $ (314)
The Partnership's equity interest in the loss of the Joint Venture for the year
ended December 31, 1996 and 1995, was $62,000 and $129,000, respectively.
The Princeton Meadows Golf Course property had an underground fuel storage tank
that was removed in 1992. This fuel storage tank caused contamination to the
area. Management installed monitoring wells in the area where the tank was
formerly buried. Some samples from these wells indicated lead and phosphorous
readings that were slightly higher than the range prescribed by the New Jersey
Department of Environmental Protection ("DEP"). The Joint Venture notified DEP
of the findings when they were first discovered. However, DEP had not given any
directives as to corrective action until late 1995.
In November 1995, representatives of the Joint Venture and the New Jersey DEP
met and developed a plan of action to clean-up the contamination site at
Princeton Meadows Golf Course. The Joint Venture has engaged an engineering
firm to conduct consulting and compliance work and a second firm to perform the
field work necessary for the clean-up. The Joint Venture has recorded a
liability of $199,000 for the costs of the clean-up. The contracts have been
executed and field work has been completed with the expected completion date of
the compliance work to be sometime in 1997. The Managing General Partner
believes the balance of $41,000 in the liability is sufficient to cover all
costs associated with this incident.
NOTE C - NOTES PAYABLE
The principle terms of notes payable are as follows (dollar amounts in
thousands):
<TABLE>
<CAPTION>
Monthly Principal Principal
Payment Stated Balance Balance At
Including Interest Maturity Due At December 31,
Property Interest Rate Date Maturity 1996
<S> <C> <C> <C> <C> <C>
Fox Run Apartments
1st mortgage $ 194 (1) 8.32% 1/2002 $ 26,984 $ 28,000
2nd mortgage 31 (1) 15.29% 1/2002 2,204 2,400
3rd mortgage 8 11.25% 1/2002 852 875
Totals $ 233 $ 30,040 $ 31,275
</TABLE>
(1) Interest only payments, until February 1999, at which time the monthly
payment will be increased to include principal and interest.
(2) Payable to Angeles Mortgage Investment Trust ("AMIT"). This note is
collateralized by the Partnership's general partnership interest in the
Joint Venture.
The mortgage notes payable are nonrecourse and are secured by pledge of the
Partnership's investment property and by pledge of revenues from the rental
property. The notes impose prepayment penalties if repaid prior to maturity.
The carrying value of the Partnership's indebtedness approximates its estimated
fair value at December 31, 1996.
Scheduled principal payments of mortgage notes payable subsequent to December
31, 1996, are as follows (in thousands):
1997 $ 3
1998 4
1999 373
2000 446
2001 490
Thereafter 29,959
$ 31,275
In December 1996, the Partnership refinanced the mortgages and indebtedness
encumbering its investment property. The total indebtedness refinanced was
$29,897,000. The new indebtedness in the principal amount of $31,275,000 carries
stated interest rates of 8.32% (1st mortgage), 15.28% (2nd mortgage), and 11.25%
(3rd mortgage). The proceeds from the refinancing enabled the Partnership to
pay off its previous first mortgage and its working capital loan to Angeles
Acceptance Pool, L.P. (see "Note E"). In addition, the Partnership's previous
indebtedness to AMIT of $6,969,000 which had been in default due to non-payment
upon maturity, was extinguished with the proceeds from the refinancing. The
Partnership recognized a gain of $646,000 upon extinguishment of debt, primarily
due to debt forgiveness. The Partnership capitalized loan costs of $551,000
related to the refinancing.
NOTE D - INCOME TAXES
Taxable income or loss of the Partnership is reported in the income tax returns
of its partners. Accordingly, no provision for income taxes is made in the
financial statements of the Partnership.
Differences between the net (loss) income as reported and Federal taxable (loss)
income result primarily from (1) depreciation over different methods and lives
and on differing cost bases of investment properties, (2) change in rental
income received in advance, and (3) gain or loss on disposal of properties. The
following is a reconciliation of reported net (loss) income and Federal taxable
(loss) income:
1996 1995
(in thousands, except unit data)
Net (loss)income as reported $ (1,320) $ 776
Add (deduct)
Depreciation differences 154 111
Unearned income 10 (30)
Gain on sale of investment properties -- 842
Miscellaneous (6) 25
Federal taxable (loss) income $ (1,162) $ 1,724
Federal taxable (loss) income
per limited partnership unit $ (29.02) $ 42.85
The following is a reconciliation between the Partnership's reported amounts and
Federal tax basis of net assets and liabilities (in thousands):
Net deficiency as reported $ (17,885)
Land and buildings 2,707
Accumulated depreciation (6,391)
Syndication and distribution costs 5,261
Other 639
Net deficiency - Federal tax basis $ (15,669)
NOTE E - TRANSACTIONS WITH AFFILIATED PARTIES
The Partnership has no employees and is dependent on the Managing General
Partner and its affiliates for the management and administration of all
Partnership activities. The Partnership Agreement provides for payments to
affiliates for services and as reimbursement of certain expenses incurred by
affiliates on behalf of the Partnership.
The following payments were paid/accrued to the Managing General Partner and
affiliates in 1996 and in 1995:
1996 1995
(in thousands)
Property management fees, including $28,000
accrued at December 31, 1996 $ 346 $ 369
Reimbursement for services of affiliates,
including $460,000 accrued at
December 31, 1996 148 154
The Partnership insures its properties under a master policy through an agency
and insurer unaffiliated with the Managing General Partner. An affiliate of the
Managing General Partner acquired, in the acquisition of a business, certain
financial obligations from an insurance agency which were later acquired by the
agent who placed the current year's master policy. The current agent assumed
the financial obligations to the affiliate of the Managing General Partner who
receives payments on these obligations from the agent. The amount of the
Partnership's insurance premiums accruing to the benefit of the affiliate of the
Managing General Partner by virtue of the agent's obligations is not
significant.
In November 1992, Angeles Acceptance Pool, L.P. ("AAP"), a Delaware limited
partnership was organized to acquire and hold the obligations evidencing the
working capital loan previously provided to the Partnership by Angeles Capital
Investments, Inc. ("ACII"). Angeles Corporation ("Angeles") is the 99% limited
partner of AAP. Angeles Acceptance Directives, Inc. ("AAD"), an affiliate of the
Managing General Partner, was, until April 14, 1995, the 1% General Partner of
AAP. On April 14, 1995, as part of a settlement of claims between affiliates of
the Managing General Partner and Angeles, AAD resigned as general partner of AAP
and simultaneously received a 1/2% limited partner interest in AAP. An affiliate
of Angeles now serves as the general partner of AAP.
This working capital loan funded the Partnership's operating deficits in prior
years. This loan, the principal and accrued interest which totaled $1,996,000,
was extinguished with the proceeds from the refinancing of the Partnership's
investment property (see "Note C"). Total debt and accrued interest forgiven
was $296,000. Total interest expense for this loan was $145,000 and $171,000
for the years ended December 31, 1996 and 1995, respectively.
AMIT provided financing of $6,969,000 plus related accrued interest to the
Partnership. This indebtedness was extinguished when the Partnership's
investment property was refinanced. As a result of the refinance, AMIT forgave
$398,000 of debt and accrued interest. Concurrent with the refinancing, the
Partnership borrowed $875,000 from AMIT, which is secured by the Fox Run
Apartments and the Partnership's general partner interest in the Joint Venture.
Total interest expense to AMIT was $1,522,000 and $731,000 for the years ended
December 31, 1996 and 1995, respectively. In addition, AMIT provides financing
to the Joint Venture in the amount of $1,567,000, which is secured by the Joint
Venture's sole investment property known as the Princeton Meadows Golf Course.
Total interest expense was $200,000 and $203,000 for the years ended December
31, 1996 and 1995, respectively.
MAE GP Corporation ("MAE GP"), an affiliate of the Managing General Partner,
owns 1,675,113 Class B Shares of AMIT. MAE GP has the option to convert these
Class B Shares, in whole or in part, into Class A Shares on the basis of 1 Class
A Share for every 49 Class B Shares. These Class B Shares entitle MAE GP to
receive 1% of the distributions of net cash distributed to AMIT. These Class B
Shares also entitle MAE GP to vote on the same basis as Class A Shares which
allows MAE GP to vote approximately 39% of the total shares (unless and until
converted to Class A Shares at which time the percentage of the vote controlled
represented by the shares held by MAE GP would approximate 1.3% of the vote).
Between the date of acquisition of these shares (November 24, 1992) and March
31, 1995, MAE GP declined to vote these shares. Since that date, MAE GP voted
its shares at the 1995 and 1996 annual meeting in connection with the election
of trustees and other matters. MAE GP has not exerted, and continues to decline
to exert, any management control over or participate in the management of AMIT.
In addition, Liquidity Assistance, LLC, ("LAC"), an affiliate of the Managing
General Partner and an affiliate of Insignia Financial Group, Inc., ("Insignia")
which provides property management and partnership administration services to
the Partnership, owns 126,500 Class A Shares of AMIT at December 31, 1996. As
of February 1, 1997, the number of shares owned by LAC decreased to 96,800.
These Class Shares entitle LAC to vote approximately 2.2% of the total shares.
In addition, Insignia has engaged and continues to engage in discussions with
AMIT regarding various potential business combinations with affiliates of
Insignia.
As part of a settlement of certain disputes with AMIT, MAE GP granted to AMIT an
option to acquire the Class B Shares. This option can be exercised at the end
of 10 years or when all loans made by AMIT to partnerships affiliated with MAE
GP as of November 9, 1994, which is the date of execution of a definitive
Settlement Agreement, have been paid in full, but in no event prior to November
9, 1997. AMIT delivered to MAE GP cash in the sum of $250,000 at closing, which
occurred April 14, 1995, as payment for the option. Upon exercise of the
option, AMIT would remit to MAE GP an additional $94,000.
Simultaneously with the execution of the option, MAE GP executed an irrevocable
proxy in favor of AMIT the result of which is MAE GP will be able to vote the
Class B Shares on all matters except those involving transactions between AMIT
and MAE GP affiliated borrowers or the election of any MAE GP affiliate as an
officer or trustee of AMIT. On those matters, MAE GP granted to the AMIT
trustees, in their capacity as trustees of AMIT, proxies with regard to the
Class B shares instructing such trustees to vote said Class B Shares in
accordance with the vote of the majority of the Class A Shares voting to be
determined without consideration of the votes of "Excess Class A Shares" as
defined in Section 6.13 of the Declaration of Trust of AMIT.
NOTE F - INVESTMENT PROPERTY AND ACCUMULATED DEPRECIATION
Initial Cost
To Partnership
(in thousands)
Cost
Buildings Capitalized
and Related (Removed)
Personal Subsequent to
Description Encumbrances Land Property Acquisition
Fox Run Apartments $ 30,400 $ 3,998 $ 20,990 $ 3,940
Angeles Partners XI 875 -- -- --
Totals $ 31,275 $ 3,998 $ 20,990 $ 3,940
Gross Amount At Which Carried
At December 31, 1996
Buildings
And Related
Personal Accumulated Date Depreciable
Description Land Property Total Depreciation Acquired Life-Years
Fox Run Apts. $ 3,998 $ 24,930 $ 28,928 $ 15,795 5/27/83 5-20
The depreciable lives included above are for the buildings and components. The
depreciable lives for related personal property are for 5 to 7 years.
Reconciliation of "Investment Property and Accumulated Depreciation":
Year Ended December 31,
1996 1995
(in thousands)
Investment Property
Balance at beginning of year $ 28,395 $ 33,098
Property improvements 533 1,460
Sale of investment property -- (6,163)
Balance at end of year $ 28,928 $ 28,395
Accumulated Depreciation
Balance at beginning of year $ 14,284 $ 16,475
Additions charged to expense 1,511 1,583
Sale of investment property -- (3,774)
Balance at end of year $ 15,795 $ 14,284
The aggregate cost of the investment properties for Federal income tax purposes
at December 31, 1996 and 1995, is $31,635,000 and $31,130,000, respectively.
The accumulated depreciation taken for Federal income tax purposes at December
31, 1996 and 1995, is $22,186,000 and $20,830,000, respectively.
NOTE G - ABANDONMENT OF LIMITED PARTNER UNITS
In 1996, the number of Limited Partnership Units decreased by 205 units due to
limited partners abandoning their units. In abandoning his or her Limited
Partnership Unit(s), a limited partner relinquishes all right, title, and
interest in the Partnership as of the date of abandonment. However, the limited
partner is allocated his or her share of the net income or loss for that entire
year. The income or loss per limited partnership unit in the accompanying
statements of operation is calculated based on the number of units outstanding
at the beginning of the year.
NOTE H - OTHER ITEMS
During the second quarter of 1996, there were two separate fires at Fox Run
Apartments. Sixteen units received extensive damage, while four were completely
destroyed. The insurance proceeds to be received are $189,000. As a result of
the fires, the Partnership recognized a casualty gain of $25,000.
On September 6, 1995, the Managing General Partner sold the Harbour Landing
Apartments property to an unaffiliated third party. Net proceeds were
$4,717,000 and the total gain on the sale was $2,336,000. Also, as a result of
the sale $220,000 of debt was forgiven.
Prior to the third quarter of 1995, the Partnership was in default on its
indebtedness to AMIT, which was secured by the Fox Run Apartments property, due
to its inability to make interest and principal payments when due. However,
during the third quarter of 1995, the Partnership was successful in negotiating
amendments to these mortgages effective September 1, 1995. As a result of the
modifications, $330,000 of debt restructuring costs were incurred and the past
due interest of $1,610,000 was capitalized to the principal balance of the
mortgage pursuant to the agreement.
ITEM 8. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANT ON ACCOUNTING AND FINANCIAL
DISCLOSURES
There were no disagreements with Ernst & Young LLP regarding the 1996 or 1995
audits of the Partnership's financial statements.
PART III
ITEM 9. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS; COMPLIANCE
WITH SECTION 16(A) OF THE EXCHANGE ACT
The names of the directors and executive officers of Angeles Realty Corporation
II ("ARC II"), the Partnership's Managing General Partner as of December 31,
1996, their ages and the nature of all positions with ARC II presently held by
them are as follows:
Name Age Office
Carroll D. Vinson 56 President, Director
Robert D. Long, Jr. 29 Controller, Principal
Accounting Officer
William H. Jarrard, Jr. 50 Vice President
John K. Lines, Esq. 37 Vice President and Secretary
Kelley M. Buechler 39 Assistant Secretary
Carroll D. Vinson has been President of Metropolitan Asset Enhancement, L.P.,
and subsidiaries since August of 1994. Prior to that, during 1993 to August
1994, Mr. Vinson was affiliated with Crisp, Hughes & Co. (regional CPA firm) and
engaged in various other investment and consulting activities. Briefly, in
early 1993, Mr. Vinson served as President and Chief Executive Officer of
Angeles Corporation, a real estate investment firm. From 1991 to 1993, Mr.
Vinson was employed by Insignia in various capacities including Managing
Director-President during 1991. From 1986 to 1990, Mr. Vinson was President and
a Director of U.S. Shelter Corporation, a real estate services company, which
sold substantially all of its assets to Insignia in December 1990.
Robert D. Long, Jr. is Controller and Principal Accounting Officer. Prior to
joining Metropolitan Asset Enhancement, L.P., and subsidiaries, he was an
auditor for the State of Tennessee and was associated with the accounting firm
of Harshman Lewis and Associates.
William H. Jarrard, Jr. has been Managing Director - Partnership Administration
of Insignia since 1991. Mr. Jarrard served as Managing Director - Partnership
Administration and Asset Management from July 1994 until January 1996.
John K. Lines, Esq. has been Insignia's General Counsel since June 1994 and
General Counsel and Secretary since July 1994. From May 1993 until June 1994,
Mr. Lines was the Assistant General Counsel and Vice President of Ocwen
Financial Corporation in West Palm Beach, Florida. From October 1991 until May
1993, Mr. Lines was a Senior Attorney with Banc One Corporation in Columbus,
Ohio. From May 1984 until October 1991, Mr. Lines was employed as an Associate
Attorney with Squire Sanders & Dempsey in Columbus, Ohio.
Kelley M. Buechler is Assistant Secretary of the General Partner and has served
as Secretary of Insignia since 1991.
ITEM 10. EXECUTIVE COMPENSATION
No direct form of compensation or remuneration was paid by the Partnership to
any officer or director of ARC II. The Partnership has no plan, nor does the
Partnership presently propose a plan, which will result in any remuneration
being paid to any officer or director upon termination of employment. However,
fees and other payments have been made to the Partnership's Managing General
Partner and its affiliates, as described in "Note E" of the Financial Statements
included under "Item 7.", which is incorporated herein by reference.
ITEM 11. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
As of January 1, 1997, no person owned of record more than 5% of Limited
Partnership Units of the Partnership nor was any person known by the Partnership
to own of record and beneficially, or beneficially only, more than 5% of such
securities.
The Partnership knows of no contractual arrangements, the operation of the terms
of which may at a subsequent date result in a change in control of the
Partnership, except for: Article 12.1 of the Agreement, which provides that
upon a vote of the Limited Partners holding more than 50% of the then
outstanding Limited Partnership Units the General Partners may be expelled from
the Partnership upon 90 days written notice. In the event that successor
general partners have been elected by Limited Partners holding more than 50% of
the then outstanding Limited Partnership Units and if said Limited Partners
elect to continue the business of the Partnership, the Partnership is required
to pay in cash to the expelled General Partners an amount equal to the accrued
and unpaid management fee described in Article 10 of the Agreement and to
purchase the General Partners' interest in the Partnership on the effective date
of the expulsion, which shall be an amount equal to the difference between (i)
the balance of the General Partners' capital account and (ii) the fair market
value of the share of Distributable Net Proceeds to which the General Partners
would be entitled. Such determination of the fair market value of the share of
Distributable Net Proceeds is defined in Article 12.2(b) of the Agreement.
ITEM 12. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
No transactions have occurred between the Partnership and any officer or
director of ARC II.
During the year ended December 31, 1996 and December 31, 1995, the transactions
that occurred between the Partnership and ARC II and affiliates of ARC II
pursuant to the terms of the Agreement are disclosed under "Note E" of the
Partnership's Financial Statements included under "Item 7.", which is hereby
incorporated by reference.
PART IV
ITEM 13. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits required by Item 601 of Regulation S-B: Refer to Exhibit
Index in this report.
(b) Reports on Form 8-K:
None filed during the fourth quarter of 1996.
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the Registrant has
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
ANGELES PARTNERS XI
(A California Limited Partnership)
(Registrant)
By: Angeles Realty Corporation II
By: /s/Carroll D. Vinson
Carroll D. Vinson
President
Date: March 27, 1997
In accordance with the Exchange Act, this report has been signed below by the
following persons on behalf of the Registrant and in the capacities on the date
indicated.
/s/Carroll D. Vinson President Date: March 27, 1997
Carroll D. Vinson
/s/Robert D. Long, Jr. Controller and Principal Date: March 27, 1997
Robert D. Long, Jr. Accounting Officer
ANGELES PARTNERS XI
EXHIBIT INDEX
Exhibit Number Description of Exhibit
3.1 Amended Agreement of Limited Partnership dated February 26, 1982
filed in Form 10-K dated November 30, 1983, incorporated herein by
reference.
10.1 Agreement of Purchase and Sale of Real Property with Exhibits - Fox
Run I and II Apartments filed in Form 8-K dated June 30, 1983,
incorporated herein by reference.
10.2 Agreement of Purchase and Sale of Real Property with Exhibits -
Harbour Landing Apartments filed in Form 8-K dated December 21,
1983, incorporated herein by reference.
10.3 Agreement of Purchase and Sale of Real Property with Exhibits -
Westmont Village Apartments filed in Form 8-K dated March 30, 1984,
incorporated herein by reference.
10.4 Multi Family Note, dated June 11, 1986 - Fox Run Apartments I and II
filed in form 10-K dated November 30, 1986, incorporated herein by
reference.
10.5 Second trust deed dated September 22, 1987 - Fox Run Apartments
filed in form 10-K dated November 30, 1987, incorporated herein by
reference.
10.6 Agreement to Accept Deed in Lieu of Foreclosure - Boca Plaza
Shopping Center filed in form 8-K dated January 15, 1991,
incorporated herein by reference.
10.7 Order appointing receiver - Springside Apartments dated April 24,
1991 filed in Form 10Q dated May 14, 1991, incorporated herein by
reference.
10.8 Purchase and Sale Agreement with Exhibits - dated July 26, 1991
between Princeton Golf Course Joint Venture and Lincoln Property
Company No. 199 filed in Form 10-K dated March 27, 1992,
incorporated herein by reference.
10.9 Princeton Meadows Golf Course Joint Venture Agreement with Exhibits
- dated August 21, 1991 between the Partnership, Angeles Income
Properties II and Angeles Partners XII, filed in Form 10-K dated
March 27, 1992, incorporated herein by reference.
10.10 Stock Purchase Agreement dated November 24, 1992 showing the
purchase of 100% of the outstanding stock of Angeles Realty
Corporation by IAP GP Corporation, a subsidiary of MAE GP
Corporation, filed in Form 8-K dated December 31, 1992, which is
incorporated herein by reference.
10.11 Secured Promissory Note between Angeles Mortgage Investment Trust,
a California Business Trust, Fox Run AP XI, L.P., a South Carolina
limited partnership and Angeles Partners XI, a California limited
partnership dated December 19, 1996.
10.12 Loan agreement between General Electric Capital Corporation, a New
York corporation, and Fox Run AP XI, L.P., a South Carolina limited
partnership dated December 23, 1996.
16.1 Letter from the Registrant's former independent accountant
regarding its concurrence with the statements made by the
Registrant, is incorporated by reference to the exhibit filed with
Form 8-K dated September 1, 1993.
99.1 Form 8-K filed on November 22, 1994 reporting the sale of Westmont
Village Apartments.
99.2 Form 8-K filed on September 6, 1995 reporting the sale of Harbour
Landing Apartments.
27 Financial Data Schedule.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from Angeles
Partners XI 1996 Year-End 10-KSB and is qualified in its entirety by reference
to such 10-KSB filing.
</LEGEND>
<CIK> 0000702986
<NAME> ANGELES PARTNERS XI
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> DEC-31-1996
<CASH> 662
<SECURITIES> 0
<RECEIVABLES> 164
<ALLOWANCES> 31
<INVENTORY> 0
<CURRENT-ASSETS> 0<F1>
<PP&E> 28,928
<DEPRECIATION> 15,795
<TOTAL-ASSETS> 15,377
<CURRENT-LIABILITIES> 0<F1>
<BONDS> 31,275
0
0
<COMMON> 0
<OTHER-SE> (17,885)
<TOTAL-LIABILITY-AND-EQUITY> 15,377
<SALES> 0
<TOTAL-REVENUES> 6,940
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 8,869
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 3,703
<INCOME-PRETAX> 0
<INCOME-TAX> 0
<INCOME-CONTINUING> (1,966)
<DISCONTINUED> 0
<EXTRAORDINARY> 646
<CHANGES> 0
<NET-INCOME> (1,320)
<EPS-PRIMARY> (32.80)
<EPS-DILUTED> 0
<FN>
<F1>Registrant has an unclassified balance sheet.
</FN>
</TABLE>
SECURED PROMISSORY NOTE
Los Angeles, California
$875,000.00 as of December 19, 1996
This Note is entered into pursuant to a Loan Agreement of even date among
Angeles Mortgage Investment Trust, a California Business Trust, Fox Run AP XI
L.P., a South Carolina limited partnership ("Fox Run L.P.") and Angeles Partners
XI, a California limited partnership ("AP XI") and is secured by a Pledge and
Security Agreement ("Security Agreement") of even date encumbering AP XI's
general partnership interest in Princeton Golf Course Joint Venture, a
California general partnership (the "Partnership Collateral").
FOR VALUE RECEIVED, AP XI promises to pay to the order of Angeles Mortgage
Investment Trust, a California business trust, or its assigns (the "holder"),
the principal sum of Eight Hundred and Seventy-Five Thousand Dollars and No
Cents ($875,000.00) with interest thereon at the rate of 11.25% per annum
commencing on the date hereof and continuing thereafter until the entire balance
due hereunder is paid in full.
AP XI shall make an interest payment of $3,281.25 to holder on January 1,
1997. AP XI shall thereafter make payments of principal and interest each in
the amount of $8,498.54 commencing on February 1, 1997, and continuing on the
first date of each month thereafter until the maturity of this Note.
Additionally, AP XI shall immediately upon receipt, pay to holder: (i) any net
proceeds received by AP XI from the sale or refinance of the Partnership
Collateral (after obtaining the written consent of holder in accordance with
paragraph 8 of the Security Agreement up to the then outstanding balance of this
Note), and (ii) all sums due to holder under paragraph 7 of the Security
Agreement.
AP XI shall pay the entire unpaid principal balance of this Note and all
then accrued and unpaid interest plus any additional sums which may have then
accrued hereunder no later than January 1, 2002.
Should any sums due hereon or pursuant to the Security Agreement not be
paid when due, said past-due sums shall thereafter bear interest at the highest
non-usurious rate permitted by law, or, if none is applicable, at the rate of
18% per annum (the "Default Rate").
All payments on this Note shall be applied first to the payment of accrued
but unpaid interest, late charges and fees due hereunder and the remainder
thereof shall be applied to the reduction of the principal balance of this Note.
Any prepayment shall not postpone the due date of any subsequent installment or
change the amount of any such installment unless no other sum is payable hereon.
Should any payment required to be made under this Note not be paid within
ten days after the same becomes due and payable, it is recognized by AP XI that
the holder will incur extra expenses for the handling of delinquent payments,
the exact amount of such extra expenses being economically impracticable to
ascertain, but that a charge of 6% of the amount of the delinquent payment would
be a fair approximation of the expense so incurred by the holder. Therefore, AP
XI shall, in such event, without further notice and without prejudice to any
rights of the holder, including, without limitation, the right to collect any
other amounts provided to be paid hereunder or under any instrument securing
this Note or to declare a default hereunder, pay to the holder to cover such
expenses incurred in handling such delinquent payments, a "late charge" of 6% of
the amount of such delinquent payment.
This Note may be prepaid at any time, either in full or in part, without
penalty.
AP XI hereby waives diligence, presentment, grace, protest and demand, and
also notice of protest, demand, dishonor and nonpayment of this Note, and any
and all moratorium, appraisement, exemption and homestead rights now provided or
which may hereafter be provided by any federal or state statute including, but
not limited to, exemptions provided by or allowed under the United States
Bankruptcy Code, both as to itself personally and as to all of its or their
property, whether real or personal, against the enforcement and collection of
the obligations evidenced by this Note and any and all extensions, renewals and
modifications hereof. Time is of the essence of each and every provision
herein.
Upon failure of AP XI to perform or to pay, in full, any obligation of the
undersigned under this Note, or any instrument securing this Note, as and when
such performance or payment shall become due then at the option of the holder,
upon demand but without any advance notice being required, the principal balance
of this Note together with all accrued interest thereon, plus any other amount
payable at the time of such demand pursuant to this Note, or any instrument
securing this Note, shall become immediately due and payable in full or as to
any portion designated by the holder. Failure to exercise the foregoing option
(or any other right or remedy provided herein, in the Loan Agreement, or in the
Security Agreement, or at law) upon any default of AP XI shall not constitute
waiver of the right to exercise the same or any other option, right, or remedy
at any subsequent time in respect of the same event or any other event of
default, and the undersigned and each endorser and each guarantor hereof hereby
expressly waives the benefit of every statute or rule of law or equity which
would produce a result contrary to or in conflict with the foregoing.
The acceptance by the holder of any payment hereunder which is less than
payment in full of any amount due and payable by the time of such payment shall
not constitute a waiver of the right to exercise any option, right, or remedy at
that time or at any subsequent time, nor shall it nullify any prior exercise of
any such option, right, or remedy without the express written consent of the
holder.
All amounts payable hereunder are payable in immediately available U.S.
funds, without set off or deduction. Any payment received by the holder after
12:00 noon, Pacific Standard Time (or Pacific Daylight Time, when appropriate)
should be considered for all purposes (including the calculation of interest and
late charges) as having been made on the next following day which is not a
Saturday, Sunday, or legal holiday ("business day"); if the date for any payment
hereunder falls on a day which is not a business day, then, for all purposes of
this Note, the same shall be deemed to have fallen on the next following
business day, and such extension of time shall in such case be included in the
computation of payments of interest.
AP XI agrees to pay all costs of collection when incurred, including all
attorneys' fees and costs incurred by holder to enforce its rights and remedies
hereunder.
Payments on this Note, as well as any notices to the holder, are to be
mailed or delivered to the holder whose address for this purpose is 340 North
Westlake Boulevard, Suite 230, Westlake Village, California 91362, or to such
other place as the holder may from time to time direct by written notice to AP
XI.
This Note, made in the State of California, shall be construed according to
the laws of the State of California. AP XI hereby submits to personal
jurisdiction in said State for the enforcement of the undersigned's obligations
hereunder and under the Security Agreement, and waives any and all personal
rights under the law of any other jurisdiction to object to such personal
jurisdiction within said State of California. This Note may not be changed
orally but only by an agreement in writing signed by the party against whom such
change is sought to be enforced.
All agreements between AP XI and the holder are expressly limited so that
in no contingency or event whatsoever, whether by reason of payment of
extension, loan, or commitment fees, of advancement of proceeds, acceleration of
maturity of the unpaid principal balance hereof or otherwise, shall the amount
paid or agreed to be paid to the holder for the use, forbearance or detention of
the principal amount hereof exceed the maximum legal rate permissible under any
law which a court of competent jurisdiction may deem applicable hereto. If, for
any circumstances whatsoever, fulfillment of any provision of this Note or the
Mortgage at the time performance of such provision shall be due, shall involve
transcending the maximum legal rate of interest prescribed by law which a court
of competent jurisdiction may deem applicable hereto or thereto, then, ipso
facto, the obligation to be fulfilled shall be reduced to the limit of such
maximum rate, and if from any circumstances the holder shall ever receive as
interest an amount which would exceed said maximum legal rate, such amount which
would be excessive interest shall be applied to the reduction of the unpaid
principal balance due hereunder and not to the payment of interest; to the
extent that such excessive amount exceeds the unpaid principal balance hereon,
the holder shall refund it to the undersigned. In determining whether excessive
interest would be charged hereon, to the extent permitted by applicable law all
sums paid or agreed to be paid to the holder for the use, forbearance, or
detention of the indebtedness evidenced hereby outstanding from time to time
shall be prorated, amortized, allocated and spread from the date of disbursement
of the proceeds of this Note until payment in full of the unpaid principal sum
so that the actual rate of interest on account of such indebtedness is uniform
throughout the term hereof. This provision shall control every other provision
of all agreements between the undersigned and the holder.
This Note is guaranteed by Fox Run L.P. and said guarantee is secured by a
mortgage on certain real property owned by Fox Run L.P. and located in Middlesex
County, New Jersey (the "Real Property"). Should: (i) Fox Run L.P. sell, enter
into a contract of sale, convey, transfer, encumber or alienate all or any part
of the Real Property in any manner (other than market rate leases to tenants in
the ordinary course of operating the Real Property or the granting of a
mortgage(s) to GECC simultaneously herewith to secure promissory notes to GECC
aggregating the principal sum of $30,400,000.00; or a transfer to an "affiliate"
of Fox Run L.P. or AP XI within the meaning of 11 U.S.C. & 101(2)), whether
voluntarily or involuntarily by virtue of exercise of power of eminent domain or
pursuant to power of sale or by virtue of destruction or by operation of law or
otherwise, and whether direct or indirect through a transfer of interest in an
entity owning the Real Property legally or beneficially, or grant an option for
any of the foregoing, without receiving the holder's prior written consent
(which the holder may grant or deny in its sole discretion), or (ii) Fox Run
L.P. default in its obligations to GECC which are secured by the Fox Run
Property, or (iii) AP XI or Fox Run L.P. default in their covenants or
obligations to holder under the terms of the Loan Agreement entered into
simultaneously herewith among holder, AP XI and Fox Run L.P. then, in any such
event, at the sole option of the holder, upon demand but without any advance
notice, the entire outstanding principal balance of this Note together with all
accrued interest thereon, plus any other amount then outstanding pursuant to
this Note, the Loan Agreement or the Security Agreement, or any other instrument
securing this Note, shall become immediately due and payable. AP XI promises to
immediately notify the holder in writing of the occurrence of any transaction or
event which may give rise to the foregoing options of the holder.
Upon payment in full of (i) the unpaid principal balance of this Note (ii)
all accrued interest hereon, and (iii) all other sums due hereunder or under the
Loan Agreement or the Security Agreement, this Note shall be cancelled and the
Security Agreement shall thereupon cease, terminate and become void, and the
holder shall execute such documents as may be necessary or convenient to
accomplish such effect.
AP XI and the holder intend that all of the provisions hereof shall be
valid and enforceable as specifically set forth, including, without limitation,
the provision permitting acceleration or change in interest rate upon
alienation. If any provision hereof is declared to be invalid or unenforceable,
it is the intention of the undersigned and the holder that the remainder of this
document, or, if applicable, the remainder of the invalid or unenforceable
clause, sentence, or paragraph, shall be valid and enforced to the fullest
extent permitted.
Notwithstanding any other provision herein or in the Loan Agreement or the
Security Agreement, except as hereinafter provided, the general partner in AP XI
shall not have any personal liability hereon, and, in the event of default, the
holder's recourse shall be limited to the property which is the subject of the
Security Agreement (the "Pledged Property") and any other assets of AP XI or Fox
Run L.P. and no deficiency judgment shall be sought or obtained against the
general partner in AP XI. If AP XI shall default in the full performance of its
obligations hereunder, under the Loan Agreement, or under the Security
Agreement, the first sentence of this paragraph shall not be construed to affect
in any manner the right of the holder to fully enforce all security rights
reserved and granted by the Security Agreement, any rights against Fox Run L.P.
or the Real Property, or any other rights of holder at law or in equity. It is
provided further that the first sentence of this paragraph shall be void to the
extent it limits recourse to AP XI's general partner in the event of waste,
gross negligence, or willful misconduct of AP XI, Fox Run L.P. or their partners
or affiliates, including without limitation fraud, theft, or willful failure of
AP XI or Fox Run L.P. to keep the Real Property insured, or wrongful
appropriation by Fox Run L.P., AP XI or its partners or affiliates of any
rentals, insurance proceeds, condemnation proceeds or any other sums arising
from the Real Property or the Pledged Property to its own use after the holder
shall be entitled thereto, or any other commission of any wrongful act the
apparent purpose or intent of which is to deprive the holder of any security for
the indebtedness evidenced hereby, and any such event shall subject the
undersigned to all criminal laws and civil remedies for such acts including
civil action for damages.
ANGELES PARTNERS XI,
a California limited partnership
By: Angeles Realty Corporation, II,
a California corporation
Its General Partner
By:/s/ Robert D. Long, Jr.
Its:Vice President
LOAN AGREEMENT
BETWEEN
FOX RUN AP XI, L.P.
AS BORROWER
AND
GENERAL ELECTRIC CAPITAL CORPORATION
AS LENDER
DECEMBER 23, 1996
LOAN AGREEMENT
This Loan Agreement (this "AGREEMENT") is entered into as of
December 23, 1996 between GENERAL ELECTRIC CAPITAL CORPORATION, a New
York corporation ("LENDER"), and FOX RUN AP XI, L.P., a South Carolina
limited partnership ("BORROWER").
ARTICLE 1
CERTAIN DEFINITIONS
Section 1.1 CERTAIN DEFINITIONS. As used herein, the
following terms have the meanings indicated:
(1) "ADJUSTED OPERATING EXPENSES" means Operating Expenses
as determined and adjusted by Lender in accordance with its then
current audit policies and procedures.
(2) "ADJUSTED OPERATING REVENUES" means Operating Revenues
as determined and adjusted by Lender in accordance with its then
current audit policies and procedures.
(3) "AFFILIATE" means (a) any corporation in which Borrower
or Approved Manager, as the case may be (the "APPLICABLE ENTITY"), or
any partner, shareholder, director, officer, member, or manager of the
Applicable Entity directly or indirectly owns or controls more than
ten percent (10%) of the beneficial interest, (b) any partnership,
joint venture or limited liability company in which the Applicable
Entity or any partner, shareholder, director, officer, member, or
manager of the Applicable Entity is a partner, joint venturer or
member, (c) any trust in which the Applicable Entity or any partner,
shareholder, director, officer, member or manager of the Applicable
Entity is a trustee or beneficiary, (d) any entity of any type which
is directly or indirectly owned or controlled by the Applicable Entity
or any partner, shareholder, director, officer, member or manager of
the Applicable Entity, (e) any partner, shareholder, director,
officer, member, manager or employee of the Applicable Entity, (f) any
Person related by birth, adoption or marriage to any partner,
shareholder, director, officer, member, manager, or employee of the
Applicable Entity, or (g) any Borrower Party.
(4) "APPROVED MANAGER" means Insignia Management Group,
L.P., the manager under the Approved Management Agreement.
(5) "APPROVED MANAGEMENT AGREEMENT" means the Management
Agreement dated as of October 1, 1996 between Borrower and the
Approved Manager.
(6) "AGREEMENT" means this Loan Agreement, as amended from time
to time.
(7) "ASSIGNMENTS OF RENTS AND LEASES" means, collectively,
Assignment of Rents and Leases A and Assignment of Rents and Leases B.
(8) "ASSIGNMENT OF RENTS AND LEASES A" means the Assignment of
Rents and Leases, executed by Borrower for the benefit of Lender,
pertaining to leases of space in the Project, and securing the repayment of
Note A.
(9) "ASSIGNMENT OF RENTS AND LEASES B" means the Assignment of
Rents and Leases, executed by Borrower for the benefit of Lender,
pertaining to leases of space in the Project, and securing the repayment of
Note B.
(10) "BORROWER PARTY" means any general partner in Borrower and
any general partner in any partnership that is a general partner in
Borrower, at any level.
(11) "BUDGET" means the budget attached as Exhibit B showing
total costs relating to the subject transaction, use of the initial advance
of the Loan, and amounts allocated for future advances (if any).
(12) "BUSINESS DAY" means a day other than a Saturday, a Sunday,
or a legal holiday on which national banks located in the State of New York
are not open for general banking business.
(13) "COMMITMENT" means the commitment letter issued by Lender
and accepted by Borrower on December 23, 1996.
(14) "CONTRACT RATE" shall mean two and three quarters percent
(2.75%) in excess of the Treasury Rate, which is the weighted average of
the Note A Contract Rate and the Note B Contract Rate.
(15) "DEBT" means, for any Person, without duplication: (a) all
indebtedness of such Person for borrowed money, for amounts drawn under a
letter of credit, or for the deferred purchase price of property for which
such Person or its assets is liable, (b) all unfunded amounts under a loan
agreement, letter of credit, or other credit facility for which such Person
would be liable, if such amounts were advanced under the credit facility,
(c) all amounts required to be paid by such Person as a guaranteed payment
to partners or a preferred or special dividend, including any mandatory
redemption of shares or interests, (d) all indebtedness guaranteed by such
Person, directly or indirectly, (e) all obligations under leases that
constitute capital leases for which such Person is liable, and (f) all
obligations of such Person under interest rate swaps, caps, floors, collars
and other interest hedge agreements, in each case whether such Person is
liable contingently or otherwise, as obligor, guarantor or otherwise, or in
respect of which obligations such Person otherwise assures a creditor
against loss.
(16) "DEBT SERVICE" means the aggregate interest, fixed
principal, and other payments due under the Loan, and on any other
outstanding permitted Debt relating to the Project approved by Lender for
the period of time for which calculated, but excluding payment of escrows
or reserves required by Lender.
(17) "DEBT SERVICE COVERAGE" means, for the period of time for
which calculation is being made, the ratio of Net Operating Income to Debt
Service.
(18) "DEFAULT RATE" means the lesser of (a) the maximum rate of
interest allowed by applicable law, and (b) five percent (5%) per annum in
excess of the Contract Rate.
(19) "ENVIRONMENTAL LAWS" has the meaning assigned in Article 4.
(20) "EVENT OF DEFAULT" has the meaning assigned in Article 9.
(21) "HAZARDOUS MATERIALS" has the meaning assigned in Article 4.
(22) "LIEN" means any interest, or claim thereof, in the Project
securing an obligation owed to, or a claim by, any Person other than the
owner of the Project, whether such interest is based on common law, statute
or contract, including the lien or security interest arising from a deed of
trust, mortgage, assignment, encumbrance, pledge, security agreement,
conditional sale or trust receipt or a lease, consignment or bailment for
security purposes. The term "Lien" shall include reservations, exceptions,
encroachments, easements, rights of way, covenants, conditions,
restrictions, leases and other title exceptions and encumbrances affecting
the Project.
(23) "LOAN" means the loan to be made by Lender to Borrower under
this Agreement and all other amounts secured by the Loan Documents.
(24) "LOAN DOCUMENTS" means: (a) this Agreement, (b) the Notes,
(c) the Mortgages, (d) the Assignments of Rents and Leases, (e) the
Subordination and Intercreditor Agreement, (f) Uniform Commercial Code
financing statements, (g) such assignments of management agreements,
contracts and other rights as may be required under the Commitment or
otherwise requested by Lender, (h) all other documents evidencing,
securing, governing or otherwise pertaining to the Loan, and (i) all
amendments, modifications, renewals, substitutions and replacements of any
of the foregoing.
(25) "LOAN YEAR" means the period between the date hereof and
December 31, 1997 for the first Loan Year and each 12 month period
following such first Loan Year until the Maturity Date.
(26) "MATURITY DATE" means the earlier of (a) January 1, 2002, or
(b) any earlier date on which the entire Loan is required to be paid in
full, by acceleration or otherwise, under this Agreement or any of the
other Loan Documents.
(27) "MORTGAGES" means, collectively, Mortgage A and Mortgage B.
(28) "MORTGAGE A" means the Mortgage, Security Agreement and
Fixture Filing A, executed by Borrower in favor of Lender, covering the
Project and securing the repayment of Note A.
(29) "MORTGAGE B" means the Mortgage, Security Agreement and
Fixture Filing B, executed by Borrower in favor of Lender, covering the
Project and securing the repayment of Note B.
(30) "NET CASH FLOW" means, for any period, the amount by which
Operating Revenues exceed the sum of (a) Operating Expenses, (b) Debt
Service, and (c) any actual payment into impounds, escrows, or reserves
required by Lender, except to the extent included within the definition of
Operating Expenses.
(31) "NET OPERATING INCOME" means the amount by which Adjusted
Operating Revenues exceed Adjusted Operating Expenses.
(32) "NOTES" means, collectively, Note A and Note B.
(33) "NOTE A" means Promissory Note A of even date, in the stated
principal amount of $28,000,000, executed by Borrower, and payable to the
order of Lender in evidence of a portion of the Loan. Note A and Note B
together evidence the Loan.
(34) "NOTE A CONTRACT RATE" has the meaning assigned in Article
2.
(35) "NOTE B" means Promissory Note B of even date, in the stated
principal amount of $2,400,000, executed by Borrower, and payable to the
order of Lender in evidence of a portion of the Loan. Note A and Note B
together evidence the Loan.
(36) "NOTE B CONTRACT RATE" has the meaning assigned in Article
2.
(37) "OPERATING EXPENSES" means all reasonable and necessary
expenses of operating the Project in the ordinary course of business which
are paid in cash by Borrower and which are directly associated with and
fairly allocable to the Project for the applicable period, including,
without limitation, ad valorem real estate taxes and assessments, insurance
premiums, regularly scheduled tax impounds paid to Lender, maintenance
costs, management fees and costs not to exceed five percent (5.0%) of
Operating Revenues, accounting, legal, and other professional fees, fees
relating to environmental and Net Cash Flow and Net Operating Income
audits, and other expenses incurred by Lender and reimbursed by Borrower
under this Agreement and the other Loan Documents, deposits to any capital
replacement reserves required by Lender, wages, salaries, and personnel
expenses, but excluding Debt Service, capital expenditures, any of the
foregoing expenses which are paid from deposits to cash reserves previously
included as Operating Expenses, any payment or expense for which Borrower
was or is to be reimbursed from proceeds of the Loan or insurance or by any
third party, and any non-cash charges such as depreciation and
amortization. Any management fee or other expense payable to Borrower or
to an Affiliate of Borrower shall be included as an Operating Expense only
with Lender's prior approval (the fees or other expenses included in the
Approved Management Agreement have been approved by Lender pursuant to
Section 8.3). Operating Expenses shall not include federal, state or local
income taxes or legal and other professional fees unrelated to the
operation of the Project.
(38) "OPERATING REVENUES" means all cash receipts of Borrower
from operation of the Project or otherwise arising in respect of the
Project after the date hereof which are properly allocable to the Project
for the applicable period, including, without limitation, receipts from
leases and parking agreements, concession fees and charges and other
miscellaneous operating revenues, proceeds from rental or business
interruption insurance, proceeds of any loans (other than the Loan and any
refinancing of the Loan) obtained by Borrower after the date hereof which
are secured by the Project (less only reasonable and customary expenses
incurred in procuring and closing such loan and actually paid in cash to
individuals or entities other than Borrower or any Affiliate of Borrower
and without implying any consent of Lender to the granting of any security
for any such loans), withdrawals from cash reserves (except to the extent
any operating expenses paid therewith are excluded from Operating
Expenses), but excluding security deposits and earnest money deposits until
they are forfeited by the depositor, advance rentals until they are earned,
and proceeds from a sale or other disposition.
(39) "PERMITTED SUBORDINATE MORTGAGE" means that certain existing
mortgage given by Borrower to Subordinate Lender to secure a loan in the
amount of $875,000, which Permitted Subordinate Mortgage has a stated
maturity no earlier than the stated Maturity Date of this Loan.
(40) "PERSON" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust, trustee, estate,
limited liability company, unincorporated organization, real estate
investment trust, government or any agency or political subdivision
thereof, or any other form of entity.
(41) "POTENTIAL DEFAULT" means the occurrence of any event or
condition which, with the giving of notice, the passage of time, or both,
would constitute an Event of Default.
(42) "PROJECT" means the Fox Run Apartments, Plainsboro, New
Jersey, 08536 consisting of 776 apartment units on approximately 46 acres,
and all related facilities, amenities, fixtures, and personal property
owned by Borrower and any improvements now or hereafter located on the real
property described in Exhibit A.
(43) "SENIOR NOTEHOLDER" means the holder of Note A.
(44) "SINGLE PURPOSE ENTITY" shall mean a Person (other than an
individual, a government, or any agency or political subdivision thereof),
which exists solely for the purpose of owning the Project, conducts
business only in its own name, does not engage in any business or have any
assets unrelated to the Project, does not have any indebtedness other than
as permitted by this Agreement, has its own separate books, records, and
accounts (with no commingling of assets), holds itself out as being a
Person separate and apart from any other Person, and observes corporate and
partnership formalities independent of any other entity, and which
otherwise constitutes a single purpose, bankruptcy remote entity as
determined by Lender.
(45) "SITE ASSESSMENT" means an environmental engineering report
for the Project prepared by an engineer engaged by Lender at Borrower's
expense, and in a manner satisfactory to Lender, based upon an
investigation relating to and making appropriate inquiries concerning the
existence of Hazardous Materials on or about the Project, and the past or
present discharge, disposal, release or escape of any such substances, all
consistent with good customary and commercial practice.
(46) "SUBORDINATE LENDER" means Angeles Mortgage Investment
Trust, a California business trust, the holder of the Permitted Subordinate
Mortgage.
(47) "SUBORDINATION AND INTERCREDITOR AGREEMENT" means the
Subordination and Intercreditor Agreement among Borrower, Lender and
Subordinate Lender in the form of Exhibit C attached hereto.
(48) "STATE" means the State of New Jersey.
ARTICLE 2
LOAN TERMS
Section 2.1 THE LOAN. The Loan of up to THIRTY MILLION FOUR HUNDRED
THOUSAND AND NO/100 DOLLARS ($30,400,000) shall be funded in one advance
and repaid in accordance with this Agreement. The sole advance of the
Loan, in the amount of up to $30,400,000, shall be made in accordance with
the Budget upon Borrower's satisfaction of the conditions to initial
advance described in Schedule 2.1.
Section 2.2 INTEREST RATE; LATE CHARGE. The outstanding principal
balance of the Loan (including any amounts added to principal under the
Loan Documents) shall bear interest as follows: (a) Note A shall bear
interest at a fixed rate of interest equal to two hundred twenty (220)
basis points (2.2%) in excess of the Treasury Rate as defined in Schedule
2.2 (the "NOTE A CONTRACT RATE"); and (b) Note B shall bear interest at a
fixed rate of interest equal to nine hundred sixteen (916) basis points
(9.16%) in excess of the Treasury Rate (the "NOTE B CONTRACT RATE").
Interest shall be computed on the basis of a fraction, the denominator of
which is three hundred sixty (360) and the numerator of which is the actual
number of days elapsed from the date of the initial advance or the date on
which the immediately preceding payment was due. If Borrower fails to pay
any installment of interest or principal within five (5) days after the
date on which the same is due, Borrower shall pay to Lender a late charge
on such past-due amount, as liquidated damages and not as a penalty, equal
to the greater of (i) interest at the Default Rate on such amount from the
date when due until paid, or (ii) five percent (5%) of such amount, but not
in excess of the maximum amount of interest allowed by applicable law.
While any Event of Default exists, the Loan shall bear interest at the
Default Rate.
Section 2.3 TERMS OF PAYMENT The Loan shall be payable as follows:
(1) LOAN PAYMENTS. Commencing on February 1, 1997 and
continuing on the first day of each month until all amounts under the Loan
Documents are paid in full, Borrower shall pay the amounts described on
Exhibit D attached hereto.
(2) MATURITY. On the Maturity Date, Borrower shall pay to
Lender (a) all outstanding principal, accrued and unpaid interest, and any
other amounts due under the Loan Documents and (b) a loan repayment fee
(the "LOAN REPAYMENT FEE") in the amount of six hundred eight thousand
dollars ($608,000). The Loan Repayment Fee shall be payable regardless of
whether the Loan is repaid at maturity, by acceleration or otherwise,
except as provided in Section 8.5.
(3) PREPAYMENT; APPLICATION OF SALE/REFINANCE PROCEEDS. The
Loan is closed to prepayment, in whole or in part, during the first Loan
Year. From the beginning of the second Loan Year to the Maturity Date,
upon not less than thirty (30) days' prior written notice to Lender,
Borrower may prepay the Loan, in whole but not in part, without prepayment
premium; provided, however, that (a) Borrower shall, unless prepayment is
made during the ninety (90) day period prior to the stated Maturity Date,
pay to Lender the Yield Maintenance Amount, calculated as provided in
Schedule 2.3 and (b) Borrower shall in all events pay to Lender the Loan
Repayment Fee (as defined above in this Section 2.3). Prepayments of
principal shall be applied to the reduction of the principal balances of
Note A and Note B proportionately in order that the Contract Rate (the
weighted average of the Note A Contract Rate and the Note B Contract Rate)
will equal two and three quarters percent (2.75%) per annum in excess of
the Treasury Rate, except that (i) no prepayment shall be applied
proportionately more to the reduction of Note B than to the reduction of
Note A and (ii) any prepayment which is made from proceeds of any sale or
refinancing of the Project or during the existence of any Event of Default,
shall be applied to satisfy Note A before any application thereof to the
reduction of the principal balance of Note B. If the Loan is accelerated
for any reason, Borrower shall pay to Lender the prepayment fees described
above (provided that the Yield Maintenance Amount shall not be payable upon
an acceleration due to casualty or condemnation), or if the Loan is closed
to prepayment, Borrower shall pay, in addition to all other amounts
outstanding under the Loan Documents, a prepayment premium equal to five
percent (5%) of the outstanding balance of the Loan (provided that the five
percent (5%) premium shall not be payable upon an acceleration due to
casualty or condemnation or due to an Event of Default pursuant to Section
9.4 which does not have a material adverse effect on the Borrower's ability
to repay the Loan or Lender's security therefor).
(4) APPLICATION OF PAYMENTS. Unless an Event of Default
exists, all payments received under the Loan Documents shall be applied:
first, to any fees and expenses due to Lender under the Loan Documents;
second, to any Default Rate interest or late charges on Note A; third, to
accrued and unpaid interest under Note A; fourth, to any Default Rate
interest or late charges on Note B; fifth, to accrued and unpaid interest
under Note B; sixth, to the principal sum of Note A; seventh, to the
principal sum of Note B; and eighth, to any other amounts due under the
Loan Documents. If an Event of Default exists, all payments under the Loan
shall be applied: first, to any fees and expenses due to Lender under the
Loan Documents; second, to any Default Rate interest or late charges on
Note A; third, to accrued but unpaid interest on Note A; fourth, to the
principal sum of Note A; fifth, to any Default Rate interest or late
charges on Note B; sixth, to accrued and unpaid interest on Note B;
seventh, to the principal sum of Note B; and eighth, to any other amounts
due under the Loan Documents.
(5) SUBORDINATION OF NOTE B. In addition to the subordination
provisions set forth in clauses (3) and (4) above, the repayment of Note B
shall be subordinate to the repayment of Note A under the circumstances
described in Section 10.2.
Section 2.4 SECURITY. The Loan shall be secured by (a) Mortgage A
and Assignment of Rents and Leases A creating a first lien and security
interest on the Project, (b) Mortgage B and Assignment of Rents and Leases
B creating a second lien and security interest on the Project, and (c) the
other Loan Documents.
Section 2.5 CERTAIN CASUALTY PROCEEDS.
(1) RENT/BUSINESS INTERRUPTION PROCEEDS. Borrower shall, and
hereby does, unconditionally and absolutely assign to Lender and agree to
cause its insurer(s) to directly deliver to Lender the rent loss/business
interruption proceeds payable to Borrower in connection with the fire
damage to the 16 units at the Project (the "DAMAGED UNITS") suffered in May
and June of 1996, such proceeds to be advanced to Borrower or applied to
the repayment of the Loan as provided below. The foregoing assignment is
an outright, immediate, continuing and absolute assignment to Lender and
not an assignment as security for the performance of Borrower's obligations
under the Loan Documents. Such proceeds shall be held by Lender without
interest and may be commingled with Lender's own funds. While any Event of
Default exists, Lender shall apply such proceeds to cure such Event of
Default without notice to Borrower. Subject to the preceding sentence, the
rent loss/business interruption proceeds delivered to Lender shall be
released to Borrower upon satisfaction of the following conditions: (a)
there shall exist no Potential Default or Event of Default and (b) the
Project shall then be 95% leased (as determined by Lender in its reasonable
discretion) by tenants paying (i) with respect to new leases or
modifications to existing leases at the Project, rents which are market
rents and (ii) with respect to renewals of existing leases, rents which
comply with any applicable renewal terms of the lease.
(2) HAZARD INSURANCE PROCEEDS. Borrower shall be entitled to
directly receive and retain the final payment of the hazard insurance
proceeds payable to Borrower in connection with the eight Damaged Units
which have been partially completed as of the date of this Loan so long as
the following conditions have been satisfied: (a) there shall exist no
Potential Default or Event of Default; (b) the governmental authority(ies)
having jurisdiction over such Damaged Units shall have inspected such units
and, based on such inspection, shall be prepared to issue certificates of
occupancy for such units; and (c) Borrower's insurer shall have inspected
such units and, based on such inspection, shall be prepared to disburse the
final payment of hazard insurance proceeds for such units. In addition, if
and for so long as the above conditions continue to remain satisfied,
Borrower shall be entitled to directly receive and retain any additional
hazard insurance proceeds payable to Borrower for the final eight Damaged
Units for purposes of restoring such final eight units to "rent ready"
condition. If the foregoing conditions have not been satisfied by Borrower
within ninety (90) days after the date hereof, all additional hazard
insurance proceeds payable for the final eight units shall be paid directly
to Lender, in which case Borrower shall, and hereby does, unconditionally
and absolutely assign to Lender and agree to cause its insurer(s) to
directly deliver to Lender such proceeds to be advanced to Borrower or
applied to the repayment of the Loan as set forth below. Such proceeds
shall be held by Lender without interest and may be commingled with
Lender's own funds. While any Event of Default exists, Lender shall apply
such proceeds to cure such Event of Default without notice to Borrower.
Such proceeds, if delivered to Lender, shall be released to Borrower upon
satisfaction of the same conditions set forth in clauses (a), (b) and (c)
above which applied to the first eight units.
Section 2.6 CAPITAL EXPENDITURES. Attached hereto as Exhibit E is
the capital expenditures budget for the Project for 1997 (the "INITIAL
CAPITAL EXPENDITURES BUDGET") which has been approved by Lender. Each
capital expenditures budget for the Project for each succeeding Loan Year
after 1997 shall be submitted to Lender prior to the beginning of the
applicable Loan Year and neither such budget (each, a "CAPITAL EXPENDITURES
BUDGET") nor Borrower's capital expenditures for the Project pursuant to
the Initial Capital Expenditures Budget or any subsequent Capital
Expenditures Budget shall require Lender's approval so long as the
following conditions have been complied with (it being understood and
agreed by Borrower that any non-compliance with such conditions shall
require Lender's prior written consent):
(a) At least $50,000 per year shall be expended on appliances
(which term excludes furnaces) for the Project per Loan Year and at least
$300,000 shall be expended on appliances (excluding furnaces) for the
Project over the term of the Loan;
(b) Subject to the foregoing minimum, Borrower shall have
discretion to expend any amount budgeted for appliances on any particular
type of appliance (e.g., all $50,000 budgeted for appliances could be spent
on dishwashers);
(c) With respect to line items other than the line item for
appliances, Borrower shall have discretion to either (i) reallocate up to
ten percent (10%) of the amount allocated to one or more such other line
items to another line item and/or (ii) reallocate up to twenty (20%) of the
amount allocated to one or more such other line items to a newly-created
line item; and
(d) Borrower shall include in the Capital Expenditures Budget
and shall expend, at a minimum, funds on capital improvements for the
Project equal to or greater than $310,400 annually ($400 per unit).
Borrower shall provide Lender with monthly operating statements showing
actual and budgeted capital expenditures in a format which can be readily
used by Lender to reconcile actual expenditures to budget. If the Minimum
Capital Expenditure Amount is not expended in any Loan Year, the sum
obtained by subtracting the actual capital expenditures for such Loan Year
from the Minimum Capital Expenditure Amount for such Loan Year shall be
deposited by Borrower into a reserve with Senior Noteholder (the "CAPITAL
IMPROVEMENT RESERVE") on or before the forty-fifth (45th) day following the
applicable Loan Year in accordance with, and subject to the provisions of,
Schedule 2.4.
Section 2.7 RESTORATION OF STORAGE UNIT. Borrower shall, not later
than June 30, 1997, take such actions as shall be necessary to restore the
unit at the Project currently being used for storage to a residential "rent
ready" condition.
ARTICLE 3
INSURANCE, CONDEMNATION, AND IMPOUNDS
Section 3.1 INSURANCE. Borrower shall maintain insurance as follows:
(1) CASUALTY; BUSINESS INTERRUPTION. Borrower shall keep the
Project insured against damage by fire and the other hazards covered by a
standard extended coverage and all-risk insurance policy for the full
insurable value thereof (without reduction for depreciation or co-
insurance), and shall maintain such other casualty insurance as reasonably
required by Lender. Borrower shall keep the Project insured against loss
by flood if the Project is located in an area identified by the Federal
Emergency Management Agency as an area having special flood hazards and in
which flood insurance has been made available under the National Flood
Insurance Act of 1968 (and any successor act thereto) in an amount at least
equal to the lesser of (i) the maximum amount of the Loan or (ii) the
maximum limit of coverage available under said act. Borrower shall
maintain use and occupancy insurance covering, as applicable, rental income
or business interruption, with coverage in an amount not less than twelve
(12)-months anticipated gross rental income or gross business earnings, as
applicable in each case, attributable to the Project. Borrower shall not
maintain any separate or additional insurance which is contributing in the
event of loss unless it is properly endorsed and otherwise satisfactory to
Lender in all respects. The proceeds of insurance paid on account of any
damage or destruction to the Project shall be paid to Lender to be applied
as provided in Section 3.2.
(2) LIABILITY. Borrower shall maintain (a) commercial
general liability insurance with respect to the Project providing for
limits of liability of not less than $5,000,000 for both injury to or death
of a person and for property damage per occurrence, and (b) other liability
insurance as reasonably required by Lender.
(3) FORM AND QUALITY. All insurance policies shall be
endorsed in form and substance acceptable to Lender to name Lender as an
additional insured, loss payee or mortgagee thereunder, as its interest may
appear, with loss payable to Lender, without contribution, under a standard
New York (or local equivalent) mortgagee clause. All such insurance
policies and endorsements shall be fully paid for and contain such
provisions and expiration dates and be in such form and issued by such
insurance companies licensed to do business in the State, with a rating of
"A-IX" or better as established by Best's Rating Guide (or an equivalent
rating approved in writing by Lender). Each policy shall provide that such
policy may not be cancelled or materially changed except upon thirty (30)
days' prior written notice of intention of non-renewal, cancellation or
material change to Lender and that no act or thing done by Borrower shall
invalidate any policy as against Lender. If Borrower fails to maintain
insurance in compliance with this Section 3.1, Lender may obtain such
insurance and pay the premium therefor and Borrower shall, on demand,
reimburse Lender for all expenses incurred in connection therewith.
Borrower shall assign the policies or proofs of insurance to Lender, in
such manner and form that Lender and its successors and assigns shall at
all times have and hold the same as security for the payment of the Loan.
Borrower shall deliver copies of all original policies certified to Lender
by the insurance company or authorized agent as being true copies, together
with the endorsements required hereunder. The proceeds of insurance
policies coming into the possession of Lender shall not be deemed trust
funds, and Lender shall be entitled to apply such proceeds as herein
provided.
(4) ADJUSTMENTS. Borrower shall give immediate written
notice of any loss in excess of the deductible under the applicable
insurance policy to the insurance carrier and to Lender. Borrower hereby
irrevocably authorizes and empowers Lender, as attorney-in-fact for
Borrower coupled with an interest, (a) to jointly with Borrower (unless an
Event of Default exists in which case Borrower shall have no right to
participate) make proof of loss, adjust and compromise any claim under
insurance policies, and appear in and prosecute any action arising from
such insurance policies, and (b) to collect and receive insurance proceeds,
and to deduct therefrom Lender's expenses incurred in the collection of
such proceeds. Nothing contained in this Section 3.1(4), however, shall
require Lender to incur any expense or take any action hereunder.
Section 3.2 USE AND APPLICATION OF INSURANCE PROCEEDS. Except with
respect to the insurance proceeds described in Section 2.5 which shall be
applied as set forth in such Section, Lender shall apply insurance proceeds
to costs of restoring the Project or the Loan as follows:
(1) if the loss is less than or equal to $50,000, Lender
shall apply the insurance proceeds to restoration provided (a) no Event of
Default or Potential Default exists, and (b) Borrower promptly commences
and is diligently pursuing restoration of the Project;
(2) if the loss exceeds $50,000 but is not more than 10% of
the aggregate replacement value of the improvements constituting the
Project, Lender shall apply the insurance proceeds to restoration provided
that at all times during such restoration (a) no Event of Default or
Potential Default exists; (b) Lender reasonably determines that there are
sufficient funds (from insurance proceeds and Borrower's funds) available
to restore and repair the Project to a condition substantially similar to
the condition that existed prior to the casualty; (c) Lender determines
that the Net Operating Income of the Project during restoration will be
sufficient to pay Debt Service; (d) Lender determines that restoration and
repair of the Project to a condition approved by Lender will be completed
within six months after the date of loss or casualty and in any event
ninety (90) days prior to the Maturity Date; and (e) Borrower promptly
commences and is diligently pursuing restoration of the Project;
(3) if the conditions set forth above are not satisfied or
the loss exceeds the maximum amount specified in Subsection 3.2(2) above,
in Lender's sole discretion, Lender may apply any insurance proceeds it may
receive to the payment of the Loan or allow all or a portion of such
proceeds to be used for the restoration of the Project; and
(4) insurance proceeds applied to restoration will be
disbursed on receipt of satisfactory plans and specifications, contracts
and subcontracts, schedules, budgets, lien waivers and architects'
certificates, and otherwise in accordance with prudent commercial
construction lending practices for construction loan advances, including,
as applicable, the advance conditions under Schedule 2.1.
Section 3.3 CONDEMNATION AWARDS. Borrower shall immediately notify
Lender of the institution of any proceeding for the condemnation or other
taking of the Project or any portion thereof. Lender may participate in
any such proceeding and Borrower will deliver to Lender all instruments
necessary or required by Lender to permit such participation. Without
Lender's prior consent, which shall not be unreasonably withheld or
delayed, Borrower (1) shall not agree to any compensation or award, and
(2) shall not take any action or fail to take any action which would cause
the compensation to be determined. All awards and compensation for the
taking or purchase in lieu of condemnation of the Project or any part
thereof are hereby assigned to and shall be paid to Lender. Borrower
authorizes Lender to collect and receive such awards and compensation, to
give proper receipts and acquittances therefor, and in Lender's sole
discretion to apply the same toward the payment of the Loan,
notwithstanding that the Loan may not then be due and payable, or to the
restoration of the Project; however, if the award is less than or equal to
$50,000 and Borrower requests that such proceeds be used for non-structural
site improvements (such as landscape, driveway, walkway and parking area
repairs) required to be made as a result of such condemnation, Lender will
apply the award to such restoration in accordance with disbursement
procedures applicable to insurance proceeds provided there exists no
Potential Default or Event of Default. Borrower, upon request by Lender,
shall execute all instruments requested to confirm the assignment of the
awards and compensation to Lender, free and clear of all liens, charges or
encumbrances.
Section 3.4 IMPOUNDS. Borrower shall deposit with Lender, monthly,
one-twelfth (1/12th) of the annual charges for ground or other rent, if
any, and real estate taxes, assessments and similar charges (but excluding
insurance) relating to the Project. At or before the initial advance of
the Loan, Borrower shall deposit with Lender a sum of money which together
with the monthly installments will be sufficient to make each of such
payments thirty (30) days prior to the date any delinquency or penalty
becomes due with respect to such payments. Deposits shall be made on the
basis of Lender's good faith estimate from time to time of the charges for
the current year (after giving effect to any reassessment or, at Lender's
election, on the basis of the charges for the prior year, with adjustments
when the charges are fixed for the then current year). All funds so
deposited shall be held by Lender, without interest, and may be commingled
with Lender's general funds. Borrower hereby grants to Lender a security
interest in all funds so deposited with Lender for the purpose of securing
the Loan. While an Event of Default exists, the funds deposited may be
applied in payment of the charges for which such funds have been deposited,
or to the payment of the Loan or any other charges affecting the security
of Lender, as Lender may elect, but no such application shall be deemed to
have been made by operation of law or otherwise until actually made by
Lender. Borrower shall furnish Lender with bills for the charges for which
such deposits are required at least thirty (30) days prior to the date on
which the charges first become payable. If at any time the amount on
deposit with Lender, together with amounts to be deposited by Borrower
before such charges are payable, is insufficient to pay such charges,
Borrower shall deposit any deficiency with Lender immediately upon demand.
Lender shall promptly pay such charges prior to the due date thereof
provided the amount on deposit with Lender is sufficient to pay such
charges and Lender has received a bill for such charges.
ARTICLE 4
ENVIRONMENTAL MATTERS
Section 4.1 CERTAIN DEFINITIONS. As used herein, the following terms
have the meanings indicated:
(1) "ENVIRONMENTAL LAWS" means any federal, state or local
law (whether imposed by statute, or administrative or judicial order, or
common law), now or hereafter enacted, governing health, safety, industrial
hygiene, the environment or natural resources, or Hazardous Materials,
including, such laws governing or regulating storage tanks or the use,
generation, storage, removal, recovery, treatment, handling, transport,
disposal, control, discharge of, or exposure to, Hazardous Materials
including, without limitation, the New Jersey Industrial Site Recovery Act,
N.J.S.A. 13:1K-6 et seq., and the regulations pertaining thereto, N.J.A.C.
26B-1.1 et seq. (collectively, "ISRA").
(2) "HAZARDOUS MATERIALS" means (a) petroleum or chemical
products, whether in liquid, solid, or gaseous form, or any fraction or
by-product thereof, (b) asbestos or asbestos-containing materials, (c)
polychlorinated biphenyls (pcbs), (d) radon gas, (e) underground storage
tanks, (f) any explosive or radioactive substances, (g) lead or lead-based
paint, or (h) any other substance, material, waste or mixture which is or
shall be listed, defined, or otherwise determined by any governmental
authority to be hazardous, toxic, dangerous or otherwise regulated,
controlled or giving rise to liability under any Environmental Laws.
Section 4.2 REPRESENTATIONS AND WARRANTIES ON ENVIRONMENTAL MATTERS.
(1) To Borrower's knowledge, except as set forth in the Site
Assessment, (a) no Hazardous Material is now or was formerly used, stored,
generated, manufactured, installed, disposed of or otherwise present at or
about the Project or any property adjacent to the Project (except for
cleaning and other products currently used in connection with the routine
maintenance or repair of the Project in full compliance with Environmental
Laws), (b) all permits, licenses, approvals and filings required by
Environmental Laws have been obtained, and the use, operation and condition
of the Project do not, and did not previously, violate any Environmental
Laws, and (c) no civil, criminal or administrative action, suit, claim,
hearing, investigation or proceeding has been brought or been threatened,
nor have any settlements been reached by or with any parties or any liens
imposed in connection with the Project concerning Hazardous Materials or
Environmental Laws, nor have any written notices concerning Hazardous
Materials or Environmental Laws been received from any person or entity in
connection with any assets or activities of Borrower including, without
limitation, the Project.
(2) No lien has been attached to any revenues, to the Project
or to any other real or personal property owned by Borrower as a result of
the Chief Executive of the New Jersey Spill Compensation Fund expending
monies from said fund to pay for direct and indirect "Damages", as such
term is defined in N.J.S.A. 58:11-23.11b(d) (hereinafter, "CLEANUP AND
REMOVAL COSTS"), arising from an intentional or unintentional action or
omission of Borrower or any previous owner and/or operator of said real
property, including, but not limited to, the Project, resulting in the
releasing, spilling, leaking, pumping, pouring, emitting, emptying or
dumping of Hazardous Materials either: (a) into the waters of the State;
(b) onto the lands of the State; or (c) into waters outside the
jurisdiction of the State when damage may result in the lands, waters,
fish, shellfish, wildlife, biota, air and other natural resources owned,
managed, held in trust or otherwise controlled by, and within the
jurisdiction of, the State.
Section 4.3 COVENANTS ON ENVIRONMENTAL MATTERS.
(1) Borrower shall (a) comply strictly and in all respects
with applicable Environmental Laws; (b) notify Lender immediately upon
Borrower's discovery of any spill, discharge, release or presence of any
Hazardous Material (except for cleaning and other products currently used
in connection with the routine maintenance or repair of the Project in full
compliance with Environmental Laws) at, upon, under, within, contiguous to
or otherwise affecting the Project; (c) promptly remove such Hazardous
Materials and remediate the Project in full compliance with Environmental
Laws and in accordance with the recommendations and specifications of an
independent environmental consultant approved by Lender; and (d) promptly
forward to Lender copies of all orders, notices, permits, applications or
other communications and reports in connection with any spill, discharge,
release or the presence of any Hazardous Material or any other matters
relating to the Environmental Laws or any similar laws or regulations, as
they may affect the Project or Borrower.
(2) Borrower shall not cause, shall prohibit any other Person
within the control of Borrower from causing, and shall use prudent,
commercially reasonable efforts to prohibit other Persons (including
tenants) from (a) causing any spill, discharge or release, or the use,
storage, generation, manufacture, installation, or disposal, of any
Hazardous Materials at, upon, under, within or about the Project or the
transportation of any Hazardous Materials to or from the Project (except
for cleaning and other products used in connection with routine maintenance
or repair of the Project in full compliance with Environmental Laws),
(b) installing any underground storage tanks at the Project, or (c)
conducting any activity that requires a permit or other authorization under
Environmental Laws.
(3) Borrower shall provide to Lender, at Borrower's expense
promptly upon the written request of Lender from time to time, a Site
Assessment or, if required by Lender, an update to any existing Site
Assessment, to assess the presence or absence of any Hazardous Materials
and the potential costs in connection with abatement, cleanup or removal of
any Hazardous Materials found on, under, at or within the Project so long
as Lender's request for a Site Assessment is based on information provided
under Section 4.3(1), a reasonable suspicion of Hazardous Materials at or
near the Project, a breach of representations under Section 4.2, or an
Event of Default, in which case any such Site Assessment or update shall be
at Borrower's expense.
(4) If Borrower is presently an owner or operator of a "MAJOR
FACILITY" in the State (as defined under ISRA), or if Borrower ever becomes
such an owner or operator, then Borrower shall furnish to the New Jersey
Department of Environmental Protection ("NJDEP") all the information
required by N.J.S.A. 58:10-23.11d and so long as Borrower shall own or
operate any real property located in the State of New Jersey which is used
as a "MAJOR FACILITY," Borrower shall duly file with the Director of the
Division of Taxation in the New Jersey Department of Treasury, a tax report
or return and shall pay or make provision for the payment of all taxes due
in accordance therewith, all in accordance with and pursuant to N.J.S.A.
58:10-23.11h. Borrower agrees that, if requested by Lender, it shall
include in all leases language acceptable to Lender requiring the tenants
thereunder to comply with the provisions of this Section.
(5) In the event that there shall be filed a lien against the
Project by the NJDEP, or other state or federal governmental official or
entity, (a) pursuant to and in accordance with the provisions of the Spill
Compensation and Control Act (N.J.S.A. 58:10-23.11b(d)), as the result of
the Chief Executive of the New Jersey Spill Compensation Fund having
expended monies from said fund to pay for Cleanup and Removal Costs arising
from an intentional or unintentional action or omission of Borrower,
resulting in the releasing, spilling, pumping, pouring, emitting, emptying
or dumping of Hazardous Materials into waters of the State or onto lands
from which it might flow or drain into said waters, or (b) pursuant to and
in accordance with the provisions of ISRA, or (c) pursuant to and in
accordance with any other of the Environmental Laws, then Borrower shall,
within thirty (30) days from the date that Borrower has given notice that
the lien has been placed against the Project or within such shorter period
of time if the State has commenced steps to cause the Project to be sold
pursuant to the lien, either (A) pay the claim and remove the lien from the
Project; or (B) furnish (i) a bond satisfactory to Lender and its title
insurer in the amount of the claim out of which the lien arises, (ii) a
cash deposit in the amount of the claim out of which the lien arises, or
(iii) other security reasonably satisfactory to Lender in an amount
sufficient to discharge the lien out of which the lien arises.
(6) If there is a release of Hazardous Materials affecting
the Project, whether or not the same originates or emanates from the
Project or any contiguous real estate, or if Borrower shall fail to comply
with any Environmental Law, Lender may at its election, but without the
obligation to do so, upon three (3) business days' notice to Borrower
(provided the delay caused by the giving of notice shall not, in Lender's
sole opinion, cause substantial damage to the Project), take any and all
actions as Lender shall deem necessary or advisable in order to remedy said
release of Hazardous Materials or cure said failure of compliance and any
customary amounts paid by Lender as a result thereof, together with
interest thereon at the Default Rate from the date of payment by Lender,
shall be immediately due and payable by Borrower to Lender and until paid
shall be added to and become a part of the Loan and shall have the benefit
of the lien created by the Mortgage as a part thereof.
Section 4.4 ALLOCATION OF RISKS AND INDEMNITY. As between Borrower
and Lender, all risk of loss associated with non-compliance with
Environmental Laws, or with the presence of any Hazardous Material at,
upon, within, contiguous to or otherwise affecting the Project, shall lie
solely with Borrower. Accordingly, Borrower shall bear all risks and costs
associated with any loss (including any loss in value attributable to
Hazardous Materials), damage or liability therefrom, including all costs of
removal of Hazardous Materials or other remediation required by Lender or
by law. Borrower shall indemnify, defend and hold Lender harmless from and
against all loss, liabilities, damages, claims, costs and expenses
(including reasonable costs of defense) arising out of or associated, in
any way, with the non-compliance with Environmental Laws, or the existence
of Hazardous Materials in, on, or about the Project, or a breach of any
representation, warranty or covenant contained in this Article 4, whether
based in contract, tort, implied or express warranty, strict liability,
criminal or civil statute or common law, including those arising from the
joint, concurrent, or comparative negligence of Lender; however, Borrower
shall not be liable under such indemnification to the extent such loss,
liability, damage, claim, cost or expense results solely from Lender's
gross negligence or willful misconduct. Borrower's obligations under this
Section 4.4 shall arise upon the discovery of the presence of any Hazardous
Material, whether or not any governmental authority has taken or threatened
any action in connection with the presence of any Hazardous Material, and
whether or not the existence of any such Hazardous Material or potential
liability on account thereof is disclosed in the Site Assessment and shall
continue notwithstanding the repayment of the Loan or any transfer or sale
of any right, title and interest in the Project (by foreclosure, deed in
lieu of foreclosure or otherwise).
Section 4.5 NO WAIVER. Notwithstanding any provision in this
Article 4 or elsewhere in the Loan Documents, or any rights or remedies
granted by the Loan Documents, Lender does not waive and expressly reserves
all rights and benefits now or hereafter accruing to Lender under the
"security interest" or "secured creditor" exception under applicable
Environmental Laws, as the same may be amended. No action taken by Lender
pursuant to the Loan Documents shall be deemed or construed to be a waiver
or relinquishment of any such rights or benefits under the "security
interest exception."
ARTICLE 5
LEASING MATTERS
Section 5.1 REPRESENTATIONS AND WARRANTIES ON LEASES. Borrower
represents and warrants to Lender with respect to leases of the Project
that: (1) to Borrower's knowledge, the rent roll delivered to Lender is
true and correct, and the leases are valid and in and full force and
effect; (2) the leases (including amendments) are in writing, and there are
no oral agreements with respect thereto; (3) the copies of the leases
delivered to Lender are true and complete; (4) Borrower has not assigned or
pledged any of the leases, the rents or any interests therein except to
Lender; (5) except as set forth in the rent roll delivered to Lender, no
tenant or other party has an option to purchase all or any portion of the
Project; (6) no tenant has the right to terminate its lease prior to
expiration of the stated term of such lease; and (7) no tenant has prepaid
more than one month's rent in advance (except for bona fide security
deposits not in excess of an amount equal to two month's rent except as
otherwise provided in the rent roll).
Section 5.2 STANDARD LEASE FORM; APPROVAL RIGHTS. All leases and
other rental arrangements shall in all respects be approved by Lender and
shall be on a standard lease form approved by Lender with no modifications
(except as approved by Lender). Such lease form shall provide that the
tenant shall attorn to Lender. Borrower shall hold, in trust, all tenant
security deposits in a segregated account, and, to the extent required by
applicable law, shall not commingle any such funds with any other funds of
Borrower. Within ten (10) days after Lender's request, Borrower shall
furnish to Lender a statement of all tenant security deposits, and copies
of all leases not previously delivered to Lender, certified by Borrower as
being true and correct. Notwithstanding anything contained in the Loan
Documents, Lender's approval shall not be required for future leases or
lease extensions if the following conditions are satisfied: (1) there
exists no Potential Default or Event of Default; (2) the lease is on the
standard lease form approved by Lender with no material modifications; (3)
the lease does not conflict with any restrictive covenant affecting the
Project or any other lease for space in the Project; and (4) the effective
rental rate is at least $0.70 per rentable square foot per annum for the
entire term of the lease.
Section 5.3 COVENANTS. Borrower (1) shall perform the obligations
which Borrower is required to perform under the leases; (2) shall enforce
the obligations to be performed by the tenants; (3) shall not collect any
rents for more than thirty (30) days in advance of the time when the same
shall become due, except for bona fide security deposits not in excess of
an amount equal to two months rent; (4) shall not enter into any ground
lease or master lease of any part of the Project; (5) shall not further
assign or encumber any lease; (6) shall not, except with Lender's prior
written consent, cancel or accept surrender or termination of any lease
other than in connection with the ordinary course of leasing and enforcing
leases at the Project; and (7) shall not, except with Lender's prior
written consent, modify or amend any lease (except for minor modifications
and amendments entered into in the ordinary course of business, consistent
with prudent property management practices, not affecting the economic
terms of the lease), and any action in violation of clauses (4), (5), (6),
and (7) of this Section 5.3 shall be void at the election of Lender.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Lender that:
Section 6.1 ORGANIZATION AND POWER. Borrower and each Borrower Party
is duly organized, validly existing and in good standing under the laws of
the state of its formation or existence, and is in compliance with legal
requirements applicable to doing business in the State. Borrower is not a
"foreign person" within the meaning of - 1445(f)(3) of the Internal Revenue
Code.
Section 6.2 VALIDITY OF LOAN DOCUMENTS. The execution, delivery and
performance by Borrower and each Borrower Party of the Loan Documents: (1)
are duly authorized and do not require the consent or approval of any other
party or governmental authority which has not been obtained; and (2) will
not violate any law or result in the imposition of any lien, charge or
encumbrance upon the assets of any such party, except as contemplated by
the Loan Documents. The Loan Documents constitute the legal, valid and
binding obligations of Borrower and each Borrower Party, enforceable in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, or similar laws generally affecting the enforcement of
creditors' rights.
Section 6.3 LIABILITIES; LITIGATION.
(1) The financial statements delivered by Borrower and each
Borrower Party are true and correct in all material respects with no
significant change since the date of preparation in all material respects.
Except as disclosed in such financial statements, there are no liabilities
(fixed or contingent) affecting the Project, Borrower or any Borrower
Party. Except as disclosed in such financial statements, there is no
litigation, administrative proceeding, investigation or other legal action
(including any proceeding under any state or federal bankruptcy or
insolvency law) pending or, to the knowledge of Borrower, threatened,
against the Project, Borrower or any Borrower Party which if adversely
determined could have a material adverse effect on such party, the Project
or the Loan.
(2) Neither Borrower nor any Borrower Party is contemplating
either the filing of a petition by it under state or federal bankruptcy or
insolvency laws or the liquidation of all or a major portion of its assets
or property, and neither Borrower nor any Borrower Party has knowledge of
any Person contemplating the filing of any such petition against it.
Section 6.4 TAXES AND ASSESSMENTS. The Project is comprised of one
or more parcels, each of which constitutes a separate tax lot and none of
which constitutes a portion of any other tax lot. There are no pending or,
to Borrower's best knowledge, proposed, special or other assessments for
public improvements or otherwise affecting the Project, nor are there any
contemplated improvements to the Project that may result in such special or
other assessments.
Section 6.5 OTHER AGREEMENTS; DEFAULTS. Neither Borrower nor any
Borrower Party is a party to any agreement or instrument or subject to any
court order, injunction, permit, or restriction which might materially
adversely affect the Project or the business, operations, or condition
(financial or otherwise) of Borrower or any Borrower Party. Neither
Borrower nor any Borrower Party is in violation of any agreement which
violation would have a material adverse effect on the Project, Borrower, or
any Borrower Party or Borrower's or any Borrower Party's business,
properties, or assets, operations or condition, financial or otherwise.
Section 6.6 COMPLIANCE WITH LAW.
(1) Borrower and each Borrower Party have all requisite
licenses, permits, franchises, qualifications, certificates of occupancy or
other governmental authorizations to own, lease and operate the Project and
carry on its business, and the Project is in substantial compliance with
all applicable legal requirements and is free of structural defects, and
all building systems contained therein are in good working order, subject
to ordinary wear and tear. The Project does not constitute, in whole or in
part, a legally non-conforming use under applicable legal requirements;
(2) No condemnation has been commenced or, to Borrower's
knowledge, is contemplated with respect to all or any portion of the
Project or for the relocation of roadways providing access to the Project;
and
(3) The Project has adequate rights of access to public ways
and is served by adequate water, sewer, sanitary sewer and storm drain
facilities. All public utilities necessary or convenient to the full use
and enjoyment of the Project are located in the public right-of-way
abutting the Project, and all such utilities are connected so as to serve
the Project without passing over other property, except to the extent such
other property is subject to a perpetual easement for such utility
benefitting the Project. All roads necessary for the full utilization of
the Project for its current purpose have been completed and dedicated to
public use and accepted by all governmental authorities.
Section 6.7 LOCATION OF BORROWER. Borrower's principal place of
business and chief executive offices are located at the address stated in
Section 11.1.
Section 6.8 ERISA. Borrower has not established any pension plan for
employees which would cause Borrower to be subject to the Employee
Retirement Income Security Act of 1974, as amended.
Section 6.9 MARGIN STOCK. No part of proceeds of the Loan will be
used for purchasing or acquiring any "margin stock" within the meaning of
Regulations G, T, U or X of the Board of Governors of the Federal Reserve
System.
Section 6.10 TAX FILINGS. Borrower and each Borrower Party have
filed (or have obtained effective extensions for filing) all federal, state
and local tax returns required to be filed and have paid or made adequate
provision for the payment of all federal, state and local taxes, charges
and assessments payable by Borrower and each Borrower Party, respectively.
Section 6.11 SOLVENCY. Giving effect to the Loan, the fair
saleable value of Borrower's assets exceeds and will, immediately following
the making of the Loan, exceed Borrower's total liabilities, including,
without limitation, subordinated, unliquidated, disputed and contingent
liabilities. The fair saleable value of Borrower's assets is and will,
immediately following the making of the Loan, be greater than Borrower's
probable liabilities, including the maximum amount of its contingent
liabilities on its Debts as such Debts become absolute and matured,
Borrower's assets do not and, immediately following the making of the Loan
will not, constitute unreasonably small capital to carry out its business
as conducted or as proposed to be conducted. Borrower does not intend to,
and does not believe that it will, incur Debts and liabilities (including
contingent liabilities and other commitments) beyond its ability to pay
such Debts as they mature (taking into account the timing and amounts of
cash to be received by Borrower and the amounts to be payable on or in
respect of obligations of Borrower).
Section 6.12 FULL AND ACCURATE DISCLOSURE. No statement of fact
made by or on behalf of Borrower or any Borrower Party in this Agreement
or in any of the other Loan Documents contains any untrue statement of a
material fact or omits to state any material fact necessary to make
statements contained herein or therein not misleading. There is no fact
presently known to Borrower which has not been disclosed to Lender which
materially adversely affects, nor as far as Borrower can foresee, might
materially adversely affect, the Project or the business, operations or
condition (financial or otherwise) of Borrower or any Borrower Party.
Section 6.13 SINGLE PURPOSE ENTITY. Borrower is and has at all
times since its formation been a Single Purpose Entity.
ARTICLE 7
FINANCIAL REPORTING
Section 7.1 FINANCIAL STATEMENTS.
(1) MONTHLY REPORTS. Within thirty (30) days after the end
of each calendar month, Borrower shall furnish to Lender a current (as of
the calendar month just ended) balance sheet, a detailed operating
statement (showing monthly activity and year-to-date) stating Operating
Revenues, Operating Expenses, operating income and Net Cash Flow for the
calendar month just ended, and an updated "short form" rent roll and, if
requested by Lender from time to time, a general ledger, an updated "long
form" rent roll and other documentation supporting the information
disclosed in the most recent financial statements.
(2) ANNUAL REPORTS. Within ninety (90) days after the end of
each fiscal year of Borrower's operation of the Project, Borrower shall
furnish to Lender a current (as of the end of such fiscal year) balance
sheet, a detailed operating statement stating Operating Revenues, Operating
Expenses, operating income and Net Cash Flow for each of Borrower and the
Project, and, if required by Lender, prepared on a review basis and
certified by an independent public accountant reasonably satisfactory to
Lender.
(3) CERTIFICATION; SUPPORTING DOCUMENTATION. Each such
financial statement shall be in scope and detail satisfactory to Lender and
certified by the chief financial representative of Borrower.
Section 7.2 ACCOUNTING PRINCIPLES. All financial statements shall be
prepared in accordance with sound accounting principles applicable to
commercial real estate, consistently applied from year to year. If the
financial statements are prepared on an accrual basis, such statements
shall be accompanied by a reconciliation to cash basis accounting
principles.
Section 7.3 OTHER INFORMATION. Borrower shall deliver to Lender such
additional information regarding Borrower, its subsidiaries, its business,
any Borrower Party, and the Project within 30 days after Lender's
reasonable request therefor.
Section 7.4 ANNUAL BUDGET. At least thirty (30) days prior to the
commencement of each fiscal year, Borrower will provide to Lender its
proposed annual operating budget for such fiscal year for review by Lender.
Unless an Event of Default exists, Lender shall not have the right to
approve such operating budget.
Section 7.5 AUDITS. Lender shall have the right to choose and
appoint a certified public accountant to perform financial audits as it
deems necessary, at Borrower's expense (which expense obligation shall be
limited to Lender's reasonable expenses) if (a) reasonably required by
Lender in response to an approval request or similar request from Borrower,
(b) if reasonably required by Lender for its internal purposes but only
with reasonable frequency, or (c) in connection with the occurrence of a
Potential Default of Event of Default. Borrower shall permit Lender upon
reasonable notice during normal business hours to examine such records,
books and papers of Borrower which reflect upon its financial condition and
the income and expense relative to the Project.
ARTICLE 8
COVENANTS
Borrower covenants and agrees with Lender as follows:
Section 8.1 DUE ON SALE AND ENCUMBRANCE; TRANSFERS OF INTERESTS.
Without the prior written consent of Lender,
(1) neither Borrower nor any other Person having an ownership
or beneficial interest in Borrower shall (a) directly or indirectly sell,
transfer, convey, mortgage, pledge, or assign any interest in the Project
or any part thereof (including any partnership or any other ownership
interest in Borrower); (b) further encumber, alienate, grant a Lien or
grant any other interest in the Project or any part thereof (including any
partnership or other ownership interest in Borrower), whether voluntarily
or involuntarily; or (c) enter into any easement or other agreement
granting rights in or restricting the use or development of the Project;
(2) no new general partner, member, or limited partner
having the ability to control the affairs of Borrower shall be admitted to
or created in Borrower (nor shall any existing general partner or member or
controlling limited partner withdraw from Borrower), and no change in
Borrower's organizational documents relating to control over Borrower
and/or the Project shall be effected; and
(3) no transfer of any limited partnership interest in
Borrower shall be permitted except (i) to the Approved Manager or an
Affiliate of Borrower or an Affiliate of the Approved Manager, in either
case which is in the real estate and/or property management business and
(ii) so long as the holder or holders of such limited partnership
interest(s) do not have the ability to control the affairs of the Borrower
and (iii) so long as an Affiliate of Approved Manager or an Affiliate of
Borrower remains in control of the affairs of Borrower.
(4) no transfers of the stock of the corporate general partner
of Borrower or direct or indirect transfers of any beneficial interest
therein shall be permitted except to an Affiliate of Borrower which is
engaged in the real estate and/or property management business
As used in this Section 8.1, "transfer" shall include the sale, transfer,
conveyance, mortgage, pledge, or assignment of the legal or beneficial
ownership of (a) the Project, (b) any partnership interest in any general
partner in Borrower that is a partnership, and (c) any voting stock in any
general partner in Borrower that is a corporation; "transfer" shall not
include (i) the leasing of individual units within the Project so long as
Borrower complies with the provisions of the Loan Documents relating to
such leasing activity; or (ii) sales or dispositions of personal property
in the ordinary course of business.
Section 8.2 TAXES; CHARGES. Borrower shall pay before any fine,
penalty, interest or cost may be added thereto, and shall not enter into
any agreement to defer, any real estate taxes and assessments, franchise
taxes and charges, and other governmental charges that may become a Lien
upon the Project or become payable during the term of the Loan, and will
promptly furnish Lender with evidence of such payment; however, Borrower's
compliance with Section 3.4 of this Agreement relating to impounds for
taxes and assessments shall, with respect to payment of such taxes and
assessments, be deemed compliance with this Section 8.2. Borrower shall
not suffer or permit the joint assessment of the Project with any other
real property constituting a separate tax lot or with any other real or
personal property. Borrower shall pay when due all claims and demands of
mechanics, materialmen, laborers and others which, if unpaid, would result
in a Lien on the Project; however, Borrower may contest the validity of
such claims and demands so long as (a) Borrower notifies Lender that it
intends to contest such claim or demand, (b) Borrower provides Lender with
an indemnity, bond or other security satisfactory to Lender (including an
endorsement to Lender's title insurance policy insuring against such claim
or demand) assuring the discharge of Borrower's obligations for such claims
and demands, including interest and penalties, and (c) Borrower is
diligently contesting the same by appropriate legal proceedings in good
faith and at its own expense and concludes such contest prior to the tenth
(10th) day preceding the earlier to occur of the Maturity Date or the date
on which the Project is scheduled to be sold for non-payment.
Section 8.3 CONTROL; MANAGEMENT. Lender has approved the Approved
Manager and the Approved Management Agreement. There shall be no change in
the day-to-day control and management of Borrower or Borrower's general
partner without the prior written consent of Lender. Borrower shall not
terminate, replace or appoint any manager or terminate or amend the
management agreement for the Project without Lender's prior written
approval. Any change in ownership or control of the manager shall be cause
for Lender to re-approve such manager and management agreement. Each
manager shall hold and maintain all necessary licenses, certifications and
permits required by law. Borrower shall fully perform all of its
covenants, agreements and obligations under the management agreement.
Section 8.4 OPERATION; MAINTENANCE; INSPECTION. Borrower shall
observe and comply with all legal requirements applicable to the ownership,
use and operation of the Project. Borrower shall maintain the Project in
good condition and promptly repair any damage or casualty. Borrower shall
permit Lender and its agents, representatives and employees, upon
reasonable prior notice to Borrower, to inspect the Project and conduct
such environmental and engineering studies as Lender may require, provided
such inspections and studies do not materially interfere with the use and
operation of the Project.
Section 8.5 TAXES ON SECURITY. Borrower shall pay all taxes,
charges, filing, registration and recording fees, excises and levies
payable with respect to the Note or the Liens created or secured by the
Loan Documents, other than gross receipts, income, franchise and doing
business taxes and other similar taxes imposed on Lender. If there shall
be enacted any law (1) deducting the Loan from the value of the Project for
the purpose of taxation, (2) affecting any Lien on the Project, or
(3) changing existing laws of taxation of mortgages, deeds of trust,
security deeds, or debts secured by real property, or changing the manner
of collecting any such taxes, Borrower shall promptly pay to Lender, on
demand, all taxes, costs and charges for which Lender is or may be liable
as a result thereof; however, if such payment would be prohibited by law or
would render the Loan usurious, then instead of collecting such payment,
Lender may declare all amounts owing under the Loan Documents to be
immediately due and payable and no prepayment premium shall be due to
Lender hereunder.
Section 8.6 LEGAL EXISTENCE; NAME, ETC. Borrower and each general
partner in Borrower shall preserve and keep in full force and effect its
existence as a Single Purpose Entity, entity status, franchises, rights and
privileges under the laws of the state of its formation, and all
qualifications, licenses and permits applicable to the ownership, use and
operation of the Project. Neither Borrower nor any general partner of
Borrower shall wind up, liquidate, dissolve, reorganize, merge, or
consolidate with or into, or convey, sell, assign, transfer, lease, or
otherwise dispose of all or substantially all of its assets, or acquire all
or substantially all of the assets of the business of any Person, or permit
any subsidiary or Affiliate of Borrower to do so. Borrower and each
general partner in Borrower shall conduct business only in its own name and
shall not change its name, identity, or organizational structure, or the
location of its chief executive office or principal place of business
unless Borrower (a) shall have obtained the prior written consent of Lender
to such change, and (b) shall have taken all actions necessary or requested
by Lender to file or amend any financing statement or continuation
statement to assure perfection and continuation of perfection of security
interests under the Loan Documents. Borrower (and each general partner in
Borrower), if any, shall maintain its separateness as an entity, including
maintaining separate books, records, and accounts and observing corporate
and partnership formalities independent of any other entity, shall pay its
obligations with its own funds and shall not commingle funds or assets with
those of any other entity.
Section 8.7 AFFILIATE TRANSACTIONS. Without the prior written
consent of Lender, Borrower shall not engage in any transaction affecting
the Project with an Affiliate of Borrower except for the Approved
Management Agreement and except to the extent done so in the ordinary
course of business on an "arms-length" market cost basis.
Section 8.8 LIMITATION ON OTHER DEBT. Borrower (and each general
partner in Borrower, if any) shall not, without the prior written consent
of Lender, incur any Debt other than (a) the Loan, (b) customary trade
payables which are payable, and shall be paid, within sixty (60) days of
when incurred and (c) so long as Borrower delivers to Lender a fully
executed Subordination and Intercreditor Agreement in the form of Exhibit
C, the Permitted Subordinate Mortgage. By not later than February 28,
1997, Borrower shall pay all trade payables incurred prior to the date
hereof and deliver to Lender a written notice confirming such payment.
Section 8.9 FURTHER ASSURANCES. Borrower shall promptly (1) cure any
defects in the execution and delivery of the Loan Documents, and (2)
execute and deliver, or cause to be executed and delivered, all such other
documents, agreements and instruments as Lender may reasonably request to
further evidence and more fully describe the collateral for the Loan, to
correct any omissions in the Loan Documents, to perfect, protect or
preserve any liens created under any of the Loan Documents, or to make any
recordings, file any notices, or obtain any consents, as may be necessary
or appropriate in connection therewith.
Section 8.10 ESTOPPEL CERTIFICATES. Borrower, within ten (10)
days after request, shall furnish to Lender a written statement, duly
acknowledged, setting forth the amount due on the Loan, the terms of
payment of the Loan, the date to which interest has been paid, whether any
offsets or defenses exist against the Loan and, if any are alleged to
exist, the nature thereof in detail, and such other matters as Lender
reasonably may request.
Section 8.11 NOTICE OF CERTAIN EVENTS. Borrower shall promptly
notify Lender of (1) any Potential Default or Event of Default, together
with a detailed statement of the steps being taken to cure such Potential
Default or Event of Default; (2) any notice of default received by Borrower
under other obligations relating to the Project or otherwise material to
Borrower's business; and (3) any threatened or pending legal, judicial or
regulatory proceedings (other than ordinary leasing disputes with
individual tenants), including any dispute between Borrower and any
governmental authority, affecting Borrower or the Project.
Section 8.12 INDEMNIFICATION. Borrower shall indemnify, defend
and hold Lender harmless from and against any and all losses, liabilities,
claims, damages, expenses, obligations, penalties, actions, judgments,
suits, costs or disbursements of any kind or nature whatsoever, including
the reasonable fees and actual expenses of Lender's counsel, in connection
with (1) any inspection, review or testing of or with respect to the
Project, (2) any investigative, administrative, mediation, arbitration, or
judicial proceeding, whether or not Lender is designated a party thereto,
commenced or threatened at any time (including after the repayment of the
Loan) in any way related to the execution, delivery or performance of any
Loan Document or to the Project, (3) any proceeding instituted by any
Person claiming a Lien, and (4) any brokerage commissions or finder's fees
claimed by any broker or other party in connection with the Loan, the
Project, or any of the transactions contemplated in the Loan Documents by
or through Borrower (but not Lender), including those arising from the
joint, concurrent, or comparative negligence of Lender, except to the
extent any of the foregoing is caused by Lender's gross negligence or
willful misconduct.
ARTICLE 9
EVENTS OF DEFAULT
Each of the following shall constitute an Event of Default under the
Loan:
Section 9.1 PAYMENTS. Borrower's failure to pay any regularly
scheduled installment of principal, interest or other amount due under the
Loan Documents within five (5) days after the date when due (provided that
Borrower shall, on not more than one (1) occasion in any twelve (12) month
period, be entitled to written notice and an additional five (5) days to
pay any regularly scheduled installment of principal or interest before
such non-payment constitutes an Event of Default), or Borrower's failure to
pay the Loan at the Maturity Date, whether by acceleration or otherwise.
Section 9.2 INSURANCE. Borrower's failure to maintain insurance of
the type and in the amount required under Section 3.1 of this Agreement.
Section 9.3 SALE, ENCUMBRANCE, ETC. The sale, transfer, conveyance,
pledge, mortgage or assignment of any part or all of the Project, or any
interest therein, or of any interest in Borrower, in violation of
Section 8.1 of this Agreement.
Section 9.4 COVENANTS. Borrower's failure to perform or observe any
of the agreements and covenants contained in this Agreement or in any of
the other Loan Documents (other than payments under Section 9.1, insurance
requirements under Section 9.2, and transfers and encumbrances under
Section 9.3), and the continuance of such failure for ten (10) days after
notice by Lender to Borrower; however, subject to any shorter period for
curing any failure by Borrower as specified in any of the other Loan
Documents, Borrower shall have an additional thirty (30) days to cure such
failure if (1) such failure does not involve the failure to make payments
on a monetary obligation; (2) such failure cannot reasonably be cured
within ten (10) days; (3) Borrower is diligently undertaking to cure such
default, and (4) Borrower has provided Lender with security reasonably
satisfactory to Lender against any interruption of payment or impairment of
collateral as a result of such continuing failure. The notice and cure
provisions of this Section 9.4 do not apply to the Events of Default
described in Section 9.5, Section 9.6, Section 9.7 and Section 9.8.
Section 9.5 REPRESENTATIONS AND WARRANTIES. Any representation or
warranty made in any Loan Document proves to be untrue in any material
respect when made or deemed made.
Section 9.6 OTHER ENCUMBRANCES. Any default under any document or
instrument, other than the Loan Documents, evidencing or creating a Lien on
the Project or any part thereof including, without limitation, the
Subordinate Mortgage.
Section 9.7 INVOLUNTARY BANKRUPTCY OR OTHER PROCEEDING. Commencement
of an involuntary case or other proceeding against Borrower or any Borrower
Party (each, a "BANKRUPTCY PARTY") which seeks liquidation, reorganization
or other relief with respect to it or its debts or other liabilities under
any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeks the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any of its property, and such involuntary
case or other proceeding shall remain undismissed or unstayed for a period
of 60 days; or an order for relief against a Bankruptcy Party shall be
entered in any such case under the Federal Bankruptcy Code.
Section 9.8 VOLUNTARY PETITIONS, ETC. Commencement by a Bankruptcy
Party of a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its Debts or other
liabilities under any bankruptcy, insolvency or other similar law or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official for it or any of its property, or consent by a
Bankruptcy Party to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it, or the making by a Bankruptcy Party of a general
assignment for the benefit of creditors, or the failure by a Bankruptcy
Party, or the admission by a Bankruptcy Party in writing of its inability,
to pay its debts generally as they become due, or any action by a
Bankruptcy Party to authorize or effect any of the foregoing.
ARTICLE 10
REMEDIES
Section 10.1 REMEDIES - INSOLVENCY EVENTS. Upon the occurrence
of any Event of Default described in Section 9.7 or 9.8, the obligations of
Lender to advance amounts hereunder shall immediately terminate, and all
amounts due under the Loan Documents immediately shall become due and
payable, all without written notice and without presentment, demand,
protest, notice of protest or dishonor, notice of intent to accelerate the
maturity thereof, notice of acceleration of the maturity thereof, or any
other notice of default of any kind, all of which are hereby expressly
waived by Borrower; however, if the Bankruptcy Party under Section 9.7 or
9.8 is other than Borrower, then all amounts due under the Loan Documents
shall become immediately due and payable at Lender's election, in Lender's
sole discretion.
Section 10.2 REMEDIES - OTHER EVENTS. Except as set forth in
Section 10.1 above, while any Event of Default exists, Lender may (1) by
written notice to Borrower, declare the entire Loan to be immediately due
and payable without presentment, demand, protest, notice of protest or
dishonor, notice of intent to accelerate the maturity thereof, notice of
acceleration of the maturity thereof, or other notice of default of any
kind, all of which are hereby expressly waived by Borrower, (2) terminate
the obligation, if any, of Lender to advance amounts hereunder, and
(3) exercise all rights and remedies therefor under the Loan Documents and
at law or in equity. While any Event of Default exists, no principal
amortization shall be permitted on Note B until all amounts evidenced by
Note A have been repaid in full.
Section 10.3 LENDER'S RIGHT TO PERFORM THE OBLIGATIONS. If
Borrower shall fail, refuse or neglect to make any payment or perform any
act required by the Loan Documents, then while any Event of Default exists,
and without notice to or demand upon Borrower and without waiving or
releasing any other right, remedy or recourse Lender may have because of
such Event of Default, Lender may (but shall not be obligated to) make such
payment or perform such act for the account of and at the expense of
Borrower, and shall have the right to enter upon the Project for such
purpose and to take all such action thereon and with respect to the Project
as it may deem necessary or appropriate. If Lender shall elect to pay any
sum due with reference to the Project, Lender may do so in reliance on any
bill, statement or assessment procured from the appropriate governmental
authority or other issuer thereof without inquiring into the accuracy or
validity thereof. Similarly, in making any payments to protect the
security intended to be created by the Loan Documents, Lender shall not be
bound to inquire into the validity of any apparent or threatened adverse
title, lien, encumbrance, claim or charge before making an advance for the
purpose of preventing or removing the same. Additionally, subject to
Section 4.3(6) hereof, if any Hazardous Materials affect or threaten to
affect the Project, Lender may (but shall not be obligated to) give such
notices and take such actions as it deems reasonably necessary or advisable
in order to abate the discharge of any Hazardous Materials or remove the
Hazardous Materials. Borrower shall indemnify, defend and hold Lender
harmless from and against any and all losses, liabilities, claims, damages,
expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements of any kind or nature whatsoever, including reasonable
attorneys' fees, incurred or accruing by reason of any acts performed by
Lender pursuant to the provisions of this Section 10.3, including those
arising from the joint, concurrent, or comparative negligence of Lender,
except as a result of Lender's gross negligence or willful misconduct. All
reasonable sums paid by Lender pursuant to this Section 10.3, and all other
reasonable sums expended by Lender to which it shall be entitled to be
indemnified, together with interest thereon at the Default Rate from the
date of such payment or expenditure until paid, shall constitute additions
to the Loan, shall be secured by the Loan Documents and shall be paid by
Borrower to Lender upon demand.
ARTICLE 11
MISCELLANEOUS
Section 11.1 NOTICES. Any notice required or permitted to be
given under this Agreement shall be in writing and either shall be mailed
by certified mail, postage prepaid, return receipt requested, or sent by
overnight air courier service, or personally delivered to a representative
of the receiving party, or sent by telecopy (provided an identical notice
is also sent simultaneously by mail, overnight courier, or personal
delivery as otherwise provided in this Section 11.1). All such
communications shall be mailed, sent or delivered, addressed to the party
for whom it is intended at its address set forth below.
If to Borrower: Fox Run AP XI, L.P.
c/o IFGP Corporation
One Insignia Financial Plaza
Greenville, South Carolina 29601
Attention: Steve Schoenbaechler
and General Counsel
Telecopy: (864) 239-1084
If to Lender: General Electric Capital
Corporation
292 Long Ridge Road
Stamford, Connecticut 06927
Attention: Commercial Real Estate
Legal Operation
Telecopy: (203) 357-6768
Any communication so addressed and mailed shall be deemed to be given on
the earliest of (1) when actually delivered, (2) on the first Business Day
after deposit with an overnight air courier service, or (3) on the third
Business Day after deposit in the United States mail, postage prepaid, in
each case to the address of the intended addressee (except as otherwise
provided in the Mortgage), and any communication so delivered in person
shall be deemed to be given when receipted for by, or actually received by
Lender or Borrower, as the case may be. If given by telecopy, a notice
shall be deemed given and received when the telecopy is transmitted to the
party's telecopy number specified above, and confirmation of complete
receipt is received by the transmitting party during normal business hours
or on the next Business Day if not confirmed during normal business hours,
and an identical notice is also sent simultaneously by mail, overnight
courier, or personal delivery as otherwise provided in this Section 11.1.
Either party may designate a change of address by written notice to the
other by giving at least ten (10) days prior written notice of such change
of address.
Section 11.2 AMENDMENTS AND WAIVERS. No amendment or waiver of any
provision of the Loan Documents shall be effective unless in writing and
signed by the party against whom enforcement is sought.
Section 11.3 LIMITATION ON INTEREST. It is the intention of the
parties hereto to conform strictly to applicable usury laws. Accordingly,
all agreements between Borrower and Lender with respect to the Loan are
hereby expressly limited so that in no event, whether by reason of
acceleration of maturity or otherwise, shall the amount paid or agreed to
be paid to Lender or charged by Lender for the use, forbearance or
detention of the money to be lent hereunder or otherwise, exceed the
maximum amount allowed by law. If the Loan would be usurious under
applicable law (including the laws of the State and the laws of the United
States of America), then, notwithstanding anything to the contrary in the
Loan Documents: (1) the aggregate of all consideration which constitutes
interest under applicable law that is contracted for, taken, reserved,
charged or received under the Loan Documents shall under no circumstances
exceed the maximum amount of interest allowed by applicable law, and any
excess shall be credited on the Note by the holder thereof (or, if the Note
has been paid in full, refunded to Borrower); and (2) if maturity is
accelerated by reason of an election by Lender, or in the event of any
prepayment, then any consideration which constitutes interest may never
include more than the maximum amount allowed by applicable law. In such
case, excess interest, if any, provided for in the Loan Documents or
otherwise, to the extent permitted by applicable law, shall be amortized,
prorated, allocated and spread from the date of advance until payment in
full so that the actual rate of interest is uniform through the term
hereof. If such amortization, proration, allocation and spreading is not
permitted under applicable law, then such excess interest shall be
cancelled automatically as of the date of such acceleration or prepayment
and, if theretofore paid, shall be credited on the Note (or, if the Note
has been paid in full, refunded to Borrower). The terms and provisions of
this Section 11.3 shall control and supersede every other provision of the
Loan Documents. The Loan Documents are contracts made under and shall be
construed in accordance with and governed by the laws of the State, except
that if at any time the laws of the United States of America permit Lender
to contract for, take, reserve, charge or receive a higher rate of interest
than is allowed by the laws of the State (whether such federal laws
directly so provide or refer to the law of any state), then such federal
laws shall to such extent govern as to the rate of interest which Lender
may contract for, take, reserve, charge or receive under the Loan
Documents.
Section 11.4 INVALID PROVISIONS. If any provision of any Loan
Document is held to be illegal, invalid or unenforceable, such provision
shall be fully severable; the Loan Documents shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part thereof; the remaining provisions thereof shall remain in
full effect and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance therefrom; and in lieu of such
illegal, invalid or unenforceable provision there shall be added
automatically as a part of such Loan Document a provision as similar in
terms to such illegal, invalid or unenforceable provision as may be
possible to be legal, valid and enforceable.
Section 11.5 REIMBURSEMENT OF EXPENSES. Borrower shall pay all
expenses incurred by Lender in connection with the Loan, including fees and
expenses of Lender's attorneys, environmental, engineering and other
consultants, and fees, charges or taxes for the recording or filing of Loan
Documents. Borrower shall pay all reasonable expenses of Lender in
connection with the administration of the Loan, including audit costs,
inspection fees, settlement of condemnation and casualty awards, and
premiums for title insurance and endorsements thereto. Borrower shall,
upon request, promptly reimburse Lender for all amounts expended, advanced
or incurred by Lender to collect the Note, or to enforce the rights of
Lender under this Agreement or any other Loan Document, or to defend or
assert the rights and claims of Lender under the Loan Documents or with
respect to the Project (by litigation or other proceedings), which amounts
will include all court costs, reasonable attorneys' fees and expenses,
reasonable fees of auditors and accountants, and investigation expenses as
may be incurred by Lender in connection with any such matters (whether or
not litigation is instituted), together with interest at the Default Rate
on each such amount from the date of disbursement until the date of
reimbursement to Lender, all of which shall constitute part of the Loan and
shall be secured by the Loan Documents.
Section 11.6 APPROVALS; THIRD PARTIES; CONDITIONS. All approval
rights retained or exercised by Lender with respect to leases, contracts,
plans, studies and other matters are solely to facilitate Lender's credit
underwriting, and shall not be deemed or construed as a determination that
Lender has passed on the adequacy thereof for any other purpose and may not
be relied upon by Borrower or any other Person. This Agreement is for the
sole and exclusive use of Lender and Borrower and may not be enforced, nor
relied upon, by any Person other than Lender and Borrower. All conditions
of the obligations of Lender hereunder, including the obligation to make
advances, are imposed solely and exclusively for the benefit of Lender, its
successors and assigns, and no other Person shall have standing to require
satisfaction of such conditions or be entitled to assume that Lender will
refuse to make advances in the absence of strict compliance with any or all
of such conditions, and no other Person shall, under any circumstances, be
deemed to be a beneficiary of such conditions, any and all of which may be
freely waived in whole or in part by Lender at any time in Lender's sole
discretion. Notwithstanding the foregoing, if the holders of Note A and
Note B are different Persons and shall not be in agreement on the exercise
of approval rights, or on enforcement of this Agreement (exclusive of
enforcement of any mortgage or assignment of rents and leases which is
solely in favor of either of such holders), or on satisfaction of
conditions to advances, the determination of the Senior Noteholder shall
control.
Section 11.7 LENDER NOT IN CONTROL; NO PARTNERSHIP. None of the
covenants or other provisions contained in this Agreement shall, or shall
be deemed to, give Lender the right or power to exercise control over the
affairs or management of Borrower, the power of Lender being limited to the
rights to exercise the remedies referred to in the Loan Documents. The
relationship between Borrower and Lender is, and at all times shall remain,
solely that of debtor and creditor. No covenant or provision of the Loan
Documents is intended, nor shall it be deemed or construed, to create a
partnership, joint venture, agency or common interest in profits or income
between Lender and Borrower or to create an equity in the Project in
Lender. Lender neither undertakes nor assumes any responsibility or duty
to Borrower or to any other person with respect to the Project or the Loan,
except as expressly provided in the Loan Documents; and notwithstanding any
other provision of the Loan Documents: (1) Lender is not, and shall not be
construed as, a partner, joint venturer, alter ego, manager, controlling
person or other business associate or participant of any kind of Borrower
or its stockholders, members, or partners and Lender does not intend to
ever assume such status; (2) Lender shall in no event be liable for any
Debts, expenses or losses incurred or sustained by Borrower; and (3) Lender
shall not be deemed responsible for or a participant in any acts, omissions
or decisions of Borrower or its stockholders, members, or partners. Lender
and Borrower disclaim any intention to create any partnership, joint
venture, agency or common interest in profits or income between Lender and
Borrower, or to create an equity in the Project in Lender, or any sharing
of liabilities, losses, costs or expenses.
Section 11.8 TIME OF THE ESSENCE. Time is of the essence with
respect to this Agreement.
Section 11.9 SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of Lender and Borrower and the
successors and assigns of Lender, including any assignee or transferee of
Note A or Note B, individually, and the successors and assigns of Borrower,
provided that neither Borrower nor any other Borrower Party shall, without
the prior written consent of Lender, assign any rights, duties or
obligations hereunder.
Section 11.10 RENEWAL, EXTENSION OR REARRANGEMENT. All provisions of
the Loan Documents shall apply with equal effect to each and all promissory
notes and amendments thereof hereinafter executed which in whole or in part
represent a renewal, extension, increase or rearrangement of the Loan.
Borrower agrees to cooperate with Lender and to execute such documents as
Lender reasonably may request to effect any divisions of the Loan required
by Lender.
Section 11.11 WAIVERS. No course of dealing on the part of Lender,
its officers, employees, consultants or agents, nor any failure or delay by
Lender with respect to exercising any right, power or privilege of Lender
under any of the Loan Documents, shall operate as a waiver thereof.
Section 11.12 CUMULATIVE RIGHTS. Rights and remedies of Lender under
the Loan Documents shall be cumulative, and the exercise or partial
exercise of any such right or remedy shall not preclude the exercise of any
other right or remedy.
Section 11.13 SINGULAR AND PLURAL. Words used in this Agreement and
the other Loan Documents in the singular, where the context so permits,
shall be deemed to include the plural and vice versa. The definitions of
words in the singular in this Agreement and the other Loan Documents shall
apply to such words when used in the plural where the context so permits
and vice versa.
Section 11.14 PHRASES. When used in this Agreement and the other
Loan Documents, the phrase "including" shall mean "including, but not
limited to," the phrase "satisfactory to Lender" shall mean "in form and
substance satisfactory to Lender in all respects," the phrase "with
Lender's consent" or "with Lender's approval" shall mean such consent or
approval at Lender's discretion, and the phrase "acceptable to Lender"
shall mean "acceptable to Lender at Lender's sole discretion."
Section 11.15 EXHIBITS AND SCHEDULES. The exhibits and schedules
attached to this Agreement are incorporated herein and shall be considered
a part of this Agreement for the purposes stated herein.
Section 11.16 TITLES OF ARTICLES, SECTIONS AND SUBSECTIONS. All
titles or headings to articles, sections, subsections or other divisions of
this Agreement and the other Loan Documents or the exhibits hereto and
thereto are only for the convenience of the parties and shall not be
construed to have any effect or meaning with respect to the other content
of such articles, sections, subsections or other divisions, such other
content being controlling as to the agreement between the parties hereto.
Section 11.17 PROMOTIONAL MATERIAL. Upon the prior review and
approval (not to be unreasonably withheld or delayed) of Borrower, Lender
may issue press releases, advertisements and other promotional materials in
connection with Lender's own promotional and marketing activities, and
describing the Loan and Lender's participation in the Loan. All references
to Lender contained in any press release, advertisement or promotional
material issued by Borrower shall be approved in writing by Lender in
advance of issuance.
Section 11.18 SURVIVAL. All of the representations, warranties,
covenants, and indemnities hereunder (including environmental matters under
Article 4), and under the indemnification provisions of the other Loan
Documents shall survive the repayment in full of the Loan and the release
of the liens evidencing or securing the Loan, and shall survive the
transfer (by sale, foreclosure, conveyance in lieu of foreclosure or
otherwise) of any or all right, title and interest in and to the Project to
any party, whether or not an Affiliate of Borrower.
Section 11.19 WAIVER OF JURY TRIAL. To the maximum extent permitted
by law, Borrower and Lender hereby knowingly, voluntarily and intentionally
waive the right to a trial by jury in respect of any litigation based
hereon, arising out of, under or in connection with this Agreement or any
other Loan Document, or any course of conduct, course of dealing, statement
(whether verbal or written) or action of either party or any exercise by
any party of their respective rights under the Loan Documents or in any way
relating to the Loan or the Project (including, without limitation, any
action to rescind or cancel this Agreement, and any claim or defense
asserting that this Agreement was fraudulently induced or is otherwise void
or voidable). This waiver is a material inducement for Lender to enter
this Agreement.
Section 11.20 WAIVER OF PUNITIVE OR CONSEQUENTIAL DAMAGES. Neither
Lender nor Borrower shall be responsible or liable to the other or to any
other Person for any punitive, exemplary or consequential damages which may
be alleged as a result of the Loan or the transaction contemplated hereby,
including any breach or other default by any party hereto.
Section 11.21 GOVERNING LAW. The Loan Documents are being executed
and delivered, and are intended to be performed, in the State and the laws
of the State and of the United States of America shall govern the rights
and duties of the parties hereto and the validity, construction,
enforcement and interpretation of the Loan Documents, except to the extent
otherwise specified in any of the Loan Documents.
Section 11.22 ENTIRE AGREEMENT. This Agreement and the other Loan
Documents embody the entire agreement and understanding between Lender and
Borrower and supersede all prior agreements and understandings between such
parties relating to the subject matter hereof and thereof. Accordingly,
the Loan Documents may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the parties. There are
no unwritten oral agreements between the parties. If any conflict or
inconsistency exists between the Commitment and this Agreement or any of
the other Loan Documents, the terms of this Agreement and the other Loan
Documents shall control.
Section 11.23 COUNTERPARTS. This Agreement may be executed in
multiple counterparts, each of which shall constitute an original, but all
of which shall constitute one document.
Section 11.24 SUBMISSION TO JURISDICTION; SERVICE OF PROCESS.
Borrower hereby submits to personal jurisdiction in the State of New Jersey
for the enforcement of Borrower's obligations hereunder and under the
Mortgage, and waives any and all personal rights under the law of any other
state to object to jurisdiction within the State of New Jersey for the
purposes of litigation to enforce such obligation of Borrower. In the
event such litigation is commenced, Borrower agrees that, in addition to
any other manner provided by applicable law or court rule, service of
process may be made and personal jurisdiction over Borrower obtained, by
service of a copy of the summons, complaint and other pleadings required by
applicable law to commence such litigation upon any of Borrower's general
partners at the address provided for notices in this Agreement or upon
Borrower's appointed agent for service of process in the State of New
Jersey which Agent Borrower hereby designates to be:
The Corporation Trust Company
820 Bear Tavern Road
West Trenton, New Jersey 08628
ARTICLE 12
LIMITATIONS ON LIABILITY
Section 12.1 LIMITATION ON LIABILITY. Except as provided below,
the Loan shall be non-recourse to Borrower and any Borrower Party and
neither Borrower nor any Borrower Party shall be personally liable for
amounts due under the Loan Documents. Borrower shall be personally liable
to Lender for any deficiency, loss or damage suffered by Lender because of:
(1) Borrower's commission of a criminal act, (2) the failure to comply with
provisions of the Loan Documents prohibiting the sale, transfer or
encumbrance of the Project, any other collateral, or any interest in
Borrower; (3) the misapplication by Borrower or any Borrower Party of any
funds derived from the Project, including security deposits, insurance
proceeds and condemnation awards; (4) the fraud or intentional
misrepresentation by Borrower or any Borrower Party made in or in
connection with the Loan Documents or the Loan; (5) Borrower's collection
of rents more than one month in advance that are not applied to the payment
of Operating Expenses for the Project or entering into or modifying leases,
or receipt of monies by Borrower or any Borrower Party in connection with
the modification of any leases, in violation of this Agreement or any of
the other Loan Documents; (6) Borrower's failure to apply proceeds of rents
or any other payments in respect of the leases and other income of the
Project or any other collateral to the costs of maintenance and operation
of the Project and to the payment of taxes, lien claims, insurance
premiums, Debt Service and other amounts due under the Loan Documents;
(7) Borrower's interference with Lender's exercise of rights under the
Assignment of Rents and Leases; (8) Borrower's failure to maintain
insurance as required by this Agreement or to pay any taxes or assessments
affecting the Project; (9) damage or destruction to the Project caused by
the acts or omissions of Borrower, its agents, employees, or contractors;
(10) Borrower's obligations with respect to environmental matters under
Article 4; (11) Borrower's failure to pay for any loss, liability or
expense (including attorneys' fees) incurred by Lender arising out of any
claim or allegation made by Borrower, its successors or assigns, or any
creditor of Borrower, that this Agreement or the transactions contemplated
by the Loan Documents establish a joint venture, partnership or other
similar arrangement between Borrower and Lender; or (12) any brokerage
commission or finder's fees claimed by or through Borrower in connection
with the transactions contemplated by the Loan Documents. 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 provision of the United
States Bankruptcy Code, as such sections may be amended, or corresponding
or superseding sections of the Bankruptcy Amendments and Federal Judgeship
Act of 1984, to file a claim for the full amount due to Lender under the
Loan Documents or to require that all collateral shall continue to secure
the amounts due under the Loan Documents.
Section 12.2 LIMITATION ON LIABILITY OF LENDER'S OFFICERS,
EMPLOYEES, ETC. Any obligation or liability whatsoever of Lender which may
arise at any time under this Agreement or any other Loan Document shall be
satisfied, if at all, out of the Lender's assets only. No such obligation
or liability shall be personally binding upon, nor shall resort for the
enforcement thereof be had to, the property of any of Lender's
shareholders, directors, officers, employees or agents, regardless of
whether such obligation or liability is in the nature of contract, tort or
otherwise.
EXECUTED as of the date first written above.
FOX RUN AP XI, L.P., a South
Carolina limited partnership
By: Fox Run GP Limited Partnership, a
South Carolina limited
partnership, its general partner
By: GP Services XII, Inc., a South
Carolina corporation, its general
partner
By:/s/ Robert D. Long, Jr.
Name:Robert D. Long, Jr.
Title:Vice President
