Promissory Note - ACP-Atrium CG LP and The Wackenhut Corp.
PROMISSORY NOTE
U.S. $9,000,000.00 MIAMI, FLORIDA
December 21 , 1995
FOR VALUE RECEIVED, ACP-ATRIUM CG, LIMITED PARTNERSHIP, a Florida
limited partnership, having an office at 3440 Hollywood Boulevard, #420,
Hollywood, Florida 33021 (the "Maker"), promises to pay to the order of THE
WACKENHUT CORPORATION, a Florida corporation, its successors and assigns (the
"Lender"), the principal sum of NINE MILLION AND NO/100 DOLLARS ($9,000,000.00)
(the "Principal Amount"), together with interest thereon (computed daily on the
outstanding principal balance of this Note) at a daily rate, expressed as a
fraction the denominator of which is three hundred sixty five (365), and the
numerator of which is six and one-half percent (6.5%), per annum.
The principal and interest due under this Note shall be payable in
lawful money of the United States of America to the order of Lender at 1500 San
Remo Avenue, Coral Gables, Florida or at such other place as may be designated
in writing by Lender, as follows:
Monthly installments equal to one hundred percent (100%) of the
Maker's Net Cash Flow (as hereinafter defined) for the preceding month, shall
be due and payable on the 15th day of each month beginning February 15, 1996.
The "preceding month" as used herein shall mean the preceding calendar month
except with respect to the first installment due February 15, 1996 which shall
include 100% of Maker's Net Cash Flow (as hereinafter defined) commencing on
the date hereof through and including January 31, 1996.
Such monthly installments shall continue until the entire indebtedness
evidenced by this Note is fully paid, except that any remaining indebtedness,
if not sooner paid, shall be due and payable in full on December 21, 1997 (the
"Final Payment Date").
Each monthly installment shall be applied first to accrued interest on
the unpaid Principal Amount, then to late charges, if any, and then to the
repayment of any deferred interest which has been capitalized and added to the
Principal Amount as set forth below, provided, however, that each monthly
installment may be applied by the Lender to the repayment of any sums advanced
by the Lender pursuant to the terms of the Mortgage (as hereinafter defined).
Prior to default and acceleration of the entire Principal Amount, accrued
interest remaining unpaid after application of each monthly installment as set
forth above shall be added to the Principal Amount hereof as of the 15th day of
each
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month and shall thereafter bear interest at the interest rate set forth above
until paid.
The Maker shall deliver to Lender with each such monthly installment a
statement of Maker's Operating Income, Operating Expenses and Net Cash Flow (as
such terms are hereinafter defined) computed on a cash basis in accordance with
generally accepted accounting principles, consistently applied, covering the
preceding month and certified by an officer of Maker to be accurate and
complete. In addition, Maker shall deliver to Lender within ninety (90) days
after the end of each calendar year commencing with calendar year 1996, an
annual financial and operating statement covering the Property (as hereinafter
defined) in such detail as may be reasonably required by Lender, certified as
accurate and complete by an officer of Maker, including the current rent roll,
the gross income received, all operating expenses, the net operating income and
depreciation for federal income tax purposes. Furthermore, Maker shall deliver
to Lender a copy of Maker's federal income tax return at the time the return is
filed with the Internal Revenue Service (but not later than July 1 of each
calendar year). Failure by Maker to deliver the statements and income tax
returns by the dates required above shall constitute a default under this Note.
For purposes of this Note, the following terms shall have the following
meanings:
"Affiliate" or "Affiliates" shall mean a person or entity controlling,
controlled by or under common control of the Maker.
"Capital Expenditure" shall mean any expenditure which is capitalized under
generally accepted accounting principles.
"Leasing Costs" shall mean any leasing commission, cash tenant allowance,
amount loaned to a tenant (provided such loan was made in connection with such
tenant's status as a tenant and in connection with a lease agreement with such
tenant), "free rent", reduced rent, or other income concession, the cost of any
refurbishment, build-out, or improvement to the premises leased to a tenant or
other out of pocket cost or expense of Maker allocable to a lease.
"Net Cash Flow" shall mean for the preceding month, the amount, if any, by
which Operating Income for such period exceeds Operating Expenses for such
period.
"Operating Expenses" shall mean for the preceding month, all expenses, computed
on a cash basis in accordance with generally accepted accounting principles,
consistently applied, paid by Maker during such period in connection with the
operation of the Property, as follows:
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(a) expenses in connection with the cleaning, repair, maintenance,
decoration and painting of the Property, net of any insurance proceeds in
respect of any of the foregoing;
(b) wages, benefits, payroll taxes, uniforms, insurance costs and all
other related expenses for on-site building personnel, up to and including the
level of the on-site building manager, engaged in the repair, operation and
maintenance of the Property and service to tenants;
(c) management fees at prevailing market rates except that if any such
fees are paid to an Affiliate of Maker then management fees in excess of 6% of
the Operating Income shall be excluded to the extent such fees are not included
in Operating Income.
(d) the cost of all electricity, oil, gas, water, steam, heat,
ventilation, air conditioning and any other energy, utility or similar item and
overtime services and the cost of building and cleaning supplies;
(e) all taxes (including, without limitation, real estate taxes,
personal or other property taxes and all sales, value added, use and similar
taxes), assessments, water, sewer or other rents, rates and charges, excises,
levies, license fees, permit fees, inspection fees and other authorization fees
and other charges, of every character that may be assessed, levied, confirmed
or imposed on or in respect of or be a lien upon (a) the Property or any part
thereof or any rent therefrom or (b) any occupancy, use, leasing or possession
of the Property or any part thereof or any gross receipt thereof or of the rent
therefrom. Notwithstanding the foregoing, there shall be excluded from taxes
as defined herein any income, profits or revenue tax upon the income of Maker
or any franchise, excise, corporate, estate, inheritance, succession, capital
levy or transfer tax of Maker.
(f) rent, liability, casualty and fidelity insurance premiums (which
in the case of any policies covering multiple properties, shall be allocated to
the Property pro rata in proportion to the insured value of the properties
covered by such policies);
(g) legal and accounting fees directly related to the operation of the
Property based on a reasonable allocation of such fees and expenses by Maker if
not separately charged by such providers;
(h) all other expenses paid by the Maker which in accordance with
generally accepted accounting principles would be included in Maker's annual
financial statements for such period as operating expenses of the Property.
Notwithstanding the foregoing, Operating Expenses shall not include
(i) any Capital Expenditure, Leasing Cost or any
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depreciation or amortization thereof; (ii) interest, principal and premium, if
any, paid in respect of this Note or any principal, interest or other
indebtedness paid in respect of any other loan to Maker, including without
limitation, that certain second mortgage loan made of even date herewith by ALI
Inc. to Maker or any renewals, additional advances or replacements thereof or
thereunder now or hereafter created, arising or existing; (iii) income taxes of
Maker; (iv) any expenses (including legal, accounting and other professional
fees) incurred in connection with the purchase, financing or refinancing of all
or any portion of the Property or in connection with the recovery of any
insurance proceeds related thereto unless and to the extent such expenses
exceed the proceeds recovered, or (v) any item of expense otherwise includable
in Operating Expenses but paid directly or reimbursed by any tenant (and not
included in Operating Income), insurance company or other third party.
"Operating Income" shall mean for any period, all income of Maker, computed on
a cash basis and in accordance with generally accepted accounting principles,
consistently applied, received during such period from the operation of the
Property, including, but not limited to the following:
(a) all income received by Maker from any person (including an
Affiliate of Maker) as rent, charges for electricity, oil, gas, water, steam,
heat, ventilation, air conditioning and any other energy, utility or similar
items and overtime services, escalation and reimbursement charges, management
fees, license fees, payment of interest on and amortization of the principal of
any amount loaned to a tenant which qualifies as a "Leasing Cost", and other
amounts under leases, license agreements or other agreements relating to the
Property pursuant to which space, utilities, facilities or equipment and/or
other services are furnished by Maker and parking revenues received by Maker
from the operation of the garage constituting part of the Property;
(b) rent or business interruption insurance proceeds; and
(c) all other amounts which in accordance with generally accepted
accounting principles would be included in Maker's annual financial statements
for such period as operating income of the Property.
Notwithstanding the foregoing, Operating Income shall not include (i)
any condemnation or insurance proceeds (other than rent or business
interruption insurance proceeds or any award for a temporary taking) or (ii)
any proceeds resulting from the transfer, financing or refinancing of all or
any portion of the Property, provided the net proceeds received by Maker in
respect thereof are expended solely for Capital Expenditures or Leasing Costs.
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"Property" shall mean the real property, including the building and
improvements situated thereon, encumbered by the Mortgage in favor of Lender
given by Maker of even date therewith as security for this Note, located at
1500 San Remo Avenue, Coral Gables, Florida and commonly known as The Atrium
at Coral Gables.
The payment of this Note shall be secured, inter alia, by a valid,
subsisting Purchase Money Real Estate Mortgage, Assignment and Security
Agreement by the Maker (the "Mortgage") encumbering certain real property
located in Dade County, Florida.
If default be made in the payment of any installment under this Note
or if the Maker violates any of the terms or breaches any of the conditions of
the Mortgage or any of the Loan Documents (as such term is defined in the
Mortgage) and such default continues beyond the expiration of any cure period
applicable thereto, the entire principal sum and accrued interest shall become
due and payable without notice at the option of the Lender. Failure to
exercise this option shall not constitute a waiver of the right to exercise the
same at any other time. From and after default and until paid, the principal
of this Note and any part thereof, and accrued and unpaid interest, if any,
shall bear interest at the rate of twelve (12%) percent per annum (the "Default
Rate"). Without limiting the scope or generality of any other obligations of
Maker set forth in the Mortgage with respect to attorneys' fees, all parties
liable for the payment of this Note agree to pay the Lender hereof reasonable
attorneys' fees and paralegal fees for the services and expenses of counsel
employed after maturity or default to collect this Note (including any
bankruptcy proceedings or appeals relating to such enforcement proceedings), or
to protect or enforce its rights in any collateral securing this Note, whether
or not suit be brought.
The principal amount outstanding at any time hereunder may be prepaid
in whole or in part without prepayment penalty or premium.
The remedies of Lender as provided herein, in the Mortgage and in the
other Loan Documents shall be cumulative and concurrent, and may be pursued
singly, successively or together, at the sole discretion of Lender, and may be
exercised as often as occasion therefor shall arise.
Maker and all sureties, endorsers and guarantors of this Note hereby
waive demand, presentment for payment, notice of nonpayment, protest, notice of
protest and all other notice, filing of suit and diligence in collecting this
Note, in enforcing any of the security rights or in proceeding against any
collateral securing this Note, and agree that this Note may be enforced by
Lender against them without the necessity at any time of resorting to or
exhausting any of the collateral for the Note, and waive the right to require
the Lender to proceed against any of the collateral, or to require the Lender
to pursue any other remedy or enforce any right.
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This Note shall be governed by, and construed and enforced according
to, the laws of the State of Florida, without giving effect to principles of
conflict of law, except where specifically preempted by federal law. Any action
brought against the Maker, or any guarantor or indemnitor of the indebtedness
or obligations arising under this Note, may be brought, at the Lender's option,
in the State or Federal Courts of Dade County, Florida and Maker hereby submits
to jurisdiction in such location.
The Lender may, in determining the maximum rate of interest permitted
under applicable law in effect from time to time, take advantage of any law,
rule or regulation in effect from time to time available to Lender which
exempts Lender from any limit upon the rate of interest it may charge or grants
to Lender the right to charge a higher rate of interest than that permitted by
Florida Statutes. Notwithstanding the foregoing, the Lender does not intend to
violate any applicable usury laws. Accordingly, all agreements between Maker
and Lender are expressly limited so that in no contingency or event whatsoever,
whether by reason of advancement of the proceeds hereof, acceleration of
maturity of the unpaid principal balance hereof, or otherwise, shall the amount
paid or agreed to be paid to the Lender for the use, forbearance or detention
of the money to be advanced hereunder (including all interest on this Note, all
loan fees, and the aggregate of all other amounts taken, reserved or charged
pursuant to this Note, or the Mortgage which, under applicable laws is or may
be deemed to be interest) exceed the maximum rate allowed by applicable law.
If, from any circumstances whatsoever, fulfillment of any Security Document, at
the time performance of such obligation shall be due, shall cause the effective
rate of interest upon the sums evidenced hereby to exceed the maximum rate of
interest allowed by applicable law, then, the obligation to be fulfilled shall
be reduced automatically to the extent necessary to prevent that effective rate
of interest from exceeding the maximum rate allowable under applicable law and
to the extent that the Lender shall receive any sum which would constitute
excessive interest, such sum shall be applied to the reduction of the unpaid
principal balance due hereunder and not to the payment of interest or, if such
excessive interest exceeds the unpaid balance of principal, the excess shall be
refunded to the Maker. This provision shall control every other provision of
all agreements between the Maker and the Lender.
THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING
OUT OF, UNDER OR IN CONNECTION WITH THE LOAN EVIDENCED BY THIS NOTE, AND ANY
INCREASES, AMENDMENTS, EXTENSIONS, MODIFICATIONS OR RENEWALS THEREOF, AND ANY
AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION THEREWITH, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER
EXTENDING THIS LOAN, AND ANY INCREASES, AMENDMENTS,
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EXTENSIONS, MODIFICATIONS OR RENEWALS THERETO.
IN WITNESS WHEREOF, Maker has executed this Note as of the date first
hereinabove written.
SIGNED, SEALED AND DELIVERED "MORTGAGOR"
IN THE PRESENCE OF:
ACP-ATRIUM CG, LIMITED
PARTNERSHIP, a Florida
Limited Partnership
By: ACP-ATRIUM CG, INC., a
Florida corporation, its
general partner
By:
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PRINT NAME OF WITNESS BELOW: Name:
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Title:
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PRINT NAME OF WITNESS BELOW:
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STATE OF FLORIDA )
)ss:
COUNTY OF )
The foregoing instrument was acknowledged before me this ____ day of
____________, 1995 by _________________________, ________________ of ACP-Atrium
CG, Inc., a Florida corporation, on behalf of the corporation as general
partner of ACP-Atrium CG, Limited Partnership. He/she is personally known to
me or has produced ____________________ (type of identification) as
identification.
My Commission Expires: ---------------------------------
NOTARY PUBLIC
---------------------- Print Name
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Commission No.
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[NOTARIAL SEAL]
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