EXHIBIT 10.03
STORAGE TANK AGREEMENT WITH
RESOURCE PROPERTIES XXIII, INC.
11/20/96
AGREEMENT
This Agreement (the "Agreement") is made this day of November, 1996 by and
between RESOURCE PROPERTIES XXIII, INC., a Delaware corporation ("Resource")
and SVG PROPERTIES, L.P., a New Jersey limited partnership ("SVG").
WHEREAS, SVG is the owner of property whose address is ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ which is improved by an apartment building consisting of 125
units commonly known as Mill Springs Apartments (the land and building
together are referred to herein as the "Property"); and
WHEREAS, Resource is the holder of a mortgage note (the "Mortgage Note") on
the Property in the original principal amount of $3,200,000; and
WHEREAS, on October 23, 1987, SVG entered into a Regulatory Agreement for
Multifamily Housing Projects Coinsured by HUD (the "Regulatory Agreement");
and
WHEREAS, effective January 1, 1994, SVG entered into a Provisional Workout
Agreement with the Department of Housing and Urban Development ("HUD"), a
prior holder of the Note, whose rights thereunder have been assigned to
Resource; and
WHEREAS, the parties are both aware that there are underground oil storage
tanks on the Property; and
WHEREAS, SVG would like to borrow the money to remove the storage tanks and
remediate any contaminated soil on the ternis and conditions set forth herein;
and
WHEREAS, Resource is willing to lend SVG the money to do so on the terms and
conditions set forth herein.
NOW THEREFORE, in consideration of the premises recited above and the
covenants and agreement, set forth below, intending to be legally bound, the
parties hereto agree as follows:
1 . Removal and Remediation. Within five (5) days from the date hereof, SVG
will solicit bids from qualified, licensed and bonded contractors for the
removal of the underground storage tanks and remediation of any contaminated
soil on the Property ("Removal and Remediation"). The Removal and Remediation
shall be performed in strict accordance with the provisions of the
Pennsylvania Storage Tank and Spill Prevention Act (the "Act") and the
regulations promulgated by the Pennsylvania Department of Environmental
Resources (the "Department") thereunder. If SVG is able to obtain bids with
estimated Removal and Remediation costs of less than One Hundred Ten Thousand
Dollars ($110,000) from qualified, licensed and bonded contractors, SVG shall
enter into such contracts of Removal and Remediation provided Resource has
approved all of the terms and.conditions, of such contracts.
SVG agrees to file an application for removal of the tanks with the Department
if required under the Act within five (5) days after the receipt of an
acceptable bid.
SVG agrees to furnish Resource with a copy of all applications, reports, and
correspondence relating to such Removal and Remediation within five (5) days
after the receipt of filing of such documents.
2. Agreement to Lend. Resource shall lend the amounts up to the total amount
required under the contracts for Removal and Remediation as such funds are
required under such contracts. At the option of Resource, any amounts due may
be paid directly from Resource to a contractor, with SVG's loan account being
charged.
3. Terms of Loan.
(a) Any loan made pursuant to Paragraph 2 hereof shall be evidenced by a
promissory note in the form of Exhibit "A" hereto (the "Note") and shall be
payable as herein and therein set forth.
(b) The Note shall bear interest at the rate of ten percent (10%) annually,
compounded monthly; principal shall be due on the earlier of November 1, 2022
or when the final payment of principal is due on the Mortgage Note, whether by
acceleration or otherwise. Payments of accrued interest and mandatory
prepayments of principal shall be made in an amount equal to one hundred
percent (100%) of SVG's Cash Flow From the Property. Cash Flow From the
Property shall mean gross revenues from the Property less payments made under
Mortgage Note as modified by the Provisional Workout Agreement and ordinary
and necessary cash disbursements incurred in connection with the Property but
specifically excluding any management fee to any party and any amount paid for
any purpose to SVG or any person with whom SVG has an Identity-of-Interest (as
defmed in the Regulatory Agreement) except for payments made to H. ▇▇▇▇▇
▇▇▇▇▇▇▇, Inc. for employee benefits with respect to employees of SVG who are
not related to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
4. Reporting Requirements. So long as any amount is due under the Note or the
Mortgage Note, SVG shall deliver to Resource such data, reports, statements
and information, financial or otherwise, as Resource may reasonably request
including, without limitation:
(i) within ninety (90) days after the end of the fiscal year of SVG, financial
statements of SVG for such year including a balance sheet, a statement of cash
flow and an income statement, all in reasonable detail and prepared in
accordance with generally accepted accounting principles, including all
supporting schedules, and certified by independent public accountants or
recognized standing or by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; and
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(ii) within thirty-five (35) days after the end of each calendar month,
financial statements for the Property including a of cash flow and an accrual
basis income statement certified as correct by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
5. Inspection. SVG will permit any of Resource's officers or other
representatives to visit the offices of SVG during regular business hours to
examine and audit all of SVG's books of account, records, requests and other
papers. All costs of such examination shall be paid by Resource unless such
examination reveals a total discrepancy in excess of five percent (5 %) of the
Cash Flow of the property, in which case all costs of such examination shall
be paid by SVG.
6. Default. If any financial statements defined pursuant to Paragraph 4 or any
books and records made available to Resource pursuant to Paragraph 5 are
determined in the reasonable opinion of independent certified public
accountants not regularly employed by Resource to have been materially false
or misleading, SVG shall be deemed to be in default of this Agreement.
7. Other Documents. Any default by SVG under this Agreement or the Note shall
be deemed to be in default under the Mortgage Note and the Provisional Workout
Agreement. Borrower acknowledges that the Mortgage Note as modified by the
Provisional Workout Agreement is in full force and effect and acknowledges
there has been no default by any holder of the Mortgage Note and hereby waives
any defenses or counterclaims it might have with respect to enforcement or
collection of the Mortgage Note. SVG agrees to execute such documents as may
be necessary so that its obligations under the Note will be secured by the
Property.
8. Certain Refinancings. If, prior to the earlier of: (i) one year from the
date that a closure report acceptable to most lenders is received by SVG from
the engineering firm retained to remove the oil tanks and perform the remedial
work, if any; or (ii) June 30, 1998, SVG is successful in finding a lender
that makes a first mortgage loan secured by the Property in an amount
sufficient to provide Resource with net proceeds (after all fees, costs and
expenses of the transaction) of at least Two Million Three Hundred Thousand
Dollars ($2,300,000), then Resource will:
(i) subordinate both the mortgage securing the Mortgage Note and any mortgage
securing the Note to the mortgage of the new lender;
(ii) agree to modify the payment terms of the Mortgage Note and the Note as
follows:
(a) interest shall accrue at a rate of 150 basis points above the interest
rate on the new first mortgage on a deemed total principal amount equal to
Three Million Three Hundred
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Fifty Thousand Dollars ($3,350,000) less the original principal amount of the
new first mortgage.
(b) payments of interest and principal (based on the deemed principal amount
described in Paragraph 8(ii)(a)) shall be payable monthly and shall be based
on a twenty-five year amortization. However, to the extent the Net Cash Flow
from the Property is insufficient to make the scheduled payments of interest
and principal in ftill, SVG shall pay over to Resource until such time as the
scheduled payments are current one hundred percent (100%) of the Net Cash Flow
from the Property. Net Cash Flow from the Property shall mean Cash Flow before
any payments on the Mortgage Note or the Note less payments made under the new
first mortgage loan and contributions to escrow accounts reasonably
established for taxes, insurance, utilities and replacements provided that any
such escrow account shall be controlled by either the new first mortgage
lender or Resource. Any interest payments not made as required because of
insufficient Net Cash Flow shall be added to principal and shall bear interest
at the rate set in Paragraph 8(ii)(a), compounded monthly.
(iii) agree to special provisions in the obligations of SVG retained by
Resource as may be required by the new first mortgage lender to the extent
such provisions are reasonable when compared to similar "soft second"
mortgages permitted by the other first mortgage lenders in the reasonable
opinion of Resource.
(iv) after it has received all of the interest and principal required under
Paragraph 8(ii), assign its interest in the Mortgage Note and the Note to
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ for no additional consideration.
9. Notices. Any notices required or permitted by the Agreement shall be in
writing and shall be deemed given if delivered in person or if not by telecopy
or by nationally recognized overnight courier, via first class, Certified or
Registered Mail, postage prepaid, as follows, unless such addresses are
changed by written notice hereunder.
If to SVG Properties, L.P.:
SVG Properties, L.P.
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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If to Resource Properties XXIII:
Resource Properties XXIII
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
10. Choice of Law and Consent of Jurisdiction. SVG and Resource agree that
Pennsylvania law shall govern this Agreement and hereby irrevocably consent to
the jurisdiction of the Court of Common Pleas of Delaware County, Commonwealth
of Pennsylvania in the United States District Court for the Eastern District
of Pennsylvania in any and all actions and proceedings occurring under this
Agreement any other agreement or understanding between the parties and
IN WITNESS WHEREOF, the parties hereto have executed or caused to be executed
this Agreement as of the date first written above.
Attest: RESOURCE PROPERTIES XXIII, INC.
/s/ ▇▇▇▇▇▇▇▇ ▇. Tower
By: /s/ illegible, President
SVG PROPERTIES, L.P.
Attest: By: SPRING VILLAGE HOLDINGS, INC.,
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
▇▇▇▇▇▇.▇▇▇\Agreemen.2
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11/20/96
NOTE
$110,000,00 Philadelphia, PA
November 25,1996
FOR VALUE RECEIVED and intending to be legally bound, the undersigned, SVG
PROPERTIES, L.P., a New Jersey Iiinited partnership ("Borrower"), promises to
pay, in lawful nioney of the United States, to the order of RESOURCE
PROPER,▇▇▇▇ XXIII, INC. ("Lender"), at its offices, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (or at such other address as Lender may designate to
Borrower), tile maximum aggregate principal sum of One Hundred 'ren Thousand
Dollars ($110,000) or such lesser surn which represents the outstanding
principal balance of all amounts advanced to tile Borrowei-Ae "Loans"),
pursuant to the provisions of that certain Agreement dated as of Noveniber')-S
, 1996 between Borrower and Lender (die "Agreement"). The outstanding
principal balance hereunder sliall be payable pursuant to the ternis hereof
and of the Agreement. The actual aniount due and owing froin tinle to time
hereunder sliall be evidenced by Lender's records of receipts and
disbursements with respect to the Loans, which sliall be conclusive evidence
of such aniount, absent manifest error. All terms not otherwise defined herein
shall have the meaning ascribed to thern in the Agreement.
Borrower further agrees to pay interest oil (lie outstanding principal balance
hereunder from tinle to time at (lie per annurn rate set forth in Paragraph
3(b) of the Agreement. hi(erest and principal shall be due and payable oil the
dates and otherwise in accordance with tile terms of the Agreement. In no
contingency or event shall tile arnount of interest paid or agreed to be paid
to Lender hereunder exceed tile highest lawful rate perinissible under any law
which a court of collipetent jurisdiction shall, in a final determination,
deern applicable hereto. In such event, the interest rate sliall
autornatically be reduced to the maximum rate permitted by such law.
This Note shall evidence Borrower's unconditional obligations to repay tile
aggrega(e outstanding balance of all of Loans made to Borrower, with interest
thereon, and any expenses of' collection, including attorneys' fees and
expenses (tile "Expenses") in connection therewith. If 13orrower fails to make
any payment required hereunder or if a default occurs under the Agreement,
Lender shall thereupon have the option at any tinle and from time to thile
pursuant to the ternis of' the Agreement, to declare the unpaid principal
balance of' (his Note along with accrued and unpaid interest and Expenses to
be immediately due an payable and to exercise all rights and remedies set
forth herein and in the other Agreement as well as all rights and remedies
otherwise available to Lender at law or in equity, to collect the unpaid
indebtedness heremider and thereunder.
Borrower hereby waives presentment for payment, protest, demand, notice of
nonpayment or dishonor and all other notices in connection with the delivery,
acceptance, Perf'oriliance or enforcement of this Note. Any failure or delay
of Lender to exercise any right
hereunder shall not be construed as a waiver of the right to exercise the same
or ally other right at any other time or times. The waiver by Lender of a
breach or default of any provision of (his Note shall not operate or be
construed as a waiver of any subsequent breach or default (hereor. Borrower
agrees to reimburse Lender for all Expenses, including, without limitation,
attorneys' fees and costs incurred by Lender to enforce the provisions of this
Note, to protect, preserve and defend Lender's rights under the Agreement and
to collect Borrower's obligations hereunder.
BORROWER IRREVOCABLY AUTHORIZES AND EM06WERS ANY ATTORNEY OR ATTORNEYS OR THE
PROTHONOTARY OR CLERK OF ANY COURT OF RECORD IN THE COMMONWEALTH OF
PENNSYLVANIA, UPON THE OCCURRENCE OF AN E-VE-NT OF DEFAULT UNDER THE
AGREEMENT, TO APPEAR FOR BORROWFR IN ANY SUCH COURT, WITH OR WITHOUT
DECLARATION FILED, AS OF ANY TERM OR TIME THERE OR ELSEWHERE TO BE IIELD AND
THEREIN TO CONFESS OR ENT1;R JUDGMENT AGAINST BORROWER IN FAVOR OF THE LENDER
FOR ALL SUMS DUE OR TO BECOME DUE BY BORROWER TO LENDER UNDER THIS NOTE, WITH
COSTS OF SUIT AND RELEASE OF ERRORS AND WITH THE GREATER OF FIVE- PERCENT (5%)
OF SUCH SUMS OR $7,500.00 ADDED AS A REASONABLE ATTORNEY'S FEE; AND FOR DOING
SO THIS NOTE OR A COPY VERIFIED By AFFIDAVIT SHALL BE SUFFICIENT WARRANT; SUCH
AUTHORITY AND POWER STIALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF, AND
JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS ]'HERE IS
OCCASION THEREFOR.
BORROWER ACKNOWLEDGES THAT IT HAS HAD THE ▇▇▇▇▇,▇▇▇▇▇ OF COUNSEL IN THE REVIEW
AND EXECUTION OF THIS NOTE AND FURTHER ACKNOWLEDGES THAT THE MEANING AND
EFFECT OF THE CONFESSION OF JUDGMENT HAVE BEEN FULLY EXPLAINED TO IT BY SUCH
COUNSEL.
BORROWER, BEING FULLY AWARE OF THE RIGHT TO NOTICE AND A HEARING CONCERNING
THE VALIDITY OF ANY AND ALL CLAIMS THAT MAY BE ASSERTED AGAINST BORROWER BY
THE LENDER BEFORE A JUDGMENT CAN BE ENTERED HEREUNDER OR BEFORE EXECUTION MAY
BE LEVIED ON SUCII JUDGMEINT AGAINST ANY AND ALL PROPERTY OF BORROWER, HEREBY
WAIVES THESE RIGHTS AND AGREES AND CONSENTS TO JUDGMENT BEING ENTERED BY
CONFE~SSION IN ACCORDANCE WITH TIIETE~RMS HEREOFAND Exr,.curm BEING LEVIED ON
SUCH JUDGMENT AGAINST ANY AND ALL PROPERTY OF BORROWER, IN EACH CASE WITHOUT
FIRST GIVING NOTICE AND THE OPPORTUNITYTO 131--~ 111-LARD ON THE VALIDITY OF
'rHE CLAIM OR CLAIMS UPON WHICII SUCII JUDGMENT IS ENTERED.
All contractual rates of interest chargeable on outstanding Loans, regardless
of the then applicable interest rate, shall continue to accrue and be paid
even after default, maturity, acceleration, judgment, bankruptcy, insolvency
proceedings of any kind or tile happening of any event or occurrence similar
or dissimilar.
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Notwithstanding anything in this Note or in any agreemeat-securing this Note
to the contrary, the liability of Borrower under this Note and any agreement
securing this Not shall be nonrecourse to the general partner or any limited
partner of Borrower and such general and limited partners shall have no
liability whatsoever under (his Note and any agreement securing (his Note. No
deficiency or other personal judgment shall be sought against such general or
limited partner.
This Note shall be construed and governed by the laws of the Commonwealth of
Pennsylvania, widiout regard to its otherwise applicable principles of
conflict of laws. The provisions of this Note are severable and the invalidity
or unenforceability of any provision sliall not alter or impair the remaining
provisions of this Note. Jury trial is waived by Borrower and Lender in
connection with any controversy or proceeding involving the rights of the
parties to this Note, whether sounding in contract, tort or otherwise.
IN WITNESS WHEREOF, and intending to be legally bound hereby, Borrower has
executed these presents the day and year first above written.
SVG PROPERTIES, L.P.
By: SPRING VILLAGE HOLDINGS, INC,
General Partner
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
▇▇▇▇▇▇.▇▇▇\Note
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