AMENDED AND RESTATED PROMISSORY NOTE AND THIRD AMENDMENT TO LOAN AGREEMENT. $2,050, San Jose, California, 2015 ( Effective Date )

Transcription

1 AMENDED AND RESTATED PROMISSORY NOTE AND THIRD AMENDMENT TO LOAN AGREEMENT $2,050, San Jose, California, 2015 ( Effective Date ) FOR VALUE RECEIVED, the undersigned CAMERA PAVILION MANAGEMENT CORPORATION, a California corporation (hereinafter, the Borrower ) promises to pay to the SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN JOSE, a public body, corporate and politic, or order, (the "Agency") at 200 East Santa Clara Street, San Jose, California 95113, or such other place as the Agency may from time to time designate in writing, the principal sum of Two Million Fifty Thousand and Eighteen Dollars ($2,050,018.00) pursuant to that Commercial Building Loan Agreement entered into as of October 14, 2003 between the Agency and Borrower ( Original Loan Agreement ), as amended by that certain First Amendment to Commercial Building Loan and Façade Improvement Grant Agreement dated October 14, 2003 ( First Amendment ) and as amended by that certain Second Amendment to Commercial Building Loan and Façade Improvement Grant Agreement dated October 28, 2008 ( Second Amendment ). The Original Agreement, the First Amendment and the Second Amendment shall be collectively referred to herein as the Agreement. The parties acknowledge that this Amended and Restated Promissory Note ( Note ) hereby supersedes and replaces in its entirety that certain Promissory Note dated November 18, 2008 between Borrower and the Agency ( Prior Note ) and amends the Agreement, to the extent the terms of this Note are inconsistent with the terms of the Agreement, it being the intent of the parties that the terms of this Note shall control over any inconsistency. 1. Interest. For the term of this Note, interest on unpaid principal shall accrue from the date first written above ( Effective Date ) at the rate of two percent (2%) per annum unless payments are not paid when due. If payments are not made by Borrower when due, interest at the Default Rate (as defined in Section 4.2 below) shall begin to accrue from and after the date thereof. 2. Term. All outstanding principal, together with any accrued and unpaid interest, shall be due and payable twenty (20) years from the date of this Note ( Term ); provided, however, that all outstanding principal, together with any accrued and unpaid interest, shall be fully due and payable at the expiration or termination of the sublease between Borrower and F.C. Pavilion, LLC dated October 13, 2003 ( Sublease ). 3. Payments. Commencing on the last day of the month of the Effective Date, Borrower shall make initial monthly cash payments in the amount of Four Thousand Dollars ($4,000), which amount shall be due in arrears on the last day of each month ( Monthly Payment ). The Monthly Payment shall increase by Two Thousand Dollars ($2,000) to Four Thousand Dollars ($4,000) twenty four (24) months after the Effective Date and shall increase every twenty four (24) months thereafter by One Thousand Dollars ($1,000.00) up to a maximum amount of Nine Thousand Dollars ($9,000.00) per doc 1 9/24/2015

2 month, as more particularly shown on the amortization schedule attached hereto as Attachment No Acceleration of Obligation. 4.1 After the expiration of any applicable notice and cure periods, the unpaid principal, plus any applicable charges set forth herein, shall, at the option of the Agency, be immediately due and payable if during the term of this Note there occurs any of the following: (a) Default or breach by Borrower of any material covenant or provision required to be performed by Borrower under the terms of this Amended Note or the Agreement, including any default of Borrower s obligation to make Monthly Payments; (b) Default or breach by Borrower of any covenant or provision required to be performed by Borrower under the terms of the Loan Documents as defined in the Agreement, including any default of Borrower s obligation to provide Cinequest hosting support as described in the Loan Agreement; provided that Borrower has received written notice of any such default and any applicable cure period has lapsed. 4.2 From and after the time when Agency has the right to accelerate the repayment of this Note as set forth in subsection 4.1, the entire unpaid balance of the principal sum of this Note shall automatically bear a maximum rate of interest equal to the lesser of (i) ten percent (10%) per annum or (ii) the maximum rate permitted by Section l (2) of Article XV of the California Constitution ( Default Rate ); 4.3 At the election of the Borrower, the principal amount of this Note, or any portion thereof, may be prepaid at any time during the term of this Note without penalty. 5. Waiver by Borrower. Borrower, any endorser of this Note, and all others who may become liable for all or any part of the obligations evidenced by this Note hereby severally waive demand, presentment for payment, demand and protest, notice of protest, demand and dishonor and non-payment and consent to any number of renewals or extensions of time hereof. Any such renewals or extensions may be made without notice to any of said parties and without affecting their liability. The pleading of any statute of limitations as a defense to any demand against the Borrower is expressly waived by Borrower. 6. Purpose of Agreement. It is the intent of the parties that the relationship evidenced by this Note shall be deemed to be one of debtor/creditor, and not of partnership or joint venture. 7. Waiver by Agency. Any failure of the Agency or other holder to exercise any rights hereunder shall not constitute a waiver of the rights to the later exercise thereof. Notwithstanding the above, upon execution of this Note, the Agency agrees that any prior default arising out of the Borrower s failure to make payments under the Original Note shall doc 2 9/24/2015

3 be waived, and that this Note shall constitute a novation and an accord and satisfaction as to such matters. 8. Amendment. This Note may not be changed, amended or modified orally. 9. Governing Law. This Note shall be governed by and construed in accordance with the laws of the State of California. 10. Binding on Successors. The terms of this Note shall apply to, inure to the benefit of, and bind all parties hereto, their heirs, legatees, devisees, administrators, executors, personal representatives, successors and assigns. 11. Assignment. This Note may be assumed by a reputable theater operator approved by the Agency who will operate the Theater Site in substantially the same manner as Borrower with first run films ( Permitted Transferee ). Agency approval shall not be unreasonably withheld, conditioned or delayed, provided that it shall not be unreasonable for the Agency to withhold its approval if the assignee is not a reputable theater operator Agency who will operate the Theater Site in substantially the same manner as Borrower with first run films. IN WITNESS WHEREOF, the Borrower and Agency have executed this Note as of the date first written above. BORROWER CAMERA PAVILION MANAGEMENT CORPORATION, a California corporation By: Jack NyBlom Its Chief Executive Officer and President AGENCY APPROVED AS TO FORM: SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN JOSE, a public entity Tom Murtha Senior Deputy City Attorney By: Richard A. Keit Managing Director doc 3 9/24/2015

4 1 Sep-15 $4, $3, $ $2,049, Oct-15 $4, $3, $ $2,048, Nov-15 $4, $3, $ $2,048, Dec-15 $4, $3, $ $2,047, Jan-16 $4, $3, $ $2,047, Feb-16 $4, $3, $ $2,046, Mar-16 $4, $3, $ $2,045, Apr-16 $4, $3, $ $2,045, May-16 $4, $3, $ $2,044, Jun-16 $4, $3, $ $2,044, Jul-16 $4, $3, $ $2,043, Aug-16 $4, $3, $ $2,042, Sep-16 $4, $3, $ $2,042, Oct-16 $4, $3, $ $2,041, Nov-16 $4, $3, $ $2,041, Dec-16 $4, $3, $ $2,040, Jan-17 $4, $3, $ $2,039, Feb-17 $4, $3, $ $2,039, Mar-17 $4, $3, $ $2,038, Apr-17 $4, $3, $ $2,038, May-17 $4, $3, $ $2,037, Jun-17 $4, $3, $ $2,036, Jul-17 $4, $3, $ $2,036, Aug-17 $4, $3, $ $2,035, Sep-17 $6, $3, $2, $2,033, Oct-17 $6, $3, $2, $2,030, Nov-17 $6, $3, $2, $2,027, Dec-17 $6, $3, $2, $2,025, Jan-18 $6, $3, $2, $2,022, Feb-18 $6, $3, $2, $2,020, Mar-18 $6, $3, $2, $2,017, Apr-18 $6, $3, $2, $2,014, May-18 $6, $3, $2, $2,012, Jun-18 $6, $3, $2, $2,009, Jul-18 $6, $3, $2, $2,006, Aug-18 $6, $3, $2, $2,004, Sep-18 $6, $3, $2, $2,001, Oct-18 $6, $3, $2, $1,998, Nov-18 $6, $3, $2, $1,996, Dec-18 $6, $3, $2, $1,993, Jan-19 $6, $3, $2, $1,990, Feb-19 $6, $3, $2, $1,988, Mar-19 $6, $3, $2, $1,985, Apr-19 $6, $3, $2, $1,982, May-19 $6, $3, $2, $1,980, Jun-19 $6, $3, $2, $1,977, Page 1 of 6

5 47 Jul-19 $6, $3, $2, $1,974, Aug-19 $6, $3, $2, $1,971, Sep-19 $7, $3, $3, $1,968, Oct-19 $7, $3, $3, $1,964, Nov-19 $7, $3, $3, $1,960, Dec-19 $7, $3, $3, $1,957, Jan-20 $7, $3, $3, $1,953, Feb-20 $7, $3, $3, $1,949, Mar-20 $7, $3, $3, $1,945, Apr-20 $7, $3, $3, $1,942, May-20 $7, $3, $3, $1,938, Jun-20 $7, $3, $3, $1,934, Jul-20 $7, $3, $3, $1,930, Aug-20 $7, $3, $3, $1,926, Sep-20 $7, $3, $3, $1,923, Oct-20 $7, $3, $3, $1,919, Nov-20 $7, $3, $3, $1,915, Dec-20 $7, $3, $3, $1,911, Jan-21 $7, $3, $3, $1,907, Feb-21 $7, $3, $3, $1,904, Mar-21 $7, $3, $3, $1,900, Apr-21 $7, $3, $3, $1,896, May-21 $7, $3, $3, $1,892, Jun-21 $7, $3, $3, $1,888, Jul-21 $7, $3, $3, $1,884, Aug-21 $7, $3, $3, $1,881, Sep-21 $8, $3, $4, $1,876, Oct-21 $8, $3, $4, $1,871, Nov-21 $8, $3, $4, $1,866, Dec-21 $8, $3, $4, $1,861, Jan-22 $8, $3, $4, $1,856, Feb-22 $8, $3, $4, $1,851, Mar-22 $8, $3, $4, $1,846, Apr-22 $8, $3, $4, $1,841, May-22 $8, $3, $4, $1,837, Jun-22 $8, $3, $4, $1,832, Jul-22 $8, $3, $4, $1,827, Aug-22 $8, $3, $4, $1,822, Sep-22 $8, $3, $4, $1,817, Oct-22 $8, $3, $4, $1,812, Nov-22 $8, $3, $4, $1,807, Dec-22 $8, $3, $4, $1,802, Jan-23 $8, $3, $4, $1,797, Feb-23 $8, $2, $5, $1,792, Mar-23 $8, $2, $5, $1,787, Apr-23 $8, $2, $5, $1,782, Page 2 of 6

6 93 May-23 $8, $2, $5, $1,777, Jun-23 $8, $2, $5, $1,772, Jul-23 $8, $2, $5, $1,767, Aug-23 $8, $2, $5, $1,762, Sep-23 $9, $2, $6, $1,756, Oct-23 $9, $2, $6, $1,749, Nov-23 $9, $2, $6, $1,743, Dec-23 $9, $2, $6, $1,737, Jan-24 $9, $2, $6, $1,731, Feb-24 $9, $2, $6, $1,725, Mar-24 $9, $2, $6, $1,719, Apr-24 $9, $2, $6, $1,713, May-24 $9, $2, $6, $1,707, Jun-24 $9, $2, $6, $1,701, Jul-24 $9, $2, $6, $1,694, Aug-24 $9, $2, $6, $1,688, Sep-24 $9, $2, $6, $1,682, Oct-24 $9, $2, $6, $1,676, Nov-24 $9, $2, $6, $1,670, Dec-24 $9, $2, $6, $1,663, Jan-25 $9, $2, $6, $1,657, Feb-25 $9, $2, $6, $1,651, Mar-25 $9, $2, $6, $1,645, Apr-25 $9, $2, $6, $1,638, May-25 $9, $2, $6, $1,632, Jun-25 $9, $2, $6, $1,626, Jul-25 $9, $2, $6, $1,620, Aug-25 $9, $2, $6, $1,613, Sep-25 $9, $2, $6, $1,607, Oct-25 $9, $2, $6, $1,601, Nov-25 $9, $2, $6, $1,594, Dec-25 $9, $2, $6, $1,588, Jan-26 $9, $2, $6, $1,582, Feb-26 $9, $2, $6, $1,575, Mar-26 $9, $2, $6, $1,569, Apr-26 $9, $2, $6, $1,562, May-26 $9, $2, $6, $1,556, Jun-26 $9, $2, $6, $1,550, Jul-26 $9, $2, $6, $1,543, Aug-26 $9, $2, $6, $1,537, Sep-26 $9, $2, $6, $1,530, Oct-26 $9, $2, $6, $1,524, Nov-26 $9, $2, $6, $1,517, Dec-26 $9, $2, $6, $1,511, Jan-27 $9, $2, $6, $1,505, Feb-27 $9, $2, $6, $1,498, Page 3 of 6

7 139 Mar-27 $9, $2, $6, $1,492, Apr-27 $9, $2, $6, $1,485, May-27 $9, $2, $6, $1,479, Jun-27 $9, $2, $6, $1,472, Jul-27 $9, $2, $6, $1,465, Aug-27 $9, $2, $6, $1,459, Sep-27 $9, $2, $6, $1,452, Oct-27 $9, $2, $6, $1,446, Nov-27 $9, $2, $6, $1,439, Dec-27 $9, $2, $6, $1,433, Jan-28 $9, $2, $6, $1,426, Feb-28 $9, $2, $6, $1,419, Mar-28 $9, $2, $6, $1,413, Apr-28 $9, $2, $6, $1,406, May-28 $9, $2, $6, $1,399, Jun-28 $9, $2, $6, $1,393, Jul-28 $9, $2, $6, $1,386, Aug-28 $9, $2, $6, $1,379, Sep-28 $9, $2, $6, $1,373, Oct-28 $9, $2, $6, $1,366, Nov-28 $9, $2, $6, $1,359, Dec-28 $9, $2, $6, $1,352, Jan-29 $9, $2, $6, $1,346, Feb-29 $9, $2, $6, $1,339, Mar-29 $9, $2, $6, $1,332, Apr-29 $9, $2, $6, $1,325, May-29 $9, $2, $6, $1,319, Jun-29 $9, $2, $6, $1,312, Jul-29 $9, $2, $6, $1,305, Aug-29 $9, $2, $6, $1,298, Sep-29 $9, $2, $6, $1,291, Oct-29 $9, $2, $6, $1,284, Nov-29 $9, $2, $6, $1,278, Dec-29 $9, $2, $6, $1,271, Jan-30 $9, $2, $6, $1,264, Feb-30 $9, $2, $6, $1,257, Mar-30 $9, $2, $6, $1,250, Apr-30 $9, $2, $6, $1,243, May-30 $9, $2, $6, $1,236, Jun-30 $9, $2, $6, $1,229, Jul-30 $9, $2, $6, $1,222, Aug-30 $9, $2, $6, $1,215, Sep-30 $9, $2, $6, $1,208, Oct-30 $9, $2, $6, $1,201, Nov-30 $9, $2, $6, $1,194, Dec-30 $9, $1, $7, $1,187, Page 4 of 6

8 185 Jan-31 $9, $1, $7, $1,180, Feb-31 $9, $1, $7, $1,173, Mar-31 $9, $1, $7, $1,166, Apr-31 $9, $1, $7, $1,159, May-31 $9, $1, $7, $1,152, Jun-31 $9, $1, $7, $1,145, Jul-31 $9, $1, $7, $1,138, Aug-31 $9, $1, $7, $1,131, Sep-31 $9, $1, $7, $1,124, Oct-31 $9, $1, $7, $1,117, Nov-31 $9, $1, $7, $1,110, Dec-31 $9, $1, $7, $1,102, Jan-32 $9, $1, $7, $1,095, Feb-32 $9, $1, $7, $1,088, Mar-32 $9, $1, $7, $1,081, Apr-32 $9, $1, $7, $1,074, May-32 $9, $1, $7, $1,066, Jun-32 $9, $1, $7, $1,059, Jul-32 $9, $1, $7, $1,052, Aug-32 $9, $1, $7, $1,045, Sep-32 $9, $1, $7, $1,038, Oct-32 $9, $1, $7, $1,030, Nov-32 $9, $1, $7, $1,023, Dec-32 $9, $1, $7, $1,016, Jan-33 $9, $1, $7, $1,008, Feb-33 $9, $1, $7, $1,001, Mar-33 $9, $1, $7, $994, Apr-33 $9, $1, $7, $986, May-33 $9, $1, $7, $979, Jun-33 $9, $1, $7, $972, Jul-33 $9, $1, $7, $964, Aug-33 $9, $1, $7, $957, Sep-33 $9, $1, $7, $949, Oct-33 $9, $1, $7, $942, Nov-33 $9, $1, $7, $935, Dec-33 $9, $1, $7, $927, Jan-34 $9, $1, $7, $920, Feb-34 $9, $1, $7, $912, Mar-34 $9, $1, $7, $905, Apr-34 $9, $1, $7, $897, May-34 $9, $1, $7, $890, Jun-34 $9, $1, $7, $882, Jul-34 $9, $1, $7, $875, Aug-34 $9, $1, $7, $867, Sep-34 $9, $1, $7, $860, Oct-34 $9, $1, $7, $852, Page 5 of 6

9 231 Nov-34 $9, $1, $7, $845, Dec-34 $9, $1, $7, $837, Jan-35 $9, $1, $7, $829, Feb-35 $9, $1, $7, $822, Mar-35 $9, $1, $7, $814, Apr-35 $9, $1, $7, $806, May-35 $9, $1, $7, $799, Jun-35 $9, $1, $7, $791, Jul-35 $9, $1, $7, $783, Aug-35 $9, $1, $7, $776, TOTAL $1,896, $622, $1,273, LOAN AMOUNT$2,050,018 MONTHLY PAY$4, $6, $7, $8, $9, FIXED ANNUAL2% Page 6 of 6