Exhibit 10.6
DO NOT DESTROY THIS NOTE: When paid, this Note, with the Deed of Trust
securing same, must be surrendered to trustee under the Deed of Trust
for cancellation before reconveyance will be made.
NOTE SECURED BY DEED OF TRUST
INSTALLMENT - INTEREST (FIXED) INCLUDED
$3,250,000.00 Loan No. 65207
Customer No. 639475
9701 Wilshire Boulevard, Suite 600
Beverly Hills, California 90212
July 15, 1999
On August 1, 2014, Empire Burbank Studios, Inc., a California corporation
("Borrower") promises to pay in immediately available funds to the order of City
National Bank, a national banking association ("CNB"), at its office set forth
above, the principal sum of Three Million Two Hundred Fifty Thousand and No/100
Dollars ($3,250,000.00), or so much thereof as may be outstanding, with interest
thereon to be computed from the date of its disbursement at a rate computed on a
basis of a 360-day year, actual days elapsed, equal to eight and thirteen
one-hundredths percent (8.13%) ("Interest Rate").
The first payment under this Note shall be for accrued interest only and shall
be due on August 1, 1999, with principal and interest together payable in
installments of Thirty One Thousand Five Hundred Thirty and 45/100 Dollars
($31,530.45) each month commencing with the first day of September 1, 1999, and
continuing thereafter on the same day of each month until maturity, as above
stated, when all unpaid interest and principal shall be payable. The above
stated monthly payments of principal and interest will amortize the loan in
fifteen (15) years.
The occurrence of any of the following with respect to Borrower shall constitute
an "Event of Default" hereunder:
1. The failure to make any payment of principal or interest when due under
this Note within ten (10) days after it becomes due and payable;
2. The filing of a petition by Borrower for relief under Title 11 of the
United States Code (the "Bankruptcy Code") or under any other present or
future state or federal law regarding bankruptcy, reorganization or other
debtor relief law; the filing of any pleading or an answer by Borrower in
any involuntary proceeding under the Bankruptcy Code or other debtor relief
law which admits the jurisdiction of the court or the petition's material
allegations regarding Borrower's insolvency; a general assignment by
Borrower for the benefit of creditors; or Borrower applying for, or the
appointment of, a receiver, trustee, custodian or liquidator of Borrower or
any of its property; or
3. The failure of Borrower to effect a full dismissal of any involuntary
petition under the Bankruptcy Code prior to the earlier of the entry of any
court order granting relief sought
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in such involuntary petition or sixty (60) days after the date of filing of
such involuntary petition.
4. The commencement by Borrower of dissolution or liquidation proceedings or
the disqualification of Borrower to do business in the State of California;
5. Any financial statement provided by Borrower to CNB is false or misleading
in any material respect;
6. Any violation, breach or default under this Note (other than the failure to
pay principal or interest) or under any letter agreement, guaranty,
security agreement, deed of trust or any other contract or instrument
executed in connection with this Note or securing this Note which
violation, breach or default continues for a period of twenty (20) days
after receipt by Borrower of written notice thereof from CNB or, if a cure
of such violation, breach or default cannot be reasonably completed at or
before the expiration of such twenty (20) day period, such longer period as
may be reasonably necessary to complete such cure so long as Borrower is
diligently pursuing same but in any event not to exceed an additional
twenty-five (25) days (for a total cure period of forty-five (45) days); or
7. Any sale or transfer of all or substantially all of the assets of Borrower
other than in the ordinary course of business.
Upon the occurrence of an Event of Default, CNB, at its option, may declare all
sums outstanding hereunder to be immediately due and payable without
presentment, demand, protest or notice of dishonor, all of which are hereby
expressly waived by Borrower. Borrower agrees to pay all costs and expenses,
including reasonable attorneys' fees, expended or incurred by CNB (or reasonably
allocable to CNB's in-house counsel) in connection with the enforcement of this
Note or the collection of any sums due hereunder and irrespective of whether
suit is filed. Following the occurrence and during the continuance of an Event
of Default, the unpaid principal balance hereunder shall bear additional
interest at a rate of five percent (5.0%) per year higher than the interest rate
as determined and computed above.
Borrower shall pay to CNB a late charge of 6% or $5.00, whichever is greater, of
each and every monthly installment not received by CNB on or before the tenth
(10th) day after the installment is due.
Should Borrower (or any successor in interest to Borrower) without the prior
written consent of CNB, sell, transfer, mortgage, pledge, hypothecate, assign or
encumber its interest in the property or any part thereof (other than leases
which are not the Material Lease (as defined in the Deed of Trust)) which secure
this Note, or should any holder of an equity interest in Borrower transfer or
encumber such interest except for (i) a pledge of the equity interest in
Borrower (the "Pledge") to Union Bank of California, N.A. (the "Agent") as
collateral agent, or any replacement agent or lender, to secure indebtedness
under that certain Credit Agreement dated as of January 6, 1998 between LBI
Holdings, II, Inc., the Agent, and the other parties thereto and any replacement
or refinancing (together with any such replacement or refinancing thereof, the
"Liberman Credit") (ii) any exercise by Agent of its remedies under the Pledge
and (iii) any transfer to an assignee of the Agent in connection with the
exercise of such remedies, whether
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voluntarily or involuntarily, then CNB may at its option declare the whole sum
of principal and interest (and all other sums secured by any Deed of Trust taken
as security for this Note) immediately due and payable. This provision shall
apply to each and every sale, transfer, mortgage, pledge, hypothecation,
assignment or encumbrance (except as provided above) regardless whether or not
CNB has consented to, or waived, its right hereunder, whether by action or
non-action, in connection with any previous sale, transfer, mortgage, pledge,
hypothecation, assignment or encumbrance, whether one or more.
Borrower shall have the right to prepay the principal of this Note, in whole or
in part, on the first business day of a calendar month, which prepayment must be
preceded by not less than thirty (30) days prior written notice to CNB of
Borrower's intention to make such prepayment, the amount thereof, and the date
upon which such prepayment will be made, and there shall be paid to CNB
concurrently with such payment all then accrued interest and any and all other
amounts then due hereunder, TOGETHER WITH A PREPAYMENT CHARGE equal to:
(1) For amounts paid during the period of August 1, 1999
through July 31, 2000, an amount equal to five percent
(5.0%) of the outstanding principal balance being
prepaid.
(2) For amounts paid during the period of August 1, 2000
through July 31, 2001, an amount equal to four percent
(4.0%) of the outstanding principal balance.
(3) For amounts paid during the period of August 1, 2001
through July 31, 2002, an amount equal to three percent
(3.0%) of the outstanding principal balance being
prepaid.
(4) For amounts paid during the period of August 1, 2002
through July 31, 2003, an amount equal to two percent
(2.0%) of the outstanding principal balance being
prepaid.
(5) For amounts paid during the period of August 1, 2003
through July 31, 2013, an amount equal to one percent
(1.0%) of the outstanding principal balance being
prepaid.
Notwithstanding the above, Borrower shall have the right to prepay the principal
of this Note, in whole or in part, without any prepayment charge during the last
six (6) months of the loan term, provided payment is received, on the first
(1st) business day of a calendar month, which prepayment must be preceded by not
less than thirty (30) days prior written notice to CNB of Borrower's intention
to make such prepayment, the amount thereof, and the date upon which payment
will be made, and there shall be paid to CNB concurrently therewith, all then
accrued interest and any and all other amounts then due thereunder.
Notwithstanding the foregoing, Borrower shall not be required to provide notice
to CNB or pay a prepayment charge if CNB applies insurance or condemnation
proceeds to the outstanding principal balance of the Loan.
In the event that CNB declares all sums due hereunder immediately due and
payable upon the occurrence of an Event of Default, Borrower shall pay to CNB a
prepayment charge equal to the
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prepayment charge (calculated as set forth above) which would be due hereunder
if Borrower had exercised its right to prepay of even date herewith executed by
Borrower in favor of CNB.
BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO PREPAY THIS NOTE, IN WHOLE OR IN
PART, WITHOUT PREMIUM OR CHARGE, UPON ACCELERATION OF THE MATURITY OF THIS NOTE
(WHETHER ARISING UNDER SECTION 2954.10 OF THE CALIFORNIA CIVIL CODE OR
OTHERWISE), AND BORROWER HEREBY AGREES TO PAY THE PREPAYMENT CHARGE SET FORTH
ABOVE, WHETHER ANY PREPAYMENT IS VOLUNTARY OR UPON OR FOLLOWING ANY ACCELERATION
OF THIS NOTE (INCLUDING, WITHOUT LIMITATION, ANY ACCELERATION FOLLOWING A
TRANSFER, MORTGAGE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR ENCUMBRANCE OF THE
PROPERTY (OR ANY PART THEREOF) WHICH SECURES THIS NOTE). BORROWER HAS SEPARATELY
INITIALED THIS PROVISION IN THE SPACE PROVIDED BELOW AND DECLARES THAT CNB'S
AGREEMENT TO MAKE THE LOAN EVIDENCED HEREBY ON THE TERMS AND CONDITIONS HEREOF
CONSTITUTES ADEQUATE CONSIDERATION, OF INDIVIDUAL WEIGHT, FOR THIS WAIVER AND
AGREEMENT BY BORROWER.
BORROWER'S INITIALS /s/ J.L.
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CNB's recovery against Borrower under the Loan Documents shall be limited solely
to the collateral given to CNB as security for Borrower's performance under the
Loan Documents (the "Collateral"), and such recovery shall not be a lien, or the
basis of a claim of lien or levy of execution, against the general assets of
Borrower. Notwithstanding the foregoing, Borrower and the general assets of
Borrower shall be fully liable to CNB to the same extent that Borrower would be
liable absent the foregoing limitation of this paragraph for: (a) fraud or
willful misrepresentation; (b) waste; (c) failure to pay income taxes or other
taxes, assessments or other charges attributable to Borrower which create liens
on any portion of the Collateral (to the full extent of any such liens); (d) the
amount of any Rents (as defined in the Deed of Trust) from the Collateral
collected by Borrower after Borrower's license to collect such Rents has
terminated; or (e) any breach by Borrower of any covenant or any indemnification
claim arising under any representation, warranty, covenant or indemnity relating
to hazardous materials (including, without limitation, any such breach or claim
arising under the Environmental Indemnity Agreement of even date executed by
Borrower, Jose Liberman and Lenard D. Liberman). In addition, the limitations
hereof shall not be deemed to limit: (i) any right CNB might otherwise have to
obtain injunctive relief against Borrower; (ii) any suit or action against
Borrower in connection with the preservation, enforcement or foreclosure of the
liens, mortgages, assignments and security interests now or at any time
hereafter securing the payment and performance of all sums and obligations under
the Loan Documents; or (iii) the collection of amounts which may become owing or
payable under or on account of insurance, condemnation awards or damages for
other public actions or surety bonds maintained or provided by Borrower in
connection with or related to the Collateral; provided, however, that the
assertion by CNB of any such right, suit, action or collection of amounts shall
not result in a monetary claim upon the general assets of Borrower except as
otherwise provided herein. CNB further agrees that it will not seek any recovery
of any indebtedness arising under the Loan Documents from LBI Holdings II, Inc.,
or any of its subsidiaries (collectively, the "LBI Entities"). This limitation
shall in no way impair CNB's, any receiver's or any other party's right to
enforce the terms of any lease of
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the Property by the Borrower to any LBI Entity or recover any fraudulent
transfer, preference or similar amount under any applicable state or federal
insolvency law. Notwithstanding anything to the contrary in this paragraph
(except for the provisions of the immediately preceding sentence), in the event
that Borrower were ever to be substantively consolidated with any one or more
LBI Entities, the value of the payment or other consideration received or to be
received by CNB on account of CNB's unsecured claim in such consolidated
bankruptcy shall be limited to a value not greater than the value of the payment
or other consideration which CNB would have received on account of such
unsecured claim in the event that there had been no such substantive
consolidation. The Agent and the other lenders from time to time party to the
Liberman Credit are hereby made intentional third party beneficiaries of the
provisions of this paragraph and shall be entitled to enforce them under law or
equity.
Empire Burbank Studios, Inc., a California
corporation
By: /s/ Jose Liberman
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Jose Liberman, President
By: /s/ Lenard D. Liberman
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Lenard D. Liberman, Secretary
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