TERMINATION AGREEMENT
(Oak Terrace Joint Venture, L.P. Project)
This Termination Agreement (the “
Agreement ”) is
made this 29th day of December, 2006 by and among EVEREST HICKORY
GLEN, LP (formerly known as OAK TERRACE JOINT VENTURE, L.P.) a
Kansas limited partnership (the “ Borrower ”); SECURED INVESTMENT
RESOURCES FUND, L.P. II, a Delaware limited partnership and limited
partner of the Borrower (the “ Limited Partner ”); CREDIT
SUISSE (formerly Credit Suisse First Boston), acting by and through
its New York branch (“ Credit
Suisse ”); and CREDITRE MORTGAGE
CAPITAL, L.L.C. a Delaware limited liability company
(“ Credit Re ,” and together with Borrower, the Limited Partner and
Credit Suisse, the “ Parties ,” and each a
“ Party ”).
RECITALS
WHEREAS, the Borrower owns a multifamily active
retirement apartment facility and related personal property and
equipment located at 1700 West Washington, Springfield, Illinois,
the development of which was financed with the proceeds of those
certain bonds issued by the City of Springfield, Illinois and known
as $9,000,000 Community Improvement Adjustable Demand Revenue
Bonds, Series 1999 (Oak Terrace Joint Venture, L.P. Project), (the
“Bonds”);
WHEREAS, Oak Terrace Venture, Inc., a Kansas
corporation, was the general partner of Oak Terrace Joint Venture,
L.P. and was replaced as general partner by Millenium Management,
LLC, a California limited liability company;
WHEREAS, Millenium Management, LLC was replaced as
the general partner of Oak Terrace Joint Venture, L.P. by one of
its affiliates, Millenium Oak Terrace, LLC, a California limited
liability company;
WHEREAS, James R. Hoyt and Secured Investment
Resources II, Inc., a Kansas corporation, were the general partners
of the Limited Partner and were replaced as such by Millenium
Management, LLC, a California limited liability company;
WHEREAS, Oak Terrace Joint Venture, L.P. changed its
name to Everest Hickory Glen, LP;
WHEREAS, Credit Re arranged for the delivery by
Credit Suisse First Boston (predecessor-in-interest to Credit
Suisse), in support of the Bonds, of its irrevocable Letter of
Credit No TR-07001288 (the “Letter of
Credit”);
WHEREAS, in connection with the issuance of the
Letter of Credit, each Party has executed one or more of the
agreements listed on Schedule 1 attached hereto and more fully
defined thereon (each a “Loan Document” and
collectively, the “Loan Documents”);
WHEREAS, it is expected that the Letter of Credit
will be drawn twice on December 29, 2006 and, after such drawings,
cannot be reinstated, and contemporaneously with the second of such
drawings, all outstanding obligations of the Borrower to Credit Re
and Credit Suisse will be refinanced and paid in full, at which
time the Letter of Credit will be cancelled;
WHEREAS, in connection with the termination of the
Letter of Credit and the payment in full of all obligations
associated with such, each of the Parties wishes to terminate the
Loan Documents to which it is a party, subject to the exceptions
provided for herein;
NOW THEREFORE, in consideration of the agreements
contained herein, and for other good and valuable consideration,
the Parties, intending to be legally bound hereby, covenant and
agree as follows:
1.
Termination. Each
Party hereby agrees and acknowledges that each of the Loan
Documents to which it is a party is, and all of such Party’s
rights and obligations thereunder are, hereby terminated, except
for those indemnification obligations of the Borrower that, by the
terms of any Loan Document, expressly survive the termination of
such Loan Document and repayment of any obligations secured thereby
(the “Surviving Indemnities”). In addition, if any
amounts previously paid to Credit Re or Credit Suisse pursuant to
any of the Loan Documents shall become subject to disgorgement by
Credit Re or Credit Suisse as a result of any bankruptcy,
fraudulent conveyance, or similar statute
