LOAN NO. 400030964
NOTE
(FIXED RATE)
$13,300,000 August 14, 1998
FOR VALUE RECEIVED JAGI XXXXXXXXX - XXXXXX, LLC, a Delaware limited
liability company (hereinafter referred to as "Maker"), promises to pay to the
order of AMRESCO CAPITAL, L.P., a Delaware limited partnership, its successors
and assigns (hereinafter referred to as "Payee"), at the office of Payee or its
agent, designee, or assignee at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, XX#000,
Xxxxxx, Xxxxx 00000-0000, Attention: Loan Servicing, or at such place as Payee
or its agent, designee, or assignee may from time to time designate in writing,
the principal sum of Thirteen Million Three Hundred Thousand and No/100 Dollars
($13,300,000), in lawful money of the United States of America, with interest
thereon to be computed on the unpaid principal balance from time to time
outstanding at the Applicable Interest Rate (hereinafter defined) at all times
prior to the occurrence of an Event of Default (as defined in the Mortgage
[hereinafter defined]), and to be paid in installments as follows:
1. A payment of interest only on the date hereof for the period from
the date hereof through the last day of the current calendar month, both
inclusive;
2. A constant payment (the "Monthly Payment"), in arrears, of
$103,445.77, on the first day of October, 1998 and on the first day of each
calendar month thereafter up to and including the month immediately
preceding the Maturity Date stated below, which Monthly Payment is
calculated using an amortization period of twenty-five (25) years;
and the balance of said principal sum, together with accrued and unpaid interest
and any other amounts due under this Note shall be due and payable on the first
day of September, 2008 or upon earlier maturity hereof whether by acceleration
or otherwise (the "Maturity Date"). Interest on the principal sum of this Note
shall be calculated on the basis of the actual number of days elapsed in the
applicable calendar month multiplied by a daily rate based upon a 360 day year,
and in any event interest calculated with reference to the maximum rate
permitted by applicable law shall be calculated by multiplying the actual number
of days elapsed in such period by a daily rate based on a year of 365/366 days
(as applicable). Monthly Payments under this Note shall be applied first, to the
payment of interest and other costs and charges due in connection with this Note
or the Debt (as hereinafter defined), as Payee may determine in its sole
discretion, and the balance shall be applied toward the reduction of the
principal sum. All amounts due under this Note shall be payable without setoff,
counterclaim or any other deduction whatsoever.
The term "Applicable Interest Rate" means from the date of this Note
through and including the Maturity Date a rate of eight and 09/100ths percent
(8.09%) per annum.
This Note is secured by, and Xxxxx is entitled to the benefits of, the
Mortgage, the Assignment, the Security Agreement, the Environmental Agreement
and the other Loan Documents (hereinafter defined). The term "Mortgage" means
the Mortgage and Security Agreement dated the date hereof given by Maker for the
use and benefit of Payee covering the fee estate of Maker in certain premises as
more particularly described therein (the "Mortgaged Property"). The term "Other
Mortgages" means that certain Second Mortgage and Security Agreement of even
date herewith granted by JAGI Cleveland - Independence, LLC, a Delaware limited
partnership ("JAGI Independence"), to Payee and encumbering premises located in
the City of Independence, County of Cuyahoga, State of Ohio and other property
more particularly described therein (the "Independence Property"), that certain
Second Mortgage and Security Agreement of even date herewith granted by JAGI
Montrose West, LLC, a Delaware limited partnership ("JAGI Montrose), to Payee
and encumbering premises located in the Township of Copley, County of Summit,
State of Ohio and other property more particularly described therein (the
"Xxxxxx Property"), and that certain Second Mortgage and Security Agreement of
even date herewith granted by JAGI North Canton, LLC, a Delaware limited
partnership ("JAGI Canton"), to Payee and encumbering premises located in the
Township of Xxxxxxx, County of Xxxxx, State of Ohio and other property more
particularly described therein (the "Xxxxxxx Property"). The Independence
Property, the Xxxxxx Property, and the Xxxxxxx Property sometimes collectively
are referred to as the "Other Properties"). The term "Assignment" means the
Assignment of Leases and Rents of even date herewith executed by Maker in favor
of Xxxxx. The term "Security Agreement" means the Security Agreement of even
date herewith executed by Maker in favor of Payee covering a security interest
in all collateral as more particularly described therein. The term
"Environmental Agreement" means the Environmental Liabilities Agreement of even
date herewith executed by Maker in favor of Xxxxx. The term "Loan Agreement"
means the Loan Agreement of even date herewith by and among Payee, Borrower,
JAGI Independence, JAGI Montrose, and JAGI Canton. The term "Loan Documents"
refers collectively to this Note, the Loan Agreement, the Mortgage, the Other
Mortgages, the Assignment, the Security Agreement, the Environmental Agreement
and any and all other documents executed in connection with this Note or now or
hereafter executed by Maker and/or others and by or in favor of Payee, which
wholly or partially secure or guarantee payment of this Note or pertain to
indebtedness evidenced by this Note.
If any installment payable under this Note (including the final installment
due on the Maturity Date) is not received by Payee within five (5) days after
the date on which it is due (without regard to any applicable cure and/or notice
period), Maker shall pay to Payee upon demand an amount equal to the lesser of
(a) five percent (5%) of such unpaid sum or (b) the maximum amount permitted by
applicable law to defray the expenses incurred by Payee in handling and
processing such delinquent payment and to compensate Payee for the loss of the
use of such delinquent payment, and such amount shall be secured by the Loan
Documents. The term "Debt" means, collectively, (i) the unpaid principal balance
of and the accrued but unpaid interest on this Note, (ii) all other sums due,
payable or reimbursable to Payee under the Loan Documents (including, without
limitation, sums due or payable by Maker for deposit into the Tax and Insurance
Escrow Fund [as defined in the Mortgage], the Replacement Escrow Fund [as
defined in the Mortgage], and any other escrows established or required under
the Loan Documents), and (iii) any and all other liabilities and obligations of
Maker under this Note or the other Loan Documents.
2
So long as an Event of Default exists, Payee may, at its option, without
notice or demand to Maker, declare the Debt immediately due and payable. All
remedies hereunder, under the Loan Documents and at law or in equity shall be
cumulative. In the event that it should become necessary to employ counsel to
collect the Debt or to protect or foreclose the security for the Debt or to
defend against any claims asserted by Maker arising from or related to the Loan
Documents, Maker also agrees to pay to Payee on demand all costs of collection
or defense incurred by Xxxxx, including reasonable attorneys' fees for the
services of counsel whether or not suit be brought.
Upon the occurrence of an Event of Default (remaining uncured after the
giving of any notice and the expiration of any cure period expressly provided
for in the Mortgage as a condition precedent to the exercise of remedies
thereunder) Maker shall pay interest on the entire unpaid principal sum and any
other amounts due under the Loan Documents at the rate equal to the lesser of
(a) the maximum rate permitted by applicable law, or (b) the greater of (i) five
percent (5%) above the Applicable Interest Rate or (ii) five percent (5%) above
the Prime Rate (hereinafter defined), in effect at the time of the occurrence of
the Event of Default (the "Default Rate"). The term "Prime Rate" means the prime
rate reported in the Money Rates section of The Wall Street Journal. In the
event that The Wall Street Journal should cease or temporarily interrupt
publication, the term "Prime Rate" shall mean the daily average prime rate
published in another business newspaper, or business section of a newspaper, of
national standing and general circulation chosen by Xxxxx. In the event that a
prime rate is no longer generally published or is limited, regulated or
administered by a governmental or quasi-governmental body, then Payee shall
select a comparable interest rate index which is readily available and
verifiable to Maker but is beyond Payee's control. The Default Rate shall be
computed from the occurrence of the Event of Default until the actual receipt
and collection of a sum of money determined by Payee to be sufficient to cure
the Event of Default. Amounts of interest accrued at the Default Rate shall
constitute a portion of the Debt, and shall be deemed secured by the Loan
Documents. This clause, however, shall not be construed as an agreement or
privilege to extend the date of the payment of the Debt, nor as a waiver of any
other right or remedy accruing to Payee by reason of the occurrence of any Event
of Default.
The principal balance of this Note may not be prepaid in whole or in part
(except with respect to the application of casualty or condemnation proceeds)
until after the Permitted Prepayment Date (hereinafter defined). At any time
after the date occurring three years after the first scheduled payment date
under this Note (the "Permitted Prepayment Date") and provided no Event of
Default exists, (a) Maker may voluntarily defease all of the Debt provided that
the conditions set forth in the Loan Agreement with respect to full defeasance
are satisfied, and (b) Maker shall defease that portion of the Debt, if any,
required by the terms of the Loan Agreement to be defeased in connection with
(i) the voluntary defeasance of any one or more of the Other Notes (defined in
the Mortgage), and (ii) the transfer of the Mortgaged Property to a transferee
who assumes the obligations of Maker under the Loan Documents as permitted by
Section 12(c) of the Mortgage and by the terms of the Loan Agreement (each of
the partial defeasances referred to in this clause (b) being referred to as a
"Required Ancillary Partial Defeasance"). Any such defeasance (hereinafter, a
"Defeasance Event") may be accomplished only by providing Payee with Defeasance
Collateral (as defined below) that produce payments which replicate the
3
Scheduled Defeasance Payments (as defined below). Each Defeasance Event by the
Maker shall be subject to the satisfaction of the following conditions
precedent:
(1) Maker shall provide not less than thirty (30) days prior written
notice to Payee specifying a regularly scheduled payment date (the
"Defeasance Date") on which the Defeasance Event is to occur. Such notice
shall indicate the principal amount of the Note to be defeased;
(2) Maker shall pay to Payee all accrued and unpaid interest on the
principal balance of the Note to but not including the Defeasance Date. If
for any reason the Defeasance Date is not a regularly scheduled payment
date, the Maker shall also pay interest that would have accrued on the Note
through the next regularly scheduled payment date;
(3) Maker shall pay to Payee all other sums, not including scheduled
interest or principal payments, due to Payee under the Note, the Mortgage,
and the other Loan Documents;
(4) Maker shall pay to Payee the principal amount of the Note to be
defeased together with an additional amount (the "Yield Maintenance
Premium") such that the aggregate amount (the "Defeasance Deposit") is
sufficient to purchase direct, non-callable obligations of the United
States of America (the "Defeasance Collateral") that provide payments on or
prior, but as close as possible, to all successive scheduled payment dates
after the Defeasance Date upon which interest and/or principal payments are
due under the Note (including the amounts due on the Maturity Date), in the
case of a Defeasance Event for the entire outstanding principal balance of
the Note, or the Defeased Note (as defined below), in the case of a
Defeasance Event for only a portion of the outstanding principal balance of
the Note, as applicable, and in amounts equal to the scheduled payments due
on such dates and on the Maturity Date under the Note or the Defeased Note,
as applicable (the "Scheduled Defeasance Payments"), for the Defeasance
Event;
(5) In the event only a portion of the principal balance of the Note
is the subject of the Defeasance Event, Maker shall prepare all necessary
documents to amend and restate the Note and issue two substitute notes, one
note having a principal balance equal to the defeased portion of the
original Note (the "Defeased Note") and the other note having a principal
balance equal to the undefeased portion of the Note (the "Undefeased
Note"). The Defeased Note and Undefeased Note shall have identical terms as
the Note except for the principal balance. A Defeased Note cannot be the
subject of any further Defeasance Event;
(6) Maker shall deliver to Payee on or prior to the Defeasance Date:
(A) an executed security agreement, in form and substance
satisfactory to Payee, creating a first priority lien on the
Defeasance Deposit and the Defeasance Collateral (the "Defeasance
Security Agreement");
4
(B) an executed security agreement, in form and substance
satisfactory to the holders of the Other Notes, creating a lien on the
Defeasance Deposit and the Defeasance Collateral (the "Subordinate
Defeasance Security Agreement") in their favor and subordinate only to
the lien of the Defeasance Security Agreement, which Subordinate
Defeasance Security Agreement shall provide on a pro rata basis
security for repayment of the Other Notes.
(C) an opinion of counsel for Maker in form and substance
satisfactory to Payee and the holders of the Other Notes in their sole
discretion stating, among other things, that Maker has legally and
validly transferred and assigned the Defeasance Collateral and all
obligations, rights and duties under and to the Note or Defeased Note
(as applicable) to the Successor Borrower (as defined below), that
Xxxxx has a perfected first priority security interest in the
Defeasance Deposit and the Defeasance Collateral delivered by Maker,
that the holders of the Other Notes have a perfected security interest
in the Defeasance Deposit and the Defeasance Collateral subject and
subordinate only to the first priority security interest of Payee
therein under the Defeasance Security Agreement, and that any REMIC
Trust or REMIC Trusts formed pursuant to Section 860D of the Internal
Revenue Code of 1986, as amended from time to time, or any successor
statute (the "Code") that holds the Note and the Other Notes will not
fail to maintain its status as a "real estate mortgage investment
conduit" (a "REMIC") within the meaning of Section 860D of the Code as
a result of such Defeasance Event;
(D) a certificate of Maker certifying that all requirements
relating to defeasance set forth in this Note, the Loan Agreement, and
any other Loan Documents have been satisfied;
(E) such other certificates, documents or instruments as Payee
may reasonably request; and
(7) Maker shall pay all costs and expenses of Payee and the holders of
the Other Notes incurred in connection with the Defeasance Event, including
any costs and expenses associated with a release of the lien of the
Mortgage as provided below as well as reasonable accountants' and
attorneys' fees and expenses.
In connection with each Defeasance Event, Maker hereby appoints Payee as
its agent and attorney-in-fact for the purpose of using the Defeasance Deposit
to purchase the Defeasance Collateral. Payee shall receive written confirmation
from independent accountants as to the sufficiency of such Defeasance Collateral
to provide the payments as described above. Maker, pursuant to the Defeasance
Security Agreement or other appropriate document, shall authorize and direct
that the payments received from the Defeasance Collateral may be made directly
to the account maintained by, or for the benefit of, Payee (unless otherwise
directed by Xxxxx) and applied to satisfy the obligations of Maker or Successor
Borrower under the Note, the Defeased Note, or the Other Notes, as applicable.
Any portion of the Defeasance Deposit in excess of the amount necessary to
purchase the Defeasance Collateral and satisfy Maker's obligations shall be
remitted to Maker (or to the holders of the Other Notes if required by the terms
of the Subordinate Defeasance Security Agreement).
5
Except as set forth in this Note, no repayment, prepayment or defeasance of
all or any portion of the Note shall cause, give rise to a right to require, or
otherwise result in, the release of the lien of the Mortgage on the Mortgaged
Property.
If the Maker has elected to defease the entire Note and the conditions
precedent listed above and all other terms and conditions set forth herein have
been satisfied, the Mortgaged Property shall be released from the lien of the
Mortgage and the Defeasance Collateral, pledged pursuant to the Defeasance
Security Agreement, shall be the sole source of collateral securing the Note.
In connection with the release of the lien, the Maker shall submit to
Payee, not less than thirty (30) days prior to the Defeasance Date, releases for
execution by Payee of the Mortgage and related Loan Documents constituting a
lien upon, or security interest in, the Mortgaged Property and releases of the
Second Mortgage and the Second Security Agreement (as both are defined in the
Loan Agreement) constituting a lien upon, or a security interest in, the
Mortgaged Property. Such releases shall be in form appropriate in the
jurisdiction in which the Mortgaged Property is located and satisfactory to
Payee and the holders of the Other Notes in their sole discretion. In addition,
Maker shall pay all recording costs, fees and expenses associated with recording
the release of lien. Maker shall provide all other documentation Payee and the
holders of the Other Notes reasonably requires to be delivered by Maker in
connection with such releases, together with a certificate certifying that such
documentation (i) is in compliance with all applicable laws, and (ii) will
effect such release in accordance with the terms of this Note.
Payee, at Maker's expense, may form or, at Payee's request, Maker shall
form a special -purpose bankruptcy remote entity (the "Successor Borrower") to
be the obligor under the Note or the Defeased Note, as applicable. Maker shall,
at Payee's request, assign all of its obligations and rights under the Note to
the Successor Borrower. In connection therewith, the Successor Borrower shall
execute an assumption agreement in form and substance satisfactory to Payee in
its sole discretion pursuant to which it shall assume Maker's obligations under
the Note or the Defeased Note, as applicable, the Defeasance Security Agreement,
and the Subordinate Defeasance Security Agreement, and Maker and any guarantors
shall be released from their obligations with respect to such assumed documents.
The sole assets of the Successor Borrower shall be Defeasance Collateral. In
connection with such assignment and assumption, Maker shall:
(1) deliver to Payee and the holders of the Other Notes an opinion of
counsel in form and substance and delivered by counsel satisfactory to
Payee in its sole discretion stating, among other things, that such
assumption agreement is enforceable against Maker and the Successor
Borrower in accordance with its terms, that the Note, the Defeasance
Security Agreement, the Subordinate Defeasance Security Agreement, and any
other documents executed in connection with such defeasance are enforceable
against the Successor Borrower in accordance with their respective terms
and that the delivery of the Defeasance Deposits and transfer of the
Defeasance Collateral to Successor Borrower does not constitute a
fraudulent conveyance or a preference payment under applicable bankruptcy
law;
6
(2) pay all costs and expenses incurred by Xxxxx, the holders of the
Other Notes, or their agents in connection with such assignment and
assumption (including, without limitation, any fees and disbursements of
legal counsel); and
(3) pay $1,000 to the Successor Borrower as consideration for assuming
the obligations under the Note, the Defeasance Security Agreement, and the
Subordinate Defeasance Security Agreement and a defeasance processing fee
in an amount equal to one-half of one percent (.5%) of the original
outstanding principal balance of the Note but in no event less than (a)
$10,000 or greater than (b) $20,000, to the servicer of the Note; provided,
notwithstanding anything to the contrary herein or in the Loan Documents,
no other assumption fee shall be payable by Maker in connection with such
assumption.
If, prior to the Maturity Date and following the occurrence of any Event of
Default, Maker shall tender payment of an amount sufficient to satisfy all or
any portion of the Debt, such tender by Maker shall be deemed to be a voluntary
prepayment under this Note in the amount tendered and Maker shall pay, in
addition to the Debt, an amount equal to the Yield Maintenance Premium that
would be required if a Defeasance Event had occurred, together with all other
amounts Maker is obligated to pay if a Defeasance Event had occurred. If a
complete or partial prepayment results from the application to the Debt of the
casualty or condemnation proceeds from the Mortgaged Property or as the result
of a Required Ancillary Partial Defeasance, no prepayment consideration will be
imposed. Partial prepayments of principal resulting from the application of
casualty or insurance proceeds to the Debt or as the result of a Required
Ancillary Partial Defeasance shall not change the amounts of subsequent monthly
installments nor change the dates on which such installments are due, unless
Payee shall otherwise require in writing. Notwithstanding any provision herein
to the contrary, Maker shall have the additional privilege to prepay the entire
principal balance of this Note (together with any other sums constituting the
Debt) on any scheduled payment date during the three (3) months preceding the
Maturity Date (the "Open Prepayment Period") without any fee or consideration
for such privilege. If any such notice of prepayment is given, the principal
balance of this Note and the other sums required under this paragraph shall be
due and payable on the selected prepayment date.
It is expressly stipulated and agreed to be the intent of Maker and
Payee at all times to comply with applicable state law or applicable United
States federal law (to the extent that it permits Payee to contract for, charge,
take, reserve or receive a greater amount of interest than under state law) and
that this section shall control every other covenant and agreement in this Note
and the other Loan Documents. If the applicable law (state or federal) is ever
judicially interpreted so as to render usurious any amount called for under this
Note or under any of the other Loan Documents, or contracted for, charged,
taken, reserved or received with respect to the indebtedness evidenced by this
Note and the other Loan Documents, or if Xxxxx's exercise of the option to
accelerate the maturity of this Note, or if any prepayment by Maker results in
Maker having paid any interest in excess of that permitted by applicable law,
then it is Maker's and Xxxxx's express intent that all excess amounts
theretofore collected by Xxxxx be credited on the principal balance of this Note
(or, if this Note has been or would thereby be paid in full, refunded to Maker),
and the provisions of this Note and the other Loan Documents immediately be
deemed reformed and the amounts thereafter collectible hereunder and thereunder
reduced, without the necessity of the execution of any new document, so as to
comply with the applicable law, but so as to permit the recovery of the fullest
amount otherwise called for hereunder and
7
thereunder. All sums paid or agreed to be paid to Payee for the use, forbearance
and detention of the indebtedness evidenced hereby and by the other Loan
Documents shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread throughout the full term of such indebtedness
until payment in full so that the rate or amount of interest on account of such
indebtedness does not exceed the maximum rate permitted under applicable law
from time to time in effect and applicable to the indebtedness evidenced hereby
for so long as such indebtedness remains outstanding. Notwithstanding anything
to the contrary contained herein or in any of the other Loan Documents, it is
not the intention of Payee to accelerate the maturity of any interest that has
not accrued at the time of such acceleration or to collect unearned interest at
the time of such acceleration.
Except as specifically provided in the Loan Documents, Maker and any
endorsers, sureties or guarantors hereof jointly and severally waive presentment
and demand for payment, notice of intent to accelerate maturity, notice of
acceleration of maturity, protest and notice of protest and non-payment, all
applicable exemption rights, valuation and appraisement, notice of demand, and
all other notices in connection with the delivery, acceptance, performance,
default or enforcement of the payment of this Note and the bringing of suit and
diligence in taking any action to collect any sums owing hereunder or in
proceeding against any of the rights and collateral securing payment hereof.
Maker and any surety, endorser or guarantor hereof agree (i) that the time for
any payments hereunder may be extended from time to time without notice and
consent, (ii) to the acceptance of further collateral, (iii) the release of any
existing collateral for the payment of this Note, (iv) to any and all renewals,
waivers or modifications that may be granted by Payee with respect to the
payment or other provisions of this Note, and/or (v) that additional makers,
endorsers, guarantors or sureties may become parties hereto all without notice
to them and without in any manner affecting their liability under or with
respect to this Note. No extension of time for the payment of this Note or any
installment hereof shall affect the liability of Maker under this Note or any
endorser or guarantor hereof even though the Maker or such endorser or guarantor
is not a party to such agreement.
Failure of Payee to exercise any of the options granted herein to Payee
upon the happening of one or more of the events giving rise to such options
shall not constitute a waiver of the right to exercise the same or any other
option at any subsequent time in respect to the same or any other event. The
acceptance by Payee of any payment hereunder that is less than payment in full
of all amounts due and payable at the time of such payment shall not constitute
a waiver of the right to exercise any of the options granted herein to Payee at
that time or at any subsequent time or nullify any prior exercise of any such
option without the express written acknowledgment of the Payee.
Notwithstanding anything in the Loan Documents to the contrary, but subject
to the qualifications below, Payee and Maker agree that:
(A) Maker shall be liable upon the Debt and for the other obligations
arising under the Loan Documents to the full extent (but only to the extent) of
the security therefor, the same being all properties (whether real or personal),
rights, estates and interests now or at any time hereafter securing the payment
of the Debt and/or the other obligations of Maker under the Loan Documents
(collectively with the Mortgaged Property, the "Security Property"), provided,
however, in the event (i) of fraud or material misrepresentation by Maker or
guarantors in
8
connection with the loan evidenced by this Note, or (ii) the first full monthly
payment on the Note is not paid when due, the limitation on recourse set forth
in this Section (A) will be null and void and completely inapplicable, and this
Note shall be with full recourse to Maker;
(B) if a default occurs in the timely and proper payment of all or any part
of the Debt, any judicial proceedings brought by Payee against Maker shall be
limited to the preservation, enforcement and foreclosure, or any thereof, of the
liens, security titles, estates, assignments, rights and security interests now
or at any time hereafter securing the payment of the Debt and/or the other
obligations of Maker under the Loan Documents, and no attachment, execution or
other writ of process shall be sought, issued or levied upon any assets,
properties or funds of Maker other than the Security Property, except with
respect to the liability described in Section (A) above and in Section (C)
below; and
(C) in the event of a foreclosure of such liens, security titles, estates,
assignments, rights or security interests securing the payment of the Debt, no
judgment for any deficiency upon the Debt shall be sought or obtained by Payee
against Maker, except with respect to the liability described in Section (A)
above and below in this Section (C); provided that, notwithstanding the
foregoing provisions of this section, nothing contained therein shall in any
manner or way release, affect or impair the right of Payee to recover, and Maker
shall be fully and personally liable and subject to legal action for any loss,
cost, expense, damage, claim or other obligation (including without limitation
reasonable attorneys' fees and court costs) incurred or suffered by Payee
arising out of or in connection with the following:
1. any breach of the Environmental Agreement, including the
indemnification provisions contained therein;
2. Maker's failure to obtain Xxxxx's prior written consent to (a) any
subordinate financing or any other encumbrance on the Mortgaged Property,
or (b) any transfer of the Mortgaged Property or majority ownership in
Maker in violation of the Mortgage;
3. any litigation or other legal proceeding related to the Debt that
delays or impairs Payee's ability to preserve, enforce or foreclose its
lien on the Security Property, including, but not limited to, the filing of
a voluntary or involuntary petition concerning Maker under 11 U.S.C. ss.
101 et seq. (the "Bankruptcy Code"), in which action a claim, counterclaim,
or defense is asserted against Payee, other than any litigation or other
legal proceeding in which a final, non-appealable judgment for money
damages or injunctive relief is entered against Payee;
4. Maker's failure to pay required taxes, assessments, and insurance
premiums payable with respect to the Mortgaged Property or to maintain the
required escrows therefor, to the extent that monies are not paid by Maker
in escrow for the payment of such amounts, except for any amounts
applicable to the period after foreclosure of Payee's lien on the Mortgaged
Property, or the delivery by Maker of a deed to the Mortgaged Property in
lieu of foreclosure (which deed has been accepted by Payee in writing), or
the appointment of a receiver for the Mortgaged Property;
9
5. the gross negligence or willful misconduct of Maker, its agents,
affiliates, officers or employees which causes or results in a diminution,
or loss of value, of the Security Property that is not reimbursed by
insurance or which gross negligence or willful misconduct exposes Payee to
claims, liability or costs of defense in any litigation or other legal
proceeding;
6. the seizure or forfeiture of the Security Property, or any portion
thereof, or Xxxxx's interest therein, resulting from criminal wrongdoing by
any person or entity other than Payee under any federal, state or local
law;
7. (a) any physical waste of the Mortgaged Property caused by the
intentional or grossly negligent act(s) or omission(s) of Maker, its
agents, affiliates, officers and employees, (b) the failure by Maker to
maintain, repair or restore any part of the Mortgaged Property as may be
required by the Mortgage or any of the other Loan Documents to the extent
of all gross revenues that have been generated by the Mortgaged Property
following the date which is eighteen (18) months prior to notice to Maker
from Payee of such failure to maintain, repair or restore any part of the
Mortgaged Property and that have not been applied to pay any portion of the
Debt, reasonable and customary operating expenses and capital expenditures
for the Mortgaged Property paid to third parties not affiliated (directly
or indirectly) with Maker, taxes and insurance premiums for the Mortgaged
Property and escrows deposited with Payee, or (c) the removal or disposal
of any portion of the Mortgaged Property after an Event of Default under
the Loan Documents to the extent such Mortgaged Property is not replaced by
Maker with like property of equivalent value, function and design;
8. Maker's misapplication or conversion of any insurance proceeds paid
by reason of any loss, damage or destruction to the Mortgaged Property and
any awards or amounts received in connection with the condemnation of all
or a portion of the Mortgaged Property and not used by Maker for
restoration or repair of the Mortgaged Property;
9. Maker's failure to pay in accordance with the terms of the Mortgage
any charges for labor or materials or other charges for work performed or
materials furnished prior to foreclosure that can create liens on any
portion of the Mortgaged Property, to the extent of the amount rightfully
claimed by the lien claimant, or found in any legal proceeding to be owed
to the lien claimant, and not so paid;
10. Maker's failure to deliver any security deposits collected with
respect to the Mortgaged Property to Payee or any other party entitled to
receive such security deposits under the Loan Documents, following an Event
of Default; and
11. any rents (including advanced or prepaid rents), issues, profits,
accounts or other amounts generated by or related to the Mortgaged Property
attributable to, or accruing after an Event of Default, which amounts were
collected by Maker or its property manager and not turned over to the Payee
or used to pay unaffiliated
10
third parties for reasonable and customary operating expenses and capital
expenditures for the Mortgaged Property, taxes and insurance premiums with
respect to the Mortgaged Property and any other amounts required to be paid
under the Loan Documents with respect to the Mortgaged Property.
Nothing contained in the foregoing Sections (A), (B) or (C) shall (1) be
deemed to be a release or impairment of the Debt or the lien of the Loan
Documents upon the Security Property, or (2) preclude Payee from foreclosing
under the Loan Documents in case of any default or from enforcing any of the
other rights of Payee, including naming Maker as a party defendant in any action
or suit for foreclosure and sale under the Mortgage, or obtaining the
appointment of a receiver, except as stated in this section, or (3) limit or
impair in any way whatsoever the Guaranty (the "Guaranty") of even date executed
and delivered in connection with the indebtedness evidenced by this Note or
release, relieve, reduce, waive or impair in any way whatsoever, any obligation
of any party to the Guaranty.
Nothing herein shall be deemed to be a waiver of any right which Payee may
have under Sections 506(a), 506(b), 1111(b) or any other provisions of the
Bankruptcy Code to file a claim for the full amount of the Debt secured by the
Loan Documents or to require that all collateral shall continue to secure all of
the Debt owing to Payee in accordance with this Note and the other Loan
Documents.
Maker (and the undersigned representative of Maker, if any) represents that
Maker has full power, authority and legal right to execute, deliver and perform
its obligations pursuant to this Note and the other Loan Documents and that this
Note and the other Loan Documents constitute legal, valid and binding
obligations of Maker. Maker further represents that the loan evidenced by the
Loan Documents was made for business or commercial purposes and not for
personal, family or household use.
All notices or other communications required or permitted to be given
pursuant hereto shall be given in the manner and be effective as specified in
the Mortgage, directed to the parties at their respective addresses as provided
therein.
References to particular sections of the Loan Documents shall be deemed
references to such sections as affected by other provisions of the Loan
Documents relating thereto.
Payee shall have the unrestricted right at any time or from time to time to
sell this Note and the loan evidenced by this Note and the Loan Documents or
participation interests therein. Maker shall execute, acknowledge and deliver
any and all instruments requested by Xxxxx to satisfy such purchasers or
participants that the unpaid indebtedness evidenced by this Note is outstanding
upon the terms and provisions set out in this Note and the other Loan Documents.
To the extent, if any specified in such assignment or participation, such
assignee(s) or participant(s) shall have the rights and benefits with respect to
this Note and the other Loan Documents as such assignee(s) or participant(s)
would have if they were the Payee hereunder.
MAKER XXXXXX AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF
RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT
ANY SUCH RIGHT SHALL NOW OR
11
HEREAFTER EXIST WITH REGARD TO THIS NOTE OR THE OTHER LOAN DOCUMENTS, OR ANY
CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH INCLUDING,
BUT NOT LIMITED TO THOSE RELATING TO (A) ALLEGATIONS THAT A PARTNERSHIP EXISTS
BETWEEN PAYEE AND MAKER; (B) USURY OR PENALTIES OR DAMAGES THEREFOR; (C)
ALLEGATIONS OF UNCONSCIONABLE ACTS, DECEPTIVE TRADE PRACTICE, LACK OF GOOD FAITH
OR FAIR DEALING, LACK OF COMMERCIAL REASONABLENESS, OR SPECIAL RELATIONSHIPS
(SUCH AS FIDUCIARY, TRUST OR CONFIDENTIAL RELATIONSHIP); (D) ALLEGATIONS OF
DOMINION, CONTROL, ALTER EGO, INSTRUMENTALITY, FRAUD, REAL ESTATE FRAUD,
MISREPRESENTATION, DURESS, COERCION, UNDUE INFLUENCE, INTERFERENCE OR
NEGLIGENCE; (E) ALLEGATIONS OF TORTIOUS INTERFERENCE WITH PRESENT OR PROSPECTIVE
BUSINESS RELATIONSHIPS OR OF ANTITRUST; OR (F) SLANDER, LIBEL OR DAMAGE TO
REPUTATION. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY MAKER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE
AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE.
XXXXX IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER BY MAKER.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE IN WHICH THE REAL PROPERTY ENCUMBERED BY THE MORTGAGE IS LOCATED
(WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES) AND THE APPLICABLE LAWS OF
THE UNITED STATES OF AMERICA. MAKER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY COURT OF COMPETENT JURISDICTION LOCATED IN THE STATE IN
WHICH THE MORTGAGED PROPERTY IS LOCATED IN CONNECTION WITH ANY PROCEEDING OUT OF
OR RELATING TO THIS NOTE.
THE PROVISIONS OF THIS NOTE AND THE LOAN DOCUMENTS MAY BE AMENDED OR
REVISED ONLY BY AN INSTRUMENT IN WRITING SIGNED BY THE MAKER AND PAYEE. THIS
NOTE AND ALL THE OTHER LOAN DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT OF
MAKER AND PAYEE AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE
SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS
OF MAKER AND PAYEE. THERE ARE NO ORAL AGREEMENTS BETWEEN MAKER AND PAYEE.
12
Executed as of the day and year first above written.
MAKER:
JAGI XXXXXXXXX - XXXXXX, LLC, a Delaware
limited liability company
By Janus American Group, Inc., a Delaware
corporation
By /s/ XXXXX X. XXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
13
SCHEDULE TO EXHIBIT 10.26
OTHER NOTES (FIXED RATE)
I.
------------------------------------------------------------ ---------------------------------------------------------
Name of Maker XXXX Xxxxxxxxx - Independence, LLC, a Delaware limited
liability company
------------------------------------------------------------ ---------------------------------------------------------
Amount of Note $21,800,000
------------------------------------------------------------ ---------------------------------------------------------
Monthly Payment $169,557.73
------------------------------------------------------------ ---------------------------------------------------------
II.
------------------------------------------------------------ ---------------------------------------------------------
Name of Maker JAGI Montrose West, LLC, a Delaware limited liability
company
------------------------------------------------------------ ---------------------------------------------------------
Amount of Note $3,500,000
------------------------------------------------------------ ---------------------------------------------------------
Monthly Payment $27,222.57
------------------------------------------------------------ ---------------------------------------------------------
III.
------------------------------------------------------------ ---------------------------------------------------------
Name of Maker JAGI North Canton, LLC, a Delaware limited liability
company
------------------------------------------------------------ ---------------------------------------------------------
Amount of Note $5,400,000
------------------------------------------------------------ ---------------------------------------------------------
Monthly Payment $42,000.54
------------------------------------------------------------ ---------------------------------------------------------
