EXHIBIT 10.39
LOAN AGREEMENT
THIS AGREEMENT, made and entered effective as of the ___ day of September,
2000, by and between XXXXXXX INNS, INC., a Georgia corporation, having a mailing
address of 0 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, XX 00000 (hereinafter
referred to as "Borrower"), and REPUBLIC BANK, a Michigan Commercial Bank,
having a banking office at 000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX
00000 (hereinafter referred to as "Lender"),
W I T N E S S E T H:
WHEREAS, Borrower owns in fee simple absolute certain real estate located
in Xxxxxx County, Indiana, more particularly described in Exhibit "A" attached
hereto and by reference made a part of this Agreement (hereinafter referred to
as the "Real Estate"), and upon which it owns certain improvements (the
"Improvements"), including a building in which Borrower operates a limited
service hotel containing 101 rooms, commonly known and operated as a Signature
Inn; and
WHEREAS, Borrower has applied to Lender for a permanent loan in the maximum
principal amount of Four Million Seven Hundred Forty-Five Thousand and no/100
Dollars ($4,745,000.00) and Lender is willing to make such loan to Borrower.
NOW, THEREFORE, in consideration of these premises and the undertakings of
the parties hereto, Borrower and Lender hereby agree as follows:
1. Loan. Lender shall, upon the satisfaction (or waiver by Lender) of
all conditions precedent set forth in Paragraph 3 of this Agreement, advance
loan proceeds in the maximum amount of Four Million Seven Hundred Forty-Five
Thousand and no/100 Dollars ($4,745,000.00) (such loan as from time to time
amended or modified is hereinafter referred to as the "Loan"), for the purpose
of providing financing of the Real Estate and the Improvements thereon. The Loan
shall be
advanced at closing, shall have a maturity date of one hundred twenty (120)
months from the date hereof, shall have an amortization of twenty (20) years
from the date hereof, shall bear interest and shall be payable in the manner
specified in the promissory note of Borrower evidencing the Loan in the
principal sum of Four Million Seven Hundred Forty-Five Thousand and no/100
Dollars ($4,745,000.00) (such promissory note as may be modified or amended from
time to time and/or any promissory note which is a direct or remote renewal,
extension, restatement or replacement of such promissory note is hereinafter
referred to as the "Note").
2. Collateral and Assignments. The indebtedness and obligations of
Borrower to Lender under this Agreement, the Loan and under any other agreement,
instrument or document executed in connection herewith shall be secured by: (a)
the lien of a first mortgage covering the Real Estate and the Improvements, a
first assignment of all rents and leases and a first security interest in all
inventory, accounts, accounts receivable, rents, deposits, general intangibles,
contract rights, instruments, documents, securities, equipment, furnishings and
fixtures owned by Borrower and located on the Real Estate, incorporated in the
Improvements or used in connection with the operation of the Improvements, all
granted under the terms of a certain Mortgage, Security Agreement and Fixture
Filing executed or to be executed by Borrower to Lender and containing such
terms and conditions as Lender may require (such Mortgage, Security Agreement
and Fixture Filing as may be modified or amended from time to time is
hereinafter referred to as the "Mortgage"), (b) a first assignment of all rents
and leases granted under the terms of a certain Assignment of Room Deposits,
Leases and Rents executed or to be executed by Borrower to Lender and containing
such terms and conditions as Lender may require (such Assignment of Room
Deposits, Leases and Rents as may be modified or amended from time to time is
hereinafter referred to as the "Assignment of
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Leases"), (c) an Environmental Certificate and Indemnity Agreement executed or
to be executed by Borrower and containing such terms and conditions as Lender
may require (such Environmental Certificate and Indemnity Agreement as may be
modified or amended from time to time is hereinafter referred to as the
"Indemnity Agreement"), (d) an Assignment of Lease with Subordination of Fees
executed or to be executed by Borrower, Xxxxxxx Hospitality, LLC, a Georgia
limited liability company ("Manager") and Lender and containing such terms and
conditions as Lender may require (such Assignment of Lease with Subordination of
Fees as may be modified or amended from time to time is hereinafter referred to
as the "Lease Assignment"); and (e) such other security as reasonably determined
by Lender. The Note, Mortgage, Indemnity Agreement, Assignment of Leases, Lease
Assignment and all other documents in connection with the Loan (collectively the
"Loan Documents") and the terms and conditions thereof are hereby incorporated
by reference and made a part of this Agreement.
3. Conditions Precedent to Disbursement of the Loan. Each of the
following conditions shall be a condition precedent to the disbursement of the
Loan by Lender pursuant to this Agreement, provided, however, that any condition
not satisfied at the time of the disbursement of the Loan shall not be deemed
waived but shall be satisfied as Lender may later require (unless such condition
is expressly waived by Lender in writing):
(a) Borrower shall execute and deliver the Note, Mortgage,
Indemnity Agreement, Lease Assignment and Assignment of Leases to
Lender.
(b) Borrower shall cause the Lease Assignment to be executed
by the Manager and both delivered to Lender.
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(c) Borrower shall furnish to Lender a commitment for a
mortgagee's policy of title insurance in an amount equal to the Loan
issued by a title insurance company acceptable to Lender, insuring to
Lender the title of (i) Borrower to the Real Estate and the
Improvements together with any easements for parking and ingress and
egress which benefit the Real Estate, free and clear of all liens,
claims, encumbrances, easements, encroachments and defects, except for
the lien of current real estate taxes not delinquent and other
restrictions of record acceptable to Lender. Said commitment shall
include a 3.1 zoning endorsement insuring against violation of
existing zoning ordinances and regulations by the Improvements on the
Real Estate and the operation of the business thereon. Such commitment
shall contain such special coverage endorsements as Lender may
require. Upon request by Lender, Borrower shall deliver to Lender
satisfactory evidence from such title company acknowledging payment in
full for all premiums, costs and expenses for issuance of such binder
and the final policy of insurance to be issued pursuant thereto and
obligating it to issue a continued commitment after recordation of the
Mortgage and the filing of financing statements pursuant to the
Mortgage which shows the Mortgage as a first lien upon the Real
Estate, subject to the above conditions and the security interest
pursuant to the Mortgage as having first priority, and to issue, upon
demand by Lender, a final mortgagee's policy of title insurance in
standard form with only exceptions satisfactory to Lender which
insures the Mortgage, and the security interest granted pursuant to
the Mortgage.
(d) Borrower shall furnish to Lender two (2) copies of an
as-built survey of the Real Estate and insured easements prepared in
accordance with the American Land Title Association's or Indiana Land
Title Association's minimum standards for surveys, showing
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by stakes or foundation lines the location of the Improvements thereon
prepared and certified to Lender by a registered land surveyor
acceptable to Lender and containing a certification in respect to the
legal description, compliance with applicable zoning ordinances and
that the Real Estate is not in an area designated as a "wetlands" under
any state or federal statute, regulation or ruling.
(e) Borrower shall furnish to Lender evidence of hazard
insurance coverage for the Improvements (all risk coverage), with a
standard mortgagee endorsement and loss payee endorsement in favor of
Lender, and public liability insurance with Lender named as an
additional insured, all in such amounts and in form and with insurers
acceptable to Lender.
(f) Borrower shall either furnish to Lender evidence that the
Real Estate is not located in a flood hazard area as defined under the
Flood Disaster Protection Act of 1973 and the National Flood Insurance
Act of 1968 or furnish to Lender evidence of flood insurance coverage,
with a standard mortgagee endorsement in favor of Lender, such
insurance to be with a company and in an amount acceptable to Lender.
(g) Borrower shall furnish or cause to be furnished to Lender
resolutions of Borrower authorizing the making of the loan and the
execution and delivery of all documents and instruments in connection
therewith and a certificate of incumbency showing all officers of
Borrower.
(h) Borrower shall furnish or cause to be furnished to Lender
a copy of the Articles of Incorporation and By-Laws of Borrower and all
amendments thereto, a Certificate of Good Standing from the State of
Georgia and a Certificate of Authority to transact business in the
State of Indiana.
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(i) Borrower shall furnish or cause to be furnished to Lender
resolutions of Manager authorizing the execution of the Lease and the
Lease Assignment and a certificate of incumbency showing all members of
Manager.
(j) Borrower shall furnish or cause to be furnished to Lender
a copy of the Articles of Organization and Operating Agreement of
Manager and all amendments thereto, a Certificate of Good Standing from
the State of Georgia and a Certificate of Authority to transact
business in the State of Indiana.
(k) Borrower shall furnish or cause to be furnished to Lender
an opinion of Borrower's counsel and Manager's counsel which is
acceptable to Lender and Lender's counsel;
(l) Borrower shall furnish to Lender evidence satisfactory to
Lender that the Real Estate is in compliance with current zoning use
and restrictions and is adequately zoned for Borrower's intended use
and that all appropriate or necessary governmental approvals and
permits have been obtained in connection with the use and operation of
the Improvements and Borrower's intended use of the Real Estate, if
available.
(m) Borrower shall furnish to Lender copies of all applicable
building and construction permits for the Improvements and Certificates
of Occupancy, if any.
(n) Borrower shall furnish to Lender a copy of an
environmental inspection report in form and substance acceptable to
Lender, prepared and certified by an environmental consultant
acceptable to Lender, stating that there are not present on, under, in
or about the Real Estate or Improvements any asbestos, polychlorinated
biphenyls or any other hazardous or contaminated or toxic materials,
waste or substances and that the condition of the Real
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Estate currently complies with all applicable state and federal
environmental protection laws. For purposes hereof "hazardous,
contaminated or toxic materials, waste or substances" will include but
not be limited to substances defined as "hazardous substances,"
"hazardous waste," "hazardous materials," or "toxic substances" in the
Comprehensive Environmental Response Compensation and Liability Act of
1980, as amended, 42 U.S.C. Sec. 9601 et. seq. or any similar federal,
state or local laws, and/or in the regulations adopted in publications
promulgated pursuant to such laws, or as such laws or regulations may
be further amended, modified or supplemented.
(o) Borrower shall cause to be furnished to Lender an
appraisal of the Real Estate and Improvements stating a market value of
not less than Seven Million Three Hundred Thousand Dollars
($7,300,000.00). Such appraisal shall be certified to Lender by an
appraiser licensed in the State of Indiana and shall be in form and
substance acceptable to Lender.
(p) Borrower shall cause to be furnished to Lender a
certification from the architect involved in the construction and
design of the Improvements which certifies the existence of such
conditions as Lender may require, if available.
(q) Borrower shall furnish to Lender a set of the Plans and
Specifications sealed by a responsible professional architect which
shall contain the original approval of the appropriate building
authority, if available.
(r) Borrower shall furnish to Lender copies of all warranties
for materials or for the work for the Improvements, if available.
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(s) Borrower shall furnish to Lender a copy of the Lease and
estoppel certificate, subordination and attornment agreement, all
signed by Manager, which shall be in form and substance acceptable to
Lender.
(t) Borrower shall execute and deliver to Lender such other
documents, instruments, information and materials as may be required by
Lender in connection with the Loan.
All documents required to be delivered to Lender under this paragraph
shall be satisfactory in form and substance to Lender and its counsel. Any of
the foregoing conditions may be waived by Lender at the time of disbursement. In
the event Lender, in its sole discretion, shall require further evidence of the
occurrence of any condition precedent or in the event circumstances occur
whereby any condition precedent is no longer wholly satisfied, Lender may at any
time require Borrower to provide further evidence of the occurrence of any
condition precedent set forth in this paragraph.
4. Prepayment Fee. Borrower shall have the right to prepay in whole (or
in part) the outstanding principal balance of the Note upon thirty (30) days'
prior written notice to Lender and payment of all accrued interest, any fees or
other sums due Lender and a fee of one percent (1%) of the principal balance
being prepaid. Notwithstanding the foregoing, Borrower shall have the right to
prepay in full, or in part, without any fee, the outstanding principal balance
of the Note on any date which is within thirty (30) days prior to the Rate
Adjustment Date (as defined in the Note) upon thirty (30) days' prior written
notice to Lender and payment of all accrued interest, any fees or other sums due
Lender.
5. Additional Duties of Borrower. In addition to all of the terms and
conditions to be performed by Borrower under this Agreement, Borrower shall pay
to Lender at the time of the
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closing of the loan, if Borrower has not previously paid, the remaining balance
of the commitment fee of Forty-Seven Thousand Four Hundred Fifty Dollars
($47,450.00), and shall reimburse Lender for all costs and expenses incurred by
it in connection with the Loan, including but not limited to premiums and fees
of title insurance companies, recording fees, lien search fees, survey expenses,
the fees of inspecting architects or engineers and legal fees and expenses of
its counsel, all of which may be deducted by Lender from the loan proceeds, and
shall deliver to Lender such other documents as it may require to carry out the
terms and provisions of this Agreement.
6. Warranties and Representations. Borrower warrants and represents to
Lender that:
(a) Borrower is a corporation under the laws of the State of
Georgia and authorized to transact business in the State of Indiana,
and has full power and authority under its Articles of Incorporation,
By-laws and any amendments thereto, and under all applicable provisions
of law to own, manage and operate the Real Estate and the Improvements;
(b) Manager is a limited liability company under the laws of
the State of Georgia and authorized to transact business in the State
of Indiana, and has full power and authority under this Articles of
Organization, Operating Agreement and any amendments thereto, and under
all applicable provisions of law, to lease, manage and operate the Real
Estate and the Improvements;
(c) Borrower is the owner in fee simple of the Real Estate
subject only to the lien of current real estate taxes not delinquent,
and easements, rights of way and other restrictions of record;
(d) The Improvements were constructed and are operated in
full compliance with all applicable building codes, zoning ordinances
and the requirements of regulatory agencies
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having jurisdiction and the Board of Fire Underwriters, or similar
body, entirely on the Real Estate without any encroachments, within the
building restriction lines, however established, and without any
violation of any applicable use restrictions or other restrictions;
(e) All required federal, state and other tax returns have
been filed by or on behalf of Borrower and the taxes in connection
therewith paid to date and no additional taxes or assessments have been
asserted or are anticipated;
(f) All required federal, state and other tax returns have
been filed by or on behalf of Manager and the taxes in connection
therewith paid to date and no additional taxes or assessments have been
asserted or are anticipated;
(g) There is no litigation, or proceeding pending or, to the
knowledge of Borrower, threatened against or otherwise affecting
Borrower, or any of its properties or assets, before any court or
before or by any governmental agency, except as previously disclosed in
writing to Lender;
(h) There is no litigation, or proceeding pending or, to the
knowledge of Borrower, threatened against or otherwise affecting
Manager, or any of its properties or assets, before any court or before
or by any governmental agency, except for those matters which have been
disclosed in writing to Lender;
(i) None of the Borrower's representations or warranties set
forth in this Agreement or in any document or certificate taken
together with any related document or certificate furnished pursuant to
this Agreement or in connection with the transactions contemplated
hereby contains or will contain any untrue statements of a material
fact or
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omits or will omit to state a financial fact necessary to make any
statement of fact contained herein or therein, in light of the
circumstances under which it was made, not misleading;
(j) Upon the execution and delivery of this Agreement and the
consummation of any transactions contemplated herein, (i) Borrower will
be able to pay its debts as they become due, (ii) Borrower will have
funds and capital sufficient to carry on its business, and (iii) the
assets of Borrower, valued on a fair saleable basis, will be equal to
or greater than the sum of all liabilities and contingent liabilities
of Borrower, including for this purpose, unliquidated and disputed
claims;
(k) The execution of this Agreement and all other agreements,
instruments and documents executed by Borrower and Manager in
connection herewith, the consummation of all transactions connected
herewith, have been duly authorized by all necessary action required on
the part of Borrower and Manager, respectively;
(l) Manager has provided true and accurate copies of all
documents and agreements relating to Manager and its members and there
are no other agreements existing between Manager and its members;
(m) Neither the execution of this Agreement (or the
consummation of the transactions contemplated hereby) nor compliance
with the terms and provisions hereof or of any agreements, documents
and instruments required of Borrower hereunder conflict with, result in
a breach of or constitute a default under the terms, conditions or
provisions of the Articles of Incorporation of Borrower, or any
amendments thereto, any agreement to which Borrower is a party or by
which Borrower is bound or any law, regulation, order, writ,
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injunction or decree of any court or governmental agency or
instrumentality having jurisdiction;
(n) Borrower is in full compliance with all federal, state
and local health, safety, building, zoning, environmental and other
statutes, regulations and ordinances;
(o) Any and all employee pension plans of Borrower are in full
compliance with the terms and provisions of the Employee Retirement
Income Security Act of 1974 and all other federal, state and local
statutes, regulations and ordinances governing the establishment and
administration of pension plans; and
(p) All governmental authorizations, permits, certificates,
licenses, filings, registrations, approvals or consents have been
obtained, received or made by Borrower and Manager for each of them, as
applicable, lawfully to (i) make, execute and deliver this Agreement,
(ii) perform all of its obligations under this Agreement, and (iii) to
construct, operate and manage the Real Estate and Improvements.
(q) (i) Borrower is not now engaged principally, or as one of
its important activities, in the business of extending credit for the
purpose of purchasing or carrying any margin stock (within the meaning
of Regulation U of the Board of Governors of the Federal Reserve
System); (ii) no part of the proceeds of any credit hereunder has been
or will be used to purchase or carry any such margin stock or to extend
credit to others for the purpose of purchasing or carrying any such
margin stock; and (iii) no part of the proceeds of any credit hereunder
has been or will be used for any purpose that violates or which is
inconsistent with the provisions of Regulations G, U or X of said Board
of Governors.
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Borrower further warrants, represents and covenants that (i) all
warranties and representations shall remain true so long as Borrower has any
liability to Lender hereunder or under or with respect to the Loan or any
agreement, instrument or document executed in connection herewith and (ii) at
the time of closing of the Loan by Lender to Borrower, there will be no claim
for labor, services or materials furnished for the construction of the
Improvements and all withholding and other payroll taxes withheld or owed by
Borrower in connection with the construction of the Improvements have been or
paid.
7. Covenants of Borrower. Borrower agrees and covenants that so long as
Borrower has any liability to Lender hereunder or under or with respect to the
Loan or any agreement, instrument or document executed in connection herewith or
so long as Lender may be obligated to make any advancement to Borrower, Borrower
shall:
(a) Promptly pay and discharge all taxes, assessments and
governmental charges which may be lawfully levied, assessed or imposed
upon it or its properties, or upon its income or profits, and all
lawful claims for labor, material and services which, if unpaid, might
become a lien or charge against the Real Estate or the Improvements
located thereon; provided, however, that Borrower shall have the right
to contest in good faith any such tax, assessment, charge, levy or
claim by appropriate proceedings without the prior payment thereof
unless payment is required to contest or to avoid any tax sale;
(b) Keep accurate and complete books and records, and
maintain the same, together with all valuable papers and records at
Borrower's principal offices;
(c) Defend, or cause to be defended, at all times any adverse
claim by a third party relating to the possession of or any interest
in the assets of Borrower;
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(d) Furnish, or cause to be furnished, to Lender, at
Borrower's expense, the following financial statements and other
information of Borrower:
(1) As soon as available and in any event within
thirty (30) days following filing, copies of the federal
income tax returns of Borrower;
(2) Within ninety (90) days following the end of each
calendar year, audited operating and financial statements of
Borrower, including a balance sheet and annual statements of
income and surplus accounts (certified by a certified public
accountant acceptable to Lender), all prepared in accordance
with generally accepted accounting principles applied on a
consistent basis throughout the periods involved;
(3) At such times as Lender may require, such further
information regarding the business affairs and financial
conditions of Borrower as Lender may require;
(e) Permit any authorized representative of Lender and its
attorneys and accountants to inspect, examine and make copies and
extracts of the books of account and records of Borrower at reasonable
times during normal business hours;
(f) Permit any authorized representative of Lender, including
but not limited to its attorneys and inspectors, to enter upon and
inspect and examine the Real Estate and Improvements at reasonable
times during normal business hours;
(g) Give prompt written notice to Lender of any process or
action taken or pending whereby a third party is asserting a claim
against Borrower or any of its assets, which would have a material
affect on Borrower or its ability to pay the Loan;
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(h) Pay when due all liabilities, including trade accounts, in
accordance with regular terms, except for claims contested in good
faith by appropriate proceedings;
(i) Maintain the insurance required by this Agreement and,
upon request by Lender, furnish to Lender evidence of such insurance
coverage and payment of premiums therefor;
(j) Comply with all applicable federal, state and local
statutes, regulations and ordinances;
(k) Comply with all room agreements and leases for the Real
Estate and Improvements;
(l) Pay to Lender all proceeds (not to exceed the balance due
under the Note and other expenses due Lender) received from casualty
and business interruption insurance or condemnation proceedings to be
held and disbursed in accordance with this Agreement and the Loan
Documents;
(m) Indemnify and hold Lender harmless from and against any
and all claims, losses, damages, setoffs, counterclaims or expenses
(including attorneys' fees and costs) which Lender may sustain as a
result of the transactions evidenced by this Agreement or because of
the breach of or inaccuracy in any of the representations and
warranties contained in this Agreement or in any other document
executed in connection herewith or in any other written communication
of Borrower to Lender in connection with the transactions secured
hereby whether or not any such inaccuracy was known by Borrower to be
incorrect;
(n) Indemnify, defend and hold Lender harmless from and
against any claim, loss or damage to which Lender is subjected as a
result of the presence of any material or
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substance which may be considered hazardous or toxic (including but not
limited to asbestos, ureaformaldehyde foamed in place insulation,
polychlorinated biphenyls, and all materials termed hazardous wastes or
hazardous substances as defined in the Solid Waste Disposal Act of
1985, as from time to time amended) or the use, handling, storage,
transportation or disposal thereof within or upon any real estate owned
by Borrower or violation of the covenants, representations and
warranties contained in this Agreement;
(o) Maintain a Debt Service Coverage Ratio (as hereinafter
defined) of not less than 1.50 for the operation of the Real Estate and
Improvements. Debt Service Coverage Ratio shall mean a number in which
(i) the numerator is the sum of pre-tax aggregate rent, receipts and
other revenues accrued for the preceding calendar year from normal
operations of the Real Estate and Improvements (excluding insurance
proceeds or condemnation awards or sales of any part of the Real
Estate) less the sum of all operating expenses, maintenance costs,
insurance premiums, real estate taxes and assessments and other costs,
expenses and expenditures attributable to the ownership and management
of the Real Estate and Improvements paid or accrued during such period,
calculated in accordance with generally accepted accounting principles
but excluding any payments of principal or interest on the Loan and on
any secondary financing approved by Lender, if any, depreciation or
other non-cash charges and income taxes, and (ii) the denominator is
the annual aggregate amount of principal and interest payments on the
Loan; and
(p) Notify Lender immediately in writing of the initiation of
any criminal investigation or proceeding initiated by any federal,
state or local agency, department, or instrumentality against (i)
Borrower, (ii) Manager, or (iii) any employee of Borrower or
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Manager, if such investigation or proceeding could have a material
adverse effect on the financial condition, business operations or
assets of Borrower or result in the Collateral being seized pursuant
to 18 U.S.C. Sec. 1963,21 U.S.C. Sec. 853,21 U.S.C. Sec. 881, 46
U.S.C. App. Sec. 1904, I.C. 34-4-30.1-1 et. seq. or any similar
federal, state or local law and/or regulation adopted in publications
promulgated pursuant to such laws, or as such laws or regulations may
be further amended, modified or supplemented.
In addition, Borrower covenants to Lender that so long as Borrower has
any liability to Lender hereunder or under or with respect to the Loan or any
agreement, instrument or document executed in connection herewith, Borrower
shall not, without the prior written consent of Lender:
(1) Create or permit to exist any mortgage, pledge,
security interest, title retention device or other encumbrance
on any interest of Borrower in the Real Estate and
Improvements, except for any mortgage or security interest
held by Lender and those liens and encumbrances as shall be
approved in writing by Lender in its sole discretion;
(2) Dispose of any of its assets or properties other
than in the ordinary course of business for fair value;
(3) Directly or indirectly make (i) any loan, gift,
distribution, transfer or advance of cash or other real,
personal or intangible property, (ii) any transfer of any
other benefit or thing of value to any person except for fair
value received by Borrower; it is intended that this paragraph
prohibit, by way of example and not by way of limitation, any
payment by Borrower characterized as a commission or referral
fee, and any payments by Borrower characterized as the
consideration for a purchase to the extent that such payment
is not bona fide or exceeds the real value received by the
Borrower; or (iii) make any distribution or payment to any
shareholders of Borrower if such payment would violate the
terms of the Debt Service Coverage Ratio required under this
Agreement.
(4) Incur, assume, guarantee or otherwise become
liable for any obligation or the obligation of any person or
entity except in connection with the endorsement of checks for
deposit in the ordinary course of business and other similar
collection transactions in the ordinary course of business;
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(5) Make any financial arrangements for borrowed
money or otherwise through any other financial institution
entity or party which is secured by the Real Estate or the
Improvements;
(6) Take any action, allow any event to occur or
permit a condition to exist which could materially and
adversely affect Borrower's ability to complete its
obligations under the terms of this Agreement, the Note,
Mortgage or any other instruments, agreements or documents
required of Borrower hereunder;
(7) Change the nature of Borrower's current business;
(8) Make any change in the key management of
Borrower, which key management is currently Xxxxxx X. Xxxxxxx
and Xxxxx X. Xxxxxxx;
(9) Make any change in the key management of
Manager, which key management is currently Xxxxxx X. Xxxxxxx
and Xxxxx X. Xxxxxxx; or
(10) Permit the control or ownership of Manager to
be vested in anyone other than Xxxxxx X. Xxxxxxx.
8. Events of Default and Rights of Lender. Any one (1) or more of the
following shall constitute an Event of Default hereunder:
(a) Failure to make any payment when due of principal or
interest required by the Note or any other obligation of Borrower or
any entity related to or affiliated with Borrower to Lender;
(b) A failure to pay or cause to be paid when due any other
amounts due under the Note, Mortgage, Lease Assignment, Indemnity
Agreement or this Agreement or any of the other Loan Documents;
(c) Failure to observe or perform any agreement or covenant
contained herein or in any of the Loan Documents after thirty (30)
days' written notice to Borrower;
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(d) A breach of any warranty, representation, certification or
statement contained in this Agreement or in any certification or other
agreement or document executed or delivered in connection herewith
including, without limitation, any of the Loan Documents;
(e) Dissolution, liquidation or termination of the business of
Borrower or Manager;
(f) Assignment by Borrower or Manager for the benefit of their
creditors;
(g) Appointment of a receiver or a trustee for Borrower or
Manager or any of its or their assets;
(h) The filing of a petition against Borrower or Manager for
relief under the United States Bankruptcy Code;
(i) A breach of any covenant or agreement under the Franchise
Assignment which is not cured within any applicable grace period
provided therein.
(j) A determination by Lender, in its sole discretion, that any
action, inaction, commission, omission or circumstance has occurred or
may occur which may subject any assets of Borrower or Manager,
including but not limited to the Real Estate and Improvements, to be
seized by any federal, state or local governmental department, agency
or instrumentality pursuant to 18 U.S.C. Sec. 1963, 21 U.S.C. Sec.
853, 21 U.S.C. Sec. 881, 46 U.S.C. App. Sec. 1904, I.C. 34-4-30.1-1
et. seq. or any similar federal, state or local laws and/or
regulations adopted in publications promulgated pursuant to such laws,
or as such laws or regulations may be amended, modified or
supplemented from time to time;
19
(k) Default by Borrower, Manager or any entity related to or
affiliated with Borrower or Manager under any agreement with or
undertaking to Lender, whether or not related to the Loan; or
(l) Any material adverse change in the financial, operating or
other condition of Borrower or Manager or any entity related to or
affiliated with Borrower or Manager.
Upon an Event of Default hereunder, at the option of Lender, all of the
indebtedness evidenced by the Note and remaining unpaid shall become immediately
due and payable, anything contained herein or in the Note to the contrary
notwithstanding, and Lender, at its option and upon demand, shall have the right
to perform all acts necessary for the performance, sale, collection and
enforcement of the collateral covered by the Mortgage and/or any other agreement
or document executed in connection herewith. Upon an Event of Default hereunder,
at the option of Lender and without further notice or demand to Borrower, Lender
may order an appraisal of the Real Estate and Improvements, to be in such form
and scope and to be performed by an appraiser as Lender may choose in its sole
discretion. All costs and expenses of such appraisal shall be immediately paid
by Borrower upon demand by Lender and such amounts shall be added to the
indebtedness evidenced by the Loan and secured by the Mortgage. Furthermore,
upon an Event of Default hereunder, Borrower, immediately upon demand by Lender,
shall assemble the collateral and make it available to Lender at a place or
places to be designated by Lender which are reasonably convenient to Lender and
Borrower. Borrower recognizes that in the event Borrower fails to perform,
observe or discharge any of its obligations under this Agreement or any other
documents executed in connection herewith, Lender shall be entitled to temporary
and permanent injunctive relief in any such case without the necessity of
proving actual damages. All rights and remedies of Lender herein specified are
20
cumulative and in addition to, not in limitation of, any rights and remedies
which it may have by law or at equity.
9. Additional Rights of Lender. Pursuant to the powers herein granted,
Lender shall also have the power to prosecute and to defend all actions or
proceedings in connection with the Real Estate and the modification of the
Improvements thereon and to take such action and require such performance as
Lender may deem necessary or advisable, and Borrower hereby assigns and
quitclaims to Lender all sums at any time on deposit with Lender for the payment
of amounts due to Lender. All rights or remedies of Lender hereunder are
cumulative and are in addition to, not in limitation of, any rights or remedies
which it may have by law.
10. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of Lender and Borrower. This
Agreement is entered into by Lender with Borrower in reliance upon Borrower and
the current shareholders of Borrower and no assignment or alienation (except to
Lender) of any rights or obligations of Borrower or the current shareholders of
Borrower, hereunder shall be effective without the prior written consent of
Lender.
11. No Third-Party Beneficiaries. Nothing contained herein shall be
deemed or construed to create an obligation on the part of Lender to any third
party nor shall any third party have a right to enforce against Lender any
rights which Borrower may have under this Agreement.
12. No Waiver. No waiver by Lender of the breach of any term, condition,
warranty, representation, covenant or agreement contained herein or in the
agreements, instruments, guaranties or documents delivered pursuant thereto
shall be considered as a waiver of the same default in the future or any other
default and no delay or omission by Lender in exercising any right or remedy
hereunder shall impair any such right or remedy or be construed as a waiver of
any default. The
21
inclusion of deadlines and the references to dates later than the maturity of
any obligation shall not by implication or otherwise obligate Lender to renew or
extend any maturity.
13. Amendments. Any modification of or amendment to this Agreement shall
be ineffective unless in writing and signed by the duly authorized
representatives of Borrower and Lender.
14. Rights of Lender. Upon and during the pendency of an Event of
Default, each payment to Lender shall be applied to the payment of accrued and
unpaid interest and to the reduction of the principal balance in such order and
in such amounts as Lender shall determine, in its sole discretion; otherwise,
such payments shall be applied first to accrued and unpaid interest and then to
principal. Lender may from time to time with notice to Borrower (a) release any
collateral or substitute or exchange any collateral, (b) release, modify or
compromise any liability of Borrower or any other obligor, or the terms thereof
and (c) apply any amounts paid to Lender with such marshalling of security as
Lender may, in its sole discretion, determine appropriate; all without the
consent of Borrower. The liability of Borrower shall not be released in part or
in whole by reason of the foregoing, the addition of co-makers, endorsers,
guarantors or sureties, or a failure to perfect any security interest or lien in
any collateral or a failure to proceed in any particular manner with respect to
any collateral.
15. Notices. Any notice required or permitted to Lender or Borrower
hereunder shall be deemed effective when mailed by certified or registered
United States mail, postage prepaid, or when sent by an overnight carrier which
provides for a return receipt if to Borrower, at 0 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx
0000, Xxxxxxx, XX 00000, or if to Lender, at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxxxxxx, XX 00000, Attention: E. Xxxxxxxxx Xxxxxx, or at such other
address within the State
22
of Indiana as either Borrower or Lender may from time to time specify by notice
hereunder. Any notice required to be given by Lender of a sale, lease, other
disposition of the collateral, deposited in the United States Mail postage
prepaid duly addressed as specified above no less than ten (10) days' prior to
such proposed action, or if sent by overnight carrier no less than five (5)
days' prior to such proposed action, shall constitute commercially reasonable
and fair notice to Borrower of same.
16. Prior Agreements. This Agreement replaces and supersedes any
inconsistent provisions of any agreements heretofore made by Lender and
Borrower. This Agreement, the Note and Mortgage and all other documents executed
in connection with this Agreement are intended to be complementary and
supplementary to one another. In the event of any conflict between the terms of
one or more thereof, such terms shall, to the fullest extent reasonably
possible, be construed to be complementary. However, if such terms cannot be
construed as complementary, then the terms of this Agreement shall govern.
17. No Partnership/Joint Venture. It is hereby acknowledged by Lender
and Borrower that the relationship between them created hereby and by any other
document executed in connection with the Loan is that of creditor and debtor and
is not intended to be and shall not in any way be construed to be that of a
partnership, a joint venture or that of principal and agent; and it is hereby
further acknowledged that any control of or supervision over the construction of
the Improvements by Lender or disbursement of the Loan to any one other than
Borrower shall not be deemed to make Lender a partner, joint venturer or
principal or agent of Borrower, but rather shall be deemed to be solely for the
purpose of protecting Lender's security for the indebtedness evidenced by the
Note and other indebtedness of Borrower to Lender.
23
18. Governing Law. This Agreement has been entered into and shall be
governed by and construed in accordance with the laws of the State of Indiana.
19. Survival of Indemnities. All indemnities from Borrower and Manager
to Lender shall survive this Agreement.
20. Invalidity of any Provision. If any provision of this Agreement or
of any other documents executed in connection herewith is held invalid or
unenforceable, the remainder of this Agreement or such other documents and the
application of such provisions to other persons or circumstances will not be
affected hereby and the provisions of this Agreement and such other documents
will be severable in such instance.
21. Captions. The captions or headings herein have been inserted solely
for the convenience of reference and in no way define, limit or describe the
scope or substance of any provision of this Agreement.
22. CONSENT TO JURISDICTION. BORROWER HEREBY AGREES THAT ALL ACTIONS OR
PROCEEDINGS INITIATED BY BORROWER AND ARISING DIRECTLY OR INDIRECTLY OUT OF THIS
LOAN AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS SHALL BE LITIGATED IN THE
CIRCUIT OR SUPERIOR COURT OF XXXXXX COUNTY, INDIANA, OR THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA OR, IF LENDER INITIATES SUCH
ACTION, ANY COURT IN WHICH LENDER SHALL INITIATE SUCH ACTION AND WHICH HAS
JURISDICTION. BORROWER HEREBY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED BY LENDER IN ANY OF SUCH
COURTS, AND HEREBY
24
WAIVES PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS
ISSUED THEREIN, AND AGREES THAT SERVICE OF SUCH SUMMONS AND COMPLAINT OR OTHER
PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO
BORROWER AT THE ADDRESS TO WHICH NOTICES ARE TO BE SENT PURSUANT TO THE
MORTGAGE. BORROWER WAIVES ANY CLAIM THAT XXXXXX COUNTY, INDIANA OR THE SOUTHERN
DISTRICT OF INDIANA IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK
OF VENUE. SHOULD BORROWER, AFTER BEING SO SERVED, FAIL TO APPEAR OR ANSWER TO
ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN THE NUMBER OF DAYS
PRESCRIBED BY LAW AFTER THE MAILING THEREOF, BORROWER SHALL BE DEEMED IN DEFAULT
AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED BY LENDER AGAINST BORROWER AS
DEMANDED OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS. THE
EXCLUSIVE CHOICE OF FORUM FOR BORROWER SET FORTH IN THIS SECTION SHALL NOT BE
DEEMED TO PRECLUDE THE ENFORCEMENT, BY LENDER, OF ANY JUDGMENT OBTAINED IN ANY
OTHER FORUM OR THE TAKING, BY LENDER, OF ANY ACTION TO ENFORCE THE SAME IN ANY
OTHER APPROPRIATE JURISDICTION, AND BORROWER HEREBY WAIVES THE RIGHT, IF ANY, TO
COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.
23. WAIVER OF JURY TRIAL. THE BORROWER AND THE LENDER, AFTER CONSULTING
OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL,
25
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER OR THEM MAY HAVE
TO A TRIAL BY A JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, OR ANY
COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
EITHER OF THEM. NEITHER THE BORROWER NOR THE LENDER SHALL SEEK TO CONSOLIDATE,
BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN
WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY
RESPECT OR RELINQUISHED BY EITHER THE BORROWER OR THE LENDER EXCEPT BY A WRITTEN
INSTRUMENT EXECUTED BY BOTH OF THEM.
24. Sole Discretion of Lender. Except as may otherwise be expressly
provided to the contrary, whenever pursuant to this Agreement or any of the Loan
Documents, Lender exercises any right given to it to consent or not consent,
approve or not approve, or any arrangement or term is to be satisfactory to
Lender, the decision of Lender to consent or not consent, or to approve or not
to approve, or to decide the arrangements or terms are satisfactory or not
satisfactory shall be in the sole and absolute discretion of Lender and shall be
final and conclusive. If at any time Borrower believes that Lender has not acted
reasonably in granting or withholding any approval or consent under this
Agreement or any other Loan Document, as to which approval or consent either
Lender has expressly agreed to act reasonably, or absent such agreement, a court
of law having jurisdiction over the subject matter would require Lender to act
reasonably, then Borrower's sole remedy shall be to seek
26
injunctive relief or specific performance and no action for monetary damages or
punitive damages shall in any event or under any circumstance be maintained by
Borrower against Lender.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed effective as of the day and the year first above written.
BORROWER:
XXXXXXX INNS, INC.,
a Georgia corporation
By:________________________________
Xxxxx X. Xxxxxxx, President
LENDER:
REPUBLIC BANK,
a Michigan Commercial Bank
By:________________________________
E. Xxxxxxxxx Xxxxxx, Senior Vice
President
27
STATE OF GEORGIA )
) SS:
COUNTY OF DEKALB )
Before me, a Notary Public in and for said County and State, personally
appeared Xxxxx X. Xxxxxxx, the President of Xxxxxxx Inns, Inc., a Georgia
corporation, who, after having been duly sworn, acknowledged the execution of
the foregoing Loan Agreement on behalf of said corporation.
WITNESS, my hand and Notarial Seal this ___ day of September, 2000.
_______________________________________
________________________, Notary Public
My Commission Expires:
_________________________
My County of Residence:
_________________________
STATE OF INDIANA )
) SS:
COUNTY OF XXXXXX )
Before me, a Notary Public in and for said County and State, personally
appeared E. Xxxxxxxxx Xxxxxx, a Senior Vice President of Republic Bank, a
Michigan Commercial Bank, who, after having been duly sworn, acknowledged the
execution of the foregoing Loan Agreement on behalf of said bank.
WITNESS, my hand and Notarial Seal this ___ day of September, 2000.
_______________________________________
Xxxxxxx X. Xxxxxx, Notary Public
My Commission Expires:
9/20/08
My County of Residence:
Xxxxxxxx
28
MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING
THIS MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING (the "Instrument") is
made this ___ day of September, 2000, between XXXXXXX INNS, INC., a Georgia
corporation, having a mailing address of 0 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx 0000,
Xxxxxxx, XX 00000 ("Borrower"), and REPUBLIC BANK, whose address is 000 X.
Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX 00000 ("Lender").
WHEREAS, Borrower is indebted to Lender in the principal sum of Four
Million Seven Hundred Forty-Five Thousand Dollars ($4,745,000.00), which
indebtedness is evidenced by Borrower's Promissory Note of even date, together
with any and all substitutions, renewals, replacements or modifications which,
in each instance, shall be payable to the order of Lender (the "Note"), on or
before the 1st day of October, 2010 (the "Maturity Date"), bearing interest at
the rate of interest set forth in the Note providing for the payment of
principal and interest, together with all future obligations and advances, which
obligations and advances shall (upon Borrower's compliance with all applicable
terms, conditions and requirements therefor and so long as Borrower is not in
default hereunder) be deemed obligatory under this Instrument. The loan from
Lender to Borrower, as evidenced by the Note, has been made in accordance with a
certain Loan Agreement of even date herewith (the "Loan Agreement") between
Borrower and Lender;
TO SECURE TO LENDER (i) the repayment of the indebtedness evidenced by the
Note and the Loan Agreement, together with interest thereon, and all renewals,
extensions and modifications thereof, (ii) the performance of all covenants,
agreements and obligations of Borrower under the Loan Agreement, and all
renewals, extensions and modifications thereof, (iii) the payment of all sums
advanced in connection with the Note, together with the payment of all other
sums, plus interest thereon, advanced in accordance herewith to protect the
security of this Instrument, (iv) the performance of the covenants, agreements
and obligations of Borrower herein contained, and all renewals, extensions and
modifications hereof, and (v) the performance of all obligations of Borrower
under any and all other instruments and documents given to evidence or further
secure the obligations provided for herein, and all renewals, extensions and
modifications thereof, and on account of all of the foregoing, Borrower hereby
MORTGAGES and WARRANTS to Lender, its
29
successors and assigns, all of the estate, right, title and interest of Borrower
in, to and under the following described property whether now owned or hereafter
held or acquired:
a. That certain parcel of real property described in Exhibit "A" attached
hereto and made a part hereof (the "Land");
b. All buildings, improvements, structures and tenements now situated or
hereafter erected on said Land, all rights to heretofore or hereafter vacated
alleys and streets abutting the Land, all easements, rights, appurtenances,
rents, royalties, mineral, oil and gas rights and profits, water, water rights
and water stock appurtenant to the Land (all such property and the Land,
collectively the "Property");
c. All fixtures and all machinery, equipment and inventory which are now
fixtures, including but not limited to, the heating, cooling and ventilating
systems, lighting and electrical systems and fixtures, floor coverings, wall
coverings, window coverings, ceiling tile and systems, windows, doors, locks,
plumbing systems and fixtures and any and all replacements thereof, now or at
any time acquired by Borrower and located in, on or about the Property and used
or intended to be used in connection therewith, except the computers and
software to be financed by Compaq Financial;
d. All rentals, accounts, revenues, payments, repayments, deposits, income,
charges and moneys derived from the use, lease, sublease, rental or other
disposition of the Property and the proceeds from any cause of action, tort
claim, insurance or condemnation award pertaining thereto;
e. All permits and licenses of all governmental or regulatory authorities
or of any persons, corporations, partnerships, trusts or other entities, used or
intended to be used in connection with the Property; and
f. All personal property and other documents used at or for the benefit of
the Property, including, without limitation, inventory, equipment, tools,
supplies, materials, books, records, contracts, leases, warranties, maintenance
schedules and invoices.
All of the property described in the foregoing subparagraphs, including all
proceeds and products thereof, and all replacements, additions and accessions
therefor and thereto, shall be deemed to be and remain a part of the property
covered by this Instrument; and all of the foregoing, together with said
Property, are herein collectively referred to as the "Mortgaged Property."
This Instrument shall also secure the unpaid balances of future and
additional loan advances not to exceed Eight Million Thousand Dollars
($8,000,000) made at any time while this Instrument remains unreleased of record
pursuant to the Loan Documents as defined in the Loan Agreement. Such loan
advances are or will be evidenced by the Note and the Loan Agreement. In
addition to any other debt or obligation secured hereby, this Instrument shall
secure unpaid balances of advances made for the payment of taxes, assessments,
insurance premiums, and other costs incurred for the
30
maintenance and protection of the Mortgaged Property including, without
limitation, any costs incurred in connection with any appropriate environmental
tests, inspections and, if necessary, remediation.
Borrower covenants, warrants, represents and agrees as follows:
1. PAYMENT OF OBLIGATIONS. Borrower shall promptly pay when due the
principal and interest on the indebtedness evidenced by the Note, any late
charges, prepayment premiums or other sums required to be paid by the Note, and
all other sums secured by this Instrument, all without relief from valuation and
appraisement laws.
(ii) WARRANTY OF TITLE. Borrower warrants that it is lawfully seized
of a fee simple estate in the Land, and has the right to mortgage, convey,
grant and assign the Mortgaged Property, that the Property is subject in
all cases to no lien, charge or encumbrance other than those approved by
Lender as set forth on Exhibit "B" hereto, that this Instrument is and will
remain a valid and enforceable first lien on the Property, and that
Borrower shall cooperate to preserve such title, and will forever warrant
and defend the title, validity and priority of the lien hereof against the
claims of all persons and parties whomsoever.
(iii) APPLICATION OF PAYMENTS. Unless applicable law provides
otherwise, all payments received by Lender from Borrower under the Note,
the Loan Agreement or this Instrument shall be applied by Lender in the
following order of priority: (i) interest payable on advances made pursuant
to paragraph 24 hereof, (ii) principal of advances made pursuant to
paragraph 24 hereof, (iii) amounts payable to Lender by Borrower under
paragraph 5 hereof, (iv) interest payable on the Note, (v) principal of the
Note, and (vi) any other sums secured by this Instrument.
(iv) TAXES AND IMPOSITIONS. Borrower agrees to pay prior to
delinquency all real property taxes and assessments, general and special,
and all other taxes and assessments of any kind or nature whatsoever,
including without limitation, service payments in lieu of real property
taxes, non-governmental levies or assessments such as maintenance charges,
sewer user charges, owner association dues or charges or fees, levies or
charges resulting from covenants, conditions and restrictions affecting the
Property, which are assessed or imposed upon the Property, or become due
and payable, and which create a lien upon the Property, or any part thereof
(all of which taxes, assessments and other charges of like nature are
hereinafter referred to as "Impositions"); provided, however, that if, by
law, any such Imposition is payable, or may at the option of Borrower be
paid, in installments, Borrower may pay the same together with any accrued
interest on the unpaid balance of such Imposition in installments as the
same become due and before any fine, penalty, interest or cost may be added
thereto for the nonpayment of any such installment and interest. Upon
Lender's written request, Borrower shall promptly furnish to Lender
receipts evidencing such payments. Notwithstanding the foregoing, Borrower
shall have the right to contest in good faith by appropriate legal or other
proceedings the validity or amount of any such tax, assessment or charge,
provided that (a) Borrower gives Lender prior written notice of its intent
to contest the same, and (b) Borrower, upon request of Lender, demonstrates
to the reasonable
31
satisfaction of Lender that such legal or other proceedings shall operate
to prevent the sale of the Mortgaged Property (or any portion thereof) to
satisfy the payment of the tax, assessment, or charge in question prior to
final determination of such proceedings.
(v) FUNDS FOR IMPOSITIONS, INSURANCE AND OTHER CHARGES. In the Event
of Default by Borrower hereunder, Borrower shall pay to Lender on the day
monthly installments are payable under the Note (or on another day
designated in writing by Lender), until the Note is paid in full, a sum
(herein "Funds") equal to one-twelfth (1/12) of (i) the annual Impositions,
and (ii) the yearly premium installments for the insurance required to be
carried pursuant to paragraph 6 below, all as reasonably estimated by
Lender. Lender shall not be required to pay Borrower any interest, earnings
or profits on the Funds and shall have the right to commingle the Funds
with the general funds of Lender.
If the amount of the Funds held by Lender shall exceed the amount
reasonably deemed necessary by Lender to provide for the payment of such
Impositions, insurance premiums and other charges, as they fall due, such excess
shall be credited to Borrower on the next monthly installment or installments of
Funds due. If at any time the amount of the Funds held by Lender shall be less
than the amount reasonably deemed necessary by Lender to pay Impositions,
insurance premiums and other charges as they fall due, Borrower shall pay to
Lender an amount necessary to make up the deficiency within thirty (30) days
after notice from Lender to Borrower requesting payment thereof. Upon an Event
of Default, Lender may, at its option, apply any Funds held by Lender at the
time of application (i) to pay Impositions, insurance premiums and other
charges, (ii) to pay principal or interest under the Note, or (iii) as a credit
against sums secured by this Instrument.
6. INSURANCE.
A. Borrower shall at all times keep all buildings, improvements, fixtures
and articles of personal property now or hereafter situated on the Land insured
against loss or damage by fire and such other hazards as may reasonably be
required by Lender, including without limitation: (i) all-risk fire and extended
coverage insurance, with vandalism and malicious mischief endorsements, for the
full replacement value of the Property, with agreed upon amount and inflation
protection endorsements; (ii) if there are tenants under leases at the Property,
rent and rental value or business loss insurance for the same perils described
in clause (i) above payable at the rate per month and for the period specified
from time to time by Lender; (iii) broad form boiler and sprinkler damage
insurance in an amount reasonably satisfactory to Lender, if and so long as the
Property shall contain a boiler and/or sprinkler system, respectively; (iv) if
the Property is located in a flood hazard area, flood insurance in the maximum
amount obtainable up to the amount of the indebtedness hereby secured; and (v)
such other insurance as Lender may from time to time reasonably require.
Borrower also shall at all times maintain comprehensive public liability,
property damage and workmen's compensation insurance covering the Property and
any employees thereof, with such limits for personal injury, death and property
damage as Lender may require. Borrower shall be the named insured under such
policies and Lender shall be identified as an additional insured party. All
policies of insurance to be furnished hereunder shall be in forms, with
companies, in amounts and
32
with deductibles reasonably satisfactory to Lender, with mortgagee clauses
attached to all policies in favor of and in form satisfactory to Lender,
including a provision requiring that the coverage evidenced thereby shall not be
terminated or modified without thirty days prior written notice to Lender and
shall contain endorsements that no act or negligence of the insured or any
occupant and no occupancy or use of the Property for purposes more hazardous
than permitted by the terms of the policies will affect the validity or
enforceability of such policies as against Lender. Borrower shall deliver
certificates of insurance, and upon Lender's request, all policies, including
additional and renewal policies, to Lender, and, in the case of insurance about
to expire, shall deliver renewal certificates and upon Lender's request,
policies not less than thirty days prior to their respective dates of
expiration.
B. Borrower shall not take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained hereunder
unless Lender is included thereon as the loss payee or an additional insured as
applicable, under a standard mortgage clause acceptable to Lender and such
separate insurance is otherwise acceptable to Lender.
C. In the event of loss, Borrower shall give immediate notice thereof to
Lender, who shall have the sole and absolute right to make proof of loss, and
each insurance company concerned is hereby authorized and directed to make
payment for such loss directly to Lender (rather than to Borrower and Lender
jointly). Lender shall have the right, at its option and in its sole discretion,
to apply any insurance proceeds so received after the payment of all of Lender's
expenses, either (i) on account of the unpaid principal balance of the Note,
irrespective of whether such principal balance is then due and payable,
whereupon Lender may declare the whole of the balance of indebtedness hereby
secured to be due and payable, or (ii) to the restoration or repair of the
property damaged as provided herein. If insurance proceeds are delivered to
Borrower by Lender as herein provided, Borrower shall repair, restore or rebuild
the damaged or destroyed portion of the Property so that the condition and value
of the Property is substantially the same as the condition and value of the
Property prior to being damaged or destroyed. In the event Lender permits the
application of such insurance proceeds to the cost of restoration and repair of
the Property, any surplus which may remain out of said insurance proceeds after
payment of such costs shall be applied on account of the unpaid principal
balance of the Note, irrespective of whether such principal balance is then due
and payable. In the event of foreclosure of this Mortgage, all right, title and
interest of Borrower in and to any insurance policies then in force shall pass
to the purchaser at the foreclosure sale. At the request of Lender, from time to
time, Borrower shall furnish Lender, without cost to Lender, evidence of the
replacement value of the Property.
7. RECEIVERSHIP. Upon an Event of Default (hereafter defined) hereunder or
abandonment of the Property, Lender shall be entitled to have and Borrower
consents to a receiver appointed by a court to enter upon, take possession of
and manage the Property and to collect the rents of the Property including those
past due. All rents, collected by the receiver shall be applied first to payment
of the costs of management of the Property and collection of income, including,
but not limited to receiver's fees, premiums on receiver's bonds and reasonable
attorneys'
33
fees, and then to the sums secured by this Instrument. The receiver shall be
liable to account only for such income actually received.
8. CONDEMNATION. Borrower shall immediately notify Lender of any action or
proceeding relating to any condemnation or other taking, whether direct or
indirect, of the Property, or any part thereof. Borrower hereby authorizes and
empowers Lender as attorney-in-fact for Borrower to commence, appear in and
prosecute, in the name of Lender or Borrower any action or proceeding relating
to any condemnation or other taking of the Property, whether direct or indirect,
and to settle or compromise any claim in connection with such condemnation or
other taking; provided, however, that nothing contained in this paragraph 8
shall require Lender to incur any expense or take any action hereunder. Borrower
hereby assigns to Lender all rights of Borrower in and to the proceeds of any
award, payment or claim for damages, direct or consequential, in connection with
any such condemnation or other taking, whether direct or indirect, of the
Property, or any part thereof, or for conveyances in lieu of condemnation.
Any such awards, payments, proceeds or damages, or portion thereof to which
Borrower is entitled (the "Award"), shall, after the deduction of Lender's
expenses incurred in the collection of such Award, be applied by Lender to
reduce the amount of the Note or Lender may permit Borrower in Lender's sole
discretion to use the Award for the reconstruction, restoration or repair of the
Property in compliance with all applicable legal requirements and the
requirements of advances under the Loan under the Loan Agreement. If the Award
exceeds the cost of reconstruction, restoration or repair, the excess Award,
shall, after the deduction of Lender's expenses incurred in the collection of
such Award, be applied to the payment of the sums secured by this Instrument,
whether or not then due, in the order of application set forth in paragraph 3
hereof, with the balance, if any, to Borrower. Unless Borrower and Lender
otherwise agree in writing, any application of proceeds to principal shall not
extend or postpone the due date, modify the release prices set forth in the Loan
Agreement or change the amount of the monthly installments required by the Note.
Borrower agrees to execute such further evidence of assignment of any awards,
proceeds, damages or claims arising in connection with such condemnation or
taking as Lender may require.
9. PRESERVATION AND MAINTENANCE OF PROPERTY. Borrower (i) shall not commit
waste or permit impairment or deterioration of the Property and shall not
abandon the Property, (ii) shall reconstruct, restore or repair promptly and in
a good and workmanlike manner all or any part of the Property to the equivalent
of its original condition, or such other condition as Lender may approve in
writing, in the event of any damage, injury or loss thereto, whether or not
insurance proceeds or condemnation awards or damages are available or adequate
to cover, in whole or in part, the costs of such reconstruction, restoration or
repair, (iii) shall keep the Property in good order, condition and repair and
shall replace fixtures, equipment, machinery and appliances on the Property when
necessary to keep such items in good repair, and will make or cause to be made,
as and when the same shall become necessary, all structural and nonstructural,
interior and exterior, ordinary and extraordinary, foreseen and unforeseen
repairs, replacements and renewals necessary to that end, (iv) shall comply with
all zoning, building, health and environmental laws, ordinances and regulations,
and all other laws, regulations and requirements of any governmental
34
body or agency having jurisdiction over the Property, or the use and occupancy
thereof by Borrower, and (v) shall comply with all covenants and agreements of
record affecting the Property. Neither Borrower nor any other person shall
remove, demolish or alter any improvement now existing or hereafter erected on
the Property without the prior written consent of Lender.
10. USE OF PROPERTY. Unless Lender has otherwise agreed in writing,
Borrower shall not allow changes in the use for which all or any part of the
Property was used at the time this Instrument was executed. Borrower shall not
initiate, approve, participate in or acquiesce to any change in or modification
to the zoning in effect for the Property or any portion thereof unless Lender
shall consent to such action.
11. LIENS. Borrower shall promptly discharge any lien which has, or may
have, priority over or equality with the lien of this Instrument, and Borrower
shall pay, when due, the claims of all persons supplying labor or materials to
or in connection with the Property. In the event a mechanic's lien shall be
filed against the Property, Borrower shall cause same to be satisfied or bonded
off within thirty (30) days after the filing thereof. Without Lender's prior
written consent, Borrower shall not create, suffer, permit or allow any
statutory lien or other lien or encumbrance inferior or superior to or having
parity with this Instrument to be created or perfected against the Property.
Borrower hereby covenants and agrees that Lender shall be subrogated to the lien
of any mortgage or other lien discharged, in whole or in part, by the
indebtedness secured hereby.
12. INSPECTION AND ADDITIONAL DOCUMENTATION. Lender, at reasonable times
during business hours may make or cause to be made reasonable entries upon and
inspections of the Property to assure compliance with the terms hereof.
13. BOOKS AND RECORDS. Borrower shall keep and maintain at all times in
Atlanta, Georgia, or at such other place as Lender approves in writing, complete
and accurate books of accounts and records adequate to reflect correctly the
results of the operation of the Property and copies of all written contracts,
leases and other instruments which affect the Property. Such books, records,
contracts, leases and other instruments shall be subject to examination and
inspection at any reasonable time by Lender.
14. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN BORROWER. Borrower
shall not, directly or indirectly, sell, transfer, assign, convey, mortgage, or
otherwise dispose of the Property, or any part or parts thereof, or any legal or
equitable interest therein, including disposition by land installment contract,
except as provided in the Loan Agreement, nor shall Borrower create or permit to
occur any changes, direct or indirect, in the ownership or control of Borrower
without Lender's consent.
15. ASSIGNMENT OF ACCOUNTS, RENTS AND LEASES. As part of the consideration
for the indebtedness evidenced by the Note, Borrower hereby absolutely and
unconditionally assigns and transfers to Lender all of the occupancy agreements
and leases now existing or hereafter entered into with respect to the Property,
and all modifications, renewals and
35
extensions thereof (collectively the "Leases") and all the rents, accounts and
revenues, which shall include all deposits, of the Property, including those now
due, past due, or to become due by virtue of any of the Leases or any other
agreement for the occupancy or use of all or any part of the Property,
regardless as to whom the rents, accounts and revenues of the Property are
payable; provided, however, that prior to an Event of Default under this
Instrument, Borrower shall exercise all of its rights under the Leases and shall
collect and receive all of the rents, accounts and revenues of the Property, and
Borrower shall apply the rents, accounts and revenues so collected to current
operating expenses of the Property and current amounts due Lender with the
balance, so long as no such Event of Default has occurred, to the account of
Borrower. Upon an Event of Default hereunder, and without the necessity of
Lender entering upon and taking and maintaining full control of the Property in
person, by agent or by a court-appointed receiver, Lender shall immediately (i)
be entitled to exercise all of the rights of Borrower under the Leases, and (ii)
be entitled to possession of all rents, accounts and revenues of the Property as
specified in this paragraph 15 as the same become due and payable, including but
not limited to rents, accounts and revenues then due and unpaid. At the time of
any such Event of Default, any such rents, accounts and revenues then held by
Borrower shall immediately be held by Borrower as trustee for the benefit of
Lender only. Borrower agrees that commencing upon an Event of Default, each
occupant of the Property shall make such rents, accounts and revenues payable to
and pay such rents, accounts and revenues to Lender or Lender's agents on
Lender's written demand to each occupant therefor, delivered to each occupant
personally, by mail or by delivering such demand to each rental unit, without
any liability on the part of said occupant to inquire further as to the
existence of a default by Borrower. Unless Lender takes possession of the
property or exercises control over it, Lender shall not be liable for any loss
sustained by the Borrower resulting from any failure by Lender either to collect
the rents, accounts and revenues of the Property or in exercising or failing to
exercise any of the rights of Borrower under the Leases. Lender shall have no
liability to any occupant under any of the Leases for the performance or
observance of any of the terms, conditions or obligations contained therein
unless Lender takes possession of the Property.
16. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. In addition to being a
mortgage, this Instrument is intended to be a security agreement pursuant to the
Uniform Commercial Code as enacted in the state wherein the Property is located,
for any of the items specified above as part of the Property which, under
applicable law, may be subject to a security interest pursuant to the Uniform
Commercial Code, and Borrower hereby grants to Lender a security interest in
said items. Borrower agrees that Lender may file this Instrument, or a
reproduction thereof, in the real estate records or other appropriate index, as
a financing statement filed as a fixture filing with respect to all items
constituting a part of the collateral which are or are to become fixtures
related to the Property, in accordance with I.C. Section 26-1-9-402(6). The
information required under I.C. Section 26-1-9-402 is set forth in other
provisions of this Instrument. Borrower is the record owner of the Property. Any
reproduction of this Instrument or of any other security agreement or financing
statement shall be sufficient as a financing statement. In addition, Borrower
agrees to execute and deliver to Lender, upon Lender's request, any financing
statements, as well as extensions, renewals and amendments thereof, and
reproductions of this Instrument in such form as Lender may require to perfect a
security interest with respect to said items. Borrower shall pay all
36
costs of filing such financial statements and any extensions, renewals,
amendments and releases thereof, and shall pay all reasonable costs and expenses
of any record searches for financing statements which Lender may require.
Without the prior written consent of Lender, Borrower shall not create or suffer
to be created pursuant to the Uniform Commercial Code any other security
interest in said items, including replacements and additions thereto. Upon an
Event of Default, Lender shall have the remedies of a secured party under the
Uniform Commercial Code and, at Lender's option, may also invoke the remedies
provided in this Instrument as to such items. In exercising any of said
remedies, Lender may proceed against the items of real property and any items of
personal property specified above as part of the Property, separately or
together and in any order whatsoever, without in any way affecting the
availability of Lender's remedies under the Uniform Commercial Code or of the
remedies provided in this Instrument.
17. LEASE AND SUBLEASES. Borrower shall comply with and observe Borrower's
obligations as landlord under all Leases of the Property or any part thereof.
All Leases now or hereafter entered into by Borrower will be in form and
substance subject to the reasonable approval of Lender. All Leases of the
Property to which Borrower is a party shall specifically provide that (i) such
Leases are and shall remain subordinate to this Instrument, (ii) that the
occupant thereof shall attorn to Lender, such attornment to be effective upon
Lender's acquisition of title to Borrower's interest in the Property, (iii) that
the occupant agrees to execute such further evidence of attornment and/or
subordination as Lender may from time to time request, and (iv) that the
attornment of the occupant shall not, in any event, be terminated by
foreclosure. Borrower shall not, without Lender's written consent, modify,
amend, surrender or terminate, either orally or in writing, any of the Leases
now existing or hereafter made by Borrower with respect to all or any part of
the Property except for an extension of the Lease with Xxxxxxx Hospitality, LLC
or in the ordinary course of business. Borrower shall not, without Lender's
written consent, permit an assignment or sublease of any such Leases or request
or consent to the subordination of any such Leases to which Borrower is a party
to any lien subordinate to this Instrument. If Borrower becomes aware that any
occupant proposes to do, or is doing, any act or thing which may give rise to
any right of set-off against rent, accounts or revenues, Borrower shall (i) take
such steps as shall be reasonably calculated to prevent the accrual of any right
to a set-off against rent, accounts or revenues (ii) notify Lender thereof and
of the amount of such set-off, and (iii) within ten (10) days after such
accrual, take such other steps as shall effectively discharge such set-off and
as shall assure that rents, accounts or revenues thereafter due shall continue
to be payable without set-off or deduction.
18. ENVIRONMENTAL COMPLIANCE. Borrower represents, to the best of its
knowledge, that the Property is in compliance with all applicable Environmental
Laws (as hereinafter defined) and that the Property does not contain any
Hazardous Materials (as hereinafter defined) except as previously disclosed in
writing to Lender. Upon the request of Lender, Borrower covenants and agrees
that Borrower, at Lender's request, shall deliver and pay for an environmental
audit prepared by an engineer acceptable to Lender which discloses no evidence
of the existence of any other Hazardous Materials on or in the Property.
Borrower covenants and agrees that such environmental audit does not relieve
Borrower from performing its own environmental audit or complying with
Environmental Laws. Borrower represents and warrants that it has not caused or
37
permitted any Hazardous Material to be placed on or in the Property in violation
of any Environmental Laws and that to the best of its knowledge, there are no
conditions currently existing or with the passage of time which would require or
are likely to require clean-up, removal, remedial action, or other response
pursuant to the Environmental Laws except as previously disclosed in writing to
Lender. Borrower represents and warrants that to the best of its knowledge the
Property has not been used as a dump site or storage site for Hazardous
Materials, and Borrower will not cause or permit the use of the Property or
cause the use of any parcel adjacent thereto as a dump site or storage site for
Hazardous Materials other than in compliance with applicable Environmental Laws,
nor will Borrower cause or permit any contamination on any part of the Property
or cause the contamination of any adjacent parcel. Borrower represents and
warrants that all Hazardous Materials (other than cleaning materials and other
products customarily utilized in the maintenance and operation of hotels) which
have been or may be used by any person for any purpose upon the Property have
been and will be disclosed in writing to Lender and have been and shall be used
and stored thereon only in a safe manner, and in accordance with all industrial
standards and Environmental Laws. Borrower represents and warrants that Borrower
is not a party to any litigation or administrative proceeding, nor, to the best
of its knowledge, is any litigation or administrative proceeding threatened
against it, which asserts or alleges that there is any violation of
Environmental Laws with respect to the Property, nor is the Property subject to
any judgment, decree, order or citation relating to or arising out of
Environmental Laws and no permits or licenses are required under Environmental
Laws relating to the Property. Borrower covenants and agrees to provide to
Lender, immediately upon receipt by Borrower, copies of any correspondence,
notice, pleading, citation, indictment, complaint, order, decree or other
document from any source asserting or alleging a circumstance or condition which
requires or may require a clean-up, removal, remedial action, or other response
by or on the part of Borrower under the Environmental Laws or which seeks
criminal or punitive penalties from Borrower for an alleged violation of
Environmental Laws. Borrower further covenants and agrees to advise Lender as
soon as Borrower becomes aware of any condition or circumstance which makes the
covenants and warranties contained herein or in any other loan document
incomplete or inaccurate. Borrower represents and warrants that the Property is
not "property" as defined and described in the Indiana Responsible Property
Transfer Law (IRPTL) (I.C. Section 13-25-3-1 et. seq.).
For purposes of this Instrument, the term "Environmental Laws" shall mean
and refer to all federal, state and local laws relating to environmental
matters, including, without limitation, those relating to fines, orders,
injunctions, penalties, damages, contribution, permits, cost recovery
compensation, losses or injuries resulting from the release or threatened
release of hazardous materials and the generation, use, storage, transportation
or disposal of hazardous materials in any manner applicable to Borrower or the
Property, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 and the Super Fund Amendments
and Reauthorization Act (42 USC Section 9601 et. seq.), the Hazardous Materials
Transportation Act (49 USC Section 1801 et. seq.), the Resource Conservation and
Recovery Act of 1976 (42 USC Section 6901 et. seq.), the Federal Water Pollution
Control Act (33 USC Section 1251 et. seq.), the Clean Air Act (42 USC Section
7401 et. seq.), the Toxic Substances Control Act of 1976 (15 USC Section 2601
et. seq.), the Safe Drinking Water Act (42 USC Section 300F-300J-11 et. seq.),
the Occupational Safety and Health Act of
38
1970 (29 USC Section 651 et. seq.) and the Emergency Planning and Community
Right to Know Act (42 USC Section 11001 et. seq.), each as heretofore and
hereafter amended or supplemented, and any analogous future or present local,
state or federal statues, rules and regulations promulgated thereunder or
pursuant thereto, and any other present or future law, ordinance, rule,
regulation, permit or permit condition, order or directive addressing
environmental, health, or safety issues of or by the federal government, any
state or any political subdivision thereof, or any agency, court, or body of the
federal government, any state or any political subdivision thereof, exercising
executive, legislative, judicial, regulatory or administrative functions which
are applicable to the Property.
In addition, for purposes of this Instrument, the term "Hazardous
Materials" shall mean and refer to (a) any chemical, material or substance
defined as or included in the definition of "hazardous substances," "hazardous
wastes," "hazardous materials," "extremely hazardous waste," "restricted
hazardous waste," "toxic pollutants," "contaminants," "pollutants," "toxic
substances" or words of similar import under any applicable local, state or
federal law or under the regulations adopted or publications promulgated
pursuant thereto, including, without limitation, Environmental Laws, (b) any
oil, petroleum or petroleum derived substance, any drilling fluids, produced
waters or other wastes associated with the exploration, development or
production of crude oil, any flammable substances or explosives, any radioactive
materials, any hazardous wastes or substances, any toxic wastes or substances or
any other materials or pollutants which (i) pose a hazard to the Property or to
persons on or about the Property, or (ii) cause the Property to be in violation
of any Environmental Laws, (c) asbestos and asbestos-containing-materials, radon
gas, urea formaldehyde, or transformers or other electrical equipment which
contain any oil or dielectric fluid containing polychlorinated biphenyls, and
(d) any other chemical, material or substance, exposure to which is prohibited,
limited or regulated by any governmental authority.
19. ACCELERATION. Any of the following shall be an Event of Default
hereunder: (a) any Event of Default (as therein defined) under the Loan
Agreement, or (b) a default under Section 15 hereof, upon which Lender, at
Lender's option, may declare all of the sums secured by this Instrument to be
immediately due and payable without notice to or further demand of Borrower.
20. FORECLOSURE; EXPENSE OF LITIGATION.
A. When all or any part of the indebtedness hereby secured shall become
due, whether by acceleration or otherwise, Lender shall have the right to
foreclose the lien hereof for such indebtedness or part thereof and/or exercise
any right, power or remedy provided in this Mortgage or any of the other Loan
Documents. It is further agreed that if default be made in the payment of any
part of the secured indebtedness, as an alternative to the right of foreclosure
for the full secured indebtedness after acceleration thereof, Lender shall have
the right to institute partial foreclosure proceedings with respect to the
portion of said indebtedness so in default, as if under a full foreclosure, and
without declaring the entire secured indebtedness due (such proceeding being
hereinafter referred to as a "partial foreclosure"), and provided that if
foreclosure sale is made because of default of a part of the secured
indebtedness, such sale may be made subject to the
39
continuing lien of this Mortgage for the unmatured part of the secured
indebtedness. It is further agreed that such sale pursuant to a partial
foreclosure shall not in any manner affect the unmatured part of the secured
indebtedness, but as to such unmatured part, the lien hereof shall remain in
full force and effect just as though no foreclosure sale had been made under the
provisions of this Paragraph. Notwithstanding the filing of any partial
foreclosure or entry of a decree of sale in connection therewith, Lender may
elect at any time prior to a foreclosure sale pursuant to such decree to
discontinue such partial foreclosure and to accelerate the entire secured
indebtedness by reason of any uncured Event of Default upon which such partial
foreclosure was predicated or by reason of any other Event of Default and
proceed with full foreclosure proceedings. It is further agreed that several
foreclosure sales may be made pursuant to partial foreclosures without
exhausting the right of full or partial foreclosure sale for any unmatured part
of the secured indebtedness. In the event of a foreclosure sale, Lender is
hereby authorized, without the consent of Borrower, to assign any and all
insurance policies to the purchaser at such sale or to take such other steps as
Lender may deem advisable to cause the interest of such purchaser to be
protected by any of such insurance policies.
B. In any suit to foreclose or partially foreclose the lien hereof, there
shall be allowed and included as additional indebtedness in the decree for sale
all expenditures and expenses which may be paid or incurred by or on behalf of
Lender for reasonable attorneys' fees, appraisers' fees, outlays for documentary
and expert evidence, stenographers' charges, publication costs, and costs (which
may be estimated as to items to be expended after entry of the decree) of
procuring all such abstracts of title, title searches and examinations, title
insurance policies, and similar data and assurances with respect to the title as
Lender may deem reasonably necessary either to prosecute such suit or to
evidence to bidders at any sale which may be had pursuant to such decree the
true condition of the title to or the value of the Property. All expenditures
and expenses of the nature mentioned in this paragraph and such other expenses
and fees as may be incurred in the enforcement of Borrower's obligations
hereunder, the protection of said Property and the maintenance of the lien of
this Mortgage, including the reasonable fees of any attorney employed by Lender
in any litigation or proceeding affecting this Mortgage, the Note, or the
Property, including probate and bankruptcy proceedings, or in preparations for
the commencement or defense of any proceeding or threatened suit or proceeding
shall be immediately due and payable by Borrower, with interest thereon at the
Default Rate and shall be secured by this Mortgage.
21. APPLICATION OF PROCEEDS OF FORECLOSURE SALE. The proceeds of any
foreclosure (or partial foreclosure) sale of the Property shall be distributed
and applied in the following order of priority: first, to all costs and expenses
incident to the foreclosure proceedings, including all such items as are
mentioned in paragraph 15 above; second, to all other items which may under the
terms hereof constitute secured indebtedness additional to that evidenced by the
Note, with interest thereon as provided herein or in the other Loan Documents;
third, to all principal and interest remaining unpaid on the Note; and fourth,
any surplus to Borrower, its successors or assigns, as their rights may appear
or to any other party legally entitled thereto. Notwithstanding anything in this
paragraph 21 to the contrary, the proceeds of any foreclosure sale shall be
applied in accordance with all applicable laws.
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22. APPOINTMENT OF RECEIVER. Upon or at any time after the filing of a
complaint to foreclose (or partially foreclose) this Mortgage, the court in
which such complaint is filed shall, upon petition by Lender, appoint a receiver
for the Property. Such appointment may be made either before or after sale,
without notice, without regard to the solvency or insolvency of Borrower at the
time of application for such receiver and without regard to the value of the
Property or whether the same shall be then occupied as a homestead or not and
Lender hereunder or any other holder of the Note may be appointed as such
receiver. Such receiver shall have power to collect the rents, issues and
profits of the Property (i) during the pendency of such foreclosure suit, (ii)
in case of a sale and a deficiency, during the full statutory period of
redemption, whether there be redemption or not, and (iii) during any further
times when Borrower, but for the intervention of such receiver, would be
entitled to collect such rents, issues and profits. Such receiver also shall
have all other powers and rights that may be necessary or are usual in such
cases for the protection, possession, control, management and operation of the
Property during said period, including, to the extent permitted by law, the
right to lease all or any portion of the Property for a term that extends beyond
the time of such receiver's possession without obtaining prior court approval of
such lease. The court from time to time may authorize the application of the net
income received by the receiver in payment of (a) the indebtedness secured
hereby, or by any decree foreclosing this Mortgage, or any tax, special
assessment or other lien which may be or become superior to the lien hereof or
of such decree, provided such application is made prior to foreclosure sale, and
(b) any deficiency upon a sale and deficiency.
23. LENDER'S RIGHT OF POSSESSION IN CASE OF DEFAULT. At any time after an
Event of Default has occurred, Borrower shall, upon demand of Lender, surrender
to Lender possession of the Property. Lender, in its discretion, may, with or
without process of law, enter upon and take and maintain possession of all or
any part of the Property, together with all documents, books, records, papers
and accounts relating thereto, and may exclude Borrower and its employees,
agents or servants therefrom, and Lender may then hold, operate, manage and
control the Property, either personally or by its agents. Lender shall have full
power to use such measures, legal or equitable, as in its discretion may be
deemed proper or necessary to enforce the payment or security of the avails,
rents, issues, and profits of the Property, including actions for the recovery
of rent, actions in forcible detainer and actions in distress for rent. Without
limiting the generality of the foregoing, Lender shall have full power to:
A. make any repairs, renewals, replacements, alterations, additions,
betterments and improvements to the Property as Lender deems are necessary;
B. insure and reinsure the Property and all risks incidental to Lender's
possession, operation and management thereof; and
C. receive all of such avails, rents, issues and profits.
41
24. PROTECTION OF LENDER'S SECURITY. If Borrower fails to perform the
covenants and agreements contained in this Instrument or if any action or
proceeding is commenced which affects the Property or title thereto or the
interest of Lender therein, including, but not limited to, eminent domain,
insolvency, code enforcement, or arrangements or proceedings involving a
bankrupt or decedent, then, at Lender's option, Lender may make such
appearances, disburse such sums and take such actions as Lender reasonably deems
necessary, in its sole discretion, to protect Lender's interest herein,
including, but not limited to, (i) disbursement of reasonable attorney fees,
(ii) entry upon the Property to make reasonable repairs or to conduct any
reasonably appropriate environmental tests and inspections or to perform any
necessary remediation, (iii) procurement of satisfactory insurance, and (iv)
payment of Impositions.
Any amounts disbursed by Lender pursuant to this paragraph 24, together
with interest thereon, shall become additional indebtedness of Borrower secured
by this Instrument. Unless Borrower and Lender agree to other terms of payment,
such amounts shall be immediately due and payable and shall bear interest from
the date of disbursement at a rate equal to the Default Rate of interest set
forth in the Note. Nothing contained in this paragraph 20 shall require Lender
to incur any expense or take any action hereunder.
25. BORROWER AND LIEN NOT RELEASED. From time to time, Lender may, at
Lender's option, after giving twenty-four (24) hours' notice but without
obtaining the consent of Borrower, or its successors or assigns, without
liability on Lender's part and notwithstanding the breach of any covenant or
agreement of Borrower in this Instrument, extend the time for payment of the
indebtedness evidenced by the Note or any part thereof, reduce the payments
thereon, release anyone liable on any of said indebtedness, accept a renewal
note or notes therefor, agree with Borrower, in writing, to modify the terms and
time of payment of said indebtedness, release from the lien of this Instrument
any part of the Mortgaged Property, take or release other or additional
security, reconvey any part of the Mortgaged Property, consent to any map or
plan of the Property, consent to the granting of any easement, join in any
extension or subordination agreement, and agree in writing with Borrower to
modify the rate of interest or period of amortization of the Note. Any actions
taken by Lender pursuant to the terms of this paragraph 25 shall not affect the
obligation of Borrower, or Borrower's successors or assigns, to pay the sums
secured by this Instrument and to observe the covenants of Borrower contained
herein, shall not affect the guaranty of any person, corporation, partnership or
other entity for payment of the indebtedness secured hereby, and shall not
affect the lien or priority of the lien hereof on the Mortgaged Property.
Borrower shall pay Lender a reasonable service charge, together with such title
insurance premiums and attorney fees as may be incurred, at Lender's option, for
any such action if taken at Borrower's request.
26. FORBEARANCE BY LENDER NOT A WAIVER. Any forbearance by Lender in
exercising any right or remedy hereunder, or otherwise afforded by applicable
law, shall not be a waiver of or preclude the exercise of any such right or
remedy. The acceptance by Lender of payment of any sum secured by this
Instrument after the due date of such payment shall not be a
42
waiver of Lender's right to either require prompt payment when due of all other
sums so secured or to declare a default for failure to make prompt payment.
27. ESTOPPEL CERTIFICATE. Borrower shall, within ten (10) days of written
request from Lender, furnish Lender with a written statement, duly acknowledged,
setting forth the sums secured by this Instrument and any right of set-off,
counterclaim or other defense which exists against such sums and the obligations
of Borrower under the Note and this Instrument.
28. NOTICE. Except for any notice required under applicable law to be given
in another manner, any notice to Borrower provided for in this Instrument shall
be given by personal delivery or by mailing such notice by registered or
certified mail, return receipt requested, addressed to Borrower at Borrower's
address set forth in the original paragraph hereof, or at such other address as
Borrower may designate by notice to Lender as provided herein, and any notice to
Lender shall be given by personal delivery or by mailing such notice by
registered or certified mail, return receipt requested, to Lender's address
stated herein or to such other address as Lender may designate by notice to
Borrower as provided herein, with a copy to Xxxxxxx X. Xxxxxx, Xxxx Xxxxx Xxxxxx
& Xxxxxxx, 0000 Xxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000. Any notice
provided for in this Instrument and sent by registered or certified mail shall
be deemed to have been given two (2) days following the proper mailing of such
notice.
29. SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY; AGENTS;
CAPTIONS. The covenants and agreements herein contained shall bind, and the
rights hereunder shall inure to, the respective successors and assigns of Lender
and Borrower, subject to the provisions of paragraph 14 hereof. This Instrument,
and any instrument or documents made in connection herewith may be assigned by
the Lender without the consent of Borrower. All covenants and agreements of
Borrower shall be joint and several. In exercising any rights hereunder or
taking any actions provided for herein, Lender may act through its employees,
agents or independent contractors as authorized by Lender. The captions and
headings of the paragraphs of this Instrument are for convenience only and are
not to be used to interpret or define the provisions hereof.
30. GOVERNING LAW; SEVERABILITY. This Instrument shall be construed under
and governed by the laws of the state of Indiana. In the event that any
provision of this Instrument or the Note conflicts with applicable law, such
conflict shall not affect any other provisions of this Instrument or the Note
which can be given effect without the conflicting provisions, and to this end
the provisions of this Instrument and the Note are declared to be severable.
31. WAIVER OF STATUTE OF LIMITATIONS. Borrower hereby waives the right to
assert any statute of limitation as a bar to the enforcement of the lien of this
Instrument or to any action brought to enforce the Note or any other obligation
secured by this Instrument. Notwithstanding the foregoing, nothing in this
paragraph is intended to constitute a
43
waiver of the rights of Borrower and Lender under I.C. 32-8-16-1.5, it being
agreed that the parties may mutually consent to such waiver in a separate
subsequent writing.
32. WAIVER OF MARSHALLING. Notwithstanding the existence of any other
security interests in the Mortgaged Property held by Lender or by any other
party, Lender shall have the right to determine the order in which any or all of
the Mortgaged Property shall be subjected to the remedies provided herein.
Lender shall have the right to determine the order in which any or all portions
of the indebtedness secured hereby are satisfied from the proceeds realized upon
the exercise of the remedies provided herein. Borrower, any party who consents
to this Instrument and any party who now or hereafter acquires a security
interest in the Mortgaged Property and who has actual or constructive notice
hereof, hereby waives any and all right to require the marshalling of assets in
connection with the exercise of any of the remedies permitted by applicable law
or provided herein.
33. FUTURE ADVANCES. Lender, prior to release of this Instrument, may make
one or more future advances to Borrower not to exceed a total indebtedness of
Eight Million Dollars ($8,000,000), which future advances shall, in each
instance, be secured by this Mortgage in accordance with I.C. Section 32-8-11-9.
Such future advances, with interest thereon, shall be secured by this
Instrument, whether made (i) under the Note, or (ii) under any substitution,
renewal, replacement or modification of the Note, when evidenced by
substitution, renewal, replacement or modification agreements or notes stating
that such agreements or notes are secured by this Instrument. Borrower shall be
entitled to future advances, if any, in accordance with the Note, or any
substitution, renewal, replacement or modification thereof in accordance with
all applicable terms, conditions, and requirements for such future advances and,
so long as Borrower is not in default hereunder or Borrower is not in default
thereunder, such future advances shall be deemed obligatory advances under this
Instrument.
34. CHANGES IN LAW REGARDING TAXATION. In the event of the passage after
the date of this Instrument of any law of the State of Indiana deducting from
the value of real property for the purpose of taxation, any lien or encumbrance
thereon or changing in any way the laws of the taxation of mortgages or debts
secured by mortgages for state or local purposes or the manner of the collection
of any such taxes, and imposing a tax, either directly or indirectly, on this
Instrument, the Note or the indebtedness, the Borrower shall, if permitted by
law, pay any tax imposed as a result of any such law within the statutory period
or within fifteen (15) days after demand by Lender, whichever is less, provided,
however, that if in the opinion of the attorneys for Lender, the Borrower is not
permitted by law to pay such taxes, the Lender, at Lender's option, may declare
all of the sums secured by this Instrument to be immediately due and payable
without notice to or further demand of Borrower and pursue all remedies provided
hereunder.
35. CONSENT TO JURISDICTION. BORROWER HEREBY AGREES THAT ALL ACTIONS OR
PROCEEDINGS INITIATED BY BORROWER AND ARISING DIRECTLY OR INDIRECTLY OUT OF THIS
INSTRUMENT OR ANY OF THE OTHER LOAN DOCUMENTS SHALL BE LITIGATED IN THE CIRCUIT
OR SUPERIOR
00
XXXXX XX XXXXXX XXXXXX, XXXXXXX, XX XXX XXXXXX XXXXXX DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA OR, IF LENDER INITIATES SUCH ACTION, ANY
COURT IN WHICH LENDER SHALL INITIATE SUCH ACTION AND WHICH HAS JURISDICTION.
BORROWER HEREBY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION
IN ANY ACTION OR PROCEEDING COMMENCED BY LENDER IN ANY OF SUCH COURTS, AND
HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OR
PAPERS ISSUED THEREIN, AND AGREES THAT SERVICE OF SUCH SUMMONS AND COMPLAINT OR
OTHER PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO
BORROWER AT THE ADDRESS TO WHICH NOTICES ARE TO BE SENT PURSUANT TO THIS
INSTRUMENT. BORROWER WAIVES ANY CLAIM THAT XXXXXX COUNTY, INDIANA OR THE
SOUTHERN DISTRICT OF INDIANA IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM BASED
ON LACK OF VENUE. SHOULD BORROWER, AFTER BEING SO SERVED, FAIL TO APPEAR OR
ANSWER TO ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN THE NUMBER
OF DAYS PRESCRIBED BY LAW AFTER THE MAILING THEREOF, BORROWER SHALL BE DEEMED IN
DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED BY LENDER AGAINST BORROWER
AS DEMANDED OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS. THE
EXCLUSIVE CHOICE OF FORUM FOR BORROWER SET FORTH IN THIS SECTION SHALL NOT BE
DEEMED TO PRECLUDE THE ENFORCEMENT, BY LENDER, OF ANY JUDGMENT OBTAINED IN ANY
OTHER FORUM OR THE TAKING, BY LENDER, OF ANY ACTION TO ENFORCE THE SAME IN ANY
OTHER APPROPRIATE JURISDICTION, AND BORROWER HEREBY WAIVES THE RIGHT, IF ANY, TO
COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.
36. WAIVER OF TRIAL BY JURY. BORROWER HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, AND LENDER BY ITS ACCEPTANCE OF THE NOTE AND THIS
INSTRUMENT IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY
JURY IN ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN CONNECTION WITH, OUT OF OR
OTHERWISE RELATING TO THE NOTE, THIS INSTRUMENT OR ANY OTHER DOCUMENT OR
INSTRUMENT HERETOFORE, NOW OR HEREAFTER EXECUTED AND/OR DELIVERED IN CONNECTION
THEREWITH, THE LOAN SECURED BY THIS INSTRUMENT OR IN ANY WAY RELATED TO THIS
TRANSACTION OR OTHERWISE WITH RESPECT TO THE PROPERTY.
IN WITNESS WHEREOF, the said Borrower hereunder duly authorized, has caused
this Instrument to be executed.
XXXXXXX INNS, INC.,
a Georgia corporation
By:___________________________
Xxxxx X. Xxxxxxx, President
45
STATE OF GEORGIA )
) SS:
COUNTY OF DEKALB )
Before me, a Notary Public in and for said County and State, personally
appeared Xxxxx X. Xxxxxxx, the President of Xxxxxxx Inns, Inc., a Georgia
corporation, who, after having been duly sworn, acknowledged the execution of
the foregoing Mortgage, Security Agreement and Fixture Filing on behalf of said
corporation.
WITNESS, my hand and Notarial Seal this ___ day of September, 2000.
_______________________________________
________________________, Notary Public
My Commission Expires:
_________________________
My County of Residence:
_________________________
This instrument prepared by and after recording return to: Xxxxxxx X. Xxxxxx,
---------------------------------------------------------
Esq., XXXX XXXXX XXXXXX & XXXXXXX, P.C., 0000 Xxx Xxxxxxxx Xxxxxx, Xxx 00000,
Xxxxxxxxxxxx, XX 00000, 000-000-0000.
46
EXHIBIT B
Permitted Exceptions
General real estate taxes for the year 2000 and each year thereafter not yet due
and payable.
Exception Nos. _________________ reflected by the preliminary title binder dated
________, 2000, Commitment No. _________, issued by ___________________.
47
ASSIGNMENT OF DEPOSITS, LEASES AND RENTS
THIS ASSIGNMENT, executed to be effective as of the ___ day of September,
2000 by XXXXXXX INNS, INC., a Georgia corporation, having a mailing address of 0
Xxxxxxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, XX 00000 (hereinafter referred to as
the "Assignor"), to REPUBLIC BANK, a Michigan Commercial Bank, having a banking
office at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX 00000
(hereinafter referred to as the "Assignee"),
W I T N E S S E T H:
FOR VALUE RECEIVED, Assignor hereby grants, transfers and assigns to the
Assignee all of the right, title and interest of Assignor in and to all leases,
room agreements or deposits, now or hereafter entered into whether oral or
written, including any occupancy agreements, or the leases with the occupants or
the tenants described in Exhibit "B" attached hereto, which demise any portion
of the real estate located in Xxxxxx County, Indiana, described in Exhibit "A"
attached hereto and by reference made a part hereof (hereinafter referred to as
the "Premises"), together with any and all extensions and renewals thereof (all
such occupancy agreements and leases being hereinafter collectively referred to
as the "Leases"), together with any guaranty of any occupants' or tenants'
obligations (all such occupants' or tenants' guaranties being hereinafter
collectively referred to as the "Guaranties"), together with the immediate and
continuing right to collect and receive all rents, income, payments and profits
arising out of said Leases, Guaranties or out of the Premises or any part
thereof, including but not limited to all rents, income, payments and profits
arising from the operation of any business on the Premises (hereinafter referred
to as the "Rents"), together with the right to proceeds payable to Assignor
pursuant to any purchase options on the part of the occupants or the tenants
under the Leases, together with all payments derived therefrom including but not
limited to claims for the recovery of damages done to the Premises or for the
abatement of any nuisance existing thereon, claims for damages resulting from
default under said Leases whether resulting from acts of insolvency or acts of
bankruptcy or otherwise, and lump sum payments for the cancellation of said
Leases or the waiver of any obligation or term thereof prior to the expiration
date and the return of any insurance premiums or ad valorem tax payments made in
advance and subsequently refunded.
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AND THE ASSIGNOR FURTHER AGREES, ASSIGNS AND COVENANTS:
1. Indebtedness and Obligations Secured. This Assignment is given as
security for the performance and observance of the covenants and agreements
herein contained and any other agreement executed by Assignor to Assignee in
connection with the indebtedness secured hereby and to secure the payment when
due of the principal of and interest on all present and future indebtedness and
obligations of Assignor, individually or with others, in accordance with the
terms and conditions of such indebtedness and obligations, whether direct or
indirect, absolute of contingent and whether evidenced by promissory notes,
agreements, checks, drafts, letters of credit, bills, overdrafts, open accounts
or otherwise, including but not limited to the indebtedness evidenced by a
certain promissory note executed by Assignor of even date and concurrently with
this Assignment and payable to the order of Assignee in the principal sum of
Four Million Seven Hundred Forty-Five Thousand Dollars ($4,745,000.00) or any
notes in renewal thereof (such promissory note, and/or any promissory note which
is a direct or remote renewal, extension, modification, amendment, restatement,
or replacement of such promissory note, as may be from time to time modified or
amended is hereinafter referred to as the "Note"), with interest thereon at the
rate and payable in a manner described in the Note, and including any and all
extensions, renewals, increases, modifications, amendments, restatements and
replacements of any of the foregoing. In addition to any other indebtedness and
obligations secured by this Assignment, this Assignment secures any and all
future advances, together with any interest thereon, which are made by Assignee
to or for the benefit of Assignor.
2. Performance of Leases. Assignor will, at its own cost and expense
perform, comply with and discharge all of the obligations of Assignor under any
Leases and use its best efforts to enforce or secure the performance of each
obligation and undertaking of the respective occupants or tenants under any such
Leases and will appear in and defend, at its own cost and expense, any action or
proceedings arising out of or in any manner connected with Assignor's interest
in any Leases of the Premises. Assignor will not borrow against, pledge or
assign any rentals due under the Leases nor consent to a subordination or
assignment of the interest of the occupants or the tenants thereunder to any
party other than Assignee, nor anticipate the rents thereunder for more than one
(1) month in advance or reduce the amount of rents and other payments
thereunder, nor incur any indebtedness to the occupants or tenants under such
Leases without the prior written consent of Assignee. With respect to all Leases
of the Premises, Assignor agrees that it will not execute new Leases or modify,
extend, renew, terminate accept a surrender of or in any way alter the terms of
the Leases nor waive, excuse, condone or in any manner release or discharge the
occupants or tenants of or from their obligations, covenants and agreements to
be performed without the prior written consent of Assignee. Assignor will
deliver copies of all lease amendments and new leases to Assignee within ten
(10) days prior to execution.
3. Guaranties. Assignor will use its best efforts to enforce or secure the
performance of each obligation and undertaking of any guarantor under the
Guaranties. Assignor agrees that it will not modify, extend, renew, terminate,
accept a surrender of or in any way alter the terms of any of the Guaranties,
nor waive, excuse, condone or in any manner release or discharge occupant's or
49
tenant's or any other guarantor of or from their obligations, covenants and
agreements to be performed without the prior written consent of Assignee.
4. Protect Security. Assignor shall, at Assignor's sole cost and expense,
appear in and defend any action or proceeding arising under, growing out of or
in any manner connected with the Leases or the obligations, duties or
liabilities of the lessor thereunder, and shall pay all costs and expenses of
Assignee, including attorney's fees and expenses, in any such action or
proceeding in which Assignee in its sole discretion may appear.
5. Present Assignment. This Assignment shall constitute a perfected,
absolute and present assignment, provided, Assignor shall have the right to
collect, but not prior to accrual, all of the Rents and to retain, use and enjoy
the same unless and until an Event of Default (hereafter defined) shall occur
hereunder.
6. Events of Default. Each of the following events shall constitute an
Event of Default hereunder:
a. any default in the performance and observance of any of the terms,
covenants or agreements of this Assignment;
b. any Event of Default (as defined in the Loan Agreement of even
date, the "Loan Agreement") shall occur.
7. Remedies. Upon the occurrence of an Event of Default under this
Assignment, Assignee may declare all indebtedness secured hereby immediately due
and payable, may revoke the privilege granted Assignor hereunder to collect the
Rents, and may, at its option, without further notice, either in person or by
any agent, with or without taking possession of or entering the Premises, with
or without bringing any action or proceeding, or by a receiver to be appointed
by a court, collect all of the Rents payable under the Leases and sums payable
under the Guaranties, enforce the payment thereof and exercise all of the rights
of Assignor under the Leases and the Guaranties and all the rights of Assignee
hereunder, and may enter upon, take possession of, manage and operate the
Premises, or any part thereof; may enforce or reasonably modify the Leases and
the Guaranties, and reasonably fix or modify the Rents, and do any acts which
Assignee deems proper to protect the security hereof with or without taking
possession of the Premises so long as no action of Assignee violates any Lease
or law or damages the Premises, and may apply the same to the costs and expenses
of operation, management and collection, including attorneys' fees, to the
payment of the expenses of any agent appointed by Assignee, to the payment of
taxes, assessments, insurance premiums and expenditures for the upkeep of the
Premises, to the performance of the landlord's obligation under the Leases and
to any indebtedness secured hereby all in such order as Assignee may determine.
The entering upon and taking possession of the Premises, the collection of the
Rents, and the application thereof as aforesaid, shall not cure or waive any
default or waive, modify or affect notice of default under the Loan Agreement or
any other Loan Document (as defined therein) or invalidate any act done pursuant
to such notice nor in any way operate to prevent Assignee from
50
pursuing any remedy which it now or hereafter may have under the terms or
conditions of the Loan Documents or any other instrument securing the same. The
rights and powers of Assignee hereunder shall in no way be dependent upon and
shall apply without regard to whether the Premises are in danger of being lost,
materially injured or damaged or whether the Premises are adequate to discharge
the indebtedness secured hereby.
8. No Liability For Assignee. Assignee shall not be obligated to perform or
discharge, nor does it hereby undertake to perform or discharge any obligation,
duty or liability under the Leases nor shall this Assignment operate to place
responsibility for the control, care, management or repair of the Premises upon
Assignee nor for the carrying out of any of the terms and conditions of the
Leases; nor shall it operate to make Assignee responsible or liable for any
waste committed on the Premises, or for any dangerous or defective condition of
the Premises, or for any negligence in the management, upkeep, repair or control
of the Premises resulting in loss or injury or death to any occupant, tenant,
licensee, employee or stranger nor liable for laches or failure to collect the
Rents and Assignee shall be required to account only for such moneys as are
actually received by it. All actions taken by Assignee pursuant to this
Assignment shall be taken for the purposes of protecting Assignee's security and
Assignor hereby agrees that nothing herein contained and no actions taken by
Assignee pursuant to this Assignment, including, but not limited to, Assignee's
approval or rejection of any Lease or Guaranty for any portion of the Premises,
shall in any way alter or impact the obligation of Assignor to pay the
indebtedness secured hereby.
9. Assignor To Hold Assignee Harmless. Assignor shall and does hereby agree
to indemnify and to hold Assignee harmless of and from any and all liability,
loss or damage which it may or might incur under the Leases, the Guaranties or
under or by reason of this Assignment and of and from any and all claims and
demands whatsoever which may be asserted against it by reason of any alleged
obligations or undertakings on its part to perform or discharge any of the
terms, covenants or agreements contained in the Leases prior to the date that
Assignee or other purchaser at foreclosure sale becomes fee owner of the
Premises. Should Assignee incur any such liability, or any costs or expenses in
the defense of any such claims or demands, the amount thereof, including costs,
expenses, and reasonable attorney's fees, shall be secured hereby, shall be
added to the indebtedness secured hereby and Assignor shall reimburse Assignee
therefor immediately upon demand, and the continuing failure of Assignor so to
do shall constitute an Event of Default hereunder and an Event of Default under
the Loan Agreement.
10. Security Deposits. Assignor agrees that, upon the occurrence of an
Event of Default hereunder, it shall, upon demand, transfer to Assignee any room
deposits or security deposits held by Assignor under the terms of the Leases.
Assignor agrees that such room deposits and security deposits, if any, may be
held by Assignee without any allowance of interest thereon, except statutory
interest, if any, accruing to the benefit of the occupants or tenants, and shall
become the absolute property of Assignee upon the occurrence of an Event of
Default hereunder to be applied in accordance with the provisions of the Leases.
Until Assignee makes such demand and the deposits are paid over to Assignee,
Assignee assumes no responsibility to the occupants or tenants for any such
occupancy or security deposit.
51
11. Authorization to Occupants, Tenants and Guarantors. The occupants and
tenants under the Leases (and any parties to the Guaranties) are hereby
irrevocably authorized and directed to recognize the claims of Assignee or any
receiver appointed by a court without investigating the reason for any action
taken by Assignee or such receiver, or the validity or the amount of
indebtedness owing to Assignee, or the existence of any default under or by
reason of this Assignment, or the application to be made by Assignee or
receiver. Assignor hereby irrevocably directs and authorizes the occupants and
the tenants (and any parties to the Guaranties) to pay to Assignee or such
receiver all sums due under the Leases (or the Guaranties) and consents and
directs that said sums shall be paid to Assignee or any such receiver in
accordance with the terms of its receivership without the necessity for a
judicial determination that an Event of Default has occurred hereunder or that
Assignee is entitled to exercise its rights hereunder, and to the extent such
sums are paid to Assignee or such receiver, Assignor agrees that the occupants
and the tenants (and the parties to the Guaranties) shall have no further
liability to Assignor for the same. The sole signature of Assignee or such
receiver shall be sufficient for the exercise of any rights under this
Assignment and the sole receipt of Assignee or such receiver for any sums
received shall be a full discharge and release therefor to any such tenants or
occupants of the Premises. Checks for all or any part of the Rents collected
under this Assignment shall upon notice from Assignee or such receiver be drawn
to the exclusive order of Assignee or such receiver.
12. Satisfaction. Upon the payment in full of all indebtedness secured
hereby as evidenced by a recorded satisfaction of the Mortgage, Security
Agreement and Fixture Filing between Assignor and Assignee of even date
("Mortgage") executed by Assignee, or its subsequent assign, this Assignment
shall without the need for any further satisfaction or release become null and
void and be of no further effect, provided that Assignee shall execute a
satisfaction or release if Assignor so requests.
13. Assignee Creditor Of The Occupants and Tenants. Upon or at any time
during the continuance of an Event of Default under this Assignment, Assignor
agrees that Assignee, and not Assignor, shall be and be deemed to be the
creditor of the occupants and tenants in respect of assignments for the benefit
of creditors and bankruptcy, reorganization, insolvency, dissolution, or
receivership proceedings affecting such occupants or tenants, (without
obligation on the part of Assignee, however, to file or make timely filings of
claims in such proceedings or otherwise to pursue creditor's rights therein, and
reserving the right to Assignor to make such filing in such event) with an
option to Assignee to apply any money received by Assignee as such creditor in
reduction of the indebtedness secured hereby.
14. Assignee Attorney-in-Fact. Assignor hereby irrevocably appoints
Assignee and its successors and assigns as its agent and attorney in fact, which
appointment is coupled with an interest, to exercise any rights or remedies
hereunder and to execute and deliver during the term of this Assignment such
instruments as this Assignee may deem necessary to make this assignment and any
further assignment effective.
52
15. Subsequent Leases. Until the indebtedness secured hereby shall have
been paid in full, Assignor will deliver to Assignee executed copies of any and
all other and future leases (excluding any occupancy agreements for the rental
of rooms) upon all or any part of the Premises and agrees to make, execute and
deliver unto Assignee upon demand and at any time or times, any and all
assignments and other instruments sufficient to assign the leases and the Rents
thereunder to Assignee or that Assignee may deem to be advisable for carrying
out the true purposes and intent of this Assignment. All such future leases must
contain an environmental protection clause which states that the occupant or
tenant shall not handle, release, store or produce hazardous wastes (as defined
by federal law or local law) on the premises demised under such lease. The above
covenant shall not be deemed to prohibit hazardous materials or wastes which are
used in the ordinary course of the operation of businesses on the Premises and
which are stored, used and disposed of in accordance with all applicable laws
and ordinances and for which any necessary permits have been obtained. From time
to time on request of Assignee, Assignor agrees to furnish Assignee with a rent
roll of the Premises disclosing current tenancies, rents payable, and such other
matters as Assignee may reasonably request.
16. General Assignment of Leases and Rents. The rights contained in this
Assignment are in addition to and shall be cumulative with the rights given and
created in the Mortgage, assigning generally all leases, rents and profits of
the Premises and shall in no way limit the rights created thereunder. The giving
of this Assignment is a condition precedent to the making of the Mortgage loan
secured hereby.
17. No Mortgagee In Possession. Nothing herein contained and no actions
taken pursuant to this Assignment shall be construed as constituting Assignee a
"Mortgagee in Possession".
18. Continuing Rights. The rights and powers of Assignee or any receiver
hereunder shall continue and remain in full force and effect until all
indebtedness secured hereby, including any deficiency remaining from a
foreclosure sale, are paid in full, and shall continue after commencement of a
foreclosure action and, if Assignee be the purchaser at the foreclosure sale,
after foreclosure sale and until expiration of the equity of redemption.
19. Successors And Assigns. This Assignment and each and every covenant,
agreement and provision hereof shall be binding upon Assignor and its successors
and assigns including without limitation each and every from time to time record
owner of the Premises or any other person having an interest therein and shall
inure to the benefit of Assignee and its successors and assigns. As used herein
the words "successors and assigns" shall also be deemed to mean the heirs,
executors, representatives and administrators of any natural person who is or
becomes a party to this Assignment.
20. Governing Law. This Assignment shall be governed by the laws of the
State of Indiana.
53
21. Validity Clause. It is the intent of this Assignment to confer to
Assignee the rights and benefits hereunder to the full extent allowable by law.
The unenforceability or invalidity of any provisions hereof shall not render any
other provision or provisions herein contained unenforceable or invalid. Any
provisions found to be unenforceable shall be severable from this Assignment.
22. Notices. Any notice which any party hereto may desire or may be
required to give to any other party - shall be in writing and either (a) mailed
by certified mail, return receipt requested, or (b) sent by an overnight carrier
which provides for a return receipt. Any such notice shall be sent to the
respective party's address as set forth on Page 1 of this Assignment or to such
other address within the State of Indiana as such party may, by notice in
writing, designate as its address. Any such notice shall constitute service of
notice hereunder three (3) days after the mailing thereof by certified mail, and
one (1) day after the sending thereof by overnight carrier, pursuant to the
terms hereof.
23. Costs of Enforcement. Assignor agrees to pay the costs and expenses,
including but not limited to attorneys' fees and legal expenses incurred by
Assignee in the exercise of any right or remedy available to it under this
Assignment, whether or not suit is commenced including, without limitation,
attorneys' fees and legal expenses incurred in connection with any appeal of a
lower court's order or judgment where Assignee is the prevailing party.
24. Captions. The captions or headings herein have been inserted solely for
the convenience of reference and in no way define, limit or describe the scope
or substance of any provision of this Assignment.
25. WAIVER OF JURY TRIAL. THE ASSIGNEE AND THE ASSIGNOR, AFTER CONSULTING
OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE ANY RIGHT EITHER OF THEM MAY HAVE TO A TRIAL BY A JURY
IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS ASSIGNMENT OR THE LOAN
DOCUMENTS, OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS ASSIGNMENT, OR ANY
COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
EITHER OF THEM. NEITHER THE ASSIGNEE NOR THE ASSIGNOR SHALL SEEK TO CONSOLIDATE,
BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN
WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY
RESPECT OR RELINQUISHED BY EITHER THE ASSIGNEE OR THE ASSIGNOR EXCEPT BY A
WRITTEN INSTRUMENT EXECUTED BY BOTH OF THEM.
26. CONSENT TO JURISDICTION. ASSIGNOR HEREBY AGREES THAT ALL ACTIONS OR
PROCEEDINGS INITIATED BY ASSIGNOR AND ARISING DIRECTLY OR INDIRECTLY OUT OF THIS
ASSIGNMENT OF DEPOSITS, LEASES AND RENTS OR ANY OF THE OTHER LOAN DOCUMENTS
SHALL BE LITIGATED IN THE
00
XXXXXXX XX XXXXXXXX XXXXX XX XXXXXX XXXXXX, XXXXXXX, XX THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA OR, IF ASSIGNEE INITIATES
SUCH ACTION, ANY COURT IN WHICH ASSIGNEE SHALL INITIATE SUCH ACTION AND WHICH
HAS JURISDICTION. ASSIGNOR HEREBY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO
SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED BY ASSIGNEE IN ANY OF
SUCH COURTS, AND HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR
OTHER PROCESS OR PAPERS ISSUED THEREIN, AND AGREES THAT SERVICE OF SUCH SUMMONS
AND COMPLAINT OR OTHER PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL ADDRESSED TO ASSIGNOR AT THE ADDRESS TO WHICH NOTICES ARE TO BE SENT
PURSUANT TO THIS ASSIGNMENT. ASSIGNOR WAIVES ANY CLAIM THAT XXXXXX COUNTY,
INDIANA OR THE SOUTHERN DISTRICT OF INDIANA IS AN INCONVENIENT FORUM OR AN
IMPROPER FORUM BASED ON LACK OF VENUE. SHOULD ASSIGNOR, AFTER BEING SO SERVED,
FAIL TO APPEAR OR ANSWER TO ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED
WITHIN THE NUMBER OF DAYS PRESCRIBED BY LAW AFTER THE MAILING THEREOF, ASSIGNOR
SHALL BE DEEMED IN DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED BY
ASSIGNEE AGAINST ASSIGNOR AS DEMANDED OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT,
PROCESS OR PAPERS. THE EXCLUSIVE CHOICE OF FORUM FOR ASSIGNOR SET FORTH IN THIS
SECTION SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT, BY ASSIGNEE, OF ANY
JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE TAKING, BY ASSIGNEE, OF ANY ACTION
TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE JURISDICTION, AND ASSIGNOR HEREBY
WAIVES THE RIGHT, IF ANY, TO COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.
IN WITNESS WHEREOF, Assignor has caused this Assignment of Leases and Rents
to be executed as of the date first above written.
XXXXXXX INNS, INC.,
a Georgia corporation
By:___________________________
Xxxxx X. Xxxxxxx, President
55
STATE OF GEORGIA )
) SS:
COUNTY OF DEKALB )
Before me, a Notary Public in and for said County and State, personally
appeared Xxxxx X. Xxxxxxx, the President of Xxxxxxx Inns, Inc., a Georgia
corporation, who, after having been duly sworn, acknowledged the execution of
the foregoing Assignment of Deposits, Leases and Rents for and on behalf of such
corporation.
WITNESS, my hand and Notarial Seal this ___ day of September, 2000.
_______________________________________
________________________, Notary Public
My Commission Expires:
_________________________
My County of Residence:
_________________________
This instrument prepared by Xxxxxxx X. Xxxxxx, Attorney at Law, Xxxx Xxxxx
Xxxxxx & Xxxxxxx, P.C., Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxx 00000,
Xxxxxxxxxxxx, Xxxxxxx 00000.
56
ESTOPPEL CERTIFICATE,
SUBORDINATION, AND
ATTORNMENT AGREEMENT
THIS AGREEMENT, made and entered into as of this day of September, 2000, by
and among XXXXXXX INNS, INC., a Georgia corporation (hereinafter referred to as
"Landlord"), XXXXXXX HOSPITALITY, LLC, a Georgia limited liability company
(hereinafter referred to as "Tenant"), and REPUBLIC BANK, a Michigan Commercial
Bank (hereinafter referred to as "Lender").
W I T N E S S E T H
WHEREAS, Lender has made or intends to make a loan to Landlord (the "Loan")
relating to a certain hotel located on certain real property in Xxxxxx County,
Indiana, and more particularly described in Exhibit AA" attached hereto (the
ALand"); and
WHEREAS, the Loan is or will be secured by, among other things, a mortgage
and security agreement (the "Mortgage") on the Land and other property described
therein (hereinafter referred to as the "Mortgaged Property"); and
WHEREAS, Landlord and Tenant have entered into that certain Master Lease
Agreement dated as of May 7, 1999, as amended by that certain Amendment No. 1 to
Master Lease Agreement dated as of May 7, 1999 (collectively the "Lease") with
respect to certain premises referred to in the Lease (the "Premises") which
include the Mortgaged Property; and
WHEREAS, Landlord has assigned, pursuant to the Mortgage and that certain
Assignment of Deposits, Leases and Rents executed in connection therewith (the
"Assignment"), all of its right, title and interest in and to the Lease and the
rents payable thereunder to Lender as security for the performance of its
obligations being made in connection with the Loan; and
WHEREAS, the parties wish to confirm that the Mortgage is superior in right
to the Lease and to the right, title and interests of Tenant thereto and
thereunder; and
NOW THEREFORE, in consideration of the mutual promises and covenants of the
parties hereto, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do mutually
covenant and agree as follows:
1. The Lease is and shall at all times hereafter be subject and subordinate
in all respects to the Mortgage and the lien and effect thereof and to all
renewals, modifications, substitutions, replacements, consolidations and
extensions thereof and future advances thereunder, to all related loan documents
and to all other future mortgages to be held by Lender.
2. No notice by Tenant to Landlord of any default by Landlord under any
obligation of the Lease, which default is of such nature as to give Tenant a
right to terminate the Lease or to reduce the rent or other monies payable under
the Lease or a right to any credit or offset against future rents or other
monies payable in the future shall be effective, notwithstanding any provision
in the Lease to the contrary, unless and until such notice is also given to
Lender and Lender shall not have cured or remedied such default within sixty
(60) days following receipt of such notice by Lender; provided that if such
default is not capable of being cured within such sixty (60) day period Lender
shall have a reasonable period of time after the expiration of the cure period
to cure such default provided it diligently proceeds with its efforts to cure.
Lender shall have the right, but not the obligation, to remedy or cure such
default.
3. No person or entity who exercises a right, arising under the Mortgage or
Assignment, to receive the rents payable by Tenant under the Lease shall thereby
become obligated to Tenant for the performance of any of the terms, covenants,
conditions and agreements of Landlord under the Lease. Landlord and Tenant agree
that Tenant shall make all payments to be made by Tenant under the Lease to such
person or entity upon receipt of written notice of the exercise of such rights,
and Tenant agrees not to prepay any sums payable by Tenant under the Lease. Such
receipt of rent by any other party shall not relieve Landlord of its obligations
under the Lease, and Tenant shall continue to look to Landlord only for
performance thereof.
4. If Lender or any successor-in-interest to Lender (or any receiver
appointed in an action or proceeding to foreclose the Mortgage or otherwise)
shall succeed to the rights of the Landlord under the Lease, whether through
possession, termination or cancellation of the Lease, surrender, assignment,
judicial action, subletting, foreclosure action or delivery of a deed in lieu of
foreclosure or otherwise Tenant shall attorn to Lender or such other successor
in interest to Lender as lessor and without further evidence of such attornment
and acceptance, Tenant shall be bound by and comply with all the terms,
provisions, covenants and obligations contained in the Lease on its part to be
performed and this Agreement; provided, however, that nothing contained in this
Agreement or any other instrument, including, but not limited to, the Lease,
shall impose upon Lender an obligation to complete any improvements for the
benefit of Tenant. It is understood that Tenant's agreement to attorn under this
paragraph shall not be construed as amending the Landlord's obligations under
the Lease.
5. In addition to and not in lieu of all the provisions of this Agreement,
Lender shall not in any way or to any extent be:
a) liable for any warranty, act or omission of any landlord
(including Lender and Landlord) in contravention of any provision of
the Lease; or
b) subject to any offsets, claims or defenses which Tenant might
have against any prior landlord (including Landlord); or
c) bound by any rent or percentage rent which Tenant might have
paid more than thirty (30) days in advance to any prior landlord
(including Landlord); or
d) bound by an agreement or modification of the Lease made
without Lender's written consent; or
e) in any way responsible for deposit or security which was
delivered to Landlord but which was not subsequently delivered to
Lender.
6. Tenant, in order to induce Lender to enter into this Agreement, hereby
warrants and represents that:
a) The Master Lease Agreement dated May 7, 1999, executed by
Landlord as landlord and Tenant as tenant, together with the following
amendments:
Amendment No. 1 to Master Lease Agreement is a full, true and complete
copy of the Lease;
b) Tenant has delivered to Landlord a security deposit in the
amount of $0;
c) Fixed or Base Rent is payable monthly in the amount of
$______________, commencing on June 1, 1999 and there has been no
prepaid rent;
d) The term of the Lease commenced on the 5th day of May , 1999
and terminates on the 31st day of December, 2012;
e) The Lease is in good standing;
f) The Lease does __ does not __ contain an option to extend such
Lease;
g) If there is an option to extend the term of the Lease beyond
the date specified in paragraph (d), the term of the extension is
____________ (___ )_____________ (___ ) year option(s).
h) The Lease is in full force and effect and has not been
modified or amended;
i) Landlord is not in default under any of the Landlord's
obligations under the Lease;
j) Tenant has no present right of offset or defense against any
rent or other monies due or to become due under the Lease;
k) The Lease was duly authorized and constitutes the valid and
binding obligation of Tenant and is enforceable in accordance with its
provisions; and
l) Tenant will, after notice from Lender that Landlord is in
default of its obligations under the Loan, pay to Lender, or to such
person or firm designated by Lender, all rent and other monies due and
to become due to Landlord under the Lease.
7. Tenant agrees that if Lender acquires title to the Mortgaged Property as
a result of foreclosure of the Mortgage, the acceptance of a deed in lieu of
such foreclosure, or obtaining control of the Premises pursuant to the remedies
contained in the Mortgage or the Assignment, the laws of the State of Indiana,
or otherwise, Tenant shall have no recourse to any assets of Lender and Tenant's
sole remedy against Lender for any act of omission in contravention of any
provision of the Lease shall be to terminate the Lease without recourse against
Lender. Lender's acquisition of title to or control if the Premises in the
manner aforesaid or the performing of any of the obligations of Landlord
pursuant to the Lease shall not be construed as an assumption of said Lease by
Lender. Furthermore, upon such acquisition, the Lease shall be modified to
include the provisions contained herein, notwithstanding any other provisions of
said Lease.
8. Tenant agrees to execute such other documents as Lender may deem
necessary to subordinate the Lease to the lien and effect of the Mortgage.
9. All notices, demands or requests, and responses thereto, required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be delivered by hand delivery, expedited courier or sent by certified mail,
postage prepaid, return receipt requested, and addressed to the party as
provided below or at such other places as such party may from time to time
designate in a notice to the other parties. Any notice shall be effective upon
receipt of delivery or three (3) days after the letter transmitting such notice
is certified and deposited in the United States Mail. Rejection or other refusal
to accept or inability to deliver because of changed address of which no notice
has been given shall constitute receipt of the notice, demand or request sent.
Any such notice if given to Landlord shall be addressed as follows:
0 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
if given to Lender shall be addressed as follows:
Republic Bank
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: ________________________
if given to Tenant shall be addressed as follows:
0 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Legal Department
10. This Agreement shall be binding upon and inure to the parties, their
respective heirs, successors and assigns.
11. This Agreement shall be governed by, and construed in accordance with
the laws of the State of Indiana.
12. This Agreement may not be changed, amended or modified in any manner
other than by an agreement in writing specifically referring to this Agreement
and executed by the parties hereto.
LANDLORD, LENDER AND TENANT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS ESTOPPEL CERTIFICATE AND
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT AND ANY SECURITY
DOCUMENT CONTEMPLATED OR TO BE EXECUTED IN CONJUNCTION WITH THE LOAN OR ANY
COURSE OF ACTION,
COURSE OF DEALING, STATEMENTS (WHETHER RELATING TO THE LOAN OR TO THIS
AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
Signed, sealed and delivered in the presence of:
TENANT:
XXXXXXX HOSPITALITY, LLC,
a Georgia limited liability company
By:___________________________
Title:________________________
LANDLORD:
XXXXXXX INNS, INC.,
a Georgia corporation
By:___________________________
Xxxxx X. Xxxxxxx, President
LENDER:
REPUBLIC BANK
By:___________________________
Title:________________________
STATE OF GEORGIA )
) SS:
COUNTY OF DEKALB )
Before me, a Notary Public in and for the State of Indiana, personally
appeared _______________________, the ____________ of Xxxxxxx Hospitality, LLC,
a Georgia limited liability company, who, having been duly sworn, acknowledged
the execution of the foregoing instrument for and on behalf of said limited
liability company.
Witness my hand and Notarial Seal this ____ day of September 2000.
_______________________________________
________________________, Notary Public
My Commission Expires:
_________________________
My County of Residence:
_________________________
STATE OF GEORGIA )
) SS:
COUNTY OF DEKALB )
Before me, a Notary Public in and for the State of Indiana, personally
appeared Xxxxx X. Xxxxxxx, the President of Xxxxxxx Inns, Inc., a Georgia
corporation, who, having been duly sworn, acknowledged the execution of the
foregoing instrument for and on behalf of said corporation.
Witness my hand and Notarial Seal this ____ day of September 2000.
_______________________________________
________________________, Notary Public
My Commission Expires:
_________________________
My County of Residence:
_________________________
STATE OF INDIANA )
) SS:
COUNTY OF INDIANA )
Before me, a Notary Public in and for the State of Indiana, personally
appeared _________ , the of REPUBLIC BANK, a Michigan Commercial Bank, who,
having been duly sworn, acknowledged the execution of the foregoing instrument
for and on behalf of said Michigan Commercial Bank.
Witness my hand and Notarial Seal this ____ day of September 2000.
_______________________________________
________________________, Notary Public
My Commission Expires:
_________________________
My County of Residence:
_________________________
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
PROMISSORY NOTE
$4,745,000.00 Indianapolis, Indiana
September __, 2000
FOR VALUE RECEIVED, the undersigned ("Borrower") promises to pay to the
order of REPUBLIC BANK (hereinafter the "Lender"), at its office located at 000
Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000, or at such other place as the
holder hereof may, from time to time, designate in writing, the principal sum of
Four Million Seven Hundred Forty-Five Thousand Dollars ($4,745,000.00) or so
much thereof as shall be advanced by Lender and remain unpaid, together with all
costs herein provided and interest from the date of disbursement on the
principal balance hereof and thereon until said amounts have been paid in full
at a rate equal to the "Contract Rate" (as hereinafter defined), or following an
Event of Default hereunder, at five percent (5%) in excess of the Contract Rate
(the "Default Rate"), with attorney's fees and costs of collection, and without
relief from valuation and appraisement laws.
The Contract Rate shall be a fixed rate per annum equal to the greater
of (i) the "Index" (as hereinafter defined), as established from time to time
plus three hundred (300) basis points and (ii) 8.25%. The Contract Rate shall
initially be _____ and __/100 percent (____%). Each change in the Index
automatically and immediately shall result in a change in the rate of interest
payable hereunder. For the purposes hereof, the term "Index" shall mean the
trailing four week average yield on actively traded U.S. government securities
adjusted to a Treasury constant maturity of one (1) year as published by the
Board of Governors of the Federal Reserve System in the Federal Reserve
Statistical Release Publication No. H15(519) or any equivalent publication as
determined by Lender. The Index shall increase or decrease on October 1, 2001
and on each anniversary thereafter (the "Rate Adjustment Date"), based on the
rate determined on the 16th day of July prior to each Rate Adjustment Date until
October 1, 2010 (the "Maturity Date").
Interest shall be calculated on the daily unpaid principal balance
hereof based on the actual number of days elapsed in the interest payment period
over a year of three hundred sixty (360) days. Payments of principal and
interest shall be made in one hundred twenty (120) successive monthly
installments commencing on the 1st day of November, 2000, and continuing on the
1st day of each and every calendar month thereafter up to and including the
Maturity Date, when the entire principal balance with all accrued interest shall
be due and owing. Each payment shall be in the amount which would fully amortize
the then unpaid principal balance of the indebtedness evidenced by this Note,
such amortization to be based upon (a) the Contract Rate in effect as of such
date, (b) an amortization period of twenty (20) years, and (c) interest being
calculated on the basis of thirty (30) day calendar months in a three hundred
sixty (360) day year; provided that on each Rate Adjustment Date, the amount of
the monthly installments of principal and interest required hereunder shall be
increased or decreased, as the case may be, to a new payment equal to the
monthly amount it would take to fully amortize this Note based upon (x) the new
Contract Rate, and (y) the above referenced amortization period, less the number
of full months which have elapsed since the commencement of principal and
interest payments. If a payment date is other than on a business day (a day not
a Saturday, Sunday or national holiday), the installment shall be due on the
next business day.
If not sooner paid as hereinafter permitted, the unpaid principal sum
of this Note and all accrued and unpaid interest and other charges hereunder
shall be payable in full on the Maturity Date.
This Note and all amounts due hereunder are secured by a Mortgage,
Security Agreement and Fixture Filing (the "Mortgage") conveying to Lender a
first mortgage security interest in certain real and personal property, together
with the improvements thereon and hereafter constructed and the rents and
profits thereof (the "Property"), all under the Loan Agreement between Lender
and Borrower of even date herewith (the "Loan Agreement"), providing for, among
other things, the disbursement of funds hereunder. Said Mortgage and Loan
Agreement, together with the Assignment of Leases and Rents, Assignment
Agreement, Continuing Guaranty from each Guarantor, and Environmental
Certificate and Indemnity Agreement shall hereinafter be referred to
collectively as the "Loan Documents".
If all or any part of any monthly payment due under this Note is not
received by Lender by the close of business on the fifteenth day of the calendar
month in which such payment is due, the undersigned shall pay to Lender an
administration charge equal to five percent (5%) of such payment or Two Hundred
Fifty Dollars ($250), whichever is greater, such administrative charge to be
immediately due and payable without notice or demand by Lender.
Borrower reserves the privilege to prepay in full, or in part, the
principal indebtedness evidenced hereby on any installment payment date upon
thirty (30) days' prior written notice to the holder hereof and payment of a
premium (the "Prepayment Premium") equal to one percent (1%) of the outstanding
principal balance of this Note. Borrower reserves the privilege to prepay in
full, or in part, without penalty, the principal indebtedness evidenced hereby
within thirty (30) days prior to any Rate Adjustment Date upon thirty (30) days'
prior written notice to the holder hereof.
If the maturity of the indebtedness evidenced hereby is accelerated by
Lender as a consequence of the occurrence of an Event of Default, or in the
event the right to foreclose the Mortgage shall otherwise accrue to Lender,
Borrower agrees that an amount equal to the Prepayment Premium shall be added to
the balance of unpaid principal and interest then outstanding, and the
indebtedness evidenced hereby shall not be discharged except: (i) by payment of
such Prepayment Premium, together with the balance of principal and interest and
all other sums then outstanding (if Borrower tenders payment of the indebtedness
evidenced hereby prior to judicial confirmation of foreclosure sale); or (ii) by
inclusion of such Prepayment Premium as a part of the indebtedness evidenced
hereby in any such judicial order or judgment of foreclosure.
It is agreed that time is of the essence in the performance of all
obligations hereunder and under the Loan Documents. It shall be an Event of
Default hereunder if any "Event of Default" occurs under the Loan Agreement or
any other Loan Documents. If an Event of Default hereunder occurs, unless Lender
elects otherwise, the entire principal balance of this Note, irrespective of the
maturity date specified herein, together with the then accrued and unpaid
interest thereon and other charges hereunder shall become immediately due and
payable, and
Lender may, immediately or at any time thereafter, exercise any or all remedies
available to a secured party with respect to all collateral securing this Note.
Lender may, at its option, delay in or refrain from exercising some or all of
its rights and remedies without prejudice thereto and regardless of prior
forbearance.
Upon the occurrence of any Event of Default hereunder, or upon maturity
hereof (by acceleration or otherwise), the entire unpaid principal sum shall
bear interest, from the date of occurrence of such Event of Default or upon
maturity and after judgment and until collection, at the Default Rate. The
aforesaid Default Rate interest, when and if applicable, shall be due and
payable immediately without notice or demand.
This Note shall be binding on all parties hereto and their successors
and assigns. All makers, endorsers, guarantors and sureties hereof agree jointly
and severally that if, and as often as, this Note is placed in the hands of any
attorneys for collection or to defend or enforce any of the Lender's rights
hereunder or under the Loan Documents, the undersigned shall pay to Lender on
demand its reasonable attorney fees, together with all court costs and other
expenses provided in the Loan Documents paid by Lender.
All makers, endorsers, guarantors and sureties consent to (i) any
renewal, extension or modification (whether one or more) of the terms of the
Loan Documents, including the terms or time of payment under this Note, (ii) the
release or surrender, exchange or substitution of all or any part of the
security, whether real or personal or direct or indirect, for the payment
hereof, (iii) the granting of any other waiver or concession to the undersigned,
and (iv) the taking or releasing of other or additional parties primarily or
contingently liable hereunder. Any such renewal, extension, modification,
release, surrender, exchange or substitution may be made without notice to the
undersigned and any endorsers, guarantors and sureties hereof and without
affecting the liability of said parties hereunder.
The remedies of this Note and the Loan Documents providing for the
enforcement of the payment of the principal sum thereby secured, together with
interest thereon, and for the performance of the covenants, terms and conditions
contained therein, are cumulative and
concurrent and may be pursued singularly or successively or together, at the
sole discretion of Lender, and may be exercised as often as occasion therefor
shall occur. When the obligations evidenced by this Note become due, by
acceleration or otherwise, Lender may, at its option, demand, xxx for, collect
or make any compromise or settlement it deems necessary or desirable. Prior to
Lender obtaining possession of the collateral held as security Lender shall not
be required to take any steps necessary to preserve or create any rights,
benefits or privileges in the collateral held as security herefor, all of which
the undersigned hereby assume to do. In the event the obligations evidenced by
this Note are accelerated, any indebtedness owing to any of the undersigned from
Lender may be used and applied by Lender as a payment hereunder and as a payment
on any other indebtedness owing hereunder or to declare a default for failure to
make prompt payment. Further, the waiver by Lender or failure to enforce any
other term, covenant or condition of this Note, or the Loan Documents or to
declare any default hereunder or thereunder, shall not operate as a waiver of
any subsequent default or affect the right of Lender to exercise any right or
remedy not expressly waived in writing by Lender.
CONSENT TO JURISDICTION. BORROWER HEREBY AGREES THAT ALL ACTIONS OR
PROCEEDINGS INITIATED BY BORROWER AND ARISING DIRECTLY OR INDIRECTLY OUT OF THIS
NOTE OR ANY OF THE OTHER LOAN DOCUMENTS SHALL BE LITIGATED IN THE CIRCUIT OR
SUPERIOR COURT OF XXXXXX COUNTY, INDIANA, OR THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA OR, IF LENDER INITIATES SUCH ACTION, ANY
COURT IN WHICH LENDER SHALL INITIATE SUCH ACTION AND WHICH HAS JURISDICTION.
BORROWER HEREBY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION
IN ANY ACTION OR PROCEEDING COMMENCED BY LENDER IN ANY OF SUCH COURTS, AND
HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OR
PAPERS ISSUED THEREIN, AND AGREES THAT SERVICE OF SUCH SUMMONS AND COMPLAINT OR
OTHER PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO
BORROWER AT THE ADDRESS TO WHICH NOTICES ARE TO BE SENT PURSUANT TO THE
MORTGAGE. BORROWER WAIVES ANY CLAIM THAT
XXXXXX COUNTY, INDIANA OR THE SOUTHERN DISTRICT OF INDIANA IS AN INCONVENIENT
FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE. SHOULD BORROWER, AFTER BEING
SO SERVED, FAIL TO APPEAR OR ANSWER TO ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS
SO SERVED WITHIN THE NUMBER OF DAYS PRESCRIBED BY LAW AFTER THE MAILING THEREOF,
BORROWER SHALL BE DEEMED IN DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED
BY LENDER AGAINST BORROWER AS DEMANDED OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT,
PROCESS OR PAPERS. THE EXCLUSIVE CHOICE OF FORUM FOR BORROWER SET FORTH IN THIS
SECTION SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT, BY LENDER, OF ANY
JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE TAKING, BY LENDER, OF ANY ACTION TO
ENFORCE THE SAME IN ANY OTHER APPROPRIATE JURISDICTION, AND BORROWER HEREBY
WAIVES THE RIGHT, IF ANY, TO COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.
BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, AND LENDER BY
ITS ACCEPTANCE OF THIS NOTE IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL
RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN
CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO THIS NOTE, OR ANY OTHER
DOCUMENT OR INSTRUMENT HERETOFORE, NOW OR HEREAFTER EXECUTED AND/OR DELIVERED IN
CONNECTION THEREWITH, THE LOAN SECURED BY THIS INSTRUMENT OR IN ANY WAY RELATED
TO THIS TRANSACTION OR OTHERWISE WITH RESPECT TO THE PROPERTY.
The unenforceability or invalidity or any one or more provisions of
this Note shall not render any other provision herein contained unenforceable or
invalid.
This Note and all of the Loan Documents have been executed and
delivered in the State of Indiana and shall be governed by and construed in
accordance with the laws of the State of Indiana without regard to choice of law
provisions. Time is of the essence hereof. This Note
may not be amended or changed orally, but only by an instrument signed by the
party against whom enforcement of the change or amendment is sought.
Whenever Lender is referred to in this Note, such reference shall be
deemed to include the successors and assigns of Lender, including, without
limitation, any subsequent assignee or holder of this Note, and all covenants,
provisions and agreements by or on behalf of the undersigned and any endorsers,
guarantors and sureties hereof which are contained herein shall inure to the
benefit of the successors and assigns of Lender.
Notwithstanding any provisions to the contrary in this Note, or in any
of the documents securing payment hereof or otherwise relating hereto, nothing
herein contained nor any transaction related hereto shall be construed or shall
operate either presently or prospectively to require the undersigned to pay
interest in excess of the maximum permissible interest rate allowed by law. If
any excess of interest in such respect is provided for, in this Note or any of
the documents securing payment hereof or otherwise relating hereto, then in such
event the effective rate of interest shall be automatically subject to reduction
to the maximum permissible interest rate allowed by law.
This Note was executed in Xxxxxx County, Indiana.
XXXXXXX INNS, INC.,
a Georgia corporation
By:___________________________
Xxxxx X. Xxxxxxx, President
