Exhibit 10.37(a)
$8,613,060.00 PROMISSORY NOTE
RECAST AGREEMENT
This Promissory Note Recast Agreement is entered into with effect
December 31, 2002, by and between JANUS HOTELS AND RESORTS, INC., a Delaware
corporation with its principal place of business located at 0000 Xxxxxxxxx
Xxxxxxxxx, XX, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000-0000 ("Payor") and ELBE
FINANCIAL GROUP, LLC ("Payee").
WHEREAS, the $8,613,060.00 Promissory Note between Payor and Payee to
be recast is attached hereto as Exhibit "A" and by reference made a part hereof;
AND
WHEREAS, the principal balance on the $8,613,060.00 Promissory Note as
of December 31, 2002, is $8,613,060.00; AND
WHEREAS, the parties desire to recast the Promissory Note of
$8,613,060.00 into three separate Promissory Notes of $2,539,112.58,
$5,073,947.42, and $1,000,000.00 as of December 31, 2002.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises and agreements herein above and herein after set forth and other good
and valuable consideration, the parties hereby agree as follows:
1. The Promissory Note for $8,613,060.00 shall be cancelled as of
December 31, 2002, in lieu of three separate Promissory Notes
for $2,539,112.58, $5,073,947.42, and $1,000,000.00
2. Payor shall execute three new Promissory Notes in favor of Payee
dated December 31, 2002 for $2,539,112.58, $5,073,947.42, and
$1,000,000.00, which shall, with the exception of the date and
principal amount of the Promissory Notes, have the same terms and
conditions as the $8,613,060.00 Promissory Note.
IN WITNESS WHEREOF, Payor and Payee have executed this Agreement with
effect December 31, 2002.
PAYOR: PAYEE:
Janus Hotels and Resorts, Inc. Elbe Financial Group, LLC
By: /s/ Xxxxxxx X. Xxxxxxx By:/s/ Xxxxx X. Xxxx
------------------------ -----------------
Xxxxxxx X. Xxxxxxx, President Xxxxx X. Xxxx, Member/Manager
Exhibit 10.37(a)
PROMISSORY NOTE
$5,073,947.42 December 31, 2002
THIS PROMISSORY NOTE (this "Note") is made by JANUS HOTELS AND
RESORTS, INC., a Delaware corporation with its principal place of business
located at 0000 Xxxxxxxxx Xxxx., X.X., Xxxxx 000, Xxxx Xxxxx, Xxxxxxx
00000-0000 ("Payor") in favor of ELBE FINANCIAL GROUP, LLC ("Payee"). This
Note is being made simultaneously and in conjunction with two other Promissory
Notes in the amounts of $2,539,112.58 and $1,000,000.00, which will, in the
aggregate, equal $8,613,060.00.
For value received, Payor promises to pay Payee the principal of FIVE
MILLION SEVENTY-THREE THOUSAND NINE HUNDRED FORTY-SEVEN DOLLARS FORTY-TWO
CENTS ($5,073,947.42) ("Principal") with interest from the date hereof on the
principal balance at the rate of seven and one-half percent (7 1/2%) per annum
compounded annually. Interest shall be computed on the basis of the actual
number of days elapsed over a year of twelve thirty-day months and 360 days.
The Principal shall be payable in one (1) installment due in full on
December 31, 2011. Effective immediately, all accrued and unpaid interest on
this Note shall be payable in equal quarterly installments due on March 31, June
30, September 30 and December 31 of each year.
All amounts set forth herein are stated in United States Dollars. All
Principal and interest payments hereunder shall be paid in lawful money of the
United States of America.
Payor may prepay the indebtedness evidenced by this Note, in whole or
in part, without premium or penalty, at any time or from time to time (each such
prepayment or the applicable portion thereof, a "Prepayment'). Any prepayments
(including Prepayments) shall be applied to the outstanding Principal. Any
partial prepayment shall not postpone the due date of any Principal thereafter
due unless the parties shall otherwise agree in writing.
Each of the following events shall constitute an Event of Default (an
"Event of Default") under this Note:
(a) Failure of Payor to pay any amount due and payable under
this Note by no later than ten (10) days after the due date, whether at the time
scheduled for payment thereof or by reason of acceleration thereof or otherwise;
(b) Payor shall: (i) apply for or consent to the appointment
of a receiver, trustee or liquidator on any material part of its property;
(ii) admit in writing its inability to pay debts as they mature; (iii) make a
general assignment for the benefit of creditors; (iv) be adjudicated bankrupt
or insolvent; (v) file a voluntary petition in bankruptcy or a petition or an
answer seeking an arrangement with creditors or take advantage of any
bankruptcy, insolvency, readjustment of debt, dissolution or liquidation law,
or an answer admitting the material allegations of a petition filed against it
in any proceeding under any such law; or (vi) take any action for the purpose
of effectuating any of the foregoing; and
Exhibit 10.37(a)
(c) Any order, judgment or decree shall be entered, without
Payor's application, approval or consent, by any court of competent
jurisdiction, approving a petition seeking reorganization of Payor or of all
or a substantial part of its assets, or appointing a receiver, custodian,
trustee, intervenor or liquidator therefor, or such a petition seeking
reorganization or liquidation shall be filed against Payor and such order,
judgment or decree shall continue unstayed and in effect for a period of sixty
(60) days.
Upon the occurrence of an Event of Default hereunder, at the option
of Payee: (i) Payee may declare this Note immediately due and payable in full,
as to Principal, interest and any other sums payable hereunder, whereupon all
such sums shall be and become immediately due and payable in full; and (ii)
Payee shall be entitled to exercise forthwith against Payor any and all rights
and remedies that may otherwise be available to Payee hereunder and at law or
in equity.
This Note, and any payments due hereon, shall be subordinate to Senior
Debt, now or hereafter existing, of Payor (as hereinafter defined). "Senior
Debt" shall mean and include the Principal of premium and interest on all (a)
indebtedness of Payor to its creditors other than Payee under this Note and
other than to any stockholder, member, partner, manager, director, officer or
employee of Payor, whether or not secured and whether heretofore or hereafter
incurred (i) for borrowed money whether Payor is liable directly or indirectly
by guarantee, letter of credit or otherwise (exclusive of indebtedness for
borrowed money secured by a mortgage on real property and which is otherwise
non-recourse to the assets of the Company) or (ii) in connection with the
acquisition or lease by Payor of assets, for the payment of which Payor is
liable directly or indirectly by guarantee, letter of credit, obligation to
purchase or acquire or otherwise and (b) renewal, extensions or deferrals of any
such indebtedness. In the event of the distribution of assets of Payor upon
liquidation, dissolution, or reorganization of Payor, then principal, interest,
or premium on Senior Debt shall be paid before any payment is made to Payee. In
the event the Note is declared due and payable before its stated maturity, no
payment shall be made to Payee until principal, interest, and premium on Senior
Debt shall have been paid in full. By acceptance of this Note, Payee agrees to
enter into a subordination agreement on reasonable terms and conditions proposed
by a holder of Senior Debt.
No remedy conferred upon or reserved or available to Payee shall be
exclusive of any other remedy or remedies available to him, but each and every
remedy shall be cumulative and shall be in addition to every such remedy now or
hereafter existing at law or in equity. No delay or omission on the part of
Payee to exercise any right or power arising upon the occurrence of any Event of
Default shall impair any right or power of Payee or be construed to be a waiver
by Payee of such Event of Default. Any right or power of Payee may be exercised
from time to time and as often as may be deemed expedient by it.
Payor hereby: (i) waives demand, presentment for payment, notice of
intention to accelerate, notice of acceleration, protest, notice of protest, and
all other notices and diligence in collecting this Note; and (ii) agrees that it
will not be necessary for Payee, in order to enforce payment of this Note, to
first institute suit or exhaust rights against Payor.
Exhibit 10.37(a)
Payor agrees to pay Payee's reasonable expenses to obtain, enforce or
liquidate payment or performance of any of Payor's obligations under this Note,
which expenses shall include reasonable attorneys' fees and expenses incurred by
Payee.
No waiver or modification of the terms of this Note shall be valid
unless in writing signed by each of Payee and Payor and then only to the extent
therein set forth.
This Note shall be governed by and construed and enforced in accordance
with the laws of the State of Delaware, without regard to principles of
conflicts of laws.
This Note shall be binding upon the Payor and its respective successors
and assigns, and shall be enforceable by Payee, its successors, assigns or
subsequent holders of this Note.
IN WITNESS WHEREOF, Payor has executed and delivered this Note to be
effective as of the day and year first above-written. JANUS HOTELS AND RESORTS,
INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
Xxxxxxx X. Xxxxxxx, President
Exhibit 10.37(a)
PROMISSORY NOTE
$2,539,112.58 December 31, 2002
THIS PROMISSORY NOTE (this "Note") is made by JANUS HOTELS AND
RESORTS, INC., a Delaware corporation with its principal place of business
located at 0000 Xxxxxxxxx Xxxx., X.X., Xxxxx 000, Xxxx Xxxxx, Xxxxxxx
00000-0000 ("Payor") in favor of ELBE FINANCIAL GROUP, LLC ("Payee"). This
Note is being made simultaneously and in conjunction with two other Promissory
Notes in the amounts of $5,073,947.42 and $1,000,000.00, which will, in the
aggregate, equal $8,613,060.00.
For value received, Payor promises to pay Payee the principal of TWO
MILLION FIVE HUNDRED THIRTY-NINE THOUSAND ONE HUNDRED TWELVE DOLLARS
FIFTY-EIGHT CENTS ($2,539,112.58) ("Principal") with interest from the date
hereof on the principal balance at the rate of seven and one-half percent (7
1/2%) per annum compounded annually. Interest shall be computed on the basis
of the actual number of days elapsed over a year of twelve thirty-day months
and 360 days.
The Principal shall be payable in one (1) installment due in full on
December 31, 2011. Effective immediately, all accrued and unpaid interest on
this Note shall be payable in equal quarterly installments due on March 31, June
30, September 30 and December 31 of each year.
All amounts set forth herein are stated in United States Dollars. All
Principal and interest payments hereunder shall be paid in lawful money of the
United States of America.
Payor may prepay the indebtedness evidenced by this Note, in whole or
in part, without premium or penalty, at any time or from time to time (each such
prepayment or the applicable portion thereof, a "Prepayment'). Any prepayments
(including Prepayments) shall be applied to the outstanding Principal. Any
partial prepayment shall not postpone the due date of any Principal thereafter
due unless the parties shall otherwise agree in writing.
Each of the following events shall constitute an Event of Default (an
"Event of Default") under this Note:
(a) Failure of Payor to pay any amount due and payable under
this Note by no later than ten (10) days after the due date, whether at the time
scheduled for payment thereof or by reason of acceleration thereof or otherwise;
(b) Payor shall: (i) apply for or consent to the appointment
of a receiver, trustee or liquidator on any material part of its property;
(ii) admit in writing its inability to pay debts as they mature; (iii) make a
general assignment for the benefit of creditors; (iv) be adjudicated bankrupt
or insolvent; (v) file a voluntary petition in bankruptcy or a petition or an
answer seeking an arrangement with creditors or take advantage of any
bankruptcy, insolvency, readjustment of debt, dissolution or liquidation law,
or an answer admitting the material allegations of a petition filed against it
in any proceeding under any such law; or (vi) take any action for the purpose
of effectuating any of the foregoing; and
Exhibit 10.37(a)
(c) Any order, judgment or decree shall be entered, without
Payor's application, approval or consent, by any court of competent
jurisdiction, approving a petition seeking reorganization of Payor or of all
or a substantial part of its assets, or appointing a receiver, custodian,
trustee, intervenor or liquidator therefor, or such a petition seeking
reorganization or liquidation shall be filed against Payor and such order,
judgment or decree shall continue unstayed and in effect for a period of sixty
(60) days.
Upon the occurrence of an Event of Default hereunder, at the option
of Payee: (i) Payee may declare this Note immediately due and payable in full,
as to Principal, interest and any other sums payable hereunder, whereupon all
such sums shall be and become immediately due and payable in full; and (ii)
Payee shall be entitled to exercise forthwith against Payor any and all rights
and remedies that may otherwise be available to Payee hereunder and at law or
in equity.
This Note, and any payments due hereon, shall be subordinate to Senior
Debt, now or hereafter existing, of Payor (as hereinafter defined). "Senior
Debt" shall mean and include the Principal of premium and interest on all (a)
indebtedness of Payor to its creditors other than Payee under this Note and
other than to any stockholder, member, partner, manager, director, officer or
employee of Payor, whether or not secured and whether heretofore or hereafter
incurred (i) for borrowed money whether Payor is liable directly or indirectly
by guarantee, letter of credit or otherwise (exclusive of indebtedness for
borrowed money secured by a mortgage on real property and which is otherwise
non-recourse to the assets of the Company) or (ii) in connection with the
acquisition or lease by Payor of assets, for the payment of which Payor is
liable directly or indirectly by guarantee, letter of credit, obligation to
purchase or acquire or otherwise and (b) renewal, extensions or deferrals of any
such indebtedness. In the event of the distribution of assets of Payor upon
liquidation, dissolution, or reorganization of Payor, then principal, interest,
or premium on Senior Debt shall be paid before any payment is made to Payee. In
the event the Note is declared due and payable before its stated maturity, no
payment shall be made to Payee until principal, interest, and premium on Senior
Debt shall have been paid in full. By acceptance of this Note, Payee agrees to
enter into a subordination agreement on reasonable terms and conditions proposed
by a holder of Senior Debt.
No remedy conferred upon or reserved or available to Payee shall be
exclusive of any other remedy or remedies available to him, but each and
every remedy shall be cumulative and shall be in addition to every such
remedy now or hereafter existing at law or in equity. No delay or omission
on the part of Payee to exercise any right or power arising upon the
occurrence of any Event of Default shall impair any right or power of Payee
or be construed to be a waiver by Payee of such Event of Default. Any right
or power of Payee may be exercised from time to time and as often as may be
deemed expedient by it.
Payor hereby: (i) waives demand, presentment for payment, notice of
intention to accelerate, notice of acceleration, protest, notice of
protest, and all other notices and diligence in collecting this Note; and
(ii) agrees that it will not be necessary for Payee, in order to enforce
payment of this Note, to first institute suit or exhaust rights against
Payor.
Exhibit 10.37(a)
Payor agrees to pay Payee's reasonable expenses to obtain, enforce or
liquidate payment or performance of any of Payor's obligations under this Note,
which expenses shall include reasonable attorneys' fees and expenses incurred by
Payee.
No waiver or modification of the terms of this Note shall be valid
unless in writing signed by each of Payee and Payor and then only to the extent
therein set forth.
This Note shall be governed by and construed and enforced in accordance
with the laws of the State of Delaware, without regard to principles of
conflicts of laws
.
This Note shall be binding upon the Payor and its respective successors
and assigns, and shall be enforceable by Payee, its successors, assigns or
subsequent holders of this Note.
IN WITNESS WHEREOF, Payor has executed and delivered this Note to be
effective as of the day and year first above-written.
JANUS HOTELS AND RESORTS, INC.
By:/s/ Xxxxxxx X. Xxxxxxx
------------------------
Xxxxxxx X. Xxxxxxx, President
The parties hereby agree this Promissory Note is hereby assigned effective
December 31, 2002 by Payor without recourse to Elbe Properties, an Ohio
partnership.
PAYOR: PAYEE:
Janus Hotels and Resorts, Inc. Elbe Financial Group, LLC
By: /s/ Xxxxxxx X. Xxxxxxx By:/s/ Xxxxx X. Xxxx
-------------------------- -----------------
Xxxxxxx X. Xxxxxxx, President Xxxxx X. Xxxx, Member/Manager
The parties hereby agree this Promissory Note is hereby assigned effective
December 31, 2002 by Elbe Properties, an Ohio partnership to Janus Hotels and
Resorts, Inc. as partial payment for Elbe Properties' Promissory Note dated
April 23, 1997, which has a principal balance of $3,385,483.44 as of December
31, 2002.
Exhibit 10.37(a)
PAYOR: PAYEE:
Janus Hotels and Resorts, Inc. Elbe Properties,
An Ohio partnership
By:/s/ Xxxxxxx X. Xxxxxxx By:/s/Xxxxx X. Xxxx
----------------------------- -----------------
Xxxxxxx X. Xxxxxxx, President Xxxxx X. Xxxx, Partner
Exhibit 10.37(a)
PROMISSORY NOTE
$1,000,000.00 December 31, 2002
THIS PROMISSORY NOTE (this "Note") is made by JANUS HOTELS AND
RESORTS, INC., a Delaware corporation with its principal place of business
located at 0000 Xxxxxxxxx Xxxx., X.X., Xxxxx 000, Xxxx Xxxxx, Xxxxxxx
00000-0000 ("Payor") in favor of ELBE FINANCIAL GROUP, LLC ("Payee"). This
Note is being made simultaneously and in conjunction with two other Promissory
Notes in the amounts of $5,073,947.42 and $2,539,112.58, which will, in the
aggregate, equal $8,613,060.00.
For value received, Payor promises to pay Payee the principal of ONE
MILLION DOLLARS ($1,000,000.00) ("Principal") with interest from the date
hereof on the principal balance at the rate of seven and one-half percent (7
1/2%) per annum compounded annually. Interest shall be computed on the basis
of the actual number of days elapsed over a year of twelve thirty-day months
and 360 days.
The Principal shall be payable in one (1) installment due in full on
December 31, 2011. Effective immediately, all accrued and unpaid interest on
this Note shall be payable in equal quarterly installments due on March 31, June
30, September 30 and December 31 of each year.
All amounts set forth herein are stated in United States Dollars. All
Principal and interest payments hereunder shall be paid in lawful money of the
United States of America.
Payor may prepay the indebtedness evidenced by this Note, in whole or
in part, without premium or penalty, at any time or from time to time (each such
prepayment or the applicable portion thereof, a "Prepayment'). Any prepayments
(including Prepayments) shall be applied to the outstanding Principal. Any
partial prepayment shall not postpone the due date of any Principal thereafter
due unless the parties shall otherwise agree in writing.
Each of the following events shall constitute an Event of Default (an
"Event of Default") under this Note:
(a) Failure of Payor to pay any amount due and payable under
this Note by no later than ten (10) days after the due date, whether at the time
scheduled for payment thereof or by reason of acceleration thereof or otherwise;
(b) Payor shall: (i) apply for or consent to the appointment
of a receiver, trustee or liquidator on any material part of its property;
(ii) admit in writing its inability to pay debts as they mature; (iii) make a
general assignment for the benefit of creditors; (iv) be adjudicated bankrupt
or insolvent; (v) file a voluntary petition in bankruptcy or a petition or an
answer seeking an arrangement with creditors or take advantage of any
bankruptcy, insolvency, readjustment of debt, dissolution or liquidation law,
or an answer admitting the material allegations of a petition filed against it
in any proceeding under any such law; or (vi) take any action for the purpose
of effectuating any of the foregoing; and
Exhibit 10.37(a)
(c) Any order, judgment or decree shall be entered, without Payor's
application, approval or consent, by any court of competent jurisdiction,
approving a petition seeking reorganization of Payor or of all or a
substantial part of its assets, or appointing a receiver, custodian, trustee,
intervenor or liquidator therefor, or such a petition seeking reorganization
or liquidation shall be filed against Payor and such order, judgment or decree
shall continue unstayed and in effect for a period of sixty (60) days.
Upon the occurrence of an Event of Default hereunder, at the option of
Payee: (i) Payee may declare this Note immediately due and payable in
full, as to Principal, interest and any other sums payable hereunder,
whereupon all such sums shall be and become immediately due and payable
in full; and (ii) Payee shall be entitled to exercise forthwith against
Payor any and all rights and remedies that may otherwise be available to
Payee hereunder and at law or in equity.
This Note, and any payments due hereon, shall be subordinate to Senior
Debt, now or hereafter existing, of Payor (as hereinafter defined).
"Senior Debt" shall mean and include the Principal of premium and
interest on all (a) indebtedness of Payor to its creditors other than
Payee under this Note and other than to any stockholder, member, partner,
manager, director, officer or employee of Payor, whether or not secured
and whether heretofore or hereafter incurred (i) for borrowed money
whether Payor is liable directly or indirectly by guarantee, letter of
credit or otherwise (exclusive of indebtedness for borrowed money secured
by a mortgage on real property and which is otherwise non-recourse to the
assets of the Company) or (ii) in connection with the acquisition or
lease by Payor of assets, for the payment of which Payor is liable
directly or indirectly by guarantee, letter of credit, obligation to
purchase or acquire or otherwise and (b) renewal, extensions or deferrals
of any such indebtedness. In the event of the distribution of assets of
Payor upon liquidation, dissolution, or reorganization of Payor, then
principal, interest, or premium on Senior Debt shall be paid before any
payment is made to Payee. In the event the Note is declared due and
payable before its stated maturity, no payment shall be made to Payee
until principal, interest, and premium on Senior Debt shall have been
paid in full. By acceptance of this Note, Payee agrees to enter into a
subordination agreement on reasonable terms and conditions proposed by a
holder of Senior Debt.
No remedy conferred upon or reserved or available to Payee shall be
exclusive of any other remedy or remedies available to him, but each
and every remedy shall be cumulative and shall be in addition to every
such remedy now or hereafter existing at law or in equity. No delay or
omission on the part of Payee to exercise any right or power arising
upon the occurrence of any Event of Default shall impair any right or
power of Payee or be construed to be a waiver by Payee of such Event of
Default. Any right or power of Payee may be exercised from time to time
and as often as may be deemed expedient by it. Payor hereby: (i) waives
demand, presentment for payment, notice of intention to accelerate,
notice of acceleration, protest, notice of protest, and all other
notices and diligence in collecting this Note; and (ii) agrees that it
will not be necessary for Payee, in order to enforce payment of this
Note, to first institute suit or exhaust rights against Payor.
Exhibit 10.37(a)
Payor agrees to pay Payee's reasonable expenses to obtain, enforce or
liquidate payment or performance of any of Payor's obligations under this Note,
which expenses shall include reasonable attorneys' fees and expenses incurred by
Payee.
No waiver or modification of the terms of this Note shall be valid
unless in writing signed by each of Payee and Payor and then only to the extent
therein set forth.
This Note shall be governed by and construed and enforced in accordance
with the laws of the State of Delaware, without regard to principles of
conflicts of laws.
This Note shall be binding upon the Payor and its respective successors
and assigns, and shall be enforceable by Payee, its successors, assigns or
subsequent holders of this Note.
IN WITNESS WHEREOF, Payor has executed and delivered this Note to be
effective as of the day and year first above-written.
JANUS HOTELS AND RESORTS, INC.
By:/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, President
The parties hereby agree this Promissory Note is hereby assigned by Payor
without recourse to Xxxx Family Foundation effective December 31, 2002.
PAYOR: PAYEE:
Janus Hotels and Resorts, Inc. Elbe Financial Group, LLC
By: /s/ Xxxxxxx X. Xxxxxxx By:/s/ Xxxxx X. Xxxx
------------------------ -----------------
Xxxxxxx X. Xxxxxxx, President Xxxxx X. Xxxx, Member/Manager
