EXHIBIT 10.60
PROMISSORY NOTE
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$6,000,000 October 28, 1997
New York, New York
FOR VALUE RECEIVED, the undersigned, G&L HAMPDEN, LLC, a Delaware limited
liability company with an address of 000 Xxxxx Xxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000, Attention: Xxxx X. Xxxxxxxxx, Telefax Number (310) 248-
2222 ("Maker"), promises to pay to the order of NOMURA ASSET CAPITAL
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CORPORATION, a Delaware corporation (together with any subsequent holder of this
Note, and their respective successors and assigns, "Holder") having an address
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at Two World Financial Center, Building B, New York, NY 10281-1198, Attention:
Xxxxxxx X. Xxxxxxx, Telefax Number (000) 000-0000, or at such other address as
Holder may from time to time designate in writing, the principal sum of Six
Million Dollars ($6,000,000) together with interest thereon, Late Charges,
Default Rate interest, Yield Maintenance Premium, if any and all other sums due
under and secured by the Mortgages or by any other Loan Documents; such
principal, interest, Late Charges, Default Rate interest, Yield Maintenance
Premium, if any, and other sums to be calculated and payable as provided in that
certain Loan Agreement of even date herewith between Maker and Holder (as
amended, modified and supplemented and in effect from time to time, the "Loan
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Agreement"). Capitalized terms used herein without definition shall have the
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meanings ascribed to such terms in the Loan Agreement.
All payments made hereunder shall be applied as provided in Section
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2.7 of the Loan Agreement.
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The Loan Agreement provides for, among other things:
(1) a payment of interest only for the first Interest Accrual Period
on October 28, 1997;
(2) commencing on the first Payment Date and continuing on each
Payment Date thereafter until the Stabilization Date, monthly payments of
accrued interest;
(3) on each Payment Date commencing on the Payment Date immediately
following the Stabilization Date and continuing on each Payment Date thereafter,
a monthly constant payment of principal and interest (which payment is
calculated by using the Initial Interest Rate and an amortization schedule of
300 months);
(4) a maturity date of November 11, 2024;
(5) an Optional Prepayment Date of November 11, 2009;
(6) an Initial Interest Rate equal to 8.62% per annum;
(7) a Revised Interest Rate equal to the greater of (x) the sum of the
Initial Interest Rate plus five hundred (500) basis points, and (y) as of the
Optional Prepayment Date, the sum of the Fifteen Year Treasury Rate plus five
hundred (500) basis points, and (b) the Maximum Rate;
(8) a Default Rate equal to the lesser of (i) the Maximum Rate or (ii)
the Interest Rate plus five percent (5%);
(9) except in connection with a prepayment of the Difference under
Section 8.32 of the Loan Agreement, the Loan cannot be voluntarily prepaid prior
to the Optional Prepayment Date; on and after the Optional Prepayment Date, (a)
the Loan may be prepaid in whole or in part and (b) Section 2.6 of the Loan
Agreement requires mandatory prepayment of all Excess Cash Flow; and
(10) interest shall accrue on the outstanding principal balance of
the Loan and all other amounts due to Holder under the Loan Documents commencing
on the Closing Date, and such interest shall accrue (a) from (and including) the
Closing Date to the Optional Prepayment Date, at the Initial Interest Rate and
(b) on and after the Optional Prepayment Date, at the Revised Interest Rate.
Interest shall be computed on the actual number of days elapsed, based on a 360
day year.
The obligations of Maker under this Note are secured by, among other
things, the following:
(1) the Mortgages; and
(2) the other Loan Documents, and Xxxxx granted in favor of Holder by
Maker and/or encumbering or affecting the Facilities.
The principal sum evidenced by this Note, together with accrued
interest, Default Rate interest, Late Charges and Yield Maintenance Premium, if
any, and all other sums due under and secured by the Mortgage or by any other
Loan Document shall become immediately due and payable at the option of Holder
upon the occurrence of any Event of Default.
If Maker fails to make (i) the payment due on the Maturity Date or
(ii) any other payment of principal or interest, the Yield Maintenance Premium,
if any, Late Charge or other sum due on any date on which such payment is due,
all amounts due hereunder thereafter will bear interest at the Default Rate.
Maker will also pay to Holder, after the occurrence of an Event of Default, in
addition to the amount due, all reasonable costs of collecting, securing, or
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attempting to collect or secure this Note or any other Loan Document, including,
without limitation, court costs and reasonableattorneys' fees (including
reasonable attorneys' fees on any appeal by either Maker or Holder and in any
bankruptcy proceedings).
With respect to the amounts due pursuant to this Note, Maker waives
the following:
(1) All rights of exemption of property from levy or sale under execution or
other process for the collection of debts under the Constitution or laws of the
United States or any State thereof;
(2) Demand, presentment, protest, notice of dishonor, notice of
nonpayment, notice of protest, notice of intent to accelerate, notice of
acceleration, suit against any party, diligence in collection of this Note and
in the handling of securities at any time existing in connection herewith, and
all other requirements necessary to enforce this Note except for notices
required by Governmental Authorities and notices required by the Loan Agreement;
and
(3) Any further receipt by Xxxxxx or acknowledgement by Holder of any
collateral now or hereafter deposited as security for the Loan.
It is the intention of Maker and Holder to conform strictly to
applicable usury laws. Accordingly, if the transactions contemplated hereby
would be usurious under applicable law then, in that event, notwithstanding
anything to the contrary in any agreement entered into in connection with or as
security for this Note, it is agreed as follows: (i) the aggregate of all
consideration which constitutes interest under applicable law that is taken,
reserved, contracted for, charged or received under this Note or under any of
the other aforesaid agreements or otherwise in connection with this Note shall
under no circumstances exceed the maximum amount of interest allowed by
applicable law, and any excess shall be credited on account of this Note by the
holder hereof (or if this Note shall have been paid in full, refunded to Maker)
in accordance with the Loan Agreement; and (ii) in the event that maturity of
this Note is accelerated by reason of an election by the Holder resulting from
any default hereunder or otherwise, or in the event of any required or permitted
prepayment, then such consideration that constitutes interest may never include
more than the maximum amount of interest allowed by applicable law, and any
interest in excess of the maximum amount of interest allowed by applicable law,
if any, provided for in this Note or otherwise shall be cancelled automatically
as of the date of such acceleration or prepayment and, if theretofore prepaid,
shall be credited on account of this Note (or if this Note shall have been paid
in full, refunded to Maker).
In determining whether or not the interest paid or payable under any
specific contingency exceeds the maximum amount allowed by applicable law, the
Holder shall, to the
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maximum extent permitted under applicable law (a) exclude voluntary prepayments
and the effects thereof, and (b) amortize, prorate, allocate and spread, in
equal parts, the total amount of interest throughout the entire contemplated
term of this Note so that the interest rate is uniform throughout the entire
term of this Note; provided, that if this Note is paid and performed in full
prior to the end of the full contemplated term hereof, and if the interest
received for the actual period of existence thereof exceeds the maximum amount
allowed by applicable law, Holder shall refund to Maker the amount of such
excess, and in such event, Holder shall not be subject to any penalties provided
by any laws for contracting for, charging or receiving interest in excess of the
maximum amount allowed by applicable law.
Holder shall not by any act, delay, omission or otherwise be deemed to
have modified, amended, waived, extended, discharged or terminated any of its
rights or remedies, and no modification, amendment, waiver, extension, discharge
or termination of any kind shall be valid unless in writing and signed by Holder
and Maker. All rights and remedies of Holder under the terms of this Note and
applicable statutes or rules of law shall be cumulative, and may be exercised
successively or concurrently. Maker agrees that there are no defenses, equities
or setoffs with respect to the obligations set forth herein, and to the extent
any such defenses, equities, or setoffs may exist, the same are hereby expressly
released, forgiven, waived and forever discharged.
Wherever possible, each provision of this Note shall be interpreted in
such manner as to be effective and valid under applicable Legal Requirements,
but if any provision of this Note shall be prohibited by or invalid under
applicable Legal Requirements, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Note.
Holder may, at its option, release any Collateral given to secure the
indebtedness evidenced hereby, and no such release shall impair the obligations
of Maker to Holder.
The proceeds of this Note were disbursed from the State of New York,
which State the parties agree has a substantial relationship to the parties and
to the underlying transaction embodied hereby, and in all respects, including,
without limitation, matters of construction, validity and performance, this Note
and the obligations arising hereunder shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts made
and performed in such State and any applicable law of the United States of
America. To the fullest extent permitted by law, Maker hereby unconditionally
and irrevocably waives any claim to assert that the law of any other
jurisdiction governs this Note, and this Note shall be governed by and construed
in accordance with the laws of the State of New York pursuant to (S) 5-1401 of
the New York General Obligations Law.
Any legal suit, action or proceeding against Holder or Maker arising
out of or relating to this Note shall be instituted in any federal or state
court in New York, New York,
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pursuant to (S) 5-1402 of the New York General Obligations Law, or in any
federal or state court in the jurisdiction in which any Collateral is located,
and Maker waives any objection which it may now or hereafter have to the laying
of venue of any such suit, action or proceeding, and Maker hereby irrevocably
submits to the jurisdiction of any such court in any suit, action or proceeding.
Maker does hereby designate and appoint CT Corporation Systems, 0000 Xxxxxxxx,
Xxx Xxxx, XX 00000, Telecopy No. (000) 000-0000 as its authorized agent to
accept and acknowledge on its behalf service of any and all process which may be
served in any such suit, action or proceeding in any such federal or state
court, and agrees that service of process upon said agent at said address (or at
such other office in New York, New York as may be designated by such agent in
accordance with the terms hereof) with copies to Maker at the address set forth
in the first paragraph of this Note and written notice of said service of Maker
mailed or delivered to Maker in the manner provided in the Loan Agreement shall
be deemed in every respect effective service of process upon Maker, in any such
suit, action or proceeding. Maker (i) shall give prompt notice to Holder of any
changed address of its authorized agent hereunder, (ii) may at any time and from
time to time designate a substitute authorized agent (which office shall be
designated as the address for service of process), and (iii) shall promptly
designate such a substitute if its authorized agent ceases to have an office or
is dissolved without leaving a successor.
MAKER AND HOLDER TO THE FULLEST EXTENT THAT THEY MAY LAWFULLY DO SO,
WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING, INCLUDING, WITHOUT LIMITATION,
ANY TORT ACTION, BROUGHT BY ANY PARTY HERETO WITH RESPECT TO THIS NOTE OR THE
OTHER LOAN DOCUMENTS. EACH OF MAKER AND XXXXXX AGREES THAT THE OTHER MAY FILE A
COPY OF THIS WAIVER WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY
AND BARGAINED AGREEMENT OF THE OTHER IRREVOCABLY TO WAIVE ITS RIGHT TO TRIAL BY
JURY, AND THAT, TO THE FULLEST EXTENT THAT IT MAY LAWFULLY DO SO, ANY DISPUTE OR
CONTROVERSY WHATSOEVER BETWEEN MAKER AND HOLDER SHALL INSTEAD BE TRIED IN A
COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
Holder may assign all or part of its right, title and interest in and
to this Note to another Person, including without limitation, to a trustee or
servicer before or after a Securitization, and such Person shall be entitled to
exercise all or any portion of Xxxxxx's rights hereunder.
Without limiting the applicability of the terms of any Loan Document
to this Note, this Note is and shall be subject to the exculpation provisions of
Section 8.14 of the Loan Agreement; provided, however, prior to the payment of
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the Difference and any applicable hedging or interest rate management breakage
costs incurred by Holder on the Stabilization Date Payment Date pursuant to
Section 8.32(c) of the Loan Agreement, the Loan
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shall be fully recourse to Maker and Parent as described in Section 8.32 of the
Loan Agreement.
[Signature on the following page]
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IN WITNESS WHEREOF, Maker has caused this Promissory Note to be
properly executed as of the date first above written and has authorized this
Promissory Note to be dated as of the day and year first above written.
MAKER:
G&L HAMPDEN, LLC, a Delaware limited liability
company
By: G&L Hampden, Inc., its managing member
By: /s/ Xxxx X. Xxxxxxxxx
__________________________
Xxxx X. Xxxxxxxxx
Senior Vice President
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Pay to the order of ________________________________________________________,
a_____________________________________________________, having an address of
____________________________________________________________________________
____________________________________________________________________________,
without recourse, representation or warranty.
NOMURA ASSET CAPITAL CORPORATION, a Delaware
Corporation
By:________________________________________
Name:
Title:
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