EXHIBIT 10.10
MORTGAGE NOTE
$13,000,000.00 October 6, 2004
For value received, FB DISTRO DISTRIBUTION CENTER, LLC, a Delaware limited
liability company, having its principal place of business at 0000 Xxxxx Xxxx 000
Xxxx, Xxxxxxxxxxx, Xxxxxxx 00000-0000 (hereinafter referred to as "Maker"),
promises to pay to the order of BANKATLANTIC COMMERCIAL MORTGAGE CAPITAL, LLC,,
a Florida limited liability company, at its principal place of business at 000
X. Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 (hereinafter referred
to as "Payee"), or at such place as the holder hereof may from time to time
designate in writing, the principal sum of Thirteen Million and no/100 Dollars
($13,000,000.00), in lawful money of the United States of America, with interest
thereon to be computed on the unpaid principal balance from time to time
outstanding at the Applicable Interest Rate (as hereinafter defined), and to be
paid in installments as follows:
A. A payment of interest only on the date the Loan (as hereinafter
defined) is funded to Maker, representing interest to be accrued from
the date of such funding through and including October 10, 2004;
B. A constant payment of $110,193.63 (such amount hereinafter the
"Monthly Debt Service Payment Amount"), on the eleventh day of
November, 2004 and on the eleventh day of each calendar month
thereafter up to and including the eleventh day of September, 2019
(each, a "Payment Date"); each of such payments to be applied (a) to
the payment of interest computed at the Initial Interest Rate (as
hereinafter defined); and (b) the balance applied toward the reduction
of the principal sum;
and the balance of said principal sum together with all accrued and unpaid
interest thereon shall be due and payable on the eleventh day of October, 2019
(the "Maturity Date");. Payee shall have the right from time to time, in its
sole discretion, upon not less than thirty (30) days prior written notice to
Maker, to change the Payment Date to a different calendar day each month which
is not more than five (5) days earlier nor more than five (5) days later than
the eleventh day of each calendar month. Interest on the principal sum of this
Note shall be calculated on the basis of the actual number of days elapsed in
the related interest accrual period over a three hundred sixty (360) day year.
The first interest accrual period hereunder shall commence on and include the
date that principal is advanced hereunder and shall end on and include the next
tenth (10th) day of a calendar month; unless principal is advanced on the tenth
(10th) day of a month, in which case the first interest accrual period shall
consist of only such tenth (10th) day. Each interest accrual period thereafter
shall commence on the eleventh (11th) day of each calendar month during the term
of this Note and shall end on and include the tenth (10th) day of the next
occurring calendar month; provided, however, that if Payee shall have elected to
change the Payment Date as aforesaid, Payee shall have the option, but not the
obligation, to adjust the interest accrual period correspondingly. All amounts
due under this Note shall be payable without setoff, counterclaim or any other
deduction whatsoever.
1. The term "Applicable Interest Rate" as used in this Note shall mean (a)
from the date of this Note through but not including the Anticipated Repayment
Date (as hereinafter defined), a rate of six and seven hundredths percent
(6.07%) per annum (the "Initial Interest Rate"), and (b) from and after the
Anticipated Repayment Date through and including the Maturity Date or earlier
date on which this Note is paid in full, a rate per annum equal to (i) the
greater of (A) the Initial Interest Rate plus five (5) percentage points or (B)
the Treasury Rate (as hereinafter defined) plus five (5) percentage points or
(ii) for so long as the Note is an asset of the trust, partnership, corporation
or other entity formed in connection with a Secondary Market Transaction (as
defined in the Security Instrument (as defined below)) pursuant to which
securities rated by any Rating Agency (as defined in the Security Instrument)
have been issued, the greater of (A) the Initial Interest Rate plus two (2)
percentage points or (B) the Treasury Rate plus two (2) percentage points (the
"Revised Interest Rate"). For purposes of this Note, (A) the term "Anticipated
Repayment Date" shall mean, October 11, 2014, and (B) the term "Treasury Rate"
shall mean, as of the Anticipated Repayment Date, the yield, calculated by
linear interpolation (rounded to the nearest one-thousandth of one percent
(i.e., 0.001%)) of the yields of noncallable United States Treasury obligations
with terms (one longer and one shorter) most nearly approximating the period
from the Anticipated Repayment Date to the Maturity Date, as determined by Payee
on the basis of Federal Reserve Statistical Release H.15-Selected Interest Rates
under the heading U.S. Governmental Security/Treasury Constant Maturities, or
other recognized source of financial market information selected by Payee.
2. This Note is evidence of that certain loan made by Payee to Maker
contemporaneously herewith (the "Loan"). This Note is secured by (a) a Mortgage,
Assignment of Leases and Rents and Security Agreement of even date herewith
given by Maker for the use and benefit of Payee covering the estate of Maker in
certain premises as more particularly described therein (the "Security
Instrument"), (b) an Assignment of Leases and Rents of even date herewith
executed by Maker in favor of Payee (the "Assignment of Leases"), (c) a Cash
Management Agreement of even date herewith by and between Maker and Payee (the
"Cash Management Agreement") and (d) the other Loan Documents (as hereinafter
defined). The term "Loan Documents" as used in this Note relates collectively to
this Note, the Security Instrument, the Assignment of Leases, the Cash
Management Agreement and any and all other documents securing, evidencing, or
guaranteeing all or any portion of the Loan or otherwise executed and/or
delivered in connection with this Note and the Loan.
3. If any sum payable under this Note is not paid on the date on which it
is due, Maker shall pay to Payee upon demand an amount equal to the lesser of
five percent (5%) of such unpaid sum or the maximum amount permitted by
applicable law in order to defray a portion of the expenses incurred by Payee in
handling and processing such delinquent payment and to compensate Payee for the
loss of the use of such delinquent payment (provided, however, that with respect
to the payment due on the Maturity Date, the aforesaid 5% sum shall be paid if
the payment due on the Maturity Date is not paid within 20 days after the
Maturity Date (provided further, however, that the foregoing shall not in any
way constitute any type of extension of the Maturity Date, it being understood
and agreed that, failure to make all payments due on the Maturity Date shall
constitute an Event of Default)). If the day when any payment required under
this Note is due is not a Business Day (as hereinafter defined), then payment
shall be due on the first Business Day thereafter. The term "Business Day" shall
mean a day other than (i) a Saturday or Sunday, or (ii) any day on which banking
and savings and loan institutions
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in New York are authorized or obligated by law or executive order to be closed.
4. The whole of the principal sum of this Note, together with all interest
accrued and unpaid thereon and all other sums due under the Loan Documents (all
such sums hereinafter collectively referred to as the "Debt"), shall without
notice become immediately due and payable at the option of Payee if any payment
required in this Note is not paid on the date on which it is due or upon the
happening of any other Event of Default (as defined in the Security Instrument).
In the event that it should become necessary to employ counsel to collect or
enforce the Debt or to protect or foreclose the security therefor, Maker also
shall pay on demand all costs of collection incurred by Xxxxx, including
reasonable attorneys' fees and costs reasonably incurred for the services of
counsel whether or not suit be brought.
5. Maker does hereby agree that upon the occurrence of an Event of Default
(including upon the failure of Maker to pay the Debt in full on the Maturity
Date), Payee shall be entitled to receive and Maker shall pay interest on the
entire unpaid principal sum and any other amounts due at a rate (the "Default
Rate") equal to the lesser of (a) the maximum rate permitted by applicable law,
or (b) five percent (5%) above the Applicable Interest Rate. The Default Rate
shall be computed from the occurrence of the Event of Default until the date
Maker cures the Event of Default and such cure is accepted by Payee. This charge
shall be added to the Debt and shall be secured by the Security Instrument. This
paragraph, however, shall not be construed as an agreement or privilege to
extend the date of the payment of the Debt, nor as a waiver of any other right
or remedy accruing to Payee by reason of the occurrence of any Event of Default.
6. This Note may not be prepaid prior to the Anticipated Repayment Date;
provided, however, Maker shall have the right on any scheduled payment date
after the period set forth in Section 47(a) of the Security Instrument, to
prepay the entire principal balance of the this Note and any other amounts
outstanding in accordance with the terms and provisions set forth in Paragraph
47 of the Security Instrument (the "Yield Maintenance Prepayment Option"). In
addition, Maker shall have the privilege to prepay the entire principal balance
of this Note and any other amounts outstanding on any scheduled payment date
after the date that is three (3) months immediately preceding the Anticipated
Repayment Date (hereinafter, the "Optional Prepayment Date") upon thirty (30)
days' prior written notice to Payee, without payment of the Yield Maintenance
Premium (as defined in the Security Instrument) or any other premium or penalty
so long as no Event of Default has occurred and is continuing. In addition, on
the Anticipated Repayment Date or on any scheduled Payment Date thereafter,
Maker may, at its option and upon thirty (30) days prior written notice from
Maker to Payee, prepay in whole or in part, in $100,000 increments only, the
outstanding principal balance of this Note and any other amounts outstanding
without payment of the Prepayment Consideration or any other premium or penalty.
If prior to the Optional Prepayment Date and while any Event of Default exists,
Maker shall tender payment of an amount sufficient to satisfy the Debt at any
time prior to a sale of the Mortgaged Property, either through foreclosure or
the exercise of the other remedies available to Payee under the Security
Instrument, such tender by Maker shall be deemed to be voluntary and Maker shall
pay, in addition to the Debt, the Prepayment Consideration, if any, that would
be required under the Yield Maintenance Prepayment Option.
7. In the event that Maker does not prepay the entire principal balance of
this Note and any other amounts outstanding hereunder and under the other Loan
Documents on the
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Anticipated Repayment Date or prior to the Anticipated Repayment Date as
specifically permitted in Paragraph 6 above, then commencing on the Anticipated
Repayment Date and continuing until the Debt has been repaid in full, Interest
shall accrue on the unpaid principal balance from time to time outstanding on
this Note at the Revised Interest Rate and interest accrued at the Revised
Interest Rate and not paid shall be deferred and added to the Debt and shall
earn interest at the Revised Interest Rate to the extent permitted by applicable
law (such accrued interest is hereinafter defined as "Accrued Interest"). All of
the Debt, including any Accrued Interest, shall be due and payable on the
Maturity Date.
8. It is expressly stipulated and agreed to be the intent of Maker and
Payee at all times to comply with applicable state law or applicable United
States federal law (to the extent that it permits Payee to contract for, charge,
take, reserve, or receive a greater amount of interest than under state law) and
that this paragraph shall control every other covenant and agreement in this
Note and the other Loan Documents. If the applicable law (state or federal) is
ever judicially interpreted so as to render usurious any amount called for under
this Note or under any of the other Loan Documents, or contracted for, charged,
taken, reserved, or received with respect to the Debt, or if Xxxxx's exercise of
the option to accelerate the Maturity Date, or if any prepayment or the exercise
of any Yield Maintenance Prepayment Option by Maker results in Maker having paid
any interest in excess of that permitted by applicable law, then it is Xxxxx's
express intent that all excess amounts theretofore collected by Payee shall be
credited on the principal balance of this Note and all other Debt and the
provisions of this Note and the other Loan Documents immediately be deemed
reformed and the amounts thereafter collectible hereunder and thereunder
reduced, without the necessity of the execution of any new documents, so as to
comply with the applicable law, but so as to permit the recovery of the fullest
amount otherwise called for hereunder or thereunder. All sums paid or agreed to
be paid to Payee for the use, forbearance, or detention of the Debt shall, to
the extent permitted by applicable law, be amortized, prorated, allocated, and
spread throughout the full stated term of the Debt until payment in full so that
the rate or amount of interest on account of the Debt does not exceed the
maximum lawful rate from time to time in effect and applicable to the Debt for
so long as the Debt is outstanding. Notwithstanding anything to the contrary
contained herein or in any of the other Loan Documents, it is not the intention
of Payee to accelerate the maturity of any interest that has not accrued at the
time of any acceleration of the Debt hereunder or to collect unearned interest
at the time of any such acceleration.
9. This Note may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
Maker or Payee, but only by an agreement in writing signed by the party against
whom enforcement of any modification, amendment, waiver, extension, change,
discharge or termination is sought. Whenever used, the singular number shall
include the plural, the plural the singular, and the words "Payee" and "Maker"
shall include their respective successors, assigns, heirs, executors and
administrators. If Maker consists of more than one person or party, the
obligations and liabilities of each such person or party shall be joint and
several.
10. Maker and all others who may become liable for the payment of all or
any part of the Debt do hereby severally waive presentment and demand for
payment, notice of dishonor, protest, notice of protest, notice of nonpayment,
notice of intent to accelerate the maturity hereof and of acceleration. No
release of any security for the Debt or any person liable
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for payment of the Debt, no extension of time for payment of this Note or any
installment hereof, and no alteration, amendment or waiver of any provision of
the Loan Documents made by agreement between Payee and any other person or party
shall release, modify, amend, waive, extend, change, discharge, terminate or
affect the liability of Maker, and any other person or party who may become
liable under the Loan Documents for the payment of all or any part of the Debt.
11. Intentionally Omitted Prior to Execution.
12. Maker (and the undersigned representative of Maker, if any) represents
that Maker has full power, authority and legal right to execute, deliver and
perform its obligations pursuant to this Note, the Security Instrument and the
other Loan Documents and that this Note, the Security Instrument and the other
Loan Documents constitute valid and binding obligations of Maker.
13. All notices or other communications required or permitted to be given
pursuant hereto shall be given in the manner specified in the Security
Instrument directed to the parties at their respective addresses as provided
therein.
14. MAKER (BY ITS ACCEPTANCE OF THIS NOTE) XXXXXX AGREES NOT TO ELECT A
TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO
TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER
ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS
GIVEN KNOWINGLY AND VOLUNTARILY BY MAKER, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. MAKER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS
PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY MAKER.
15. This Note shall be governed by and construed in accordance with the
laws of the State in which the Mortgaged Property is located and the applicable
laws of the United States of America.
16. Any capitalized term used in this Note and not defined herein shall
have the meaning given to such term in the Security Instrument.
17. This Note may be executed in one or more counterparts, each of which
shall be deemed to constitute an original, but all of which, when taken
together, shall constitute one and the same instrument.
18. This Note is fully recourse to Maker; provided, however, the liability
of Maker pursuant to this Note and all other Loan Documents for all amounts due
hereunder or thereunder (other than with respect to principal and interest
payable under this Note for which there shall be no limitation) shall not exceed
25% of the then outstanding principal balance of the Loan less: (a) any payments
made by Maker to Payee pursuant to the Loan Documents (not
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including any payments hereunder applied by Xxxxx to principal or interest
hereunder), and (b) payments by Charming Shoppes, Inc. ("Charming") to Payee
pursuant to (i) that certain Guaranty, dated as of the date hereof, given by
Charming to Holder (not including any such payments applied by Payee to any
principal or interest hereunder); and (ii) that certain Hazardous Substances
Indemnity Agreement, dated as of the date hereof, given by Maker and Charming to
Payee.
[signature page follows]
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Maker has duly executed this Note the day and year first above written.
MAKER:
FB DISTRO DISTRIBUTION CENTER, LLC,
a Delaware limited liability company
By: FB Distro, Inc.,
an Indiana corporation,
its Sole Member
By:___________________________
Name:
Title:
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ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF ________________________:
The foregoing instrument was acknowledged before me this ___ day of
October, 2004, by _________________________, who acknowledged himself/herself to
be the _____________ of FB Distro, Inc., an Indiana corporation, the sole member
of FB Distro Distribution Center, LLC, a Delaware limited liability company, and
that he/she as such officer, being authorized to do so, executed the foregoing
instrument, and acknowledged that he/she executed the same for the purposes
therein contained.
In witness whereof, I hereunto set my hand and official seal.
__________________________
Notary Public
My Commission Expires:
