Exhibit 10.38
EXECUTION COPY
INTERIM LOAN NO. 00-0000000
PROMISSORY NOTE
$55,000,000.00 April 12, 2002
FOR VALUE RECEIVED, CANDLEWOOD PORTFOLIO I, LLC, a Delaware limited
liability company, as successor by merger to (i) Candlewood Detroit, MI-Auburn
Hills, LLC, (ii) Candlewood Cary, LLC, (iii) Candlewood Ft. Worth, TX-Tanacross,
LLC, (iv) Candlewood Greensboro, NC, LLC, (v) Candlewood Chicago, IL-Xxxxxxx
Estates, LLC, (vi) Candlewood Charlotte-Pineville, LLC, (vii) Candlewood Dallas,
TX-Plano, LLC, and (viii) Candlewood Troy, MI, LLC, each a Delaware limited
liability company, CANDLEWOOD JERSEY CITY-URBAN RENEWAL, L.L.C., a New Jersey
limited liability company, and CANDLEWOOD JERSEY CITY, NJ, LLC, a Delaware
limited liability company, each having an address at c/o Candlewood Hotel
Company, Inc., 0000 X. 00xx Xxxxxx X., Xxxxx 000, Xxxxxxx, Xxxxxx 00000
(collectively referred to hereinafter as, the "Maker"), jointly and severally,
promise to pay to the order of GMAC COMMERCIAL MORTGAGE CORPORATION, a
California corporation ("Payee"), at one of its principal places of business at
000 Xxxxxx Xxxx, X.X. Box 809, Horsham, Pennsylvania 19044, Attn: Servicing -
Accounting Manager, or at such place as the holder hereof may from time to time
designate in writing, the principal sum of FIFTY-FIVE MILLION AND 00/100 DOLLARS
($55,000,000.00) (the "Loan"), 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 such term is defined in
Section 2 hereof), and to be paid in monthly installments on the first (1st) day
of each calendar month (each a "Monthly Payment Date") as follows:
(a) Commencing on the first (1st) day of the second (2nd) full
calendar month after the date hereof through May 1, 2003 (the "Cut-Off Date"),
interest only is payable, in arrears, at the Applicable Interest Rate,
calculated from time to time in accordance with Section 3 hereof; and
(b) From and after the Cut-Off Date, monthly installments are
payable in an amount equal to (i) interest, in arrears, at the Applicable
Interest Rate, calculated from time to time in accordance with Section 3 hereof,
plus (ii) principal in an amount sufficient to fully amortize the then
outstanding principal balance of the Loan over a period of twenty-five (25)
years, adjusted monthly to the current Applicable Interest Rate, on a
self-amortizing basis.
The entire outstanding principal balance, together with accrued and
unpaid interest and any other amounts due under this Promissory Note (this
"Note"), shall be due and payable on the Applicable Maturity Date (as such term
is defined in Section 1(b) hereof) of the Loan, as determined in accordance with
Section 1 hereof or any earlier acceleration of sums due hereunder.
Capitalized terms not defined herein shall have the meanings
ascribed thereto in that certain Loan Agreement, dated as of even date herewith,
by and between Maker and Payee (the "Loan Agreement"), which Loan Agreement is
secured by various mortgages and deeds of trust encumbering certain real
property and improvements owned by Maker as identified therein (collectively,
the "Property").
Maker has the option, effective any time during the term of the Loan, to
arrange for the automatic wire transfer on the Monthly Payment Date of the
amounts required to be paid hereunder from Maker's bank account to an account
designated by Payee pursuant to the terms and conditions of an automatic payment
authorization form, substantially in the form attached as Exhibit A hereto.
1. LOAN TERM.
(a) The Loan shall be for a term of three (3) years, and shall
mature on the third (3rd ) anniversary of the first (1st) day of the first (1st)
full calendar month following the date hereof, May 1, 2005 (the "Initial
Maturity Date") (the "Initial Period"), subject to extension as provided in
subsection 1(b) below.
(b) Maker shall have one (1) option to extend the term of the Loan
for an additional twelve (12) month period, with such extension period pursuant
to the valid exercise of such extension option beginning on the first (1st) day
following the Initial Maturity Date (the "Extension Period") and, if so
extended, the Loan shall mature on the fourth (4th) anniversary of the first
(1st) day of the first (1st) full calendar month following the date hereof, May
1, 2006 (the "Extended Maturity Date"); the Initial Maturity Date or the
Extended Maturity Date are hereinafter referred to as the "Applicable Maturity
Date"), subject to satisfaction of the following conditions:
(i) Not less than forty-five (45) days prior to the Initial Maturity
Date, Maker shall give Payee written notice of its election to extend the term
of the Loan (the "Election Notice");
(ii) The Election Notice shall be accompanied by the payment in
immediately available funds of an extension fee in the amount of one-half of one
percent (.50%) of the original principal balance of the Loan (the "Extension
Fee");
(iii) At the time the Election Notice is given and on the Initial
Maturity Date, no Event of Default (as such term is defined in Section 7 hereof)
shall have occurred, and no event which, with the passage of time or the giving
of notice, or both, would constitute an Event of Default, shall have occurred
and be continuing;
(iv) The Debt Service Coverage Ratio (as such term is defined in the
Loan Agreement) for the twelve (12) month period immediately preceding the
Extension Period shall not be less than 1.40:1.0; provided, however, that Maker
shall be entitled to prepay principal sums due under the Loan on or before the
Initial Maturity Date in order to satisfy the foregoing ratio;
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(v) If so requested by Xxxxx in writing, Maker shall have provided
Payee with (A) an updated title report and/or endorsement acceptable to Payee;
(B) updated estoppels from Manager and/or Franchisor; (C) a one-year extension
to the interest rate cap agreement for this Loan or an interest rate cap
agreement applicable to such one-year period acceptable to Payee in its
reasonable discretion; and (D) such other updated information as Payee shall
reasonably request;
(vi) Maker shall execute and deliver such documentation in
connection with the extension of the Loan as Payee reasonably may request,
including, without limitation, such modifications to the Loan Documents as Payee
or its counsel may request; and
(vi) Maker shall cause to be delivered to Payee such title
endorsements in connection with the extension of the Loan as Payee or its
counsel reasonably may request.
2. APPLICABLE INTEREST RATE.
For the purpose of computing interest due on this Note, the
Applicable Interest Rate shall be the sum of (i) the Current Index (defined
below) plus (ii) the Margin (defined below) (the "Applicable Interest Rate").
For purposes of this Section, the following definitions shall apply:
(a) As used herein, the term "Business Day" shall mean any day on
which banks are not required or authorized to close.
(b) As used herein, the term "Current Index" shall mean the
published Index (defined below) that is available on the Rate Adjustment Date
(defined below).
(c) As used herein, the term "Index" shall mean the greater of (a)
the average of one month London interbank offered rates ("LIBOR") and (b) three
hundred fifty (350) basis points (3.50%). The one month LIBOR (in U.S. Dollars)
is obtained from the appropriate Bloomberg display page available as of the
close of business on the last Business Day immediately preceding the Rate
Adjustment Date. In the event the LIBOR cannot be obtained from Bloomberg, then
Payee shall use the weekly average yield on United States Treasury Securities
adjusted to a constant maturity of one (1) year, as made available by the
Federal Reserve Board forty-five (45) days prior to each Rate Adjustment Date.
(d) As used herein, the term "Margin" shall mean four hundred
twenty-five (425) basis points, which is equivalent to four and twenty-five
hundredths percent (4.25%).
(e) As used herein, the term "Rate Adjustment Date" shall mean the
first day of each month.
If Payee at any time determines, in its sole but reasonable
discretion, that it has miscalculated the amount of the Applicable Interest
Rate, then Payee shall give notice to Maker of the corrected amount of the
Applicable Interest Rate, and (i) if the corrected Applicable Interest Rate
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represents an increase in the applicable monthly payment, Maker shall, within
ten (10) calendar days thereafter, pay to Payee any sums that Maker would have
otherwise been obligated under this Note to pay to Payee had the amount of the
Applicable Interest Rate not been miscalculated, or (ii) if the corrected amount
of the Applicable Interest Rate results in an overpayment by Maker to Payee, and
Maker is not otherwise in breach or default under any of the terms and
provisions of the Note, the Loan Agreement or any other Loan Document evidencing
or securing the Note, then Payee shall within a reasonable time thereafter pay
to Maker the sums that Maker would not have otherwise been obligated to pay to
Payee had the amount of the Applicable Interest Rate not been miscalculated.
3. CALCULATION OF INTEREST; APPLICATION OF PAYMENTS.
(a) Interest shall be paid in arrears and shall be computed on the
basis of a three hundred sixty (360)-day year and shall be charged on the
principal balance outstanding from time to time for the actual number of days
elapsed.
(b) The LIBOR Rate, and the amount of interest payable monthly,
shall be recalculated at each Rate Adjustment Date.
(c) All payments made to Payee in respect of the Debt (as
hereinafter defined) after payment of current and past due principal and
interest due and payable under this Note shall be applied by Payee in the
following order of priority (or as may be required under applicable law):
(i) first, to fund the Escrow Fund (with respect to Taxes and
Insurance Premiums);
(ii) next, to reimburse Payee for any unpaid costs, sums and
expenses incurred or advanced by Payee on Maker's behalf or in the
enforcement of Payee's rights under this Note, the Loan Agreement and the
other Loan Documents;
(iii) next, to fund the Replacement Reserve Accounts; and
(iv) thereafter, one hundred percent (100%) of the balance, if
any, to reduce the outstanding principal balance of the Loan.
All amounts due under this Note shall be payable without setoff, counterclaim or
any other deduction whatsoever.
4. BALLOON PAYMENT. MAKER UNDERSTANDS AND ACKNOWLEDGES THAT THIS NOTE
AND THE OTHER LOAN DOCUMENTS DO NOT PROVIDE FOR FULL AMORTIZATION OF THE
PRINCIPAL SUM AND, THEREFORE, UPON THE APPLICABLE MATURITY DATE OR EARLIER
ACCELERATION, A BALLOON PAYMENT OF THE THEN OUTSTANDING BALANCE OF THE PRINCIPAL
SUM WILL BE REQUIRED, ALONG WITH PAYMENT IN FULL OF OTHER SUMS DUE HEREUNDER.
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5. SECURITY FOR THE LOAN.
(a) This Note is secured by: (i) the Loan Agreement; (ii) the
Mortgages; (iii) the Assignment of Leases; (iv) the Environmental Agreement; (v)
the Guaranty Agreement; (vi) Assignment of Contracts; (vii) the Replacement
Reserve Agreement; (viii) the Repair Escrow Agreement; (ix) the Lockbox
Agreement; and (ix) such other documents now or hereafter executed by Maker
and/or others and by or in favor of Payee, which wholly or partially secure or
guarantee payment of this Note including, without limitation, any collateral
assignments, reserve and/or escrow accounts and Uniform Commercial Code
Financing Statements (such other documents, collectively, the "Other Security
Documents").
(b) As used herein, the term "Loan Documents" means, collectively,
this Note, the Loan Agreement, the Mortgages, the Assignment of Leases, the
Environmental Agreement, the Guaranty, the Assignment of Contracts, the
Replacement Reserve Agreement, the Repair Escrow Agreement, the Other Security
Documents and any and all other documents executed in connection with the Loan.
6. LATE CHARGE. If any sum payable under this Note is not paid prior to
the fifth (5th) day after the date such payment is due (other than at the
maturity or earlier acceleration), Maker shall pay to Payee on demand an amount
equal to the lesser of: (i) five percent (5%) of such overdue and unpaid sum or
(ii) the maximum lawful rate of interest permitted on the overdue obligation
outstanding for the period for which such amount is overdue, to defray the
expenses incurred by Payee in handling and processing such delinquent payment
and to compensate Payee for the loss of the use of such delinquent payment, and
such additional amount shall be secured by the Mortgages and the other Loan
Documents. The additional payments required under this paragraph shall be in
addition to and shall in no way limit any other rights and remedies provided for
in this Note, the Loan Agreement or any of the Loan Documents, as well as all
other remedies provided by law.
7. EVENTS OF DEFAULT. The entire outstanding principal balance of this
Note, together with all accrued and unpaid interest thereon and all other sums
due under the Loan Documents (all such sums, collectively, the "Debt"), or any
portion thereof, shall without notice become immediately due and payable at the
option of Payee: (a) if any regularly scheduled payment of principal or interest
due, or if any required deposit into any of the escrows or reserves required in
this Note is not paid prior to the fifth (5th) day after the date when due or on
the Applicable Maturity Date; (b) if any other monetary sum (not described in
clause (a) above) is not paid prior to the fifth (5th) day following written
notice from Payee to Maker that such sum is due; or (c) upon the occurrence of
any other default under this Note, which continues more than thirty (30) days
following written notice thereof from Payee; provided, however, that if the cure
of such default cannot reasonably be effected within such thirty (30) day period
and Maker shall have promptly and diligently commenced to cure such default
within such thirty (30) day period, then the period to cure shall be deemed
extended for up to an additional sixty (60) days from Payee's notice of such
default so long as Maker diligently and continuously proceeds to cure such
default to Payee's satisfaction; or (c) upon the happening of any
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other Event of Default under and as defined in the Loan Agreement (each of the
foregoing, an "Event of Default"). In the event that Xxxxx retains counsel to
collect the Debt or to protect or foreclose the security provided in connection
herewith, Maker also agrees to pay on demand all costs of collection incurred by
Xxxxx, including reasonable attorneys' fees for the services of counsel whether
or not suit is brought. In addition, the prevailing party shall be entitled to
recover attorney fees in any suit or action on appeal.
8. DEFAULT RATE INTEREST. Maker does hereby agree that upon the
occurrence of an Event of Default, including Maker's failure to pay the Debt in
full on the Applicable Maturity Date, Payee shall be entitled to receive, and
Maker shall pay, interest on the entire outstanding principal balance and any
other amounts due at the rate which is equal to the lower of (i) the Applicable
Interest Rate plus five percent (5%) (the "Default Rate"), or (ii) the maximum
rate permitted by applicable law, until paid. Interest shall accrue and be
payable at the Default Rate from the occurrence of the Event of Default until
all such Events of Default have been fully cured. The Default Rate interest
shall be deemed secured by the Mortgages. This provision, however, shall not be
construed as an agreement or privilege to extend the date of the payment of the
Debt, nor as a waiver of any other right or remedy accruing to Payee by reason
of the occurrence of any Event of Default. The additional payments required
under this paragraph shall be in addition to and shall in no way limit any other
rights and remedies provided for in this Note, the Loan Agreement, the Mortgages
or any of the Loan Documents, as well as all other remedies provided by law.
9. LIMITATIONS ON RECOURSE. This Note shall be non-recourse to Maker as
set forth in the Loan Agreement, and the terms and provisions of Section 6.5 of
the Loan Agreement are hereby incorporated by reference.
10. PREPAYMENT. The terms and provisions of Section 4.10(f) of the Loan
Agreement shall govern prepayment of this Note and are hereby incorporated by
reference.
11. REPAYMENT UPON DEFAULT. If prior to the expiration of the Lockout
Period all or any part of the principal amount of this Note is prepaid upon
acceleration of the Loan following the occurrence of an Event of Default, then,
in addition to such principal payment, Maker shall be required to pay the
Breakage Fee described and calculated in accordance with Section 4.10(f) of the
Loan Agreement.
12. DEFERRED FINANCING FEE. Upon the earlier to occur of (i) payment in
full of all amounts due under this Note, (ii) the Applicable Maturity Date, or
(iii) acceleration of payment of all amounts due under this Note in accordance
with Section 7 above, Maker shall pay to Payee an amount equal to one percent
(1%) of the original, maximum face amount of this Note (the "Deferred Financing
Fee"); provided, however, that if Maker procures a permanent loan with Payee
(i.e., Maker satisfies all then-applicable underwriting and legal requirements
of Payee for its permanent loan program and does, in fact close such loan), then
the Deferred Financing Fee shall be waived.
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13. NO USURY. It is expressly stipulated and agreed to be the intent of
Maker and Payee at all times to comply with applicable state law or applicable
United States federal law (to the extent that it permits Payee to contract for,
charge, take, reserve, or receive a greater amount of interest than under state
law) and that this Section shall control every other covenant and agreement in
this Note and the other Loan Documents. If the applicable law (state or federal)
is ever judicially interpreted so as to render usurious any amount called for
under this Note or under any of the other Loan Documents, or contracted for,
charged, taken, reserved, or received with respect to the Debt, or if Xxxxx's
exercise of the option to accelerate the maturity of this Note, or if any
prepayment by Maker results in Maker having paid any interest in excess of that
permitted by applicable law, then it is Maker's and Xxxxx's express intent that
all excess amounts theretofore collected by Xxxxx shall be credited on the
principal balance of this Note and all other Debt (or, if this Note and all
other Debt have been or would thereby be paid in full, refunded to Maker), and
the provisions of this Note and the other Loan Documents immediately be deemed
reformed and the amounts thereafter collectible hereunder and thereunder
reduced, without the necessity of the execution of any new 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 such acceleration or to collect unearned interest at the time of such
acceleration. MAKER REPRESENTS, COVENANTS AND WARRANTS THAT (I) THE INDEBTEDNESS
EVIDENCED BY THIS NOTE IS BEING OBTAINED FOR THE PURPOSE OF ACQUIRING AND
CARRYING ON A BUSINESS OR COMMERCIAL ENTERPRISE, (II) ALL PROCEEDS OF SUCH
INDEBTEDNESS WILL BE USED SOLELY IN CONNECTION WITH SUCH BUSINESS OR COMMERCIAL
ENTERPRISE, AND (III) THE PROCEEDS OF SUCH INDEBTEDNESS WILL NOT BE USED FOR THE
PURCHASE OF REGISTERED EQUITY SECURITIES WITHIN THE PURVIEW OF REGULATION "U"
ISSUED BY THE BOARD OF GOVERNORS AT THE FEDERAL RESERVE SYSTEM.
14. TRANSFERS NOT PERMITTED. Without the prior written consent of Payee,
Maker shall not sell, convey, alienate, mortgage, encumber, pledge or otherwise
transfer, or permit the transfer of, directly or indirectly, the Property or
ownership interests of Maker or Maker's managing member, at any tier, except for
transfers expressly permitted in the Loan Agreement.
15. AUTHORITY. Maker represents that Maker has full power, authority and
legal right to execute, deliver and perform its obligations pursuant to this
Note, the Loan Agreement and the other Loan Documents to which it is a party and
that this Note, the Loan Agreement and the other Loan Documents constitute valid
and binding obligations of Maker.
16. NOTICE. All notices or other communications required or permitted
to be given pursuant hereto shall be given in the manner specified in the
Loan Agreement directed to the parties at their respective addresses as
provided therein.
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17. WAIVER OF JURY TRIAL. MAKER AND PAYEE EACH HEREBY AGREE NOT TO ELECT
A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO
TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST WITH REGARD TO THIS NOTE, THE LOAN AGREEMENT, THE MORTGAGES, OR THE OTHER
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 PAYEE, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH
INSTANCE AND EACH ISSUE AS TO WHICH RIGHT TO TRIAL BY JURY WOULD OTHERWISE
ACCRUE. MAKER AND PAYEE EACH ARE HEREBY AUTHORIZED TO FILE A COPY OF THIS
SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY EACH OTHER.
18. LOAN ASSUMPTION. Assumption of Maker's obligations under this Note
and the Loan is not permitted.
19. GOVERNING LAW. The Note shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania and the applicable
laws of the United States of America.
20. EXTENSION OF TIME. Maker consents to any extension of time for the
payment hereof, release of all or any part of the security for the payment
hereof or release of any party liable for Maker's liabilities or Maker's
obligations under the Loan Documents. Any such extension or release may be made
without notice to Maker and without discharging Maker's liability.
21. TIME OF ESSENCE. Time is of the essence of each liability and
obligation of Maker hereunder.
22. CERTAIN WAIVERS. To the fullest extent permitted by law, Maker and
all guarantors, sureties and endorsers, severally waive all applicable exemption
rights, whether under any state constitution, homestead laws or otherwise, and
also severally waive diligence, valuation and appraisement, presentment for
payment, protest and demand, notice of protest, notice of default, notice of
intention to accelerate all sums under the Note or the Loan Documents, notice of
acceleration of all sums under the Note or the Loan Documents, demand and
dishonor and diligence in collection and nonpayment of this Note and all other
notices in connection with the delivery, acceptance, performance, default, or
enforcement of the payment of this Note (except notice of default and any other
notice as specifically provided for in this Note, the Loan Agreement, the
Mortgages or the Loan Documents). To the fullest extent permitted by law, Maker
further waives all benefit that might accrue to Maker by virtue of any present
or future laws exempting the Property, or any other property, real or personal,
or the proceeds arising from any sale of any such property, from attachment,
levy, or sale under execution, or providing for any stay of execution to be
issued on any judgment recovered on this Note or in any action to foreclose any
Mortgage, injunction against sale pursuant to power of sale, exemption from
civil process or extension of time for payment. Xxxxx agrees that any real
estate that
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may be levied upon pursuant to a judgment obtained by virtue of this Note, or
any writ of execution issued thereon, may be sold upon any such writ in whole or
in part in any order desired by Xxxxx.
23. EFFECT OF WAIVER. No failure to exercise, and no delay in exercising
any right, power or remedy hereunder or under any other Loan Document shall
impair any right, power or remedy which Payee may have, nor shall any such delay
be construed to be a waiver of any of such rights, powers or remedies, or an
acquiescence in any breach or default under this Note or any other Loan
Document, nor shall any waiver of any breach or default of Maker hereunder or
under any other Loan Document be deemed a waiver of any default or breach
subsequently occurring. The rights and remedies herein specified are cumulative
and not exclusive of any rights or remedies which Payee would otherwise have.
24. SEVERABILITY OF PROVISIONS. In case any one or more of the
provisions contained in this Note should be invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby.
25. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of Maker, Payee and their respective successors, assigns
and participants; provided, however, that, except as specifically provided
herein or in the Loan Agreement, Maker may not, directly or indirectly, sell,
assign or otherwise transfer all or any part of the Property or any interest
therein, or any of Maker's rights and obligations under this Agreement, or take
or permit any other action prohibited by Section 4.10 of the Loan Agreement,
without the prior written consent of Payee, which Payee may give or withhold in
its sole and absolute discretion.
26. TRANSFER OF LOAN. (a) Maker acknowledges that Payee may (i) sell or
transfer interests in the Loan and Loan Documents to one or more participants or
special purpose entities, (ii) pledge Payee's interests in the Loan and the Loan
Documents as security for one or more loans obtained by Xxxxx, or (iii) sell the
Loan evidenced by the Note and the Loan Documents to a party who may pool the
Loan with a number of other loans and to have the holder of such loans grant
participations therein or issue one or more classes of Mortgage-Backed,
Pass-Through Certificates or other securities evidencing a beneficial interest
in a rated or unrated public offering or private placement (the "Securities").
The Securities may be rated by one or more national rating agencies. Maker
acknowledges and agrees that Payee may, at any time, sell, transfer or assign
this Note, the Mortgages and the other Loan Documents, and any or all servicing
rights with respect thereto, or grant participations therein or issue Securities
evidencing a beneficial interest in a rated or unrated public offering or
private placement. In this regard, Maker agrees to make available to Payee all
information concerning its business and operations which Payee reasonably
requests. Payee may share such information with the investment banking firms,
rating agencies, accounting firms, law firms and other third-party advisory
firms involved with the Loan or the Securities; provided, however, that Payee
shall take such reasonable steps to obtain from any such reviewing party
assurances it will keep such information strictly confidential to itself and its
advisors and review such information in confidence. Payee may forward to each
purchaser, transferee, assignee, servicer, participant or investor in such
securities or any credit rating agency rating such Securities (collectively, the
"Investor") and each
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prospective Investor, all documents and information which Payee now has or may
hereafter acquire relating to Maker and the Property, whether furnished by Maker
or otherwise, as Payee determines necessary or desirable consistent with full
disclosure for purposes of marketing and underwriting the Loan; provided,
however, that Payee shall take such reasonable steps to obtain from any such
reviewing party assurances it will keep such information strictly confidential
to itself and its advisors and review such information in confidence. Maker
shall furnish and hereby consents to Payee furnishing to such Investor or such
prospective Investor any and all information concerning Maker and the Properties
as may be reasonably requested by Xxxxx, any Investor or any prospective
Investor in connection with any sale, transfer or participation interest,
provided that Payee shall promptly reimburse Maker any material costs and
expense incurred by Maker in connection therewith. It is understood that the
information provided by Maker to Payee may ultimately be incorporated into the
offering documents for the Securities and thus such information may be disclosed
to Investor and prospective Investor. Xxxxx and all of the aforesaid third-party
advisors and professional firms shall be entitled to rely on the information
supplied by, or on behalf of, Maker. Upon any transfer or proposed transfer
contemplated above and by the Loan Documents, at Xxxxx's request, Maker shall
provide an estoppel certificate to the Investor or any prospective Investor in
such form, substance and detail as Payee may reasonably require.
(b) Upon any transfer or proposed transfer contemplated above and by
the Loan Documents, at Xxxxx's request, Maker and each Guarantor shall provide
an estoppel certificate to the Investor or any prospective Investor in such
form, substance and detail as Payee, such Investor or prospective Investor may
reasonably require.
27. REMEDIES AVAILABLE. The remedies of Payee, as provided herein or in
any other Loan Document, shall be cumulative and concurrent, and may be pursued
singularly, successively or together, at the sole discretion of Payee, and may
be exercised as often as occasion therefor shall arise. No act of omission or
commission of Payee, including specifically any failure to exercise any right,
remedy or recourse, shall be deemed to be a waiver or release of the same, and
any waiver or release with reference to any one event shall not be construed as
continuing or as a bar to, or as a waiver or release of, any subsequent right,
remedy or recourse as to a subsequent event.
28. MAKER'S COVENANTS. Maker agrees that (a) the obligation evidenced by
this Note is an exempted transaction under the Truth-in-Lending Act, 15 U.S.C.
Section 1601, et seq. (1982); (b) said obligation constitutes a business loan
for the purpose of the application of any laws that distinguish between consumer
loans and business loans; (c) at the option of the Payee, the United States
District Court having jurisdiction over Xxxxxxxxxx County, Pennsylvania and any
court of competent jurisdiction in the Commonwealth of Pennsylvania shall have
jurisdiction in any action, suit or other proceeding arising out of or relating
to any act taken or omitted hereunder or the enforcement of this Note, the Loan
Agreement and the Loan Documents and Maker shall not assert in any such action,
suit or other proceeding that it is not personally subject to the jurisdiction
of the courts in this subsection (c) that the action, suit or other proceeding
is brought in an inconvenient forum or that the venue of the action, suit or
other proceeding is improper; and (d) it hereby waives any objections to venue.
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29. PAYEE. Reference in this Note to "Payee" shall mean the original
Payee hereunder so long as such Payee shall be the holder of this Note and
thereafter shall mean any subsequent holder of this Note.
30. MISCELLANEOUS.
(a) No release of any security for the Debt or any person liable 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 might be or
become liable for the payment of all or any part of the Debt, under the Loan
Documents.
(b) 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 or other document in writing
signed by the party against whom enforcement of any modification, amendment,
waiver, extension, change, discharge or termination is sought.
(c) 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, all to the
extent provided in Section 25 hereof.
(d) 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.
31. SUBMISSION TO JURISDICTION. MAKER AND PAYEE EACH HEREBY IRREVOCABLY
SUBMIT TO THE JURISDICTION OF ANY PENNSYLVANIA STATE OR FEDERAL COURT SITTING IN
XXXXXXXXXX COUNTY, PENNSYLVANIA OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS NOTE AND XXXXXX AGREE NOT TO ASSERT THAT IT IS NOT
SUBJECT TO THE JURISDICTION OF THE FOREGOING COURTS. EITHER MAKER OR PAYEE MAY,
AT ITS SOLE DISCRETION, ELECT THE STATE OF PENNSYLVANIA, XXXXXXXXXX COUNTY, OR
THE UNITED STATES OF AMERICA FEDERAL DISTRICT COURT HAVING XXXXXXXXXX COUNTY AS
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING. MAKER AND PAYEE EACH HEREBY
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION IT MAY
NOW OR HEREAFTER HAVE TO SUCH VENUE AS BEING AN INCONVENIENT FORUM OR IMPROPER
VENUE.
32. SERVICE OF PROCESS. Process in any suit, action or proceeding of the
nature referred to in Section 31 hereof may be served in any manner permitted by
law and nothing herein shall limit Payee's right to bring proceedings against
Maker in the courts of any other jurisdiction.
11
33. TAX IDENTIFICATION NUMBERS. Maker represents and warrants that
its current tax identification numbers are as follows:
(a) Candlewood Portfolio I, LLC: 00-0000000;
(b) Candlewood Jersey City-Urban Renewal, L.L.C.: 00-0000000; and
(c) Candlewood Jersey City, NJ, LLC: 00-0000000.
[SIGNATURE APPEARS ON FOLLOWING PAGE]
12
IN WITNESS WHEREOF, Xxxxx has duly executed and delivered this
Promissory Note under seal as of the day and year first above written.
MAKER:
CANDLEWOOD PORTFOLIO I, LLC, a Delaware limited liability
company, as successor by merger to (i) Candlewood Detroit,
MI-Auburn Hills, LLC, (ii) Candlewood Cary, LLC, (iii)
Candlewood Ft. Worth, TX-Tanacross, LLC, (iv) Candlewood
Greensboro, NC, LLC, (v) Candlewood Chicago, IL-Xxxxxxx
Estates, LLC, (vi) Candlewood Charlotte-Pineville, LLC, (vii)
Candlewood Dallas, TX-Plano, LLC, and (viii) Candlewood Troy,
MI, LLC, each a Delaware limited liability company
By: Candlewood Holding I, LLC, a Delaware limited
liability company, its Sole Member
By: Candlewood Hotel Company, Inc., a
Delaware corporation, its Sole Member
By: /s/ XXX XXXXXXX (SEAL)
--------------------------------------
Name: Xxx Xxxxxxx
------------------------------------
Title: Vice President Treasurer
-----------------------------------
CANDLEWOOD JERSEY CITY-URBAN RENEWAL, L.L.C., a New Jersey
limited liability company
By: Candlewood Hotel Company, Inc., a Delaware
corporation,
By: /s/ XXX XXXXXXX (SEAL)
---------------------------------------------
Name: Xxx Xxxxxxx
-------------------------------------------
Title: Vice President Treasurer
-------------------------------------------
i
CANDLEWOOD JERSEY CITY, NJ, LLC, a Delaware limited liability
company
By: CANDLEWOOD HOTEL COMPANY, INC., a Delaware corporation,
its Sole Member
By: /s/ XXX XXXXXXX (SEAL)
---------------------------------------------
Name: Xxx Xxxxxxx
-------------------------------------------
Title: Vice President Treasurer
-------------------------------------------
ii
EXHIBIT A
(Automatic Debit Form)
[Attached hereto]
iii
