Exhibit 10.8.2
MORTGAGE NOTE
$5,687,000.00 May 7, 1996
Atlanta, Georgia
FOR VALUE RECEIVED XXXXXXX XXXXXXX, INC., a Michigan corporation
having its principal place of business at 0000 Xxxxxxxxx Xxxx, Xxxx Xxxx Xxxxx,
Xxxxxxx 00000 ("Maker"), promises to pay to the order of GMAC COMMERCIAL
MORTGAGE CORPORATION, a California corporation ("Payee"), at its principal place
of business at 0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, or
at such place as the holder hereof may from time to time designate in writing,
the principal sum of Five Million Six Hundred Eighty-Seven Thousand and 00/100
Dollars (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 1(c) hereof), and to be paid in installments as follows:
(a) A payment of interest only on the first day of the first full
calendar month after the date hereof; and
(b) Equal monthly payments of principal and interest in the amount
of $51,177.54, on the first day of the second full calendar month after the date
hereof and on the first day of each of the next succeeding 83 calendar months
thereafter (each a "Monthly Payment Date");
with the entire outstanding principal balance, together with accrued and unpaid
interest and any other amounts due under this Note being due and payable on the
seventh anniversary of the first day of the first full calendar month after the
date hereof (the "Maturity Date").
1. Calculation of Interest; Application of Payments.
(a) Interest on the outstanding principal balance of this Note shall
be calculated on the basis of a 360-day year composed of 12 months of 30 days
each, except that interest payable in respect of any period less than a full
calendar month shall be calculated by multiplying the actual number of days
elapsed in such period by a daily rate based on a 360-day year.
(b) Payments under this Note shall be applied first, to the payment
of interest and other costs and charges due in connection with this Note or the
Debt (as such term is defined in Section 4 hereof), and then to reduction of the
outstanding principal balance; or upon an Event of Default (as such term is
defined in Section 4 hereof) in such order and priority as Payee shall determine
in its sole discretion. All amounts due under this Note shall be payable without
setoff, counterclaim or any other deduction whatsoever.
(c) As used in this Note the term "Applicable Interest Rate" shall
mean, from the date of this Note through and including the Maturity Date, the
fixed rate of nine and seven-eighths (9.875%) percent per annum.
2. Security for the Loan.
(a) This Note is secured by: (i) a Mortgage, Deed of Trust,
Assignment of Leases and Rents and Security Agreement dated as of the date
hereof from Maker to Payee (the "Mortgage") affecting the real property and
improvements known as Holiday Inn -- West and located at 0000 Xxxx Xxxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000 (the "Mortgaged Property"); (ii) an Assignment
of Leases and Rents dated as of the date hereof from Maker to Payee (the
"Assignment"); (iii) an Environmental Indemnity Agreement dated as of the date
hereof among Payee, Maker and Servico, Inc. (the "Environmental Agreement"); and
(iv) 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 and
reserve and/or escrow accounts (such other documents, collectively, the "Other
Security Documents").
(b) As used herein, the term "Loan Documents" means, collectively,
this Note, the Mortgage, the Loan Agreement dated as of the date hereof between
Maker and Payee (the "Loan Agreement"), the Assignment, the Environmental
Agreement, the Other Security Documents and any and all other documents executed
in connection with the Loan.
3. Late Charge. If any sum payable under this Note is not paid prior
to the tenth (10th) day after the date such payment is due (but not including
the payment of the principal balance due on the Maturity Date), Maker shall pay
to Payee on demand an additional amount equal to five (5%) percent of such
unpaid sum 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 Mortgage,
the Assignment, the Environmental Agreement and the Other Security Documents.
4. 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 payment required in this Note is not paid prior
to the tenth (10th) day after the date when due or on the Maturity Date; (b)
upon the occurrence of any other default under this Note; or (c) upon the
happening of any 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 (including on appeal), if Payee
prevails in such action, Maker shall pay on demand all costs of collection
incurred by Xxxxx, including reasonable attorneys' fees for the services of
counsel whether or not suit be brought.
5. 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 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 equal to the lesser of (a) the maximum rate permitted by
applicable law; and (b) the greater of (i) the Applicable Interest Rate plus
three percent (3%) or (ii) the Prime Rate (as hereinafter defined) plus four
percent (4%) (the lesser of such rates in (a) or (b), the "Default Rate").
Interest payable at the Default Rate shall be in lieu of interest payable at the
Applicable Interest Rate. The "Prime Rate" shall mean the annual rate of
interest publicly announced by Citibank, N.A. in New York, New York, as its base
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rate, as such rate shall change from time to time. If Citibank N.A. ceases to
announce a base rate, Prime Rate shall mean the rate of interest published in
The Wall Street Journal from time to time as the Prime Rate. If more than one
Prime Rate is published in The Wall Street Journal for a day, the average of the
Prime Rates shall be used, and such average shall be rounded up to the nearest
one-quarter of one percent (1/4%). 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. Interest at the Default Rate shall be added to
the Debt, and shall be deemed secured by the Mortgage. 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.
6. Prepayment. (a) Payee is making the Loan at the Applicable
Interest Rate in reliance upon the Maker's repayment of the Debt over the full
stated term thereof. Xxxxx would not otherwise be willing to make the Loan but
for Maker's covenant to repay the Loan over the full stated term. Accordingly,
in order to insure that Xxxxx receives the full benefit of interest on the
outstanding principal balance hereunder in accordance with the terms hereof,
Maker will not prepay the principal balance hereunder prior to the Maturity Date
except in accordance with the terms, and upon the payment of a certain
additional prepayment consideration, as more particularly described below.
(b) Provided no Event of Default exists, the principal balance of
this Note may be prepaid, in whole but not in part, upon: (i) not less than 30
days prior written notice to Payee specifying the scheduled payment date on
which prepayment is to be made (the "Prepayment Date"); (ii) payment of accrued
interest to and including the Prepayment Date (provided, however, that if such
prepayment is received by Payee before 12:00 noon on the date of such
prepayment, then the accrued interest payable in respect thereof shall be
calculated through and including the day prior to the Prepayment Date) together
with a payment of all interest which would have accrued on the principal balance
of this Note to and including the last day of the calendar month in which the
Prepayment Date falls, if such prepayment occurs on a date which is not the last
day of a month (the "Shortfall Interest Payment"); (iii) payment of all other
sums then due under this Note, the Loan Agreement, the Mortgage, the Assignment
and the Other Security Documents; and (iv) payment of a prepayment consideration
in an amount equal to the greater of: (A) one (1%) percent of the principal
amount being prepaid; and (B) the present value of a series of payments each
equal to the Payment Differential (hereinafter defined) and payable on each
Monthly Payment Date over the remaining original term of this Note and on the
Maturity Date discounted at the Reinvestment Yield (hereinafter defined) for the
number of months remaining from the Prepayment Date to each such Monthly Payment
Date and the Maturity Date (such prepayment consideration, the "Prepayment
Consideration"). The term "Reinvestment Yield" as used herein shall be equal to
the lesser of (1) the yield on the U.S. Treasury issue (primary issue) with a
maturity date closest to the Maturity Date; and (2) the yield on the U.S.
Treasury issue (primary issue) with a maturity equal to the remaining term of
this Note, with each such yield being based on the bid price for such issue as
published in The Wall Street Journal on the date that is 14 days prior to the
Prepayment Date set forth in the Prepayment Notice (or, if such bid price is not
published on that date, the next preceding date on which such bid price is so
published) and converted to a monthly compounded nominal yield. The term
"Payment Differential" as used herein shall be equal to (x) the Applicable
Interest Rate minus the Reinvestment Yield, divided by (y) 12 and multiplied by
(z) the Principal Sum outstanding after application of the Monthly Payment due
on such Prepayment Date, provided that the Payment Differential shall in no
event be less than zero. In no event, however, shall
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Lender be required to reinvest any prepayment proceeds in U.S. Treasury
obligations or otherwise. Payee shall notify Maker of the amount, and the basis
of determination, of the required Prepayment Consideration. If any such notice
of prepayment is given, the principal balance of this Note and the other sums
required under this Section in accordance with such notice shall be due and
payable on the Prepayment Date. Payee shall not be obligated to accept any
prepayment of the principal balance of this Note unless it is accompanied by the
Prepayment Consideration due in connection therewith. The term "Loan Year" as
used in this Section shall mean each complete 365-day period beginning with the
first day of the first full calendar month following the date hereof.
Notwithstanding the foregoing, no Prepayment Consideration shall be payable in
connection with a prepayment during the six months immediately preceding the
Maturity Date.
7. Acceleration Deemed Prepayment. If following the occurrence of
any Event of Default, Maker tenders payment of an amount sufficient to satisfy
the entire Debt at any time prior to a judicial or non-judicial foreclosure sale
or sale pursuant to a power of sale of any of the Mortgaged Property, including
any redemption period, as applicable, and prior to the time prepayment of the
principal balance of this Note is permitted hereunder without prepayment
consideration, Maker shall, in addition to the entire Debt, also pay to Payee an
amount equal to the sum of: (a) the Shortfall Interest Payment; and (b) a
prepayment consideration equal to the Prepayment Consideration as of the date of
such tender. An involuntary prepayment shall include any prepayment made in
connection with reinstatement of the Mortgage under foreclosure proceedings, or
exercise of a power of sale, any right of redemption exercised by Maker or any
other party having a right to redeem or prevent foreclosure, or which is made or
occurs upon the consummation of any sale in foreclosure or under exercise of a
power of sale.
8. Limitations on Recourse. (a) Subject to the qualifications set
forth in this Section, Payee shall not enforce the liability and obligation of
Maker to perform and observe the obligations contained in the Note, the Loan
Agreement, the Mortgage, the Assignment or the Other Security Documents by an
action or proceeding wherein a money judgment shall be sought against Maker,
except that Payee may bring a foreclosure action, an action for specific
performance or any other appropriate action or proceeding to enable Payee to
enforce and realize upon this Note, the Mortgage, the Assignment, the Other
Security Documents, and the interests in the Mortgaged Property and any other
collateral given to Payee pursuant to the Mortgage, the Assignment and the Other
Security Documents; provided, however, that, except as specifically provided in
this Section, any judgment in any such action or proceeding shall be enforceable
against Maker only to the extent of Maker's interest in the Mortgaged Property
and in any other collateral given to Payee. Payee, by accepting this Note, the
Loan Agreement, the Assignment, the Mortgage and the Other Security Documents,
agrees that it shall not sue for, seek or demand any deficiency judgment against
Maker in any such action or proceeding, under, by reason of or in connection
with the Mortgage, the Loan Agreement, the Assignment, the Other Security
Documents or this Note. Except as may be expressly provided for herein, the
provisions of this Section shall not, however: (i) constitute a waiver, release
or impairment of any obligation evidenced or secured by the Mortgage, the Loan
Agreement, the Assignment, the Environmental Agreement or the Other Security
Documents or this Note; (ii) impair the right of Payee to name Maker as a party
defendant in any action or suit for foreclosure and sale under the Mortgage;
(iii) affect the validity or enforceability of any guaranty or indemnity made in
connection with the Mortgage, the Loan Agreement, this Note, the Assignment or
the Other Security Documents; (iv) impair the right of Payee to obtain the
appointment of a receiver; (v) impair the enforcement of the Assignment; (vi)
impair the right of Payee to bring suit with respect to fraud or intentional
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misrepresentation by Maker or any other person or entity in connection with the
Mortgage, the Loan Agreement, this Note, the Assignment, the Environmental
Agreement or the Other Security Documents; or (vii) affect the validity or
enforceability of the Environmental Agreement or limit the liability of Maker or
any other party thereunder.
(b) Nothing herein shall be deemed to be a waiver of any right which
Payee may have under Section 506(a), 506(b), 1111(b) or any other provisions of
the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured
by the Mortgage or to require that all collateral shall continue to secure all
of the debt owing to Payee in accordance with this Note, the Loan Agreement, the
Mortgage, the Assignment, the Environmental Agreement and the Other Security
Documents.
(c) Notwithstanding the foregoing provisions of this Section or any
other provision in the Loan Documents, Maker shall be fully liable for and shall
indemnify Payee for any or all loss, cost, liability, judgment, claim, damage or
expense sustained, suffered or incurred by Payee (including, without limitation,
Xxxxx's attorneys' fees) (including on appeal) if Payee prevails in the
applicable action or proceeding to which such fees relate) arising out of or
attributable or relating to:
(i) fraud or misrepresentation by Maker in connection with the Loan;
(ii) the gross negligence or willful misconduct of Maker, its agents
or employees, or physical waste of the Mortgaged Property;
(iii) the breach of provisions in the Loan Agreement concerning
Environmental Laws, Hazardous Substances and Asbestos, and any
indemnification of Payee therein with respect to such Environmental Laws,
Hazardous Substances and Asbestos;
(iv) except as permitted in the Loan Agreement, the removal or
disposal of any portion of the Mortgaged Property after default under this
Note, the Mortgage, the Loan Agreement, the Assignment, the Environmental
Agreement or any Other Security Document;
(v) the misapplication or misappropriation by Maker of: (A) any
insurance proceeds paid by reason of any loss, damage or destruction to
the Mortgaged Property; (B) any awards or other amounts received in
connection with the condemnation of all or a portion of the Mortgaged
Property; or (C) rents, issues, profits, proceeds, accounts, or other
amounts received by Maker (in the case of clause (C) following an Event of
Default under this Note, the Mortgage, the Loan Agreement, the Assignment,
the Environmental Agreement or the Other Security Documents);
(vi) Maker's failure to pay taxes, assessments, charges for labor or
materials or other charges that can result in liens on any portion of the
Mortgaged Property; and
(vii) any security deposits or advance deposits collected with
respect to the Mortgaged Property (except to the extent such deposits are
required to be returned or refunded to the depositor), which are not
delivered to Payee upon a foreclosure of the Mortgaged Property or action
in lieu thereof.
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(d) Notwithstanding the foregoing, the agreement of Payee not to
pursue recourse liability as set forth in subsection (a) above SHALL BECOME NULL
AND VOID and shall be of no further force or effect in the event of: (i) Maker's
failure (after prior notice and the expiration of applicable cure periods) to
permit on-site inspections of the Mortgaged Property or to provide financial
reports and information pertaining to the Mortgaged Property as required by the
Loan Agreement which failure continues, with respect to reports required to be
furnished monthly, for 15 days beyond otherwise applicable cure periods, with
respect to reports required to be furnished quarterly, for 30 days beyond
otherwise applicable cure periods, and with respect to reports required to be
furnished annually, for 45 days beyond otherwise applicable cure periods; (ii)
Maker's failure to obtain Xxxxx's written consent to any subordinate financing
not otherwise permitted under the Loan Agreement; (iii) Maker's failure to
obtain Xxxxx's prior written consent to any transfer of the Mortgaged Property
or of any ownership interest in Maker not otherwise permitted under the Loan
Agreement; (iv) the Mortgaged Property or any part thereof becoming an asset in
a voluntary bankruptcy or insolvency proceeding; or (v) the failure of Maker to
comply with the provisions of Section 11 (SINGLE PURPOSE ENTITY) of the Loan
Agreement.
9. 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 and 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.
10. 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
Mortgaged Property or ownership interests of Maker, except as permitted in the
Loan Agreement.
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11. Authority. Maker represents that Maker has full power, authority
and legal right to execute, deliver and perform its obligations pursuant to this
Note, the Mortgage and the other Loan Documents and that this Note, the Mortgage
and the other Loan Documents constitute valid and binding obligations of Maker.
12. Notices. 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.
13. WAIVER OF JURY TRIAL. MAKER 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 THIS NOTE, THE LOAN AGREEMENT, THE MORTGAGE, 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 IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE
AND EACH ISSUE AS TO WHICH THE RIGHT TO TRIAL BY JURY WOULD OTHERWISE ACCRUE.
XXXXX IS HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER BY MAKER.
14. Governing Law. The Note shall be governed by and construed in
accordance with the laws of the State in which the real property encumbered by
the Mortgage is located and the applicable laws of the United States of America.
15. 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) Except as may be expressly provided for in the Loan Documents,
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 non-payment, notice of intent to
accelerate the maturity hereof and of acceleration.
(c) 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.
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(d) 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.
(e) 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.
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IN WITNESS WHEREOF, Xxxxx has duly executed this Note on the day and
year first above written.
MAKER:
SERVICO LANSING, INC.
By: /s/ Xxxxx Xxxxxxxxxx
---------------------------------
Xxxxx Xxxxxxxxxx
President
STATE OF GEORGIA )
: ss.:
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me this 7th day of
May, 1996, by Xxxxx Xxxxxxxxxx, President of XXXXXXX XXXXXXX, INC., a Michigan
corporation, who is personally known to me or who produced his Florida driver's
license as identification and who did take oath, on behalf of the corporation.
/s/ Xxxxx Xxxxx
---------------------------------
Notary Public
Print Name: XXXXX XXXXX
Notary Public, Xxxx County Georgia
My Commission Expires Jan. 20, 1998
AFFIDAVIT OF RECEIPT
(LENDER)
I, Xxxx X. Xxxxxxx, after being duly sworn, did depose and state:
1. I am legal counsel to GMAC Commercial Mortgage Corporation, a
California corporation ("Counsel").
2. On the date hereof, I, on behalf of Xxxxxx (as hereinafter defined)
received that certain original Mortgage Note in the amount of
$5,687,000 (the "Note") executed by the Servico Lansing, Inc., a
Michigan corporation (the "Borrower") and payable to the order of
GMAC Commercial Mortgage Corporation, a California corporation (the
"Lender").
3. The Note was delivered personally to the undersigned via federal
express from Atlanta, Georgia, as Counsel for Lender in New York
City, New York.
4. I, as Counsel for the Lender, upon closing, delivered the Note to
Lender in New York City, New York.
5. This Affidavit is made for the benefit of Lender for compliance with
the laws of the State of Florida relating to documentary stamp tax
laws.
FURTHER AFFIANT SAYETH NOT.
Executed this 8th day of May, 1996.
XXXXXXX, XXXXXXX, BLOCK & XXXXXXXXXXX, LLP
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Xxxx X. Xxxxxxx, Esq.
