MORTGAGE NOTE
Loan No. 04-05-FL-0000
$2,800,000 June 30, 1995
FOR VALUE RECEIVED, RIDGEWOOD ORLANDO, INC., a Florida
corporation, having its principal place of business at 0000 Xxxx
Xxxxx Xxxx 000, Xxxxxxxx, Xxxxxxx 00000 (hereinafter referred to
as "Maker"), promises to pay to the order of BLOOMFIELD ACCEPTANCE
COMPANY, L.L.C., a Michigan limited liability company, at its
principal place of business at Xxxxx 000, 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000 (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 Two Million Eight
Hundred Thousand Dollars ($2,800,000), 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:
1. A payment of interest only upon the execution of this Note,
representing the interest that will accrue hereunder through
June 30, 1995;
2. A constant payment of $26,137.69, on the first day of August,
1995, and on the first day of each calendar month thereafter
up to and including the first day of June, 2015, each of such
payments to be applied (a) to the payment of interest
computed at the rate aforesaid; and (b) the balance applied
toward the reduction of the principal sum; and
3. The balance of said principal sum, together with all accrued
and unpaid interest thereon and any other amounts due under
this Note shall be due and payable on the first day of July,
2015 (the "Maturity Date").
Interest on the principal sum of this Note shall be calculated on
the basis of a three hundred sixty (360) day year composed of
twelve (12) months of thirty (30) days each, except that interest
due and payable for a period less than a full month shall be
calculated by multiplying the actual number of days elapsed in
such period by a daily rate based on said 360 day year. All
amounts due under this Note shall be payable without setoff,
counterclaim or any other deduction whatsoever.
The term "Applicable Interest Rate" as used in this Note
shall mean from the date of this Note through and including the
Maturity Date, a rate of * percent (**%) per annum.
*Ten and Thirty Five One Hundredths
**10.35
DOCUMENTARY STAMPS AS REQUIRED PURSUANT TO FLORIDA LAW HAVE BEEN
AFFIXED TO THE MORTGAGE SECURING THIS NOTE.
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 in the amount of this
Note, given by Maker for the use and benefit of Payee and covering
the fee estate of Maker in certain premises as more particularly
described therein (the "Mortgage"), (b) an Assignment of Leases
and Rents of even date herewith executed by Maker in favor of
Xxxxx (the "Assignment of Leases"), and (c) the other Loan
Documents (as hereinafter defined). The term "Loan Documents" as
used in this Note relates collectively to this Note, the Mortgage,
the Assignment of Leases, 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, but not including the Environmental and
Hazardous Substance Indemnification Agreement executed by Maker in
favor of Payee of even date herewith (the "Environmental
Indemnity").
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. 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 in New York are
authorized or obligated by law or executive order to be closed.
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"), or any portion thereof, shall without
notice become immediately due and payable at the option of Payee
(i) if any payment required in this Note is not paid on the date
on which it is due; or (ii) upon the happening of any other Event
of Default (as defined in the Mortgage). 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 attorneys' fees and costs reasonably incurred for
the services of counsel whether or not suit be brought.
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 actual receipt and collection of the Debt (or that
portion thereof that is then due). This charge shall be added to
the Debt and shall be secured by the Mortgage. 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.
This Note may not be prepaid prior to the Maturity Date;
provided, however, Maker shall have the right and option to
release the Mortgaged Property (as defined in the Mortgage) from
the lien of the Mortgage in accordance with the terms and
provisions set forth in Paragraph 57 of the Mortgage (the
"Defeasance Option"). Notwithstanding the foregoing sentence,
Maker shall have the privilege to prepay the entire principal
balance of this Note and any other amounts outstanding on any
scheduled payment date during the three (3) months preceding the
Maturity Date. If following the occurrence of any Event of
Default, 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 Mortgage, such tender by
Maker shall be deemed to be voluntary and Maker shall pay, in
addition to the Debt, the Yield Maintenance Premium (as defined in
the Mortgage), if any, that would be required under the Defeasance
Option.
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 Payee's exercise of
the option to accelerate the Maturity Date, or if any prepayment
by Maker results in Maker having paid any interest in excess of
that permitted by applicable law, then it is Payee'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 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.
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.
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 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.
Subject to the qualifications below, Payee shall not enforce
the liability and obligation of Maker to perform and observe the
obligations contained in this Note, the Mortgage or the other Loan
Documents by any 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 its interest under this Note, the Mortgage and
the other Loan Documents, or in the Mortgaged Property, the Rents
(as defined in the Mortgage), or any other collateral given to
Payee pursuant to the Loan Documents; provided, however, that,
except as specifically provided herein, 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, in the
Rents and in any other collateral given to Payee, and Payee, by
accepting this Note, the Mortgage and the other Loan Documents,
agrees that it shall not sue for, seek or demand any deficiency
judgment against Maker in any such action or proceeding, under or
by reason of or under or in connection with this Note, the
Mortgage or the other Loan Documents. The provisions of this
paragraph shall not, however, (a) constitute a waiver, release or
impairment of any obligation evidenced or secured by any of the
Loan Documents; (b) impair the right of Payee to name Maker as a
party defendant in any action or suit for foreclosure and sale
under the Mortgage; (c) affect the validity or enforceability of
any guaranty made in connection with the Loan or any of the rights
and remedies of Payee thereunder; (d) impair the right of Payee to
obtain the appointment of a receiver; (e) impair the enforcement
of the Assignment of Leases or the Environmental Indemnity; or (f)
constitute a waiver of the right of Payee to enforce the liability
and obligation of Maker, by money judgment or otherwise, to the
extent of any loss, damage, cost, expense, liability, claim or
other obligation incurred by Xxxxx (including attorneys' fees and
costs reasonably incurred) arising out of or in connection with
the following:
(A) fraud or intentional misrepresentation by Maker or any
guarantor in connection with the Loan;
(B) the gross negligence or willful misconduct of Maker;
(C) physical waste of the Mortgaged Property;
(D) the breach of any provision in the Environmental Indemnity or
in the Mortgage concerning environmental laws, hazardous
substances and asbestos and any indemnification of Payee with
respect thereto in either document;
(E) the removal or disposal of any portion of the Mortgaged
Property after an Event of Default;
(F) the misapplication or conversion by Maker of (i) any
insurance proceeds paid by reason of any loss, damage or
destruction to the Mortgaged Property, (ii) any awards or
other amounts received in connection with the condemnation of
all or a portion of the Mortgaged Property, or (iii) any
Rents (as defined in the Mortgage), following an Event of
Default;
(G) costs incurred by Xxxxx (including reasonable attorneys'
fees) in the collection or enforcement of the Debt, the
protection or foreclosure of the security therefor, or the
enforcement of the Loan Documents;
(H) failure to pay taxes (provided that the liability of Maker
shall be only for amounts in excess of the amount held by
Payee in escrow for the payment of taxes, computed without
taking into consideration any portion of any such escrow that
Payee may have applied in satisfaction of any portion of the
Debt other than those taxes), assessments, charges for labor
or materials or other charges that can create liens on any
portion of the Mortgaged Property; and
(I) any security deposits collected with respect to the
Mortgaged Property which are not delivered to Payee upon a
foreclosure of the Mortgaged Property or action in lieu
thereof, except to the extent any such security deposits were
applied in accordance with the terms and conditions of any of
the Leases (as defined in the Mortgage) prior to the
occurrence of the Event of Default that gave rise to such
foreclosure or action in lieu thereof.
Notwithstanding anything to the contrary in this Note or any of
the Loan Documents, (i) Payee shall not be deemed to have waived
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 the Loan Documents, and
(ii) the Debt shall be fully recourse to Maker, and Maker shall be
liable for all damages (including but not limited to attorneys'
fees and expenses reasonably incurred) arising, in the event that:
(1) the first full monthly payment of principal and interest
under this Note is not paid when due;
(2) Maker fails to permit on-site inspections of the Mortgaged
Property, fails to provide financial information (if
unremedied after any applicable notice and cure period under
the Mortgage), or fails to maintain its status as a single
purpose entity, each as required by, and in accordance with
the terms and provisions of, the Mortgage;
(3) Maker fails to obtain Xxxxx's prior written consent to any
subordinate financing or other voluntary lien encumbering the
Mortgaged Property; or
(4) Maker fails to obtain Xxxxx's prior written consent to any
"Transfer" (as defined in the Mortgage), as required by the
Mortgage.
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 Mortgage and the other Loan Documents and that this
Note, the Mortgage and the other Loan Documents constitute valid
and binding obligations of Maker.
All notices or other communications required or permitted to
be given pursuant hereto shall be given in the manner specified in
the Mortgage directed to the parties at their respective addresses
as provided therein.
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 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. XXXXX IS HEREBY AUTHORIZED TO FILE A
COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF
THIS WAIVER BY MAKER.
This Note shall be governed by and construed in accordance
with the laws of the State of Florida, in which the real property
encumbered by the Mortgage is located, and the applicable laws of
the United States of America.
Maker has duly executed this Note the day and year first above
written.
MAKER:
RIDGEWOOD ORLANDO, INC., a Florida
corporation
By: /s/ X. X. Xxxxxx
N. Xxxxxxx Xxxxxx, President
And by: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Secretary
Pay to the order of ________________________________________,
without recourse.
Bloomfield Acceptance Company,
L.L.C., a Michigan
limited liability company,
By: ____________________________
Print Name: Xxxxxxxxx X. Xxxxx
Print Title: Exec. VP
