Exhibit 10.80
THIS NOTE REPRESENTS A NON-RECOURSE OBLIGATION OF THE ISSUER SECURED
BY AND PAYABLE SOLELY FROM TI-HE MORTGAGED PROPERTY (AS DEFINED [N THE INDENTURE
(AS DEFINED HEREIN)) AND THE RELATED COLLATERAL, IF ANY. THIS NOTE DOES NOT
REPRESENT AN OBLIGATION OF OR INTEREST [N THE INDENTURE TRUSTEE, SOVEREIGN BANK,
SOVEREIGN BANCORP, INC., ANY INITIAL PURCHASER OR ANY OF THEIR RESPECTIVE
AFFILIATES. TI-US NOTE IS NOT INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY OR BY THE ISSUER, TF[E INDENTURE TRUSTEE, SOVEREIGN BANK,
SOVEREIGN BANCORP, INC., THE INITIAL PURCHASERS, OR ANY OF THEIR RESPECTIVE
AFFILIATES.
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE ~SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHOUT REGISTRATION UNDER THE SECURITIES ACT
OR OTHERWISE IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.
S-BNK DORCHESTER OPERATIONS, LLC
12.18% A-2 Note due June 30, 2020
No, 1 New York, New York
Original Principal Amount: Issue Date:
$3 1,199,288 June 30, 2000
S-BNK DORCHESTER OPERATIONS, LLC, a Delaware limited liability company
(the issue.2'), for value received, hereby promises to pay to FIRST SECURITY
BANK, NATIONAL ASSOCIATION, as Pass-Through Trustee, or permitted registered
assigns, the principal amount of $3 1,199,288 in installments as provided below,
with interest (computed on the basis of a 360-day year of twelve 30-day months)
on the unpaid balance of such principal amount at the rate of 12,18% per annum,
which shall become due and payable (whether on the stated maturity date or on a
date fixed for payment of any installment or for any optional or required
prepayment or by purchase, acceleration, declaration or otherwise) in
installments as
Provided below, and, to the extent permitted by Applicable Laws, with interest
at the Default Rate on any overdue principal (including any overdue prepayment
of principal) and, to the extent permitted by Applicable Laws, on any overdue
Make-Whole Premium and any overdue interest, from the due date thereof until
paid, payable on demand or if not so demanded on the next Payment Date (all
capitalized terms above or hereinafter are used as defined in the Indenture
referred to below). Such payments of principal of and interest on this Secured
Note shall be payable to the person in whose name this Secured Note is
registered at the close of business on the fifteenth day (whether or not a
Business Day) preceding the respective Payment Date notwithstanding any transfer
or exchange of this Secured Note subsequent to such date and prior to such
Payment Date, except if and to the extent there is a default in the payment of
principal of or interest on this Secured Note on such Payment Date, such
defaulted principal and interest (including interest at the Default Rate) shall
be paid to the person in whose name this Secured Note is registered at the close
of business on a subsequent date (which shall be not less than five (5) Business
Days prior to the date of payment of such defaulted principal and interest)
established by notice given by mail on behalf of the Issuer to the Holders of
Secured Notes not
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less than fifteen (15) days preceding such subsequent date for determining
Holders entitled to receive payment.
Notwithstanding anything herein to the contrary, all payments of
principal, Make-Whole Premium, if any, and interest on this Secured Note shall
be made in lawful money of the United States of America in immediately available
funds at the Corporate Trust Office or otherwise as provided in the Indenture
referred to below
The principal of and interest on this Secured Note shall be payable in
the aggregate amounts and on the Scheduled Payment Dates set forth in the
schedule of payments annexed hereto. This Secured Note shall bear interest on
the principal amount from time to time outstanding as aforesaid
It is not intended that, and none of the terms and conditions of the
Indenture, the Mortgage or the other Operative Documents shall ever be construed
to create a contract whereby, the Issuer or any guarantor endorser or other
party now or hereafter becoming liable for payment of this Secured Note shall be
required to pay interest on this Secured Note at a rate in excess of the maximum
interest that may be lawfully charged under Applicable Law. Notwithstanding
anything in this Secured Note or in any other Debt Document to the contrary, if
at any time the interest rate payable under this Secured Note, together with all
fees and charges which are treated as interest under Applicable Laws, including
the Default Rate and the Make-Whole Premium (collectively, the "Charges") as
provided in the Indenture or in any other document executed in connection
therewith, or otherwise contracted for, charged, received, taken or reserved by
the Indenture Trustee, shall exceed the maximum lawful rate (the "Legal Rate")
which may be contracted for, charged, taken, received or reserved by the
Indenture Trustee in accordance with Applicable Law, the interest rate
applicable to this Secured Note and any other Debt Document, together with all
Charges payable to the Indenture Trustee, shall be limited to the Legal Rate and
any interest or Charges not so limited, taken, received or reserved by the
Indenture Trustee at such time shall be spread, prorated or amortized over the
term of this Secured Note to the fullest extent permitted by law.
If any term or provision of this Secured Note or the Indenture or the
application thereof to any circumstance shall, in any jurisdiction and to any
extent, be invalid, illegal or unenforceable, such term or such provisions shall
be ineffective as to such jurisdiction to the extent of such invalidity,
illegality or unenforceability without (to the extent permitted by law)
invalidating or rendering unenforceable any remaining terms and provisions
hereof or thereof or the application of such term or provision to circumstances
other than those as to which it is held invalid, illegal or unenforceable.
The payments of principal and interest to be made on this Secured Note
on a Scheduled Payment Date shall be in the respective amounts set forth in the
schedule of payments annexed hereto as Schedule A, and shall be applied, first,
to the payment of interest accrued on the unpaid principal amount hereof which
is due and payable on such date of such payment (as well as any interest on
overdue principal and, to the extent permitted by Applicable Law, on overdue
Make-Whole Premium, if any), and second, to the payment of the principal amount
(including any overdue installment of principal) of, and Make-Whole Premium, if
any, then due hereunder, provided, that, in any event, the final such
installment shall be in an amount sufficient
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to pay in full the entire unpaid principal amount hereof together with Make-
Whole Premium, if any, and interest accrued thereon.
In addition to the installment payments of principal and interest
provided for above, this Secured Note is subject to prepayment or purchase, in
whole or in part, upon the occurrence of certain events or, in certain
instances, at the option of the Issuer, in certain cases without Make-Whole
Premium, and in other cases with Make-Whole Premium, all in accordance with and
subject to and as more fully set forth in Article 2, Article 9 and Article 14 of
the Indenture dated as of June 30, 2000 (as such indenture may be amended or
supplemented from time to time in accordance with the terms thereof, the
"Indenture") among the Issuer and First Security Bank, National Association, as
Indenture Trustee (the "Indenture Trustee", which term includes any successors
and any separate or co-trustee under the indenture), a copy of which is on file
and available for inspection at the corporate trust office of the Indenture
Trustee in Salt Lake City, Utah. Reference is hereby made to the Indenture and
all indentures supplemental thereto for a statement of the respective rights,
limitations of rights, duties and immunities there under of the Issuer, the
Indenture Trustee, the Lessee and the Holders.
The Indenture Trustee is hereby authorized to endorse on the schedule
attached to this A-2 Note as Schedule B (or on a continuation of any such
schedule attached to this A-2 Note and made a part hereof) an appropriate
notation evidencing the date and amount of each borrowing, and each payment or
other reduction of principal, interest or other amounts due under the Debt
Documents, in respect hereof. Such schedules shall, absent manifest error,
constitute prima facie evidence of the accuracy of the information contained
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therein. The failure of the Indenture Trustee to make a notation on the
schedules to this A-2 Note as aforesaid or the making of an incorrect notation
by the Indenture Trustee shall not affect the obligations of the Issuer under
this A-2 Note, the Indenture or any other Debt Document in any respect.
The Indenture permits, with certain exceptions as therein provided,
tile amendment thereof or the modification of the rights and obligations of the
issuer and the rights of the Holders of the Secured Notes under the Indenture at
any time by the Issuer and the Indenture Trustee with the consent of the
Majority in Interest of Holders.
This Secured Note is the duly authorized 12.18% A-2 Note of the Issuer
originally issued in registered form pursuant to the Indenture and is secured as
provided in the Indenture and the other Debt Documents. The registered Holder is
entitled to the benefits of the Indenture and the security referred to therein,
to which reference is hereby made for a description of the properties, interests
and rights included in such security, the nature of such security and the rights
of the Holders, the Indenture Trustee and the Issuer in respect of such security
and the registered Holder and the Indenture Trustee, acting for the benefit of
such Holder, may enforce the agreements of the Issuer contained therein and
exercise the remedies provided for thereby ot otherwise available in respect
thereof, all in accordance with the terms thereof
As provided in the Indenture, upon surrender of this Secured Note for
registration of transfer, duly endorsed, or accompanied by a written instrument
of transfer in form and
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substance reasonably satisfactory to the Indenture Trustee, and duly executed,
by the registered for exchange, one or more new Secured Notes in an aggregate
principal amount equal to the outstanding principal amount of this Secured Note
will be issued to, and registered in the name of, the transferee or the
registered Holder hereof By its acceptance of this Secured Note, the Holder
hereof agrees to be bound by the provisions of the Indenture as though it were a
party thereto. Subject to the provisions hereof relating to payment of principal
and interest, the Issuer and the Indenture Trustee may treat the Person in whose
name this Secured Note is registered as the owner hereof for the purpose of
receiving payment and for all other purposes, and neither the Issuer nor the
Indenture Trustee shall be affected by any notice to the contrary.
If an Event of Default shall occur and be continuing, the unpaid
balance of the principal of this Secured Note together with the Make-Whole
Premium, if any, and all accrued but unpaid interest thereon, in certain
circumstances shall become immediately due and payable and in other
circumstances may be declared and become immediately due and payable in the
manner and with the effect provided in the Indenture.
Notwithstanding anything herein or in any other Operative Document to
the contrary, insofar as the Issuer or any of its beneficiaries, members,
managers, partners, shareholders, trustees, officers, directors, employees and
agents (collectively, the "Exculpated Parties") are concerned, the indenture
Trustee and each Holder by his acceptance of this Secured Note agrees that it
will look solely to the Mortgaged Property, including the income and proceeds
thereof and no recourse shall be had for the payment or performance of the
Secured Notes or for the payment or performance of the Issuer's obligations
hereunder or under the other Operative Documents against any Exculpated Party or
any Person to which the Mortgaged Property, or any part thereof or interest
therein, shall have been transferred, or against any property, assets or funds
other than the Mortgaged Property. Nothing in this paragraph shall be construed
to limit in any way (x) the remedies available against the Mortgaged Property
under any Operative Document or against the Lessee under the Lease, (y) the
rights and remedies available against the Mortgaged Property or the Lessee under
Applicable Laws or (z) the rights and remedies of the Indenture Trustee against
the RVI Insurer under the RVI Policy or under Applicable Laws. Notwithstanding
any provision of the Indenture or any other Security Document, the provisions of
this paragraph shall not (i) constitute a waiver, release or impairment of any
obligation evidenced or secured by the Debt Documents; (ii) impair the right of
the Indenture Trustee to name the issuer as a party defendant in any action or
suit for foreclosure and sale under the Mortgage; (iii) impair the right of the
Indenture Trustee to obtain the appointment of a receiver; or (iv) impair the
enforcement of the Assignment of Lease executed in connection with the
Indenture. Notwithstanding the foregoing, the provisions of this paragraph shall
not constitute a waiver of the right of the Indenture Trustee to enforce against
the Issuer, the liability and obligation of the Issuer, by money judgment or
otherwise, to the extent of any loss, damage, cost, expense, liability, claim or
other obligation incurred by the Indenture Trustee (including attorneys' fees
and costs reasonably incurred) as a result of the following:
(A) any fraud if material misrepresentation by the Issuer, any
affiliate, any agent, any employee of the Issuer, or any other person
authorized to make statements or representations on behalf of the Issuer or
any such affiliate, agent or employee in connection with the Operative
Documents;
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(B) the committing of any physical waste by the Issuer on the Property
during a period while the Issuer or any affiliate, agent or employee of the
Issuer is in possession thereof, or
(C) the misapplication or conversion by the Issuer of (1) any
insurance proceeds received by the Issuer by reason of any loss, damage or
destruction to the Property, (2) any awards or other amounts received by
the Issuer in connection with the condemnation of all or a portion of the
Property, or (3) any rents or security deposits, if any, received by the
Issuer (except Excepted Payments and such amounts received from the
Indenture Trustee or the Pass-Through Trustee in accordance with the
Operative Documents).
The undersigned waives, to the fullest extent permitted by law,
presentment, protest and demand, notice of protest, demand and dishonor and
nonpayment of this Secured Note and agrees to pay all reasonable costs of
collection when incurred, including reasonable legal fees and expenses, and to
perform and comply with each of the covenants, conditions, provisions and
agreements contained in every instrument now evidencing or securing this Secured
Note.
THIS SECURED NOTE IS MADE AND DELIVERED IN NEW YORK, NEW YORK AND
SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO CONFLICTS OF LAW.
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IN WITNESS WHEREOF, the Issuer has caused this Secured Note to be duly
executed and delivered by one of its duly authorized officers.
S-BNK DORCHESTER OPERATIONS,
LLC
a Delaware limited liability company
By: /s/ M. Scott Kipp
Name: M. Scott Kipp
Title: Manager
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