EXHIBIT 10.43
SECOND AMENDED AND RESTATED MEZZANINE NOTE
SECOND AMENDED AND RESTATED MEZZANINE NOTE
$25,000,000.00 New York, New York
June 2, 2000
FOR VALUE RECEIVED, the undersigned, HUDSON HOTELS PROPERTIES CORP., a
New York corporation, with an address of c/o Hudson Hotels Corporation, 300
Bausch & Lomb Place, Rochester, New York 14604, Attention: President, Telefax
Number: (716) 454-1865 ("HHPC") and HUDSON HOTELS CORPORATION, a New York
corporation, with an address of 300 Bausch & Lomb Place, Rochester, New York
14604, Attention: E. Anthony Wilson, Chairman, Telefax Number: (716) 454-1865
("HHC"), jointly and severally, promise to pay to the order of RHD CAPITAL
VENTURES LLC, a Delaware limited liability company (together with any subsequent
holder of this Second Amended and Restated Mezzanine Note (this "MEZZANINE
NOTE"), and their respective successors and assigns, "HOLDER"), at its office
located at 300 Willowbrook Office Park, Fairport, New York 14450, Attention:
Richard Sands, Manager, Telefax Number: (716) 218-2160, or at such other address
as Holder may from time to time designate in writing, the principal sum of
TWENTY-FIVE MILLION AND NO/100 DOLLARS ($25,000,000.00) together with interest
thereon, Late Charges, Default Rate interest and all other sums due under the
Mezzanine Loan Agreement (as defined below); such principal, interest, Late
Charges, Default Rate interest and other sums to be calculated and payable as
provided in that certain Second Amended and Restated Mezzanine Loan Agreement,
dated as of June 2, 2000, between Makers and Holder (as modified and
supplemented and in effect from time to time, the "MEZZANINE LOAN AGREEMENT").
HHPC and HHC are referred to herein individually as the "MAKER" and collectively
as the "MAKERS". This Mezzanine Note is secured by, among other things, the
Stock Pledge Agreements, the Partner Pledge Agreements, the Collateral
Assignments of Agreements, the Security Agreements, the Mezzanine Cash
Collateral Account Agreement and the Mezzanine Collection Account Agreement.
Capitalized terms used herein without definition shall have the meanings
ascribed to such terms in the Mezzanine Loan Agreement.
All payments made hereunder shall be applied as provided in SECTION 2.6
of the Mezzanine Loan Agreement.
The Mezzanine Loan Agreement provides for, among other things:
(1) a payment of all accrued and unpaid interest on the First Restated
Mezzanine Note (as hereinafter defined) on June 2, 2000;
(2) commencing on July 2, 2000 and on the 2nd day of each and every
month thereafter to and including June 2, 2001, a constant monthly payment of
principal and interest in the amount of $364,583;
(3) commencing on July 2, 2001 and on the 2nd day of each and every
month thereafter to and including January 2, 2002, a constant monthly payment of
principal and interest in the amount of $541,364;
(4) payment of the entire unpaid principal amount of the Mezzanine
Loan, together with all accrued and unpaid interest thereon and all other sums
payable under the Mezzanine Loan Documents, on February 2, 2002 (the "MATURITY
DATE"). Makers hereby acknowledge that the amortization schedule set forth
herein does not provide for the complete amortization of the Indebtedness and
that on the Maturity Date a substantial principal balance will be due and owing
to Holder;
(5) an Interest Rate equal to six and fifty-three hundredths percent
(6.53%) per annum;
(6) a Default Rate equal to the lesser of (i) the Maximum Amount or
(ii) the Interest Rate plus two hundred (200) basis points;
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(7) the Mezzanine Loan may be voluntarily prepaid, in whole but not in
part, at any time in accordance with the terms of the Mezzanine Loan Agreement.
Any prepayment of the Mezzanine Loan in whole must be accompanied by a payment
of accrued interest on the unpaid principal amount of the Mezzanine Loan to the
date of prepayment;
(8) interest shall accrue on the outstanding principal balance of the
Mezzanine Note and all other amounts due to Holder under the Mezzanine Loan
Documents at the Interest Rate; and
(9) interest shall accrue on the outstanding principal balance of the
Mezzanine Loan and all other amounts due to Holder under the Mezzanine Loan
Documents commencing on the date of this Mezzanine Note. Interest shall be
computed on the actual number of days elapsed in each year over a 360 day year.
The obligations of Makers under this Note are secured by, among other
things, the Liens and security interests created and granted in favor of Nomura
Asset Capital Corporation ("Nomura") by Makers pursuant to the Mezzanine Loan
Documents, and assigned by Nomura to Holder pursuant to a certain Assignment of
Asset Documents, dated as of April 14, 2000, as the same may from time to time
be modified, supplemented or amended.
The principal sum evidenced by this Mezzanine Note, together with
accrued interest, Default Rate interest, Late Charges and all other sums due
under the Mezzanine Loan Agreement shall become immediately due and payable at
the option of Holder upon the occurrence of any Event of Default, which such
"Events of Default" are incorporated by reference as if set forth in full
herein.
If Makers fail to make (i) the payment due on the Maturity Date or (ii)
any other payment of principal or interest, Late Charge or other sum due on any
date on which such payment is due, all amounts due hereunder will thereafter
bear interest at the Default Rate. Makers will also pay to Holder, after the
occurrence of an Event of Default, in addition to the amount due, all reasonable
costs of collecting, securing, or attempting to collect or secure, this
Mezzanine Note or any other Mezzanine Loan Document, including, without
limitation, court costs and reasonable attorneys' fees (including reasonable
attorneys' fees on any appeal by Makers or Holder and in any bankruptcy
proceedings).
With respect to the amounts due pursuant to this Mezzanine Note, Makers
waive the following:
(1) All rights of exemption of property from levy or sale under
execution or other process for the collection of debts under the Constitution or
laws of the United States or any State thereof;
(2) Demand, presentment, protest, notice of dishonor, notice of
nonpayment, notice of protest, notice of intent to accelerate, notice of
acceleration, suit against any party, diligence in collection of this Mezzanine
Note and in the handling of securities at any time existing in connection
herewith, and all other requirements necessary to enforce this Mezzanine Note
except for notices required by Governmental Authorities and notices required by
the Mezzanine Loan Agreement; and
(3) Any further receipt by Holder or acknowledgment by Holder of any
collateral now or hereafter deposited as security for the Mezzanine Loan.
It is the intention of Makers and Holder to conform strictly to
applicable usury laws. Accordingly, if the transactions contemplated hereby
would be usurious under applicable law then, in that event, notwithstanding
anything to the contrary in any agreement entered into in connection with or as
security for this Mezzanine Note, it is agreed as follows: (i) the aggregate of
all consideration which constitutes interest under applicable law that is taken,
reserved, contracted for, charged or received under this Mezzanine Note or under
any of the other aforesaid agreements or otherwise in connection with this
Mezzanine Note shall under no circumstances exceed the maximum amount of
interest allowed by applicable law, and any excess shall be credited on this
Mezzanine Note by the holder hereof (or if this Mezzanine Note shall have been
paid in full, refunded to Makers) in accordance with the
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Mezzanine Loan Agreement; and (ii) in the event that maturity of this Mezzanine
Note is accelerated by reason of an election by Holder resulting from any
default hereunder or otherwise, or in the event of any required or permitted
prepayment, then such consideration that constitutes interest may never include
more than the maximum amount of interest allowed by applicable law, and any
interest in excess of the maximum amount of interest allowed by applicable law,
if any, provided for in this Mezzanine Note or otherwise shall be cancelled
automatically as of the date of such acceleration or prepayment and, if
theretofore prepaid, shall be credited on this Mezzanine Note (or if this
Mezzanine Note shall have been paid in full, refunded to Makers).
In determining whether or not the interest paid or payable under any
specific contingency exceeds the maximum amount allowed by applicable law, the
Holder shall, to the maximum extent permitted under applicable law (a) exclude
voluntary prepayments and the effects thereof, and (b) amortize, prorate,
allocate and spread, in equal parts, the total amount of interest throughout the
entire contemplated term of this Mezzanine Note so that the interest rate is
uniform throughout the entire term of this Mezzanine Note; provided, that if
this Mezzanine Note is paid and performed in full prior to the end of the full
contemplated term hereof, and if the interest received for the actual period of
existence thereof exceeds the maximum amount allowed by applicable law, Holder
shall refund to Makers the amount of such excess, and in such event, Holder
shall not be subject to any penalties provided by any laws for contracting for,
charging or receiving interest in excess of the maximum amount allowed by
applicable law.
Holder shall not by any act, delay, omission or otherwise be deemed to
have modified, amended, waived, extended, discharged or terminated any of its
rights or remedies, and no modification, amendment, waiver, extension, discharge
or termination of any kind shall be valid unless in writing and signed by Holder
and Makers. All rights and remedies of Holder under the terms of this Mezzanine
Note and applicable statutes or rules of law shall be cumulative, and may be
exercised successively or concurrently. Each Maker agrees that there are no
defenses, equities or setoffs with respect to the obligations set forth herein,
and to the extent any such defenses, equities, or setoffs may exist, the same
are hereby expressly released, forgiven, waived and forever discharged.
Wherever possible, each provision of this Mezzanine Note shall be
interpreted in such manner as to be effective and valid under applicable Legal
Requirements, but if any provision of this Mezzanine Note shall be prohibited by
or invalid under applicable Legal Requirements, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Mezzanine Note.
Holder may, at its option, release any Collateral given to secure the
indebtedness evidenced hereby, and no such release shall impair the obligations
of Makers to Holder.
This Mezzanine Note was negotiated in New York, and the proceeds of
this Mezzanine Note were disbursed from New York, which State the parties agree
has a substantial relationship to the parties and to the underlying transaction
embodied hereby, and in all respects, including, without limitation, matters of
construction, validity and performance, this Mezzanine Note and the obligation
arising hereunder shall be governed by, and construed in accordance with, the
laws of the State of New York applicable to contracts made and performed in such
State and any applicable law of the United States of America. To the fullest
extent permitted by law, each Maker hereby unconditionally and irrevocably
waives any claim to assert that the law of any other jurisdiction governs this
Mezzanine Note, and this Mezzanine Note shall be governed by and construed in
accordance with the laws of the State of New York pursuant to ss. 5-1401 of the
New York General Obligations Law.
Any legal suit, action or proceeding against Makers arising out of or
relating to this Mezzanine Note shall be instituted in any federal or state
court in Monroe County, New York, pursuant to ss. 5-1402 of the New York General
Obligations Law, and Maker waives any objection which it may now or hereafter
have to the laying of venue of any such suit, action or proceeding, and Makers
hereby irrevocably submit to the jurisdiction of any such court in any suit,
action or proceeding. Makers hereby designate and appoint Accelerated
Information and Document Filing, Inc., 90 State Street, Suite 836, Albany, NY
12207, as their authorized agent to accept and acknowledge on their behalf
service of any and all process which may be served in any such suit, action or
proceeding in any such federal or state court, and agree that service of process
upon said agent at said address (or at such other office in upstate New York as
may be designated by such agent in accordance with the terms hereof)
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with copies to Makers at the address set forth in the first paragraph of this
Mezzanine Note, with additional copies to (a) Makers at the same address,
Attention: Ralph L. Peek, Vice President and Treasurer and (b) Alan S. Lockwood,
Esquire, Boylan, Brown, Code, Vigdor & Wilson, LLP, 2400 Chase Square,
Rochester, New York 14604, and written notice of said service of Makers mailed
or delivered to Makers in the manner provided in the Mezzanine Loan Agreement
shall be deemed in every respect effective service of process upon Makers, in
any such suit, action or proceeding. Makers (i) shall give prompt notice to
Holder of any changed address of its authorized agent hereunder, (ii) may at any
time and from time to time designate a substitute authorized agent (which office
shall be designated as the address for service of process), and (iii) shall
promptly designate such a substitute if their authorized agent ceases to have an
office or is dissolved without leaving a successor.
MAKERS AND HOLDER TO THE FULLEST EXTENT THAT THEY MAY LAWFULLY DO SO,
WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING, INCLUDING, WITHOUT LIMITATION,
ANY TORT ACTION, BROUGHT BY ANY PARTY HERETO WITH RESPECT TO THIS MEZZANINE NOTE
OR THE OTHER MEZZANINE LOAN DOCUMENTS. MAKERS AND HOLDER AGREE THAT MAKERS OR
HOLDER MAY FILE A COPY OF THIS WAIVER WITH ANY COURT AS WRITTEN EVIDENCE OF THE
KNOWING, VOLUNTARY AND BARGAINED AGREEMENT OF THE OTHER IRREVOCABLY TO WAIVE ITS
RESPECTIVE RIGHT TO TRIAL BY JURY TO THE FULLEST EXTENT THAT EACH MAY LAWFULLY
DO SO, AND THAT ANY DISPUTE OR CONTROVERSY WHATSOEVER BETWEEN MAKERS AND HOLDER
SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING
WITHOUT A JURY.
Holder may assign all or part of its right, title and interest in and
to this Mezzanine Note to another Person, including without limitation, to a
trustee or servicer before or after a securitization, and such trustee or
servicer shall be entitled to exercise all or any portion of Holder's rights
hereunder.
This Mezzanine Note has been issued by Makers to amend and restate in
its entirety that certain Mezzanine Note dated November 27, 1996 made by Makers
payable to the order of Nomura in the face amount of $17,000,000 (the "ORIGINAL
MEZZANINE NOTE"), as amended, restated and increased by that certain Amended and
Restated Mezzanine Note dated as of October 31, 1997 made by Makers payable to
the order of Nomura in the face amount of $35,000,000, as endorsed by Nomura to
Holder by Allonge dated April 14, 2000 (as endorsed, the "FIRST RESTATED
MEZZANINE NOTE"), and evidences the same indebtedness that has been evidenced by
the First Restated Mezzanine Note. Makers and Holder acknowledge that the
principal amount of the indebtedness evidenced by the First Restated Mezzanine
Note has been reduced from $35,000,000 to $25,000,000 pursuant to the terms of a
certain Mezzanine Loan Restructuring Agreement, dated as of June 2, 2000, by and
among Makers and Holder. The First Restated Mezzanine Note is hereby replaced
and superseded in its entirety. This Mezzanine Note is not a novation. The
Holder of this Mezzanine Note is entitled to the benefit of the Mezzanine Loan
Documents, to which reference is made for a description of the property and
rights included in such security, the nature of such security and the rights of
the Holder of this Note and Makers in respect of such security. To the extent
that this Mezzanine Note shall be invalid, illegal, void, or unenforceable in
any respect, the corresponding provision of the First Restated Mezzanine Note
together with the unaffected portion of this Mezzanine Note, at Holder's
election, shall control. Any reference to the Mezzanine Note in any of the
Mezzanine Loan Documents shall hereafter mean this Mezzanine Note as the same
may be modified, amended, supplemented, extended or consolidated in writing, and
any note(s) issued in exchange therefor or in replacement thereof.
The liability of the Makers under this Mezzanine Note shall be joint
and several.
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IN WITNESS WHEREOF, Makers have caused this Second Amended and Restated
Mezzanine Note to be duly executed on the date first above written.
HUDSON HOTELS PROPERTIES CORP.,
a New York corporation
By:
----------------------------------
Name: E. Anthony Wilson
Title: Chairman
HUDSON HOTELS CORPORATION,
a New York corporation
By:
----------------------------------
Name: E. Anthony Wilson
Title: Chairman
Agreed and Acknowledged this
2nd day of June, 2000
RHD CAPITAL VENTURES LLC,
a Delaware limited liability company
By:
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Name: Richard Sands
Title: Manager
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