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EXHIBIT 10.24.2
Mortgage Loan No.:
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PROMISSORY NOTE
$ April 20, 2000
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FOR VALUE RECEIVED, the undersigned ("Borrower"), promise(s) to pay to the order
of [MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY] [TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA] ("Lender"), at its home office in ____________________,
or at such other place as Lender may direct, in lawful money of the United
States of America, without grace or offset, the principal sum of
_________________________________________($_________________), with interest
thereon at the rate of eight and seventy three one hundredths percent (8.73%)
per annum (the "Contract Rate") to be paid as provided hereinbelow.
This Promissory Note is secured by, among other things, (a) a Deed of Trust and
Security Agreement and Fixture Filing with Assignment of Leases and Rents of
even date herewith (the "Mortgage"), covering real property and other property
described in the Mortgage, and located in the City of ____________, County of
__________, State of ____________, and (b) certain other mortgages, deeds of
trust and/or deeds to secure debt made by Borrower for the benefit of Lender as
additional security for the Loan.
1. PAYMENT TERMS
Payments shall be made on this Promissory Note as follows:
A. On the date the loan evidenced hereby is made, a payment of interest only
shall be due and payable for the period from such date to the first day of the
next calendar month.
B. Successive monthly installments of principal and interest (in arrears), shall
be made on the first day of June, 2000 and on the first day of each calendar
month thereafter up to and including the first day of April, 2010.
C. Each monthly installment shall be in the constant amount of
____________________________ ($__________________).
D. A final installment equal to the entire principal balance then remaining
unpaid, with accrued interest thereon, shall be due and payable on May 1, 2010
(the "Maturity Date");
Unless otherwise directed by Lender in writing, all payments shall be made by
wire transfer of immediate federal funds or equivalent to Lender's bank and bank
account. Borrower acknowledges that, since the term of the loan evidenced hereby
is shorter than the amortization period, a substantial portion of the principal
balance will be due on the Maturity Date. Whenever
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any payment to be made under this Promissory Note is stated to be due on a date
which is not a Business Day (defined hereinbelow), the due date shall be
extended to the next succeeding Business Day and interest shall continue to
accrue and be payable at the applicable rate during such extension.
2. INTEREST
The monthly payments of combined principal and interest of this Promissory
Note are based upon a twenty-five (25) year amortization period, and all
interest accruing hereunder shall be calculated on the basis of a 360-day year
consisting of twelve (12) months of thirty (30) days each; provided, however,
that for any partial monthly payment, interest shall be calculated on the basis
of a 365-day year.
3. DEFAULT INTEREST
If the entire unpaid principal balance of this Promissory Note, together
with accrued and unpaid interest thereon, is not paid when due, whether on the
Maturity Date or any earlier date as a result of acceleration of this Promissory
Note after an Event of Default (hereinafter defined), then the amount unpaid
shall bear interest from the Maturity Date or such earlier date, as the case may
be, at the per annum interest rate (the "Default Rate") equal to the sum of
three percent (3%) plus the Contract Rate.
The Default Rate shall continue until the first occurring of the following:
(i) payment in full of any sums due hereunder and under the Loan Documents
(hereinafter defined) or
(ii) reinstatement of the loan evidenced hereby pursuant to statutory
provisions requiring such reinstatement, but only after the curing of
all defaults and payments of all sums due hereunder.
4. LATE CHARGE
If any regular monthly installment of principal or interest due hereunder,
or any monthly deposit for taxes, ground rent, insurance, replacements and other
sums if required under any Loan Document, shall not be paid as required under
this Promissory Note or Loan Document, as the case may be, by the tenth (10th)
day of the month in which the same shall be due, Borrower shall pay to Lender a
late charge (the "Late Charge") of four cents ($0.04) for each dollar so overdue
in order to compensate Lender for its loss of the timely use of the money and
frustration of Lender in the meeting of its financial commitments and to defray
part of Lender's incurred cost of collection occasioned by such late payment.
Any Late Charge incurred shall be immediately due and payable. If, however,
during any consecutive twelve (12) month period Borrower on more than three (3)
occasions shall pay any such installments or deposits after the due dates
thereof (whether prior to or after the time that the Late Charge is payable as
above), then the time period after which a Late Charge will be charged and paid
shall thereafter be reduced from ten (10) days
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to two (2) days after a due date. Nothing herein contained shall be deemed to
constitute a waiver or modification of the due date for such installments or
deposits or the requirement that Borrower make all payment of installments and
deposits as and when the same are due and payable.
5. APPLICATION OF PAYMENTS
Each payment received by Lender shall be applied in the following order:
A. First, to the interest due on any advances made by Lender under any
instrument which is a Loan Document;
B. Next, to the principal amount of any advances made by Lender under any
instrument which is a Loan Document;
C. Next, to Late Charges, attorney's fees or any other amount due hereunder or
under a Loan Document save for the amounts described in (D) and (E) immediately
below;
D. Next, to accrued interest due hereunder; and
E. Finally, to the principal balance hereof.
Notwithstanding the foregoing, in the event that Borrower does not pay the
outstanding principal balance and accrued interest due under this Promissory
Note, when due, whether on the Maturity Date or on any earlier date as a result
of acceleration of this Promissory Note, the Lender at its option shall apply
any payments it then receives in such order as Lender deems appropriate in its
sole discretion.
6. MONETARY AND NON-MONETARY EVENTS OF DEFAULT AND ACCELERATION
A. (i) The failure to make any payment required under this Promissory Note, as
and when due; (ii) the failure to pay on the Maturity Date the outstanding
principal balance, accrued interest, and other payments due under this
Promissory Note, or the Loan Documents; (iii) the failure to have or keep
in force insurance as required under any of the Loan Documents; (iv) the
insolvency or bankruptcy of Borrower or Guarantor; (v) a sale, transfer, or
encumbrance of the Mortgaged Property (except as expressly permitted in the
Mortgage), without the required approval of Lender; or (vi) the failure of
Borrower to be a Single-Purpose Entity at all times during the term of the
Loan, shall each be and constitute a monetary event of default ("Monetary
Event of Default") hereunder, without any action required to be taken by or
on behalf of Lender.
B. Upon the occurrence of a Monetary Event of Default, Lender may, at any time
thereafter, together or singly,
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(i) declare the outstanding principal balance due hereunder, together with
all accrued and unpaid interest thereon, to be immediately due and
payable, thereby accelerating this Promissory Note;
(ii) exercise immediately and without notice any and all other rights and
remedies available under the Loan Documents, and/or at law or in
equity;
except that the acceleration of this Promissory Note for the Monetary Event
of Default set forth in (i) above shall be subject to the terms of Section 7 of
this Promissory Note.
The failure to comply with any term, covenant, or condition of the Loan
Documents, other than as set forth in Section A (i) through (vi) above shall be
a non-monetary event of default ("Non-Monetary Event of Default"); provided that
declaration of a Non-Monetary Event of Default shall be in accordance with the
provisions of Section 7 of this Promissory Note.
7. NOTICE AND CURE PRIOR TO ACCELERATION
A. If the Monetary Event of Default is one set forth in (i) of Section 6A above,
Lender shall give Borrower notice specifying the Monetary Event of Default, and
ten (10) days opportunity to cure and eliminate the Monetary Event of Default,
prior to exercising its rights under Section 6B (i) or (ii).
B. If the Monetary Event of Default is one set forth in (ii) through (vi) of
Section 6A above, Lender shall not be obligated to give notice of any kind,
prior to exercising its rights under Section 6B (i) or (ii).
C. Prior to declaring a Non-Monetary Event of Default, Lender shall give
Borrower notice specifying the potential Non-Monetary Event of Default, and
thirty (30) days opportunity to cure the potential Non-Monetary Event of
Default. If Borrower has not cured the potential Non-Monetary Event of Default,
by the end of said thirty (30) day period, unless additional time to cure is
specifically permitted under any other Loan Document with respect to such
Non-Monetary Event of Default, then Lender may declare a Non-Monetary Event of
Default by a notice declaring such Non-Monetary Event of Default. From and after
such notice declaring the Non-Monetary Event of Default, Lender may exercise its
rights under Section 6B (i) or (ii) together or singly, without further notice,
at any time thereafter.
D. The Lender's agreement to give notice and time to cure are on the further
conditions that:
(i) the failure of Lender to give any notice(s) required shall not result
in the imposition of any liabilities or penalties upon Lender;
(ii) the agreement to give notice and time to cure is personal to
Borrower, and does not extend to or vest any such rights in any other
person or entity; and
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(iii) nothing contained in this Section 7 shall prevent the imposition of
Late Charges.
8. DEFINITIONS
Any terms used in this Promissory Note requiring a definition shall have
the definition given in this Section, unless elsewhere defined in this
Promissory Note. Any and all instruments securing or executed in connection with
this Promissory Note, including, without limitation, this Promissory Note, the
Mortgage, guarantees, indemnities, pledges, security agreements and assignments
of leases and rents are herein collectively referred to as the "Loan Documents."
Any instrument included within the term "Loan Documents" is herein referred to
in the singular as a "Loan Document." The terms, "Agreement Concerning Primary
Lease Agreement", "Application", "Collateral", "Equipment", "[FCH/SH Leasing]
[FCH/SH Leasing II]", "Guarantor", "Indebtedness", "Loan", "Losses", "Management
Agreement", "Material Lease", "Mortgaged Property", "Mortgaged Properties",
"Premises", "Primary Lease", "Proceeds", "Property Income", "Related Loan
Documents", "Related Notes" and "Single-Purpose Entity" shall have the meaning
set forth in the Mortgage. The term "Event of Default" shall have the meaning
given in Section 6 hereof. The term "Prepayment Premium" shall have the meaning
given in Section 9 hereof. The term "Business Day" as used herein shall mean any
day other than a Saturday, Sunday or other day on which national banks in the
State of _________ are not open for business.
9. PREPAYMENT
A. During the period commencing ninety (90) days prior to the Maturity Date,
Borrower may prepay the Loan in full, but not in part, without any Prepayment
Premium.
Except as expressly set forth in the Loan Documents, Borrower shall have no
right to prepay in full or in part the principal amount due under this
Promissory Note.
B. If the maturity of this Promissory Note is accelerated by the Lender because
of the occurrence of an Event of Default, the resulting acceleration shall be
deemed to be an election on the part of Borrower to prepay the loan evidenced
hereby. Accordingly, there shall be added to the amount due after an Event of
Default and resulting acceleration, a Prepayment Premium, calculated as set
forth below and using as the prepayment date the date on which any tender of
payment is made, and Borrower agrees to pay the same. Any tender of payment made
after acceleration by or on behalf of Borrower (including, without limitation,
payment by any guarantor or purchaser at a foreclosure sale), shall include the
Prepayment Premium computed as provided herein.
C. For purposes hereof, the Prepayment Premium shall be equal to the greater of
(x) or (y), where
(x) is equal to the amount to be prepaid multiplied by 1%; and
(y) is equal to the product (discounted as hereinafter provided) obtained
by multiplying the amount to be prepaid by the "Prepayment Premium Rate". The
"Prepayment
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Premium Rate" shall be the percentage obtained by multiplying the excess, if
any, of the Contract Rate over the market yield of U.S. Treasury issues which
have the closest maturity (month and year) to the Maturity Date, as quoted in
The Wall Street Journal published on the scheduled prepayment date, by a
fraction, the numerator of which is equal to the number of days remaining from
and including the scheduled prepayment date to and including the Maturity Date,
and the denominator of which is 365. Should more than one U.S. Treasury issue be
quoted as maturing on the date closest to the Maturity Date, then the issue
having the market yield which differs least from the Contract Rate will be used
in the calculations. If The Wall Street Journal is not in publication on the
applicable date, or ceases to publish such U.S. Treasury issue yield, then any
other publication acceptable to Lender quoting daily market yields for U.S.
Treasury issues will be used. The product obtained from the foregoing shall then
be discounted, on a semi-annual basis over the remaining term of this Promissory
Note, as of the date of prepayment to its then present value, using the U.S.
Treasury yield, referred to in this subparagraph (y).
D. No Prepayment Premium shall be required to be paid in connection with payment
of fire, casualty, or condemnation proceeds to the Lender in accordance with the
provisions of the Mortgage.
E. There will be due with such principal, all accrued and unpaid interest
thereon, in addition to all other amounts due under this Promissory Note.
F. The Prepayment Premium herein provided for represents the reasonable estimate
of Lender and Borrower of a fair average compensation for the loss that will be
sustained by Lender resulting from the payment of the outstanding principal
balance of the loan evidenced hereby prior to the Maturity Date. The Prepayment
Premium shall be paid without prejudice to the right of Lender to collect any
other amounts provided to be paid under this Promissory Note, or under the other
Loan Documents, or pursuant to the provisions of law.
G. Notwithstanding the foregoing, any Prepayment Premium incurred under this
Promissory Note as a result of an acceleration as described in Section 9B above,
shall also trigger a Prepayment Premium (and acceleration) under the [MassMutual
Note] [TIAA Note] in an equal amount. Furthermore, Maker shall not be allowed to
exercise its right and privilege to prepay in full this Promissory Note as
described in Section 9A above unless Maker also concurrently prepays in full the
[MassMutual Note] [TIAA Note]. As used herein, the term "[MassMutual Note] [TIAA
Note]" shall mean that certain promissory note of even date herewith executed by
Maker and payable to the order of [Massachusetts Mutual Life Insurance Company]
[Teachers Insurance and Annuity Association of America] in the original
principal amount of $__________.
10. WAIVERS AND EXTENSIONS
Borrower and all endorsers and guarantors and any and all others who may at
any time be or become liable for payment of all or any part of the loan
evidenced hereby severally waive presentment for payment, demand, notice of
dishonor or nonpayment, protest and notice of protest, notice of acceleration
and of intention to accelerate the Maturity Date (except as provided above in
the clause entitled "Notice and Cure Prior to Acceleration") and any and all
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lack of diligence or delays in collection or enforcement hereof, and agree that
Lender from time to time may extend the time for payment of any sums due under
this Promissory Note and grant releases to all endorsers and guarantors hereof,
and may release all or any portion of the Mortgaged Property, without in any way
affecting the liability of such parties hereunder.
11. LIMITATIONS ON LIABILITY
A. In any action or proceeding brought on this Promissory Note or on the
Mortgage or on any of the Loan Documents in which a money judgment is sought
(subject to paragraphs B, C, and D below), Lender will look solely to the
Mortgaged Property described in the Loan Documents (including, without
limitation, the Collateral) for payment of the Indebtedness and, specifically
and without limitation, Lender agrees to waive any right to seek or obtain a
deficiency judgment against Borrower.
B. The provisions of this Section 11 shall not
(i) constitute a waiver, release or impairment of any obligation
evidenced or secured by this Promissory Note, the Mortgage or any
other Loan Document to the extent of the Mortgaged Property securing
such obligation;
(ii) be deemed to be a waiver of any right which Lender may have under
Sections 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
Indebtedness secured by the Mortgage or to require that all
Collateral shall continue to secure all of the Indebtedness owing to
the Lender in accordance with the Promissory Note, the Mortgage and
the other Loan Documents;
(iii) impair the right of Lender to name Borrower or any principals of
Borrower, or any guarantor of this Promissory Note, as a party or
parties defendant in any action or suit for judicial foreclosure and
sale under the Mortgage;
(iv) affect the validity or enforceability of, or limit recovery under,
any separate indemnity agreement (including, without limitation, any
environmental indemnity set forth in any separate environmental
indemnity agreement, however designated) or separate guaranty, if
any, made in connection with this Promissory Note, the Mortgage, or
the Loan Documents;
(v) impair the right of Lender to obtain the appointment of a receiver;
or
(vi) impair the enforcement of an assignment of leases or an assignment of
rents contained in the Mortgage or any separate Assignment of Leases
and Rents executed in connection herewith.
C. Notwithstanding any provisions of this Section 11 to the contrary, nothing
herein shall be deemed to prejudice the right of Lender (which right is
specifically reserved) to pursue or obtain
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personal recourse liability against the Borrower and Guarantor to recover Losses
incurred by Lender, arising out of, or resulting from:
(i) obligations and liabilities under any separate guaranty or separate
indemnity agreement;
(ii) fraud or material misrepresentation in connection with the
Application or the making of the Loan;
(iii) insurance and/or condemnation proceeds received but not paid over or
applied in accordance with the Loan Documents;
(iv) misappropriation of any security deposits, advances or prepaid
rents, cancellation or termination payments or other similar sums
received by Borrower from any tenants or other occupants of the
Premises;
(v) personal property covered by Lender's security interest obtained in
connection with the Loan which is taken from the Mortgaged Property
by or on behalf of Borrower and not replaced in the ordinary course
of business with personal property of the same utility and of the
same or greater value;
(vi) any act of arson, malicious destruction or material waste by
Borrower, any principal, affiliate, member or general or limited
partner of Borrower, or by Guarantor under any of the Loan Documents
given to Lender in connection with the making of the Loan;
(vii) revenues of the Mortgaged Property which are not applied to payments
due under the Loan or to operating expenses of the Mortgaged
Property (including, without limitation, any reserves or escrows
required by any Loan Document) thereby resulting in, or contributing
materially to, a default under the Loan Documents. Lender, however,
shall have no right to recover distributions from the revenues of
the Mortgaged Property to Borrower or Guarantor or any principal of
Borrower or Guarantor made in good faith (after determining the
sufficiency of revenues to cover the payments on the Loan and the
foregoing operating and capital expenses) more than ninety (90) days
prior to a default occurring under any Loan Document;
(viii) [FCH/SH Leasing] [FCH/SH Leasing II]'s pledge in violation of the
Loan Documents of the revenues or operating accounts relating to the
Mortgaged Property, Lessee's Personal Property (as defined in the
Primary Lease) or any other rights of [FCH/SH Leasing] [FCH/SH
Leasing II] under the Primary Lease or [FCH/SH Leasing] [FCH/SH
Leasing II]'s failure to keep all of the foregoing lien free in
violation of the Loan Documents;
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(ix) any fraudulent conveyance or transfer (or claim of any fraudulent
conveyance or transfer) of any of the Mortgaged Properties (or any
interest therein) to Borrower;
(x) the bankruptcy or insolvency of any fee owner of any of the
Mortgaged Properties other than Borrower; or
(xi) any transfer or mortgage tax (or claim of any transfer or mortgage
tax) arising from the transfer to Borrower or mortgage by the fee
owner or Borrower of any of the Mortgaged Properties or any interest
therein.
D. Notwithstanding the foregoing and subject to the last sentence of this
paragraph, the agreement of Lender not to pursue personal recourse liability as
set forth in this Section 11 above SHALL AUTOMATICALLY BECOME NULL AND VOID and
shall be of no further force and effect in the event (i) Borrower, any general
partner or member of Borrower, or any guarantor of the Note, files, or consents
to the filing of, any petition under the U.S. Bankruptcy Code respecting its or
their debts or (ii) any such petition shall have been filed against the
Borrower, any general partner of the Borrower, or any guarantor of this
Promissory Note, and the same is not dismissed within ninety (90) days of such
filing; except for an involuntary bankruptcy filed by Lender and provided
further, that if: (1) after ninety (90) days following the filing of an
involuntary bankruptcy proceeding, such proceeding is dismissed with prejudice
and without adversely affecting the enforceability or priority of any of the
Loan Documents; and (2) such dismissal occurs prior to the occurrence of any of
the following: (v) the entry of any order that adversely affects the
enforceability or priority of any of the Loan Documents (other than solely by
reason of the automatic stay), (w) the entry of any order granting any person
relief from the automatic stay to foreclose against, enforce any lien or
security interest, levy upon, or repossess any material assets of Borrower that
constitute a part of, or that relate to the Mortgaged Properties, or to
terminate any Management Agreement or Primary Lease, (x) the liquidation of any
material assets of Borrower that constitute a part of, or that relate to, the
Mortgaged Properties, (y) the entry of any order approving the rejection or
termination of any Primary Lease or any Management Agreement, or (z) the entry
of any order approving any plan of reorganization for Borrower; and (3)
throughout the period following the filing of such bankruptcy proceeding,
Borrower or one or more of Borrower and persons or entities having an interest
in Borrower have continued to make regular payments of debt service on a timely
basis in accordance with the provisions of the Loan Documents. Borrower or one
or more of Borrower and Guarantor shall be personally liable only for the actual
damages, losses, costs, and expenses (including attorneys' fees) incurred by
Lender (expressly including any diminution, loss or damage to the Collateral) as
a result of any such bankruptcy filing.
12. USURY
No amounts under this Promissory Note or the Loan Documents shall be
charged, paid or collected from Borrower if the result of such charge payment or
collection would be to cause the loan evidenced hereby to be usurious under
applicable law. If, however, an amount is paid or collected which would
otherwise cause the loan to be usurious, such excess causing the Loan to be
usurious shall be deemed a payment of principal and shall be applied against and
shall reduce
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the then outstanding principal balance of the loan by a corresponding amount,
and no Prepayment Premium shall be charged on any such excess amount applied to
principal.
Borrower agrees to pay an effective rate of interest which is the stated
rate provided for in this Promissory Note plus any additional rate of interest
resulting from any charges of interest or in the nature of interest paid or to
be paid in connection with the loan evidenced hereby, including without
limitation, all amounts paid by or on behalf of Borrower to Lender pursuant to
the terms of the Application.
13. TRANSFERS
Upon the transfer of this Promissory Note, Borrower hereby waiving advance
notice of any such transfer, Lender may assign all of its rights in, under and
to the Loan Documents, Proceeds, Property Income or Collateral, or any part
hereof, to the transferee who shall thereupon become vested with all rights
herein, or under applicable law, given to Lender with respect thereto, and
Lender shall thereafter forever be relieved and fully discharged from any
liability or responsibility under or with respect to this Promissory Note, and
the Loan Documents, Proceeds, Property Income and Collateral so transferred; but
Lender shall retain all rights hereby given to it with respect to any
obligations of the Borrower and the Loan Documents, Proceeds, Property Income or
Collateral not so transferred. Upon any such transfer, the term "Lender" as used
herein shall mean such transferee.
14. SEVERABILITY
In the event any one or more of the provisions contained in this Promissory
Note or the Loan Documents shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Promissory Note or of the Loan
Documents, but this Promissory Note and the Loan Documents shall be construed as
if such invalid, illegal or unenforceable provision had never been contained
herein or therein.
15. WAIVER OF TRIAL BY JURY
BORROWER AND LENDER, BY ACCEPTANCE OF THIS PROMISSORY NOTE, HEREBY WAIVE
TRIAL BY JURY IN ANY COURT ACTION, PROCEEDING OR COUNTERCLAIM WHETHER IN
CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE LOAN
EVIDENCED BY THIS PROMISSORY NOTE, ANY APPLICATION FOR THE LOAN EVIDENCED BY
THIS PROMISSORY NOTE, THIS PROMISSORY NOTE, THE MORTGAGE OR THE LOAN DOCUMENTS
OR ANY ACTS OR OMISSIONS OF LENDER, ITS OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS
IN CONNECTION THEREWITH.
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16. JOINT AND SEVERAL LIABILITY
If there shall be more than one (1) Borrower named in this Promissory Note,
then the obligations and liabilities of such parties as Borrower shall be joint
and several.
17. REMEDIES CUMULATIVE
The rights, powers and remedies of Lender permitted by law, equity or
contract or as set forth herein or in the Loan Documents shall be cumulative and
concurrent, and may be pursued singly, successively or together against Borrower
or the Mortgaged Property, the Collateral or the Property Income, at the sole
discretion of the Lender, and to the fullest extent permitted by law. Such
rights, powers and remedies shall not be exhausted by any exercise thereof but
may be exercised as often as occasion therefor shall occur. The failure to
exercise any such right, power or remedy shall in no event be construed as a
waiver or release of the same. Lender shall not by any act of omission or
commission be deemed to have waived any of its rights, powers or remedies under
this Promissory Note or the Loan Documents unless such waiver be in writing and
signed by Lender, and then only to the extent specifically set forth therein. A
waiver of a right in one event shall not be construed as continuing or as a bar,
or as a waiver of such right on a subsequent event.
18. FEES AND COSTS
Borrower further promises to pay upon demand all reasonable attorney's fees
and costs (including, without limitation, court costs and appraisal fees)
incurred by Lender in connection with any Event of Default under this Promissory
Note and in any proceeding, including all appeals, brought to enforce any of the
provisions of this Promissory Note or of the Loan Documents.
19. TIME OF THE ESSENCE
Time shall be of the essence in performance of all obligations of Borrower
under this Promissory Note and the Loan Documents including, without limitation,
the time periods provided for the curing of defaults.
20. HEADINGS FOR CONVENIENCE
Headings and captions used in this Promissory Note are inserted for
convenience of reference only and neither constitute a part of this Promissory
Note nor are to be used to construe or interpret any of the provisions hereof.
21. NOTICES: HOW GIVEN
Any notice required or permitted under this Promissory Note or under any
Loan Document shall be given in writing and shall be effective for all purposes
if hand delivered to the party designated below, or if sent by (a) certified or
registered United States mail, postage
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prepaid; or (b) expedited prepaid delivery service, commercial or United States
Postal Service, with proof of attempted delivery, addressed in either case as
follows:
To Borrower: To Lender:
FelCor/MM S-7 Holdings, L.P. Massachusetts Mutual Life Insurance Company
c/o FelCor Lodging Trust Incorporated c/o David L. Babson and Company Incorporated
545 E. John Carpenter Freeway Real Estate Finance Group
Suite 1300 1295 State Street
Irving, TX 75062-3933 Springfield, MA 01111-0001
Attention: Andrew J. Welch or Attention: Senior Managing Director
Joel M. Eastman
And
Teachers Insurance and Annuity Association
of America
730 Third Avenue
New York, NY 10017
Attention: Director Portfolio Management
Mortgage and Real Estate
with a copy to: with a copy to:
Jenkens & Gilchrist, P.C. Stutzman & Bromberg,
Fountain Place A Professional Corporation
1445 Ross Avenue 2323 Bryan Street
Suite 3200 Suite 2200
Dallas, TX 75202-2799 Dallas, TX 75231
Attention: Robert W. Dockery Attention: John E. Bromberg
or to such other address and person as shall be designated from time to time by
Lender or Borrower, as the case may be, in a written notice to the other given
in the manner provided for in this paragraph.
The notice shall be deemed to have been given at the time of delivery if
hand delivered, or in the case of registered or certified mail, three (3)
Business Days after deposit in the United States mail, or if by expedited
prepaid delivery, upon first attempted delivery on a Business Day.
A party receiving a notice which does not comply with the technical
requirements for notice under this paragraph may elect to waive any deficiencies
and treat the notice as having been properly given.
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22. NO ORAL CHANGE
This Promissory 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 the Borrower or Lender, but only by an agreement in writing , intended
for that specific purpose and signed by the party against whom enforcement of
any modification, amendment, waiver, extension, change, discharge or termination
is sought.
23. CROSS-DEFAULT
A default under (a) any other note now or hereafter secured by the Loan
Documents, or (b) any of the Related Notes, or (c) any of the Related Loan
Documents, or (d) any other note now or hereafter secured by the Related Loan
Documents, constitutes a default under this Promissory Note and under the Loan
Documents; provided that, for any such default Borrower shall be entitled to the
same notice and right to cure, if any, under Section 7 of this Promissory Note,
as Borrower is entitled to under Section 7 of the Related Note. When a default
under any of the Related Notes constitutes an Event of Default under such
Related Note or the Related Loan Documents, respectively, an Event of Default
also will exist under this Promissory Note and the Loan Documents.
24. APPLICABLE STATE LAW
This Promissory Note shall be governed, construed, applied and enforced in
accordance with the laws of the State of _____________.
Federal Taxpayer I.D. No. Borrower:
75-2871808 FELCOR/MM S-7 HOLDINGS, L.P.,
a Delaware limited partnership
By: FelCor/MM S-7 Hotels, L.L.C.,
a Delaware limited liability company
By:
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Joel M. Eastman
Vice President
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