Exhibit 10.9.2
MORTGAGE NOTE
$12,910,000.00 January 17, 1996
Richmond, Virginia
FOR VALUE RECEIVED BRECKSVILLE HOSPITALITY, L.P., an Ohio limited
partnership, SIOUX CITY HOSPITALITY, L.P., an Iowa limited partnership, and 1075
HOSPITALITY, L.P., a Georgia limited partnership (collectively, "Maker"),
promises to pay to the order of LOAN SERVICES, INC., a Virginia corporation
("Payee"), at its principal place of business at 8614 Westwood Center Drive,
Suite 620, Vienna, Virginia 22182, or at such place as the holder hereof may
from time to time designate in writing, the principal sum of Twelve Million Nine
Hundred Ten 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 $107,712.22, 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), as Payee may determine in
its sole discretion, and then to reduction of the outstanding principal balance.
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 Eight and five-eighths (8.625%) percent per annum.
2. Security for the Loan.
(a) This Note is secured by: (i) that certain 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 more particularly described on Schedule A hereto (collectively, the
"Mortgage Property"); (ii) those certain Assignments of Leases and Rents dated
as of the date hereof from each of the parties constituting Maker to Payee
(collectively, 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, to 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 or if the entire Debt
is not paid on or before 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 continuing beyond
applicable notice and cure periods; 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 Payee retains counsel to collect the
Debt, if Payee prevails in such action, Maker shall pay on demand all costs of
collection incurred by Payee, 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 to 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"). The
"Prime Rate" shall mean the annual rate of interest publicly announced by
Citibank, N.A. in New York, New York, as its base 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
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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. Payee 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 Payee 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 or, in connection with a release of
collateral under Section 61 of the Loan Agreement, 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 together with a payment of
all interest which would have accrued on the principal balance of this Note to
and including the first day of the calendar month immediately following the
Prepayment Date, if such prepayment occurs on a date which is not the first 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. 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 Lender be required to
reinvest any prepayment proceeds in U.S. Treasury obligations or otherwise (such
prepayment consideration, the "Prepayment Consideration"). 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, such portion of the
principal balance of this Note and the other sums required under this Section in
accordance
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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) interest calculated as set forth in subsection
(b)(ii) of Section 6; and (b) the Prepayment Consideration payable to Payee
pursuant to Section 6(b). 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 (or
any partner thereof), 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 only to the extent of each Maker's respective
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 (or any partner thereof) 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: (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 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
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Documents; or (vii) affect the validity or enforceability of the Environmental
Agreement or limit the liability of Maker or any other party thereunder. Nothing
herein shall impair the right of Payee to obtain a deficiency judgment in any
action or proceeding in order to preserve its rights and remedies including,
without limitation, foreclosure, non-judicial foreclosure or the exercise of a
power of sale, under the Mortgage; provided, however, that Payee shall not
enforce any such deficiency judgment against Maker (or any partner thereof) or
any assets of Maker (or any partner thereof) other than the Mortgaged Property
or in the exercise of its rights and remedies under the Loan Documents.
(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,
Payee's attorneys' fees) 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 results in liens on any portion of the
Mortgaged Property; and
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(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.
(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 Payee's written consent to any subordinate financing
not otherwise permitted under the Loan Agreement; (iii) Maker's failure to
obtain Payee'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 Payee'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 Payee's express
intent that all excess amounts theretofore collected by Payee 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.
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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.
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.
35. WAIVER OF JURY TRIAL. MAKER HEREBY 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.
PAYEE 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 Commonwealth of Virginia 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
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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.
(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.
(c) 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, Maker has duly executed this Note on the day and
year first above written.
MAKER:
BRECKSVILLE HOSPITALITY, L.P.
By: Brecksville Hospitality, Inc.
General Partner
By: /s/ Warren M. Knight
-------------------------------------
Warren M. Knight
Vice President
SIOUX CITY HOSPITALITY, L.P.
By: Fourth Street Hospitality, Inc.
General Partner
By: /s/ Warren M. Knight
-------------------------------------
Warren M. Knight
Vice President
1075 HOSPITALITY. L.P.
By: Stevens Creek Hospitality. Inc.
General Partner
By: /s/ Warren M. Knight
-------------------------------------
Warren M. Knight
Vice President
[Acknowledgment]
COMMONWEALTH OF VIRGINIA )
)ss.:
COUNTY OF RICHMOND )
The foregoing instrument was acknowledged before me this ____ day of
January, 1996, by Warren M. Knight as Vice President of Brecksville Hospitality,
Inc., an Ohio corporation, the general partner of Brecksville Hospitality, L.P.,
an Ohio limited partnership, Fourth Street Hospitality, Inc., an Iowa
corporation, the general partner of Sioux City Hospitality, L.P., an Iowa
limited partnership, and Stevens Creek Hospitality, Inc., a Georgia corporation,
the general partner of 1075 Hospitality, L.P., a Georgia limited partnership,
who is personally known to me or who produced license as identification and who
did take oath, on behalf of the corporations executing the foregoing instrument
on behalf of such limited partnerships.
/s/ Tama Garrett
My commission expires ----------------
6-30-99 Notary Public
Print: Tama Garrett
SCHEDULE A
List of Mortgaged Property
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Holiday Inn
4742 Brecksville
Richfield Ohio
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Hilton Hotel
707 4th Street
Sioux City, Iowa
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Holiday Inn
1075 Stevens Creek
Augusta, Georgia
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