Exhibit 10.2: $5,100,000 Promissory Note by Riverbend Orlando Holdings III, LLC dated June 30, 2020
June 30, 2020
FOR VALUE RECEIVED, RIVERBEND ORLANDO HOLDINGS III, LLC, a Florida limited liability company, having an address of 204 West Newberry Road, Bloomfield, CT 06002 (the “Borrower”), hereby promises to pay to the order of WEBSTER BANK, NATIONAL ASSOCIATION, a national banking association (“Bank”) at the offices of the Bank at CityPlace II, 185 Asylum Street, Hartford, Connecticut 06103 or such other address as the Bank shall designate in a written notice to Borrower, the amount of FIVE MILLION ONE HUNDRED THOUSAND AND 00/100 DOLLARS ($5,100,000.00) (the “Loan”) together with (i) interest at the rate or rates hereinafter provided; (ii) all amounts which may become due under the Mortgage (as hereinafter defined), or under any other Loan Document evidencing, securing or otherwise executed in connection with the indebtedness evidenced by this Promissory Note (this “Note”) (the Note, Mortgage, and all other documents or instruments executed and delivered in connection with the Loan, the “Loan Documents”); (iii) any costs and expenses, including attorneys' and appraiser's fees, incurred in the collection of this Note or the Loan Documents, or in the foreclosure of the Mortgage, or in protecting or sustaining the lien of the Mortgage, or in any litigation or controversy arising from or connected with the Loan Documents; and (iv) all taxes or duties assessed upon said sum against the holder hereof, upon the debt evidenced hereby or by any Loan Document and upon the Mortgaged Property (as hereinafter defined).
This Note is subject to all of the following terms and conditions:
(a)“Adjusted LIBOR Rate” means, with respect to any Interest Period for the Loan, (i) an interest rate per annum equal to (I) the LIBOR Rate for such Interest Period multiplied by (II) the Statutory Reserve Rate, or (ii) the Alternative Rate, as applicable.
(b) “Alternative Rate” shall have the meaning set forth in Section 5(d) hereof.
(c)“Applicable Margin” shall mean two hundred fifty-five and 80/100ths (255.8) basis points.
(d)“Lender Funding Markets” means one or more wholesale funding markets available to the Bank, including the LIBOR, Eurodollar, and swap markets as applicable and available, or such other appropriate money market as determined by the Bank in its sole discretion.
(e)“Borrowing Date” means the Business Day on which the Bank makes the Loan to the Borrower.
(f)“Breakage Costs” shall mean any actual loss or expense (including, without limitation, actual lost profit) that Bank sustains or incurs as a direct consequence of any prepayment (whether optional or mandatory) of the Note bearing interest at the Adjusted LIBOR Rate by the Borrower on and after the date hereof and through the last day of the LIBOR Interest Period, including, but not limited to, any loss or any interest payable by Bank to lenders of funds obtained by it in order to make or maintain the Loan at the Adjusted LIBOR Rate,
(g)“Business Day” means (i) for all purposes other than as set forth in clause (ii) below, any day other than a Saturday, a Sunday or a day on which commercial banks located in Hartford, Connecticut are authorized or required by law or other governmental action to close, and (ii) with respect to all notices and determinations in connection with, and payments of principal and interest on, LIBOR Advances, any day which is a Business Day described in clause (a) above and which is also a day on which funding in Dollars between banks may be carried on in London, England.
(h)“Interest Payment Date” means: (i) the last day of the applicable Interest Period, and (ii) the Maturity Date.
(i)“Interest Period” means, as to the Loan, as to the first Interest Period, the period commencing on the Borrowing Date and ending on the first Business Day of the following month, and thereafter, the period commencing on the first Business Day of each month and ending one month thereafter; provided, however, that (a) if any Interest Period would otherwise end on a day which is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the immediately preceding Business Day and (b) any Interest Period which begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month.
(j)“LIBOR Rate” means, with respect to each Interest Period applicable to the Loan, a rate of interest per annum, as determined by the Bank, equal to the rate for deposits in U.S. Dollars for a period of one month, which appears on Reuters Page ‘LIBOR01’ (or such other page as may replace the LIBOR Page on that service for the purpose of displaying such rates or such other service as may be nominated by the ICE Benchmark Administration, for the purpose of displaying London interbank offered rates for Dollar deposits) as of 11:00 a.m., London time, on the day that is two (2) London Business Days prior to the first day of such Interest Period; provided however that in no event shall the LIBOR Rate or any replacement rate be less than zero (0.0%).
(l)“London Business Day” means any day on which dealings in United States dollar deposits are carried on by banking institutions in the London interbank market.
(m)“Maturity Date” means July 1, 2030.
(n)“Mortgage” means that certain Mortgage, Security Agreement and Fixture Filing, dated even herewith, given by the Borrower to the Bank.
(o)“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board of Governors of the Federal Reserve System of the United States to which a lender is subject for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of such Board). Such reserve percentages shall include those imposed pursuant to such Regulation D. LIBOR Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to the affected lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
(a)This Loan shall bear interest at a rate per annum equal to the Adjusted LIBOR Rate for the applicable Interest Period plus the Applicable Margin.
(b)All interest rate determinations hereunder shall be made by the Bank and shall be deemed conclusive and binding upon the Borrower in the absence of manifest error.
(c)Interest on all Advances shall be calculated on the basis of a 360-day year, in each case for the actual number of days elapsed.
|4.||Repayment. Except as otherwise provided in Section 5(c) of this Note, interest shall be payable in arrears on the following dates and upon each payment (including prepayment) of the Loan:|
(a)Commencing on August 1, 2020, monthly payments of principal in amounts as set forth on Schedule A attached hereto and incorporated herein, shall be due and payable on the first Business Day of each month during the term of the Loan, together with interest.
(b)Payment at Maturity. The full amount of the outstanding principal balance of the Loan, together with all interest accrued thereon, and all other amounts due and payable hereunder or under any of the other Loan Documents, shall be due and payable in full on the Maturity Date.
(c)Form of Payment. All amounts owing under this Note and interest thereon shall be payable in legal tender of the United States of America. In the event a payment hereunder is due on a Saturday, Sunday or legal holiday, payment shall be due on the next succeeding Business Day.
(d)Evidence of Debt. The Bank will enter an appropriate notation on its books and records evidencing the interest rate applicable to the outstanding balance hereof, each repayment on account of the principal thereof, and the amount of interest paid. Borrower agrees that, in the absence of manifest error, the books and records of the Bank shall constitute prima facie evidence of the amount owing to the Bank pursuant to this Note.
(e)Balloon Payment. Borrower acknowledges that said monthly payments of principal shall be insufficient to fully amortize the principal amount of this Note prior to the Maturity Date and, therefore, Borrower shall be obligated to make a so-called balloon payment on the Maturity Date in order to pay this Note in full.
(a)Late Charges.If any amount payable under this Note (except the amount due at the Maturity Date) is not paid within ten (10) days after its due date, Borrower shall pay to the Bank on demand an amount equal to five percent (5%) of such unpaid amount which Borrower acknowledges to be a reasonable late charge to compensate the Bank for the administrative costs of dealing with such late payment and for its loss of use of such funds. Borrower also acknowledges that such late charge is a material inducement to the Bank to make the Loan evidenced by this Note, the Bank would not have made the Loan in the absence of the agreement of Borrower to pay such late charge and such late charge is not a penalty and represents a reasonable estimate of compensation to the Bank for losses resulting from Borrower’s default that are difficult to ascertain.
(b)Expenses. Borrower further promises to pay to the Bank, as incurred, and as an additional part of the unpaid principal balance, all reasonable costs, expenses and reasonable attorneys' fees incurred (i) in the preparation, protection, modification, collection, defense or enforcement of all or part of this Note or any guaranty hereof, or (ii) in the foreclosure or enforcement of any mortgage or security interest which may now or hereafter secure either the debt hereunder or any guaranty thereof, or (iii) with respect to any action reasonably taken to protect, defend, modify or sustain the lien of any such mortgage or security agreement, or (iv) with respect to any litigation or controversy arising from or connected with the enforcement of any provisions of this Note or any mortgage or security agreement or collateral which may now or hereafter secure this Note, or (v) with respect to any act reasonably taken to protect, defend, modify, enforce or release any of its rights or remedies with regard to, or otherwise effect collection of, any collateral which may now or in the future secure this Note, or with regard to or against Borrower or any endorser, guarantor or surety of this Note.
(c)Default Rate. Notwithstanding the foregoing, after the occurrence and during the continuance of an Event of Default, the outstanding principal balance of the Loan shall bear interest at a rate per annum otherwise payable hereunder, plus five percent
(5.0%) per annum (the “Default Rate”) until payment in full (whether before or after judgment has been rendered with respect hereto) which amounts shall each become an additional part of the unpaid balance.
(d)LIBOR Termination Provisions. If the Bank, in its sole discretion, determines that (a) (i) the LIBOR Rate cannot be readily determined or does not adequately and fairly reflect the cost of making or maintaining the Loan or (ii) deposits of a type and maturity appropriate to match fund the Loan are not available to the Bank, and such circumstances are likely to be permanent, (b) ICE Benchmark Administration (or any Person that takes over the administration of such rate) ceases its administration and publication of interest settlement rates for deposits in U.S. dollars, or (c) the supervisor for the administrator of the publication of such rates or a Governmental Authority having jurisdiction over the Bank has made a public statement identifying a specific date after which such interest settlement rate shall no longer be used for determining interest rates for loans, then the Bank shall determine an alternate rate of interest to the LIBOR Rate taking into account then prevailing standards in the market for determining interest rates for comparable commercial loans made by financial institutions in the United States at such time. The Bank and the Borrower hereby agree to enter into an amendment to this Note and/or the Loan Documents, if necessary, to incorporate such alternate interest rate (the “Alternative Rate”) and other accompanying changes to this Note and/or the Loan Documents that are reasonably determined to be applicable thereto.
(e)Additional Payments. If Bank shall deem applicable to this Note, any requirement of any law of the United States of America, any regulation, order, interpretation, ruling, official directive or guideline (whether or not having the force of law) of the Board of Governors of the Federal Reserve System, the Comptroller of the Currency, the Federal Deposit Insurance Corporation or any other board or governmental or administrative agency of the United States of America which shall impose, increase, modify or make applicable thereto or cause to be included in, any reserve, special deposit, calculation used in the computation of regulatory capital standards, assessment or other requirement which imposes on Bank any cost that is attributable to the maintenance hereof, then, and in each such event, Bank shall notify the Borrower thereof and the Borrower shall pay the Bank, within ninety (90) days of receipt of such notice, such amount as will compensate Bank for any such cost, which determination may be based upon the Bank's reasonable allocation of the aggregate of such costs resulting from such events and shall be calculated in a manner consistent with the Bank’s practices for similar loans and similar borrowers. In the event any such cost is a continuing cost, a fee payable to Bank may be imposed upon the Borrower periodically for so long as any such cost is deemed applicable to the Bank, in an amount determined by Bank to be necessary to compensate Bank for any such cost. The determination by any Bank of the existence and amount of any such cost shall, in the absence of manifest error, be conclusive. Notwithstanding the foregoing, Bank agrees to use commercially reasonable efforts to eliminate or mitigate any costs attributable to the maintenance of the Loan. If Bank is unable to eliminate such costs, Borrower shall have the right to prepay the then outstanding principal balance of the Loan, together with all accrued and unpaid interest thereon, in full, but not in part, without prepayment charges.
(a)Borrower may prepay the then outstanding principal balance of the Loan, together with all accrued and unpaid interest thereon, in full but not in part, upon not less than thirty (30) days written notice of the projected date of prepayment and upon concurrent payment to Bank of any and all Breakage Costs or damages incurred by the Bank in connection with such prepayment.
(b)In the event that Borrower elects to prepay the Note in accordance with the terms set forth above, Borrower shall give Bank not less than thirty (30) days prior written notice of its intent to prepay the Note. Any amounts specified in the aforesaid prepayment notice shall, upon the giving of said notice, become due and payable at the time provided for prepayment in said notice. Any prepayments permitted hereunder shall be applied to interest and other charges accrued under this Note to the day prepayment shall have been received by Bank, and then to principal, in the inverse order of the installments of principal payable under this Note.
(c)If the maturity of this Note shall be accelerated for any reason, then a tender of payment by Borrower, or by anyone on behalf of Borrower, of the amount necessary to satisfy all sums due under this Note shall constitute an evasion of the payment terms of this Note and shall be deemed to be a voluntary prepayment under this Note, and any such prepayment, to the extent permitted by law, shall require the concurrent payment to Bank of the Breakage Costs.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Promissory Note as of the day and year first written above.
Riverbend Orlando Holdings III, LLC,
a Florida limited liability company
Griffin Industrial, LLC, a Connecticut
limited liability company, its Manager
Anthony J. Galici
[Signature page to Promissory Note]
Amortization Rate (speed):
1st Day of Accrual