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Exhibit
10.30
LOAN NUMBER 101091
PROMISSORY
NOTE
$23,000,000.00
Savannah, Georgia
August 2,
2007
FOR VALUE RECEIVED,
SAVANNAH HOTEL ASSOCIATES, L.L.C., a Virginia limited liability
company (“Maker”), promises to pay to the order of MONY
LIFE INSURANCE COMPANY, a New York corporation
(“Holder”), at its office at 1290 Avenue of the
Americas, New York, New York 10104, or at such other place as the
Holder may from time to time designate in writing, the principal
sum of Twenty-Three Million and 00/100 Dollars (
$23,000,000.00 ), together with interest on so much thereof
as is from time to time outstanding and unpaid, from the date or
dates of disbursement of the aforesaid principal sum at the rate of
6.06% per annum, to be paid in lawful money of the United
States of America as follows:
In one hundred twenty
(120) successive monthly installments payable on the first day
of each calendar month commencing on the first day of the second
month following the date of disbursement, the first thirty-six
(36) installments to consist of interest only on the
outstanding principal sum, the next eighty-three
(83) installments thereof to be in the amount of One Hundred
Forty Nine Thousand Thirty Four and 00/100 Dollars ($149,034.00)
each and applied first to interest on the unpaid principal sum and
the balance to be applied to the principal sum, with interest to be
calculated on the basis of a 360 day year with 12 months of 30 days
each, and the last installment to be in the amount of the entire
outstanding principal balance and accrued interest thereon. Maker
acknowledges that there will be a substantial principal payment due
upon maturity and that Holder shall have no obligation, expressed
or implied, to refinance the same. Interest from the date of
disbursement hereof to the first day of the next month shall be
paid together with the first regular installment of interest
hereunder, to the extent not collected at closing.
The principal amount
specified at the head of this Note shall be fully funded within
twelve (12) months from the date hereof and shall be advanced
by Holder to Maker in four, consecutive quarterly draws of not less
than $500,000 each; provided, however, that the final draw shall be
in an amount necessary to fully fund the principal amount (each
such draw being hereinafter referred to as an
“Advance”). All draws are conditioned upon satisfaction
of the conditions precedent to each Advance set forth in the
succeeding paragraph. All draws shall, upon date of advance, be
deemed to constitute principal outstanding under this
Note.
Unless otherwise specifically
waived in writing by the Holder, the following are conditions
precedent to the Holder’s obligation to make any
Advance:
(a) No default or Event of
Default shall exist under this Note or any other Loan Document
(hereinafter defined), and no event or condition shall have
occurred or shall exist which, but for the passage of time or the
giving of notice, shall constitute a default or Event of Default
under this Note or any other Loan Document.
(b) The representatives and
warranties contained in this Note and the other Loan Documents
shall be true and correct in all material respects as if made on
the date each such Advance is requested (and the Maker’s
request for any Advance shall constitute a re-affirmation by Maker
that all of such representations and warranties are true and
correct in all material respects on the date of each request for an
Advance, as though remade on such date).
(c) There has been no
material adverse event or condition affecting the Premises or
Maker, which would materially diminish the value of the Premises,
impair the ability of the Maker to complete construction of the New
Improvements (hereinafter defined), or adversely affect the
validity, enforceability or priority of the Loan
Documents.
(d) There are no liens,
encumbrances, judgments or adverse claims affecting any portion of
the Property, except the lien on the Premises created by the
Mortgage.
(e) The Maker has furnished
to the Holder a requisition for such Advance, accompanied by such
invoices, lien waivers, releases, title policy endorsements, and
other documents and supporting detail as may be required by the
Holder.
(f) The Maker has furnished
the Holder with such other approvals, opinions, consents and
documents as the Holder may reasonably request.
(g) The Holder need not make
any Advance earlier than ten (10) days after its receipt of
the requisition therefor, together with all other documentation
required hereunder.
(h) Each requisition shall be
deemed to constitute a representation and warranty by the Maker
that all conditions precedent to the disbursement of loan proceeds
by the Holder have been fully satisfied, that no default or Event
of Default has occurred or exists, and that no event or condition
exists as has occurred which, but for the giving of notice of
passage of time, would constitute a default or Event of
Default.
(i) Renewal of the Hilton
Franchise Agreement for a term of at least ten (10) years and
otherwise satisfactory to Holder .
(j) Evidence satisfactory to
Holder that each Advance will be used to complete the Hilton PIP
requirements per that certain PIP report dated October 18,
2006 and such other improvements being made to the Premises by
Maker per that certain 2007 Product Improvement Plan, Master Budget
dated April 1, 2007 prepared by MHI Hospitality Corporation
(collectively, the “New Improvements).
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(k) Evidence satisfactory to
Holder of implementation of all recommendations set forth in that
certain phase 1 environmental site assessment report dated
June 1, 2007, prepared by Land America Assessment
Corporation.
(l) The Maker has furnished
to Holder (i) a phase II environmental report (the
“Phase II”) satisfactory to Holder performed for the
purpose of ground water sampling and testing the Premises for any
leakage from the approximately 10,000 gallon underground storage
tank (“UST”) located at the Premises, and
(ii) evidence satisfactory to Holder of completion of all
recommendations set forth in the Phase II, including, but not
limited to, completion of any and all recommended clean-up, removal
and remediation of any leakage found from UST.
Maker shall have no right to
prepay, in whole or in part, the principal sum hereof, except Maker
shall have the right to prepay in whole (but not in part) the
principal sum hereof, together with accrued interest thereon, on
any date for the payment of interest hereunder during the sixth (6
th
) loan year (as
hereinafter defined) and thereafter, provided that (a) there
shall exist no Event of Default under the provisions of the
Mortgage, (b) the Holder hereof shall have received at least
thirty (30) days prior written notice of prepayment which
notice shall be irrevocable, and (c) the prepayment shall be
accompanied by a fee (the “Prepayment Fee”) (which
Maker agrees is a fair and reasonable method to compensate Holder
for its loss of the benefits of this loan transaction) equal to the
greater of (1) one percent (1%) of the amount being
prepaid, or (2) an amount computed as follows: (i) the
product of the outstanding principal loan balance on the prepayment
date (designated as “P” in the formula below) and the
amount by which 6.14% (i.e., the interest rate of 6.06% as adjusted
for semi-annual payments) exceeds the Base Rate (the yield rate as
of the prepayment date for a United States of America treasury
obligation having a maturity date substantially contemporaneous
with the loan maturity date, designated as “b” in the
formula below) shall be divided by two to determine the semi-annual
excess of earned interest at the interest rate payable pursuant to
the note over the Base Rate, and (ii) the semi-annual excess
of earned interest shall be discounted to its present value
determined with reference to the number of semi-annual periods then
remaining in the loan term (the number of months then remaining in
the loan term divided by six and rounded up to the nearest whole
number (designated as “n” in the example below) and
one-half the Base Rate (to account for the fact the payments are
made semi-annually). The formula for computing the prepayment fee
is:
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1-
1 |
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(6.14% - b) x P |
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x |
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(1 + b/2) n |
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2 |
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b/2 |
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For purposes of establishing
the Base Rate, there shall be utilized the yield to maturity on
appropriate (as determined solely by the Holder hereof) U.S.
Treasury obligations,
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