EXHIBIT 10.20
DEED OF TRUST NOTE
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$350,000.00 6/8/2006
Bethesda, Maryland
FOR VALUE RECEIVED, the undersigned (hereinafter called the "Borrower")
unconditionally promises to pay to the order of CHARTER HOUSE, LLC (hereinafter
called the "Lender"), with its main office located at 0000 Xxxxxxxx Xxx., Xxxxx
000, Xxxxxxxx, XX 00000, the principal sum of THREE HUNDRED FIFTY THOUSAND AND
NO/100 DOLLARS ($350,000.00), together with interest at the rate or rates
hereinafter provided until paid, in accordance with the following:
TERM OF LOAN. The term of the loan evidenced hereby shall
commence on the date hereof and continue until 12/8/2006, (hereinafter called
the "Maturity Date"), when the outstanding principal balance, together with all
accrued interest, shall be due and payable in full.
POINTS. At closing Borrower shall pay $10,500.00 to Lender.
Said loan origination fees are in addition to any brokerage fees Borrower has
agreed to pay to third parties in connection with the loan evidenced hereby.
EXTENSIONS. The Borrower shall have one (1) option to extend
the maturity of this Note, for a period of six (6) months, upon fifteen (15)
days prior written notice to the Lender for the exercise of such extension
option and the payment, at the time of such notice, of an extension fee in an
amount equal to three percent (3%) of the sum of the then outstanding principal
balance plus the amount of funds then remaining to be advanced under this Note.
It shall be a condition precedent to the exercise of such extension option that
the Borrower not be in default under this Note or any of the documents which
secure this Note and there shall have been no material adverse change in the
financial condition or operations of the Borrower or any of the guarantors of
this Note, nor any material adverse change in the condition of the property
described on "EXHIBIT A" attached hereto.
RATES OF INTEREST. Interest shall be computed on the basis of
a 360-day year and shall be charged for the actual number of days elapsed in
each interest calculation period. Interest shall be charged on the outstanding
principal balance at the annual rate of 15%:
PAYMENTS: Commencing on August 1, 2006 and continuing on the
first day of each month thereafter, monthly payments of all accrued interest
shall be made to the Lender, until the Maturity Date, when the outstanding
principal balance together with all accrued interest thereon shall be due and
payable in full.
APPLICATION AND PLACE OF PAYMENTS. Payments made on account
hereof shall be applied first to the payment of any outstanding loan fees,
extension fees or prepayment fees, then to any late charges, then to the payment
of accrued and unpaid interest and the remainder, if any, shall be applied to
principal. All payments on account of this Note shall be paid in lawful money of
the United States of America in immediately available funds to Lender at 0000
Xxxxxxxx Xxx., Xxxxx 000, Xxxxxxxx, XX 00000; or at such other times and places
as the Lender may at any time and from time to time designate in writing to the
Borrower.
SECURITY. This Note, which evidences a loan from the Lender to
the Borrower in the principal amount recited hereinabove, is secured by that
certain Deed of Trust and Security Agreement (the "Deed of Trust") of even date
herewith from the Borrower for the benefit of the Lender, and encumbers certain
real property, more particularly described on "EXHIBIT A" attached hereto and
made a part hereof.
LATE CHARGES. If the Borrower shall fail to make any payment
under the terms of this Note within five (5) days after the date such payment is
due, the Borrower promises to pay to the Lender a late charge equal to ten
percent (10%) of such payment. Such five (5) day period shall not be construed
as in any way extending the due date of any payment. The "late charge" is
imposed for the purpose of defraying the expenses of the Lender incident to
handling such delinquent payment. This charge shall be in addition to, and not
in lieu of, any other remedy the Lender may have and is in addition to any fees
and charges of any agents or attorneys which the Lender may employ upon any
Event of Default hereunder, whether authorized herein or by law. IF THE BORROWER
SHALL FAIL TO MAKE THE FINAL PAYMENT DUE AT MATURITY WITHIN FIFTEEN DAYS OF THE
MATURITY DATE, THE BORROWER PROMISES TO PAY TO THE LENDER A LATE CHARGE EQUAL TO
FIVE PERCENT (5%) OF THE OUTSTANDING PRINCIPAL BALANCE; WHICH CHARGE SHALL EARN
INTEREST PAYABLE TO THE LENDER AT THE DEFAULT INTEREST RATE DESCRIBED BELOW FROM
THE MATURITY DATE UNTIL THE DATE SAID FEE IS PAID IN FULL.
PREPAYMENT. Each prepayment shall be accompanied by interest
accrued and unpaid on the amount so unpaid to the date of such prepayment. Any
partial prepayment shall not postpone the due date of any subsequent payment or
change the amount of any monthly principal payment, unless the Lender shall
first otherwise agree in writing. Upon ten (10) days' prior written notice from
the Borrower to the Lender, the Borrower may prepay the outstanding principal
balance, in whole or in part, without premium or penalty.
EVENTS OF DEFAULT. The occurrence of any one or more of the
following events shall constitute an event of default (individually, an "Event
of Default" and collectively, the "Events of Default") under the terms of this
Note.
(a) The failure of the Borrower to pay to the Lender when due,
any and all amounts payable by the Borrower to the Lender under the terms of
this Note, including, but not limited to, any principal payment, interest
payment, loan fee, extension fee or late charge; or
(b) The occurrence of any other Event of Default, as defined
in the Deed of Trust or any other document executed in connection with this
Note.
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DEFAULT INTEREST. Upon the occurrence of an Event of Default
and/or after the maturity of this Note (whether by acceleration, declaration,
extension or otherwise), the Borrower promises to pay to the Lender, interest on
the outstanding principal balance at a rate equal to the rate of interest then
due and payable under the terms of this Note, plus six percent (6%) per annum,
so long as the Event of Default continues or, after maturity, until payment in
full of the outstanding principal balance together with any and all accrued and
unpaid interest thereon and any and all other sums due and payable hereunder.
REMEDIES. Upon the occurrence of an Event of Default, at the
option of the Lender, the outstanding principal balance, any and all accrued and
unpaid interest thereon, and all other amounts payable by the Borrower to the
Lender under the terms of this Note shall immediately become due and payable by
the Borrower to the Lender without notice to the Borrower or any other person.
In addition, the Lender shall have all of the rights, powers and remedies
available under the terms of this Note, the Deed of Trust, any other document
which is executed in connection with this Note, and all applicable laws,
including but not limited to the right to set off against and apply any funds of
the Borrower on deposit with, or under the control of, the Lender to the payment
of the debt evidenced hereby, without notice and without resort to any judicial
proceeding. The Borrower and all endorsers, guarantors, and other parties who
may now or in the future be primarily or secondarily liable for the payment of
the indebtedness evidenced by this Note hereby waive demand, presentment,
protest, notice of protest and notice of dishonor.
CONFESSION OF JUDGMENT. Upon the occurrence of an Event of
Default, the Borrower hereby authorizes any attorney designated by the Lender or
any clerk of any court of record in the State of VA or anywhere in the United
States of America to appear for the Borrower in any court of record in one or
more proceedings and confess judgment against the Borrower without prior hearing
in favor of the Lender for, and in the amount of, the outstanding principal
balance, all accrued and unpaid interest thereon, all other amounts payable by
the Borrower to the Lender under the terms of this Note, costs of suit and
attorneys' fees of fifteen percent (15%) of the outstanding principal balance.
The Borrower hereby releases, to the extent permitted by applicable law, all
errors and all rights of exemption, appeal, stay of execution, inquisition and
other rights to which the Borrower may otherwise be entitled under the laws of
the United States of America or of any state or possession of the United States
of America now in force and which may hereafter be enacted. The Borrower hereby
consents to the immediate execution of such judgment. The authority and power to
appear for and enter judgment against the Borrower shall not be exhausted by one
or more exercises thereof or by any imperfect exercise thereof and shall not be
extinguished by any judgment entered pursuant thereto. Such authority may be
exercised on one or more occasions or from time to time in the same or different
jurisdictions as often as the Lender shall deem necessary and desirable, for all
of which this Note shall be a sufficient warrant.
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EXPENSES. The Borrower promises to pay to the Lender, upon
demand by the Lender, all costs and expenses incurred by the Lender in
connection with the collection and enforcement of this Note, including, without
limitation, all attorneys' fees, expenses and court costs.
WAIVER OF JURY TRIAL. THE BORROWER AND THE LENDER HEREBY
JOINTLY AND SEVERALLY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH
THE BORROWER AND THE LENDER MAY BE PARTIES, ARISING OUT OF, IN CONNECTION WITH
OR IN ANY WAY PERTAINING TO, THIS NOTE, THE DEED OF TRUST AND ANY OTHER DOCUMENT
WHICH SECURES THIS NOTE. IT IS AGREED AND UNDERSTOOD THAT THIS WAIVER
CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH
ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES TO
THIS NOTE. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY THE
BORROWER, AND THE BORROWER HEREBY REPRESENTS THAT NO REPRESENTATIONS OF FACT OR
OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY
OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. THE BORROWER FURTHER REPRESENTS
AND WARRANTS THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS NOTE AND IN THE
MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE OPPORTUNITY
TO BE REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL,
AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
CONSENT TO JURISDICTION. The Borrower irrevocably submits to
the jurisdiction of any state or federal court sitting in the State of VA over
any suit, action or proceeding arising out of, or relating to, this Note. The
Borrower irrevocably waives, to the fullest extent permitted by law, any
objection that the Borrower may now or hereafter have to the laying of venue of
any such suit, action or proceeding brought in any such court and any claims
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. Final judgment in any such suit, action or
proceeding brought in any such court shall be conclusive and binding upon the
Borrower and may be enforced in any court of which the Borrower is subject to
jurisdiction, by a suit upon such judgment provided that service of process is
effected upon the Borrower as provided in this Note or as otherwise permitted by
applicable law.
SERVICE OF PROCESS. The Borrower hereby consents to process
being served in any suit, action or proceeding instituted in connection with
this Note by the mailing of a copy thereof by registered or certified mail,
postage prepaid, return receipt requested to the Borrower at the address set
forth below, or at such other address as the Borrower may furnish in writing to
the Lender. The Borrower irrevocably agrees that such service shall be deemed in
every respect effective service of process upon the Borrower in any such suit,
action or proceeding, and shall, to the fullest extent permitted by law, be
taken and held to be valid personal service upon the Borrower. Nothing in this
Section shall effect the right of the Lender to serve process in any manner
otherwise permitted by law, and nothing in this Section will limit the right of
the Lender otherwise to bring proceedings against the Borrower in the courts of
any jurisdiction or jurisdictions.
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NOTICES. All notices, requests or demands required under this
Note to be made in writing, shall be deemed to have been received when delivered
by hand, when delivered to an overnight courier, or when deposited in the mail
by first class, registered or certified mail, return receipt requested, postage
prepaid. Any and all notices, requests and demands shall be addressed to the
Lender at 0000 Xxxxxxxx Xxx., Xxxxx 000, Xxxxxxxx, XX 00000 and to the Borrower
at 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx XX 00000 or at such other addresses as the
Lender or the Borrower shall have furnished to the other in writing.
MISCELLANEOUS. Each right, power and remedy of the Lender as
provided for in this Note, the Deed of Trust or any other document which secures
this Note, or now or hereafter existing under any applicable law or otherwise
shall be cumulative and concurrent and shall be in addition to every other
right, power or remedy provided for in this Note, the Deed of Trust or in any
other document which secures this Note or now or hereafter existing under any
applicable law, and the exercise or beginning of the exercise by the Lender of
any one or more of such rights, powers or remedies shall not preclude the
simultaneous or later exercise by the Lender of any or all such other rights,
powers or remedies. No failure or delay by the Lender to insist upon the strict
performance of any term, condition, covenant or agreement of this Note, the Deed
of Trust or any other document which secures this Note, or to exercise any
right, power or remedy consequent upon a breach thereof, shall constitute a
waiver of any such term, condition, covenant or agreement or of any such breach,
or preclude the Lender from exercising any such right, power or remedy at a
later time or times. By accepting payment after the due date of any amount
payable under the terms of this Note, the Lender shall not be deemed to waive
the right either to require prompt payment when due of all other amounts payable
under the terms of this Note or to declare an Event of Default for the failure
to effect such prompt payment of any such other amount. No course of dealing or
conduct shall be effective to amend, modify, waiver, release or change any
provisions of this Note. As used in this Note, the term "Lender" shall mean the
party designated as the Lender above, its successors and assigns, and any
subsequent holder of this Note. Any paragraph or subparagraph in this Note,
which is preceded by parentheses, shall apply and become a provision of this
Note, in the event that a check or other mark has been written, typed or
otherwise added within such parentheses. The captions hereinafter set forth are
for convenience only and shall not be deemed to define, limit or describe the
scope of intent of this Note. The provisions of this Note shall be governed by
the laws of the State of VA notwithstanding circumstances when the "choice of
law" rules of the State of VA would allow or require the laws of another
jurisdiction to govern. The Lender is hereby authorized, without notice to or
the further consent of the Borrower and without in any manner releasing,
lessening or affecting the obligations of the Borrower, to complete any blank in
this Note. The Borrower further authorizes the Lender to disclose the financial
record of the Borrower to any subsidiary or affiliate of the Lender or to any
other financial institution.
PARTIAL INVALIDITY. In the event any provision of this Note
(or any part of any provision) is held by a court of competent jurisdiction to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provision (or remaining part of
the affected provision) of this Note; but this Note shall be construed as if
such invalid, illegal or unenforceable provision (or part thereof) had not been
contained in this Note, but only to the extent it is invalid, illegal or
unenforceable; provided, however, that if any such invalid, illegal or
unenforceable provision pertains to the repayment of principal or interest
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thereon, the occurrence of any such invalidity, illegality or unenforceability
shall constitute an Event of Default. In the event that any amounts of interest
or other charges due and payable under the terms and conditions of this Note are
held to exceed limits prescribed by applicable law, then, to the extent that any
such amounts of interest or charges exceed such limits, such amounts of interest
or charges shall be deemed to be payments of principal.
COMMERCIAL PURPOSE. The Borrower warrants that the loan
evidenced by this Note is being made solely to acquire or carry on a business or
commercial enterprise, and/or the Borrower is a business or commercial
organization. The Borrower further warrants that all of the proceeds of this
Note shall be used for commercial purposes and stipulates that the loan
evidenced by this Note shall be construed for all purposes as a commercial loan.
IN WITNESS WHEREOF, the Borrower has executed under seal and delivered
or caused this Note to be executed under seal and delivered as of the date first
written above.
BORROWER:
XXXXXXXXX SPRINGS, INC.
By: Xxxxxxxxx Holdings, Inc., Sole
Member and Manager
By: /s/ Xxxx X. Xxxx (SEAL)
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Xxxx X. Xxxx, President
THIS IS TO CERTIFY that this is the Note described in the Deed of
Trust, which encumbers the property described on "EXHIBIT A", from the Borrower
to the Trustees named in the Deed of Trust, to secure CHARTER HOUSE, LLC bearing
even date herewith, said Note and Deed of Trust having been executed in my
presence.
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NOTARY PUBLIC
My Commission Expires: __________________
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Legal Description "Schedule A"
All those certain tracts of parcel of real estate, lying and being between state
routes 616 and 804, in the North River District, Augusta County, Virginia, and
more particularly described according to the Map entitled "Map of the Xxxxx
Xxxxxxxxx Corp. Prop." by Xxxxxx X. Xxxx, Land Surveyor, dated January 13, 1986
attached to the Deed recorded as Instrument No. 030016981, and shown thereon to
CONTAIN a total of 144.739 ACRES, MORE OR LESS.
Being all of the property acquired by Xxxxxxxxx Springs, LLC in that certain
Deed dated October 7, 2003 and recorded among the Land Records of Augusta
County, Virginia, as Instrument No. 030016981 at page 0313.
Tax Map No. 26-94
Tax Map No. 26-94A
Tax Map No. 27-2
Tax Map No. 27-2B
Tax Map No. 27-8A
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