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EXHIBIT 10.3.4
REAL ESTATE NOTE B
$2,000,000.00 Atlanta, Georgia
October 17, 1996
FOR VALUE RECEIVED, THE UNDERSIGNED Xxxxxxx Properties Residential,
L.P., a Georgia limited partnership, whose sole general partner is Xxxxxxx
Realty Investors, Inc., a Georgia corporation (the "Maker") promises to pay to
the order of NATIONWIDE LIFE & ANNUITY INSURANCE COMPANY, an Ohio corporation,
its successors and assigns (the "Holder") the principal sum of TWO MILLION AND
NO/100 DOLLARS ($2,000,000.00), together with interest on the principal balance
of this Real Estate Note (the "Note"), from time to time remaining unpaid, from
the date of disbursement by the Holder hereof at the applicable interest rate
hereinafter set forth, together with all other sums due hereunder or under the
terms of the Security Deed (as hereinafter defined) in lawful money of the
United States of America which shall be legal tender in payment of all debts at
the time of payment. Both principal and interest and all other sums due
hereunder shall be payable at the office of the Holder c/o Nationwide Life
Insurance Company, at Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000-2220, Attn:
Real Estate Investment Department, or at such other place either within or
without the State of Ohio, as the Holder hereof may from time to time designate.
Said principal and interest shall be paid over a term, at the times, and in the
manner set forth below, to wit:
Payment Provision:
(i) Interest accrued on the unpaid principal balance of this Note,
from the date of disbursement hereof at the rate of 7.15%
percent per annum, shall be due and payable on November 15,
1996.
(ii) Thereafter, principal and interest on the unpaid principal
balance of this Note at the rate of 7.15% percent per annum
shall be paid in eighty three (83) consecutive monthly
installments commencing on December 15, 1996 and continuing on
the fifteenth day of each calendar month thereafter, with each
such installment to be in the sum of Thirteen Thousand Five
Hundred Eight and 13/100 Dollars ($13,508.13).
Maturity:
The unpaid principal balance of this Note and all accrued unpaid
interest thereon, if not sooner paid, shall be due and payable in full on
November 15, 2003 (the "Maturity Date").
Application of Payments:
All payments shall be applied first to the payment of accrued unpaid
interest on this Note and the balance, if any, shall be applied to the reduction
of the outstanding principal balance of this Note. Interest due hereunder shall
be calculated on the basis of a 360-day year composed of twelve (12) thirty (30)
day months; provided, in no event shall such calculation cause the interest rate
on this Note to exceed the maximum rate permitted under applicable law.
Late Payment Charge:
The Holder of this Note may collect a late payment charge, prior to the
acceleration of this Note, in an amount equal to five percent (5%) of the
aggregate monthly installment which is not paid on the due date, for the
purposes of covering the extra expenses involved in handling delinquent
installments. Any full payment of principal and/or interest which is postmarked
by the United States Postal Service on or before the due date shall not be
considered delinquent and a late payment charge shall not be assessed.
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Prepayment:
(A) Maker shall have the right to prepay, in full but not in part, the
obligation evidenced by this Note upon giving (i) not less than thirty (30)
days' prior written notice to Holder of Maker's intention to so prepay the Note,
and (ii) payment to Holder of the Prepayment Premium (as hereinafter defined),
if any, then due to Holder as hereinafter provided. As used herein, the term
"Prepayment Premium" shall mean the greater of (x) one percent (1.0%) of the
outstanding principal balance of this Note, or (y) a sum equal to (a) the
present value of the scheduled monthly payments hereunder from the date of
prepayment to the Maturity Date and (b) the present value of the amount of
principal and interest due on the Maturity Date (assuming all scheduled monthly
payments due hereunder prior to the Maturity Date were made when due), minus (c)
the outstanding principal balance hereof as of the date of prepayment. The
present value described in (a) and (b) of the immediately preceding sentence are
to be computed on a monthly basis as of the date of prepayment, discounted at
the yield to maturity of the U.S. Treasury Note or Bond that is closest in
maturity to the Maturity Date as reported in the Wall Street Journal (or if the
Wall Street Journal is no longer published, as reported in such other daily
financial publication of national circulation which shall be designated by
Holder) on the fifth (5th) business day preceding the date of prepayment. Maker
shall be obligated to prepay this Note on the date set forth in the notice to
Holder required hereinabove, after such notice has been delivered to Holder.
Notwithstanding the foregoing or any other provision herein to the contrary, if
the Holder elects to apply insurance proceeds, condemnation awards or any
escrowed amounts, if applicable, to the reduction of the principal balance of
this Note in the manner provided in the Security Deed (as hereinafter defined),
no Prepayment Premium shall be due or payable as a result of such application,
and the monthly installments due and payable hereunder shall be reduced
accordingly.
(B) In the event the Maturity Date of the indebtedness evidenced by this
Note is accelerated by Holder hereof at any time due to a default by Maker in
the terms, covenants or conditions contained in this Note, the Security Deed or
any of the other Loan Document (as hereinafter defined), then a tender of
payment of an amount necessary to satisfy the entire outstanding principal
balance and all accrued unpaid interest of this Note made by Maker, or by anyone
on behalf of Maker, at any time prior to, at, or as a result of, a foreclosure
sale or sale pursuant to power of sale shall constitute a voluntary prepayment
hereunder prior to the contracted Maturity Date of this Note thus requiring
payment to Holder of a Prepayment Premium equal to the applicable Prepayment
Premium as set forth in subparagraph (A) above.
(C) Maker acknowledges that Holder (a) has advanced the amounts
evidenced by this Note with the expectation that such amounts would be
outstanding until the Maturity Date unless prepaid in accordance with the
foregoing prepayment provisions, (b) would not have been willing to advance such
amounts on the terms set forth in this Note for a shorter period of time, (c) in
making the loan evidenced by this Note, is relying on Maker's creditworthiness
and its agreement to pay in strict accordance with the terms set forth in the
Note, and (d) would not make the loan without full and complete assurance by
Maker of its agreement not to prepay all or a part of the principal of this Note
except as expressly permitted herein. Maker acknowledges that if this Note were
to be prepaid prior to the Maturity Date other than in accordance with the
foregoing prepayment provisions, Maker would not receive the benefit of the
bargain agreed to by Maker and Holder. In addition, Maker has been advised and
acknowledges that Xxxxxx is relying on the receipt of payments under this Note
to, among other things, match and support its obligations under contracts
entered into by Holder with third parties and that in the event of a prepayment,
Xxxxxx could suffer loss and additional expenses which are extremely difficult
and impractical to ascertain. The Prepayment Premium is a good faith resolution
by Maker and Holder of the damages Holder would suffer, and it is not intended
as a penalty.
(D) Notwithstanding anything in this "Prepayment" section of this Note
to the contrary, Maker may prepay in full, but not in part, the obligation
evidenced by this Note at any time during the last ninety (90) days prior to the
Maturity Date without any prepayment premium.
BY INITIALING BELOW, MAKER EXPRESSLY ACKNOWLEDGES THAT PURSUANT TO THE
PROVISIONS OF THIS NOTE, MAKER HAS NO RIGHT TO
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PREPAY THIS NOTE IN WHOLE OR IN PART WITHOUT PAYMENT OF THE PREPAYMENT PREMIUM
EXCEPT AS SET FORTH ABOVE, AND THAT MAKER SHALL BE LIABLE FOR THE PAYMENT OF THE
PREPAYMENT PREMIUM UPON ANY PAYMENT OF THE OUTSTANDING PRINCIPAL OF THIS NOTE
BEFORE ITS DUE DATE, WHETHER VOLUNTARY OR INVOLUNTARY OR AFTER ACCELERATION OF
THE NOTE WHETHER THE ACCELERATION OF THE MATURITY HEREOF IS DUE TO MAKER'S
DEFAULT OR OTHERWISE. FURTHERMORE, BY INITIALING BELOW, MAKER WAIVES ANY RIGHTS
IT MAY HAVE UNDER ANY APPLICABLE STATE LAWS AS THEY RELATE TO ANY PREPAYMENT
RESTRICTIONS CONTAINED IN THIS PREPAYMENT SECTION OR OTHERWISE IN THIS NOTE AND
EXPRESSLY ACKNOWLEDGES THAT HOLDER HAS MADE THE LOAN IN RELIANCE UPON SUCH
AGREEMENTS AND WAIVER OF MAKER AND THAT HOLDER WOULD NOT HAVE MADE THE LOAN
WITHOUT SUCH AGREEMENTS AND WAIVER OF MAKER. MAKER ACKNOWLEDGES THAT SPECIFIC
WEIGHT HAS BEEN GIVEN TO THE CONSIDERATION GIVEN FOR SUCH AGREEMENTS, WHICH
CONSIDERATION IS THE GRANTING OF THE LOAN.
/s/ CSR
Borrower's initials
Additional Conditions:
This Note is secured by a Deed to Secure Debt and Security Agreement
(herein referred to as the "Security Deed") and by an Assignment of Leases,
Rents and Profits (herein referred to as the "Assignment") of even date herewith
encumbering certain real property located in Gwinnett County, Georgia and other
property as more particularly described in the Security Deed (hereinafter
collectively referred to as the "Property"). The Security Deed and the
Assignment contain terms and provisions which provide grounds for acceleration
of the indebtedness evidenced by this Note, together with additional remedies in
the event of default hereunder or thereunder. Failure on the part of the Holder
hereof to exercise any right granted herein or in the aforesaid Security Deed or
the Assignment shall not constitute a waiver of such right or preclude the
subsequent exercise and enforcement thereof. This Note, the Security Deed, the
Assignment and all other documents and instruments executed as further evidence
of, as additional security for, or executed in connection with the indebtedness
evidenced by this Note are hereinafter collectively referred to as the "Loan
Documents."
Except as otherwise provided, all parties to this Note, including
endorsers, sureties and guarantors, hereby jointly and severally waive
presentment for payment, demand, protest, notice of protest, notice of demand
and of nonpayment or dishonor and of protest, notice of intent to accelerate the
maturity of this Note, notice of acceleration of maturity of this Note, and any
and all other notices and demands whatsoever, and agree to remain bound hereby
until the principal and interest of this Note are paid in full, notwithstanding
any extensions of time for payment which may be granted by Xxxxxx, even though
the period of extension be indefinite, and notwithstanding any inaction by, or
failure to assert any legal rights available to the Holder of this Note.
If the obligations evidenced by this Note, or any part thereof, are
placed in the hands of an attorney for collection, whether by suit or otherwise,
at any time, or from time to time, Maker shall be liable to Holder, in each
instance, for all costs and expenses incurred in connection therewith,
including, without limitation, reasonable attorneys' fees (as hereinafter
defined).
Default:
If default shall be made in the payment of principal and/or interest as
stipulated above or in the payment of any other sums due hereunder or under any
of the other Loan Documents, or should any default be made in the performance of
any of the terms, covenants and conditions contained herein or in any of the
other Loan Documents, then in any or all of such events, at the option of
Holder, the entire outstanding principal balance of this Note, together with all
accrued unpaid interest thereon and all other sums advanced by Xxxxxx on behalf
of Maker shall become and be immediately due and payable then or thereafter as
Holder may elect, regardless of the
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Maturity Date hereof. All such amounts shall bear interest after the Maturity
Date, by acceleration or otherwise, at the lesser of either (i) the highest rate
of interest then allowed by the laws of the State of Georgia, or, if
controlling, the laws of the United States, or (ii) the then applicable interest
rate of this Note plus five-hundred (500) basis points (five per cent per
annum).
During the existence of any default, Holder may apply any sums received,
including but not limited to, insurance proceeds or condemnation awards to any
amount then due and owing hereunder or under the terms of any of the other Loan
Documents as Holder may determine. Neither the right nor the exercise of the
right herein granted unto Holder to apply such proceeds as aforesaid shall
preclude Holder from exercising its option to cause the entire indebtedness
evidenced by this Note to become immediately due and payable by reason of
Maker's default under the terms of this Note, or any of the other Loan
Documents.
Notwithstanding any provisions herein to the contrary, Xxxxxx's right,
power and privilege to accelerate the maturity of the indebtedness evidenced
hereby shall be conditioned upon, (a) with respect to any Monetary Default (as
hereafter defined), Holder giving Maker written notice of such Monetary Default
and a five (5) day period ("Monetary Cure Period") after the date of such notice
within which to cure such Monetary Default; provided, however, that such
Monetary Cure Period shall be limited to once per loan year for the term of the
Loan; and (b) with respect to any Non-Monetary Default (as hereinafter defined),
Holder giving Maker written notice of such Non-Monetary Default and a thirty
(30) day period after the date of such notice within which to cure such
Non-Monetary Default; provided, however, that if such Non-Monetary Default
cannot reasonably be cured within the 30 day period Maker shall have a
reasonable period of time in which to cure the Non-Monetary Default provided
that Maker commences the cure of such default within the 30 day period and
thereafter diligently pursues the cure to completion. Any notice required
hereunder shall be given as provided in the Security Deed. Holder shall have no
obligation to give Maker notice of any Incurable Default (as hereinafter
defined) prior to exercising its right, power and privilege to accelerate the
maturity of the indebtedness evidenced hereby and to declare same to be
immediately due and payable and exercise all other rights and remedies herein
granted or otherwise available to Holder at law or in equity. As used herein,
the term "Monetary Default" shall mean any default which can be cured by the
payment of money including, but not limited to, the payment of principal and
interest due under this Note and the payment of taxes, assessments and insurance
premiums when due as provided in the Security Deed. As used herein, the term
"Non-Monetary Default" shall mean any default which is not a Monetary Default or
an Incurable Default. As used herein, the term "Incurable Default" shall mean
(i) any voluntary or involuntary sale, assignment, encumbering or transfer in
violation of the covenants of Section 30 the Security Deed or (ii) if Maker or
its general partner should make an assignment for the benefit of creditors,
become insolvent, or file a petition in bankruptcy (including but not limited
to, a petition seeking a rearrangement or reorganization).
Savings Clause; Severability:
Notwithstanding any provisions herein or in the Security Deed to the
contrary, the total liability for payments in the nature of interest including
but not limited to Prepayment Premiums, default interest and late fees shall not
exceed the limits imposed by the laws of the State of Georgia or the United
States of America relating to maximum lawful rate of interest. Holder shall not
be entitled to receive, collect or apply, as interest on the indebtedness
evidenced hereby, any amount in excess of the maximum lawful rate of interest
permitted to be charged by applicable law or regulations, as amended or enacted
from time to time. In the event Holder ever receives, collects or applies, as
interest, any such excess, such amount which would be excessive interest shall
be applied to reduce the unpaid principal balance of the indebtedness evidenced
by this Note. If the unpaid principal balance of such indebtedness is paid in
full, any remaining excess shall be forthwith paid to Maker. If any clauses or
provisions herein contained operate or prospectively operate to invalidate this
Note, then such clauses or provisions only shall be held for naught, as though
not herein contained and the remainder of this Note shall remain operative and
in full force and effect.
Exculpation:
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Except as expressly set forth herein, the liability of Maker with
respect to the payment of principal and interest hereunder shall be
"non-recourse" and, accordingly, Xxxxxx's source of satisfaction of said
indebtedness and Maker's other obligations hereunder and under the other Loan
Documents shall be limited to the Property and Xxxxxx's receipt of the rents,
issues and profits from the Property. Holder shall not seek to procure payment
out of any other assets of Maker, or any person or entity comprising Maker, nor
to seek judgment (except as hereinafter provided) for any sums which are or may
be payable under this Note or under any of the other Loan Documents, or for any
claim or judgment (except as hereinafter provided) for any deficiency remaining
after foreclosure of the Security Deed. Notwithstanding the above, nothing
herein contained shall be deemed to be a release or impairment of the
indebtedness evidenced by this Note or the security therefor intended by the
other Loan Documents, or be deemed to preclude Holder from exercising its rights
to foreclose, or exercise the power of sale in, the Security Deed or to enforce
any of its other rights or remedies under the Loan Documents.
Notwithstanding the foregoing, it is expressly understood and agreed
that the aforesaid limitation on liability shall in no way affect or apply to
Maker's continued personal liability for:
(1) fraud or misrepresentation made in or in connection with this
Note or any other Loan Documents;
(2) failure to pay taxes prior to delinquency or to pay assessments
prior to delinquency, or to pay charges for labor, materials or
other charges which can create liens on any portion of the
Property;
(3) the misapplication of (i) proceeds of insurance covering any
portion of the Property, or (ii) proceeds of the sale or
condemnation of any portion of the Property or (iii) rentals
received by or on behalf of Maker subsequent to the date on
which Xxxxxx makes written demand therefor pursuant to any of
the Loan Documents;
(4) causing or permitting waste to occur on, in or about the
Property, and failure to maintain the Property, excepting
ordinary wear and tear;
(5) loss by fire or casualty to the extent not compensated by
insurance proceeds collected by Xxxxxx;
(6) the return to Holder of all unearned advance rentals and
security deposits paid by tenants of the Property and not
refunded to or forfeited by such tenants;
(7) the return to Holder of any and all fees paid to Maker by
tenants of the Property which fees permit tenants to terminate
their leases;
(8) the return of, or reimbursement for, all personalty owned by
Maker taken from the Property by or on behalf of Maker, out of
the ordinary course of business, and not replaced by items of
equal or greater value than the original value of the personalty
so removed;
(9) all court costs and reasonable attorneys' fees actually
incurred which are provided for in this Note or in any other
Loan Document;
(10) (i) the removal of any chemical, material or substance, exposure
to which is prohibited, limited, or regulated by any Federal,
State, County, Regional or Local Authority which may or could
pose a hazard to the health and safety of the occupants of the
Property regardless of the source of origination; (ii) the
restoration of the Property to comply with all governmental
regulations pertaining to hazardous waste found in, on or under
the Property, regardless of the source of origination; and (iii)
any indemnity or other agreement to hold the Holder harmless
from and against any and all losses, liabilities, damages,
injuries, costs and expenses of any and every kind arising under
Paragraph 3 of the Security Deed including, but not limited to,
that certain Environmental Indemnity Agreement from Maker to
Holder
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of even date herewith. Maker shall not be liable hereunder if
such materials were placed on the Property subsequent to the
date of acquisition of the Property by foreclosure of the
Security Deed by Holder or acceptance of a deed in lieu thereof,
or relinquishment of control of the Property pursuant to a
transfer approved in writing by Xxxxxx; provided that such
transferee assumes in writing all obligations of Maker
pertaining to Hazardous Materials (as defined in the Security
Deed) pursuant to the Loan Documents. Liability under this
subparagraph shall extend beyond the repayment of this Note and
compliance with the terms of the Security Deed, unless at such
time Maker provides Holder with an environmental assessment
report acceptable to Holder showing the Property to be free of
Hazardous Materials and not in violation of Hazardous Waste Laws
(as defined in the Security Deed). Maker shall bear the burden
of proof in establishing the date on which any such Hazardous
Materials were placed or appeared in, on or under the Property.
(11) (a) any and all costs incurred in order to cause the Property to
comply with the applicable accessibility provisions of The Fair
Housing Act of 1988, as the same may now or hereafter be
amended, and any and all rules and regulations that may now or
hereafter be promulgated in connection with said acts, and (b)
any indemnity or other agreement to hold the Holder harmless
from and against any and all losses, liabilities, damages,
injuries, costs and expenses of any and every kind arising under
Paragraph 3 of the Security Deed regarding accessibility for the
disabled or handicapped or under the Accessibility Indemnity
Agreement from Maker to Holder of even date herewith; provided,
however, Maker shall not be liable for compliance with any
accessibility laws that first become effective, or for any
violation of any accessibility laws resulting from alterations
or improvements to the Property that are performed, subsequent
to Holder's actually taking possession of the Property pursuant
to foreclosure of the Security Deed or acceptance of a deed in
lieu thereof, or subsequent to any transfer of ownership of the
Property that has the prior written approval of Holder; provided
that such transferee assumes in writing all obligations of Maker
with respect to compliance with accessibility laws under the
Security Deed and Accessibility Indemnity Agreement.
(12) Obligation of Maker for the face amount of any Letter of Credit
held by Xxxxxx and delivered by Maker in connection with the loan evidenced by
this Note in the event Holder is unable to collect the full amount of said
Letter of Credit for any reason.
The obligations of Maker in subparagraphs (1) through (12) above, except
as provided in subparagraphs (10) and (11), shall survive the repayment and
satisfaction of this Note and compliance with the terms of the Security Deed.
Notwithstanding any provisions herein to the contrary, Maker shall
become personally liable for the entire amount due under this Note (including
all principal, interest and other charges) in the event that Maker (i) violates
the covenants set forth in the Security Deed governing the placing of
subordinate financing on the Property or (ii) violates the covenants set forth
in the Security Deed restricting transfers in the Property or transfers of
ownership interests in Maker.
As used herein, the phrase "reasonable attorneys' fees" shall mean fees
charged by attorneys selected by Holder based upon such attorneys' then
prevailing hourly rates as opposed to any amount or percentage specified by any
statute then in effect in the State of Georgia.
THE PROVISIONS of this Note shall be governed by the laws of the State
of Georgia and the United States and shall be binding upon the Maker, its
successors and assigns and shall inure to the benefit of Holder, its successors
and assigns. Time is of the essence of this contract.
This Note is one of a series of two notes of even date herewith executed
by the undersigned, both being secured by the Security Deed and other security
instruments in favor of the Holder of this Note. The other such note is
designated Real Estate Note A and has been
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executed by the undersigned in favor of Nationwide Life Insurance Company and is
in the original principal sum of Seven Million Two Hundred Fifty Thousand and
No/100 Dollars ($7,250,000.00). Real Estate Notes A and B shall be of equal
dignity and it is expressly stipulated and agreed that a default under the terms
of either of said Notes shall constitute an event of default under both of said
Notes authorizing the holders of said Notes to accelerate the maturity of both
of said Notes and to exercise all rights and remedies granted to holders under
the Notes, the Security Deed and any other security instruments securing the
payment of the Notes. It is further stipulated and agreed that notwithstanding
the prepayment privilege contained in this Note, the undersigned shall have no
right to prepay this Note unless the undersigned also elects to prepay Real
Estate Note A in accordance with the prepayment provisions contained therein.
IN WITNESS WHEREOF, the undersigned has executed this Note under seal as
of the day and year first above written.
Xxxxxxx Properties Residential, L.P., a Georgia
limited partnership
By: Xxxxxxx Realty Investors, Inc., its sole
General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: President
(CORPORATE SEAL)
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