PROMISSORY NOTE
$3,800,000.00
October 31, 1996
Medford, Oregon
FOR VALUE RECEIVED, the undersigned, POPLAR SQUARE AIP III, L.P., A SOUTH
CAROLINA LIMITED PARTNERSHIP("Borrower"), jointly and severally, if more than
one, promises to pay to the order of UNION CAPITAL INVESTMENTS, LLC, a Georgia
limited liability company ("Lender"), at the office of Lender at 5901-A
Peachtree Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, or at such other
place as Lender may designate to Borrower in writing from time to time, the
principal sum of Three Million Eight Hundred Thousand and NO/100 DOLLARS
($3,800,000.00), together with interest on so much thereof as is from time to
time outstanding and unpaid, from the date of the advance of the principal
evidenced hereby, at the rate of 9.2% per annum (the "Note Rate"), in lawful
money of the United States of America, which shall at the time of payment be
legal tender in payment of all debts and dues, public and private.
ARTICLE I - TERMS AND CONDITIONS
1.01 Payment of Principal and Interest. Said interest shall be computed
hereunder based on a 360-day year and based on twelve (12) 30-day months for
each full calendar month and on the actual number of days elapsed for any
partial month in which interest is being calculated. In computing the number of
days during which interest accrues, the day on which funds are initially
advanced shall be included regardless of the time of day such advance is made,
and the day on which funds are repaid shall be included unless repayment is
credited prior to close of business. Payments in federal funds immediately
available in the place designated for payment received by Lender prior to 2:00
p.m. local time at said place of payment on a day on which Lender is open for
business shall be credited prior to close of business, while other payments may,
at the option of Lender, not be credited until immediately available to Lender
in federal funds in the place designated for payment prior to 2:00 p.m. local
time at said place of payment on a day on which Lender is open for business.
Such principal and interest shall be payable in equal consecutive monthly
installments of $32,411.50 each, beginning on the date that is (x) the first
day of the second full calendar month following the date of this Note or (y) on
the first day of the first full calendar month following the date hereof in the
event the advance of the principal amount evidenced by this Note is the first
day of a calendar month, and continuing on the first day of each and every month
thereafter through and including November 1, 2006 (the "Maturity Date"), at
which time the entire outstanding principal balance hereof, together with all
accrued but unpaid interest thereon, shall be due and payable in full. Each
such monthly installment shall be applied first to the payment of accrued
interest and then to reduction of principal. If the advance of the principal
amount evidenced by this Note is made on a date other than the first day of a
calendar month, then Xxxxxxxx shall pay to Lender contemporaneously with the
execution hereof interest at the foregoing interest rate for a period from the
date hereof through and including the first day of the next succeeding calendar
month.
1.02 Prepayment.
(a) This Note may be prepaid in whole but not in part (except as
otherwise specifically provided herein) at any time after the date of the 24th
monthly installment of principal and interest due hereunder (the "Lockout
Expiration Date"), provided (i) written notice of such prepayment is received by
Lender not more than sixty (60) days and not less than thirty (30) days prior to
the date of such prepayment, (ii) such prepayment is received on the first day
of a calendar month (or, if such prepayment is not received on the first day of
a calendar month, interest is paid through the last day of said calendar month)
and is accompanied by all interest accrued hereunder and all other sums due
hereunder or under the other Loan Documents, and (iii) if such prepayment occurs
on or prior to the date of the 114th monthly installment of principal and
interest due hereunder (the "Yield Maintenance Expiration Date), Lender is paid
a prepayment fee as set forth in this Section 1.02. In the event that such
prepayment occurs on or prior to the date of the 48th monthly installment of
principal and interest due hereunder, Xxxxxx must be paid a prepayment fee equal
to the greater of (A) five percent (5%) of the principal amount being prepaid,
and (B) "Yield Maintenance" (as hereunder defined), and if such prepayment
occurs after the 48th monthly installment of principal and interest due
hereunder but on or prior to the date of the 114th monthly installment of
principal and interest due hereunder, Xxxxxx must be paid a prepayment fee equal
to the greater of (A) one percent (1.0%) of the principal amount being prepaid,
and (B), "Yield Maintenance" (as hereunder defined). For purposes of this Note,
the term "Yield Maintenance" shall mean the positive excess of (i) the present
value ("PV") of all future installments of principal and interest due under this
Note including the principal amount due at maturity (collectively, "All Future
Payments"), discounted at an interest rate per annum equal to the sum of (a) the
Treasury Constant Maturity Yield Index published during the second full week
preceding the date on which such premium is payable for instruments having a
maturity coterminous with the remaining term of this Note, and (b) fifty (50)
basis points, over (ii) the principal amount of this Note outstanding
immediately before such prepayment [(PV of All Future Payments) - (principal
balance at time of prepayment) = prepayment fee]. "Treasury Constant Maturity
Yield Index" shall mean the average yield for "This Week" as reported by the
Federal Reserve Board in Federal Reserve Statistical Release H.15 (519). If
there is no Treasury Constant Maturity Yield Index for instruments having a
maturity coterminous with the remaining term of this Note, then the index shall
be equal to the weighted average yield to maturity of the Treasury Constant
Maturity Yield Indices with maturities next longer and shorter than such
remaining average life to maturity, calculated by averaging (and rounding
upward to the nearest whole multiple of 1/100 of 1% per annum, if the average is
not such a multiple) the yields of the relevant Treasury Constant Maturity Yield
Indices (rounded, if necessary, to the nearest 1/100 of 1% with any figure of
1/200 of 1% or above rounded upward). In the event that any prepayment fee is
due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the
amount and determination of the prepayment fee, and, provided that Lender shall
have in good faith applied the formula described above, Borrower shall not have
the right to challenge the calculation or the method of calculation set forth in
any such statement in the absence of manifest error, which calculation may be
made by Lender on any day during the thirty (30) day period preceding the date
of such prepayment. Lender shall not be obligated or required to have actually
reinvested the prepaid principal balance at the Treasury Constant Maturity Yield
or otherwise as a condition to receiving the prepayment fee. No prepayment fee
or premium shall be due or payable in connection with any prepayment of the
indebtedness evidenced by the Note made on or after the Yield Maintenance
Expiration Date, or upon prepayment resulting from application of insurance or
condemnation proceeds as provided in the Security Instrument at any time during
the loan term. With regard to any prepayment made hereunder (whether prior to
or after the Yield Maintenance Expiration Date), if the prior written notice
required in (i) above has not been received by Xxxxxx, the prepayment fee shall
be increased by an amount equal to the lesser of (i) thirty (30) days' unearned
interest computed on the outstanding principal balance of this Note so prepaid
and (ii) unearned interest computed on the outstanding principal balance of this
Note so prepaid for the period from, and including, the date of prepayment
through the Maturity Date.
(b) Partial prepayments of this Note shall not be permitted, except
partial prepayments resulting from Lender applying insurance or condemnation
proceeds to reduce the outstanding principal balance of this Note as provided in
the Security Instrument, in which event no prepayment fee or premium shall be
due. No notice of prepayment shall be required under the circumstance specified
in the preceding sentence. No principal amount repaid may be reborrowed.
Partial payments of principal shall be applied to the unpaid principal balance
evidenced hereby but such application shall not reduce the amount of the fixed
monthly installments required to be paid pursuant to Section 1.01 above.
(c) Except as otherwise expressly provided in Section 1.02(b) above,
the prepayment fees provided above shall be due, to the extent permitted by
applicable law, under any and all circumstances where all or any portion of this
Note is paid prior to the Maturity Date, whether such prepayment is voluntary or
involuntary, even if such prepayment results from Lender's exercise of its
rights upon Borrower's default and acceleration of the Maturity Date of this
Note (irrespective of whether foreclosure proceedings have been commenced), and
shall be in addition to any other sums due hereunder or under any of the other
Loan Documents. Xxxxxxxx acknowledges that, in establishing the Note Rate,
Xxxxxx has assumed and taken into account the fact that the loan evidenced
hereby will not be prepaid (other than at the times, and on the terms, herein
provided) and that there will be no prohibited transfer of the Security Property
or any other event which would cause Lender to accelerate the Maturity Date.
The following provisions relating to Xxxxxxxx's payment of a premium in the
event of an acceleration are intended to compensate Lender in the event that
this assumption proves to be incorrect. No tender of a prepayment of this Note
with respect to which a prepayment fee is due shall be effective unless such
prepayment is accompanied by the prepayment fee. If, prior to the Lockout
Expiration Date, Lender exercises its option to declare the entire unpaid
principal balance due and payable and/or causes to be recorded a notice of
default in accordance with any applicable statute or law following the
occurrence of a default, there shall be due and payable in the absence of
reinstatement in accordance with any applicable statute or law, in addition to
the unpaid principal balance and accrued interest and any other sums due
hereunder or under any of the other Loan Documents, a prepayment fee computed as
provided in Section 1.02(a) above plus an additional prepayment fee of one
percent (1%) of the principal balance of this Note.
/s/ X.X.
PLEASE INITIAL
1.03 Security. The indebtedness evidenced by this Note and the
obligations created hereby are secured by that certain Deed of Trust, Assignment
of Rents, Security Agreement and Fixture Filing (the "Security Instrument") from
Borrower, as trustor, to ____________ Title Insurance Company of ___________, as
trustee, in favor of Lender, as beneficiary, dated on or about the date hereof,
concerning property located in Xxxxxxx County, Oregon. The Security Instrument
together with this Note and all other documents to or of which Xxxxxx is a party
or beneficiary now or hereafter evidencing, securing, guarantying, modifying or
otherwise relating to the indebtedness evidenced hereby, are herein referred to
collectively as the "Loan Documents". All of the terms and provisions of the
Loan Documents are incorporated herein by reference. Some of the Loan Documents
are to be recorded on or about the date hereof in the appropriate public
records.
1.04 Default. It is hereby expressly agreed that should any default
occur in the payment of principal or interest as stipulated above and such
payment is not made within five (5) days of the date such payment is due
(provided that no grace period is provided for the payment of principal and
interest due on the Maturity Date), or should any other default occur under any
of the Loan Documents which is not cured within any applicable grace or cure
period, then a default shall exist hereunder, and in such event the indebtedness
evidenced hereby, including all sums advanced or accrued hereunder or under any
other Loan Document, and all unpaid interest accrued thereon, shall, at the
option of Lender and without notice to Borrower, at once become due and payable
and may be collected forthwith, whether or not there has been a prior demand for
payment and regardless of the stipulated date of maturity. In the event that
any payment is not received by Lender on the date when due (subject to the
applicable grace period), then in addition to any default interest payments due
hereunder, Borrower shall also pay to Lender a late charge in an amount equal to
five percent (5.0%) of the amount of such overdue payment. So long as any
default exists hereunder, regardless of whether or not there has been an
acceleration of the indebtedness evidenced hereby, and at all times after
maturity of the indebtedness evidenced hereby (whether by acceleration or
otherwise), interest shall accrue on the outstanding principal balance of this
Note at a rate per annum equal to four percent (4.0%) plus the interest rate
which would be in effect hereunder absent such default or maturity, or if such
increased rate of interest may not be collected under applicable law, then
simple interest at the maximum rate of interest, if any, which may be collected
from Borrower under applicable law (the "Default Interest Rate"), and such
default interest shall be immediately due and payable. Borrower acknowledges
that it would be extremely difficult or impracticable to determine
Xxxxxx's actual damages resulting from any late payment or default, and such
late charges and default interest are reasonable estimates of those damages and
do not constitute a penalty. The remedies of Lender in this Note or in the Loan
Documents, or at law or in equity, shall be cumulative and concurrent, and may
be pursued singly, successively or together in Xxxxxx's discretion. Time is of
the essence of this Note. In the event this Note, or any part hereof, is
collected by or through an attorney-at-law, Xxxxxxxx agrees to pay all costs of
collection including, but not limited to, reasonable attorney's fees.
1.05 Exculpation. Notwithstanding anything in the Loan Documents to
the contrary, but subject to the qualifications hereinbelow set forth, Xxxxxx
agrees that (i) Borrower shall be liable upon the indebtedness evidenced hereby
and for the other obligations arising under the Loan Documents to the full
extent (but only to the extent) of the security therefor and any rents and
leases assigned to Lender, the same being all properties (whether real or
personal), rights, estates and interests now or at any time hereafter securing
the payment of this Note and/or the other obligations of Borrower under the Loan
Documents (collectively, the "Security Property") and any interest of Lender as
assignee under any assignment of rents and/or leases; (ii) if default occurs in
the timely and proper payment of all or any part of such indebtedness evidenced
hereby or in the timely and proper performance of the other obligations of
Borrower under the Loan Documents, any proceedings brought by Lender against
Borrower shall be limited to the preservation, enforcement and foreclosure, or
any thereof, of the liens, security titles, estates, assignments, rights and
security interests now or at any time hereafter securing the payment of this
Note and/or the other obligations of Borrower under the Loan Documents, and
exercise of power of sale and/or other rights granted under the Security
Instrument and the exercise of any rights set forth in the Security Instrument
or any other instrument given to secure this Note, or in any assignment of rents
and leases contained in the Security Instrument or in any separate instrument
affecting the Security Property and given in connection with this Note, and no
attachment, execution or other writ of process shall be sought, issued or levied
upon any assets, properties or funds of Borrower other than the Security
Property except with respect to the liability described below in this section;
and (iii) in the event of a foreclosure or enforcement of such liens, security
titles, estates, assignments, rights or security interests securing the payment
of this Note and/or the other obligations of Borrower under the Loan Documents,
whether by judicial proceedings or exercise of power of sale, no judgment for
any deficiency upon the indebtedness evidenced hereby shall be sought or
obtained by Lender against Borrower, except with respect to the liability
described below in this section; provided, however, that, notwithstanding the
foregoing provisions of this section, Borrower shall be fully and personally
liable and subject to legal action (a) for proceeds paid under any insurance
policies (or paid as a result of any other claim or cause of action against any
person or entity) by reason of damage, loss or destruction to all or any portion
of the Security Property, to the full extent of such proceeds not previously
delivered to Lender, but which, under the terms of the Loan Documents, should
have been delivered to Lender; (b) for proceeds or awards resulting from the
condemnation or other taking in lieu of condemnation of all or any portion of
the Security Property, or any of them, to the full extent of such proceeds or
awards not previously delivered to Lender, but which, under the terms of the
Loan Documents, should have been delivered to Lender; (c) for all tenant
security deposits or other refundable deposits paid to or held by Borrower or
any other person or entity in connection with leases of all or any portion of
the Security Property which are not applied in accordance with the terms of the
applicable lease or other agreement; (d) for rent and other payments received
from tenants under leases of all or any portion of the Security Property paid
more than one month in advance; (e) for rents, issues, profits and revenues of
all or any portion of the Security Property received or applicable to a period
after any notice of default from Lender hereunder or under the Loan Documents in
the event of any default by Borrower hereunder or thereunder which are not
either applied to the ordinary and necessary expenses of owning and operating
the Security Property or paid to Lender; (f) for damage to all or any portion of
the Security Property as a result of the intentional misconduct or gross
negligence of Borrower or any of its principals, officers or general partners,
or any agent or employee of any such persons, or any removal of all or any
portion of the Security Property in violation of the terms of the Loan
Documents, to the full extent of the losses or damages incurred by Lender on
account of such damage or removal; (g) for failure to pay any valid taxes,
assessments, mechanic's liens, materialmen's liens or other liens which could
create liens on any portion of the Security Property which would be superior to
the lien or security title of the Security Instrument or the other Loan
Documents, to the full extent of the amount claimed by any such lien claimant;
(h) for all obligations and indemnities of Borrower under the Loan Documents
relating to hazardous or toxic substances or compliance with environmental laws
and regulations to the full extent of any losses or damages (including those
resulting from diminution in value of any Security Property) incurred by Lender
as a result of the existence of such hazardous or toxic substances or failure to
comply with environmental laws or regulations; and (i) for fraud or material
misrepresentation by Borrower or any of its principals, officers, or general
partners, any guarantor, any indemnitor or any agent, employee or other person
authorized or apparently authorized to make statements or representations on
behalf of Xxxxxxxx, any principal, officer or partner of Borrower, any guarantor
or any indemnitor, to the full extent of any losses, damages and expenses of
Lender on account thereof. References herein to particular sections of the Loan
Documents shall be deemed references to such sections as affected by other
provisions of the Loan Documents relating thereto. Nothing contained in this
section shall (i) be deemed to be a release or impairment of the indebtedness
evidenced by this Note or the other obligations of Borrower under the Loan
Documents or the lien of the Loan Documents upon the Security Property; or (ii)
preclude Lender from foreclosing the Loan Documents in case of any default or
from enforcing any of the other rights of Lender except as stated in this
section; or (iii) limit or impair in any way whatsoever the Hazardous Substances
Indemnity Agreement or the Indemnity and Guaranty Agreement, both of which are
of even date and executed and delivered in connection with the indebtedness
evidenced by this Note, or release, relieve, reduce, waive or impair in any way
whatsoever, any obligation of any party to either of such Agreements.
ARTICLE II - GENERAL CONDITIONS
2.01 No Waiver; Amendment. No failure to accelerate the debt
evidenced hereby by reason of default hereunder, acceptance of a partial or past
due payment, or indulgences granted from time to time shall be construed (i) as
a novation of this Note or as a reinstatement of the indebtedness evidenced
hereby or as a waiver of such right of acceleration or of the right of Lender
thereafter to insist upon strict compliance with the terms of this Note, or (ii)
to prevent the exercise of such right of acceleration or any other right granted
hereunder or under any other Loan Document or by any applicable laws; and
Borrower hereby expressly waives the benefit of any statute or rule of law or
equity now provided, or which may hereafter be provided, which would produce a
result contrary to or in conflict with the foregoing. Borrower consents to any
extension of time for the payment hereof, release of all or any part of the
security for the payment hereof or release of any party liable for this
obligation. No extension of the time for the payment of this Note or any
installment due hereunder or release of any party, made by agreement with any
person now or hereafter liable for the payment of this Note shall operate to
release, discharge, modify, change or affect the original liability of Borrower
under this Note, either in whole or in part unless Xxxxxx agrees otherwise in
writing. This Note may not be changed orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
2.02 Waivers. Presentment for payment, demand, protest and notice of
demand, protest and nonpayment and all other notices are hereby waived by
Xxxxxxxx. Borrower hereby further waives and renounces, to the fullest extent
permitted by law, all rights to the benefits of any statute of limitations and
any moratorium, reinstatement, marshaling, forbearance, valuation, stay,
extension, redemption, appraisement, exemption and homestead now or hereafter
provided by the Constitution and laws of the United States of America and of
each state thereof, both as to itself and in and to all of its property, real
and personal, against the enforcement and collection of the obligations
evidenced by this Note or the other Loan Documents. In addition, Borrower
waives any rights it may have under California Civil Code Sections 2819 and 2822
or any comparable laws of the state in which the Property is located.
2.03 Limit of Validity. The provisions of this Note and of all
agreements between Borrower and Lender, whether now or existing or hereafter
arising and whether written or oral, are hereby expressly limited so that in no
contingency or event whatsoever, whether by reason of demand or acceleration of
the maturity of this Note or otherwise, shall the amount paid, or agreed to be
paid ("Interest"), to Lender for the use, forbearance or retention of the money
loaned under this Note exceed the maximum amount permissible under applicable
law. If, from any circumstance whatsoever, performance or fulfillment of any
provision hereof or of any agreement between Borrower and Lender shall, at the
time performance or fulfillment of such provision shall be due, exceed the limit
for Interest prescribed by law or otherwise transcend the limit of validity
prescribed by applicable law, then ipso facto the obligation to be performed or
fulfilled shall be reduced to such limit and if, from any circumstance
whatsoever, Lender shall ever receive anything of value deemed Interest by
applicable law in excess of the maximum lawful amount, an amount equal to any
excessive Interest shall be applied to the reduction of the principal balance
owing under this Note in the inverse order of its maturity (whether or not then
due) or at the option of Lender be paid over to Borrower, and not to the payment
of Interest. All Interest (including any amounts or payments deemed to be
Interest) paid or agreed to be paid to Lender shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout the full
period until payment in full of the principal balance of this Note so that the
Interest thereof for such full period will not exceed the maximum amount
permitted by applicable law. This Section 2.03 will control all agreements
between Borrower and Lender.
2.04 Use of Funds. Borrower hereby warrants, represents and covenants
that no funds disbursed hereunder shall be used for personal, family or
household purposes.
2.05 Unconditional Payment. Borrower is and shall be obligated to pay
principal, interest and any and all other amounts which become payable hereunder
or under the other Loan Documents absolutely and unconditionally and without any
abatement, postponement, diminution or deduction and without any reduction for
counterclaim or set off. In the event that at any time any payment received by
Lender hereunder shall be deemed by a court of competent jurisdiction to have
been a voidable preference or fraudulent conveyance under any bankruptcy,
insolvency or other debtor relief law, then the obligation to make such payment
shall survive any cancellation or satisfaction of this Note or return thereof to
Borrower and shall not be discharged or satisfied with any prior payment thereof
or cancellation of this Note, but shall remain a valid and binding obligation
enforceable in accordance with the terms and provisions hereof, and such payment
shall be immediately due and payable upon demand.
2.06 Miscellaneous. This Note shall be interpreted, construed and
enforced according to the laws of the State of Oregon. The terms and provisions
hereof shall be binding upon and inure to the benefit of Xxxxxxxx and Xxxxxx and
their respective heirs, executors, legal representatives, successors,
successors-in-title and assigns, whether by voluntary action of the parties or
by operation of law. As used herein, the terms "Borrower" and "Lender" shall be
deemed to include their respective heirs, executors, legal representatives,
successors, successors-in-title and assigns, whether by voluntary action of the
parties or by operation of law. If Borrower consists of more than one person or
entity, each shall be jointly and severally liable to perform the obligations of
Borrower under this Note. All personal pronouns used herein, whether used in
the masculine, feminine or neuter gender, shall include all other genders; the
singular shall include the plural and vice versa. Titles of articles and
sections are for convenience only and in no way define, limit, amplify or
describe the scope or intent of any provisions hereof. Time is of the essence
with respect to all provisions of this Note. This Note and the other Loan
Documents contain the entire agreements between the parties hereto relating to
the subject matter hereof and thereof and all prior agreements relative hereto
and thereto which are not contained herein or therein are terminated.
2.07 Whether or not suit or action is instituted to enforce any of the
terms of this Note, Lender shall be entitled to recover its attorneys' fees and
costs. In the event suit is instituted or bankruptcy proceedings occur, the
prevailing party shall be entitled to recover its attorneys' fees and costs in
such proceedings, at trial, on any appeal, and on any petition for review, in
addition to all other sums provided by law. Even though other provisions in
this Note may refer to recovery of attorneys' fees and costs, this Section shall
also apply to every instance in which suit or action is instituted or bankruptcy
proceedings occur.
IN WITNESS WHEREOF, Xxxxxxxx has executed this Note as of the date
first above written.
POPLAR SQUARE AIP III, L.P., a South Carolina
limited partnership
By:POPLAR SQUARE GP LIMITED PARTNERSHIP, a South
Carolina limited partnership and sole general
partner of Poplar Square AIP III, L.P.
By:GP SERVICES IX, INC., a South Carolina
corporation and sole general partner of Poplar
Square GP Limited Partnership
By: /s/ Xxxxxx X. Xxxx, Xx.
Name: Xxxxxx X. Xxxx, Xx.
Title: Vice President
