PROMISSORY NOTE
$9,800,000.00
January 18, 1996
1. Promise to Pay. For Value Received, the undersigned, BRITTANY POINT
AP VIII, L.P., a South Carolina limited partnership ("Maker"), hereby promises
to pay to the order of XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY (together with
any subsequent holder of this note being referred to herein as the "holder," or
the "Holder") at its Home Office, Xxxx Xxxxxxx Place, Post Office Box 111,
Boston, Massachusetts, 02117, or at such other place, or to such other party or
parties, as the holder of this note ("Note") may from time to time designate,
the principal sum of NINE MILLION EIGHT HUNDRED THOUSAND AND 00/100
($9,800,000.00) Dollars, with interest to be computed from January 18, 1996, at
the interest rate of 7.875 per centum per annum, payable upon all principal
remaining from time to time unpaid; to be paid in installments as follows:
$64,312.50 per month beginning on March 1, 1996, and continuing on
the first day of each successive month thereafter for the first twelve months
following the date of this Note; such installments being payments of interest
only accruing on the principal balance of this Note; and
$81,210.39 per month, beginning on March 1, 1997, and continuing on
the first day of each successive month thereafter to February 1, 2001 inclusive;
such installments being payments of interest and principal due under this Note
to be applied first to payment of interest and any remaining amount to
principal;
provided, however, that the amount of the final payment aforesaid shall be for
the amount of principal and interest then remaining unpaid. If the proceeds of
the indebtedness evidenced by this Note are not disbursed on the first day of a
month, then interest only, at the 7.875% interest rate specified above, from and
including the date of disbursement of such proceeds to the first day of the
month following such disbursement, shall be due and payable in advance on the
date of such disbursement.
2. Security. This Note is secured, among other things, by a Mortgage,
Assignment of Rents and Security Agreement ("Mortgage") covering certain real
and personal property located in Madison County, City of Huntsville, Alabama
(this Note, the Mortgage and other documents, instruments and materials now or
hereafter executed, issued or delivered in connection therewith, being herein
collectively referred to as the "Loan Documents" or singularly as a "Loan
Document").
3. Acceleration. Reference is made to the Mortgage securing this Note
for provisions regarding acceleration upon default.
4. Default. The entire unpaid principal balance of, and all accrued
interest on this Note, shall immediately be due and payable at the option of
Holder upon the occurrence of any one or more of the following events ("Events
of Default"), time being of the essence in the payment of this indebtedness:
a. Default shall be made by the Maker in the payment of any installment of
principal and interest as and when the same become due and payable in accordance
with the terms hereof.
b. If default shall be made in the observance or performance of any other of
the covenants, agreements and conditions on the part of Maker contained in the
Loan Documents executed in connection with or securing the payment of this Note
or under this Note.
c. If the Maker shall be involuntarily adjudicated a bankrupt or insolvent by a
court of competent jurisdiction or shall file a petition to be adjudicated
bankrupt, or by petition, answer or consent, in any action or proceeding shall
seek relief under the provisions of any bankruptcy or debtors relief law now or
hereafter prevailing, or shall make an assignment for the benefit of creditors,
or if any order shall be made appointing a receiver of all or any substantial
portion of the assets or property of the Maker, and such order shall not have
been stayed or dismissed and shall have remained in full force and effect for at
least sixty (60) days.
d. The Maker should become insolvent or unable to pay its debts when they
become due and payable.
From and following the maturity of this Note, or while any default exists in the
making of any of said payments or in the performance or observance of any of the
covenants or agreements of this Note, the Loan Documents or of any instrument
now or hereafter evidencing or securing the indebtedness evidenced hereby, the
undersigned further promises to pay, on each date aforesaid, additional interest
on the principal balance of this Note then outstanding at the rate of 14.875 per
centum per annum, but in no event greater than the highest interest rate
permitted under the laws of the State of Alabama ("Default Interest Rate");
provided that any additional interest which has accrued shall be paid at the
time of and as a condition precedent to the curing of any default. Upon any
such default the holder of this Note may apply payments received on any amounts
due hereunder or under the terms of any instrument now or hereafter evidencing
or securing said indebtedness as said holder may determine and, if the holder of
this Note so elects, notice of election being expressly waived, the principal
remaining unpaid with accrued interest shall at once become due and payable.
5. Waiver by Maker. The undersigned waives presentment, protest and
demand, notice of protest, demand and dishonor and non-payment of this Note and
agrees to pay all costs of collection when incurred, including reasonable
attorneys' fees, and to perform and comply with each of the covenants,
conditions, provisions and agreements of any of the undersigned contained in
every instrument now evidencing or securing said indebtedness. No extension of
the time for the payment of this Note or any installment hereof 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 under this Note, either in whole or in part, of any of the undersigned
not a party to such agreement. Notwithstanding any provision herein or in any
instrument now or hereafter securing said indebtedness, the total liability for
payments in the nature of interest shall not exceed the limits now imposed by
the usury laws of the State of Alabama.
6. Prepayment. Except as hereinafter provided, the undersigned shall
not have the right to prepay the indebtedness evidenced by this Note. On or
after fourth loan year January 18, 2000, and upon giving to Holder not less than
thirty (30) nor more than ninety (90) days' prior written notice, the
undersigned may prepay the entire principal balance of this Note by paying such
balance together with all interest and other costs or charges which have accrued
hereunder or under any instrument securing this Note to the date of prepayment,
plus a prepayment premium equal to the greater of:
a. The product obtained by multiplying (i) the then outstanding principal
balance due by the difference obtained by subtracting the yield rate on publicly
traded United States Treasury Securities (as published in the Wall Street
Journal or other business publication of general circulation five business days
prior to the date of said payment) having the closest matching maturity date to
the maturity date of this Note from the interest rate on this Note adjusted to
its semi annual equivalent rate of 8.005%, times (ii) the number of scheduled
monthly payments remaining, divided by twelve; or
b. 1% of the then outstanding principal balance due under this Note.
If the maturity of this Note shall be accelerated by the holder hereof for
any reason, then a tender of payment by the undersigned or anyone on behalf of
the undersigned of all sums due hereunder shall constitute an evasion of the
aforementioned prepayment provisions of this Note and any such payment shall
require, to the extent permitted by the laws of the State of Alabama, the
concurrent payment of an amount (the "Default Acceleration Prepayment Premium")
equal to the greater of:
(a) The product obtained by multiplying (i) the then outstanding principal
balance due by the difference obtained by subtracting the yield rate on publicly
traded United States Treasury Securities (as published in the Wall Street
Journal or other business publication of general circulation five business days
prior to the date of said payment) having the closest matching maturity date to
the maturity date of this Note from the interest rate on this Note adjusted to
its semi annual equivalent rate of 8.005%, times (ii) the number of scheduled
monthly payments remaining, divided by twelve; or
(b) 10% of the outstanding principal balance due under this Note.
In the event that no yield rate is obtainable on the above U.S. Treasury
Securities, then the nearest equivalent issue shall be selected by Holder in its
sole discretion. Partial prepayment of this Note shall not be allowed.
Notwithstanding anything herein to the contrary, no prepayment premium will be
due for a prepayment of the indebtedness remaining unpaid in full, if made
during the last ninety (90) days of the term of this Note, provided that the
written notice of prepayment required above shall be given.
7. Compliance with Law. If, from any circumstances whatsoever,
fulfillment of any provision hereof or of the Mortgage, Loan Documents or any
other instrument securing this Note or all or any part of the indebtedness
evidenced hereby, at the time performance of such provision shall be due, shall
involve exceeding the interest limitation validly prescribed by law which a
court of competent jurisdiction may deem applicable hereto, then, ipso facto,
the obligation to be fulfilled shall be reduced to an amount computed at the
highest rate of interest permissible under such applicable law.
8. Personal Liability. In any action brought to enforce the obligation
of the undersigned, or the partners, heirs, or successors or assigns of the
undersigned, to pay the indebtedness evidenced by this Note or to enforce the
obligation of the undersigned to pay any indebtedness or obligation created or
arising under the Mortgage or any other Loan Document, the judgment or decree
shall be enforceable against such parties only to the extent of their interests
in the property subject to said Mortgage or other Loan Document, and any such
judgment shall not be subject to execution on, nor be a lien on, the assets of
such parties other than to the extent of their interests in the property subject
to the Mortgage or other Loan Document. Further, such parties shall in no event
be liable for a money judgment in any such action, whether by any action brought
upon this Note or any agreement or instrument securing this Note, or action
brought for a deficiency judgment against any of such parties.
Notwithstanding anything in the Loan Documents limiting or negating Maker's
or its General Partner's personal liability, Maker and its General Partner agree
that such limitations on personal liability, including the foregoing limitation
of liability, shall not apply to any of the following:
(a) Fraud or misrepresentation on the part of the Maker or any of its
partners, or any waste of the property securing this Note.
(b) Any rents, issues or profits securing this Note collected more than
one (1) month in advance of their due dates.
(c) Any misapplication of proceeds, rents, issues or profits, security
deposits, and any other payments from tenants or occupancy (including, without
limitation, lease termination fees), insurance proceeds, condemnation awards, or
other sums of a similar nature.
(d) Maker or any of its partners otherwise committing any wrongful act,
the apparent purpose or intent of which is to deprive Holder of any of its
security for the Note.
(e) Liability under any environmental covenants, conditions, and
indemnity contained in the Loan Documents and in any separate environmental
indemnity agreement executed by Maker.
(f) Rents or other income not properly applied to any portion then due of
the indebtedness evidenced by the Note or the normal operating expenses incurred
or accrued.
(g) Personalty or fixtures removed or allowed to be removed from the real
property securing this Note and described in the Mortgage by or on behalf of
Maker or any of its partners and not replaced by items of equal or greater value
than the personalty or fixtures so removed; however, this provision shall not
apply to those items destroyed in the ordinary course of business or those items
removed in the ordinary course of business and not intended to deprive Holder of
any of its security for the Note.
(h) An amount equal to the sum of all payments made by Maker to any
junior lienholders during any period in which a monetary default exists under
the Note, the Mortgage or any Loan Document.
(i) Failure to pay any taxes or assessments pertaining to the property
securing this Note prior to delinquency, or to pay charges for labor, materials
or other charges which can create liens on any portion of such property, and any
sums expended by Holder in the performance of or compliance with the obligations
of Maker or any of its partners under any Loan Document, including, without
limitation, sums expended to pay taxes or assessments or hazard insurance
premiums, capital improvement expenditures, bills for utilities or other service
or products for the benefit of the property securing this Note.
(j) The cost of compliance with all federal, state and local laws and
regulations, as well as the cost of investigating any action or charge
thereunder, and/or damages suffered by Holder as a result of the failure of
Maker or any of its partners to pay or comply with any of the foregoing.
(k) Tortious or other acts or omissions giving rise to claims against
Holder, including, without limitation, claims by tenants of any property
securing this Note for damages or offsets.
(l) Attorneys' fees, court costs and other expenses incurred by Xxxxxx in
connection with the Holder's enforcement of Maker's personal liability as set
forth herein.
9. Entire Agreement. This Note and the Loan Documents constitute the
entire agreement and understanding of the parties with respect to this Note and
supersede all other and prior negotiations, agreements, representations and
statements of the parties hereto. No provision of this Note may be modified
except by a writing signed by both Xxxxxx and Maker.
10. Waiver of Jury Trial. MAKER AND HOLDER WAIVE THE RIGHT TO A TRIAL BY
JURY IN ANY ACTION UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR ANY
OTHER ACTION ARISING OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY,
REGARDLESS OF WHICH PARTY INITIATES SUCH ACTION OR ACTIONS.
IN WITNESS WHEREOF, the undersigned has caused the execution of this
Promissory Note by its duly authorized representative, under seal, on
, 1995.
BRITTANY POINT AP VIII, L.P.
a South Carolina limited partnership
By Brittany Point GP, Limited Partnership,
a South Carolina limited partnership
Its General Partner
By GP Services VI, Inc.,
a South Carolina corporation
Its General Partner
By /s/Xxxxxx X. Xxxx, Xx. (SEAL)
Xxxxxx X. Xxxx, Xx.
Its Controller/CAO
STATE OF
COUNTY OF
I, the undersigned, a Notary Public in and for said State and County,
hereby certify that Xxxxxx X. Xxxx, Xx. whose name as Controller/CAO of
GP Services VI, Inc., as General Partner of Brittany Point GP, Limited
Partnership, as General Partner of Brittany Point AP VIII, L.P., is signed to
the foregoing instrument, and who is known to me, acknowledged before me on this
day that, being informed of the contents of the instrument, he, as such officer
and with full authority, executed the same voluntarily for and as the act of
said corporation.
Given under my hand and official notarial seal this day of
, 1995.
Notary Public, State of
My Commission Expires:
