SECURED PROMISSORY NOTE
Exhibit 10.17
SECURED PROMISSORY NOTE
US $3,550,000.00 December 23, 2011
FOR VALUE RECEIVED, Howell Countryside, Inc., a New Jersey corporation, a HCI Properties, LLC, a New Jersey limited liability company, and A.A.H. Management Company, Inc., a New Jersey corporation (individually and collectively, and together with such parties’ respective successors and assigns, “Borrower”) promise to pay to the order of National Tax Credit Investors II, a California limited partnership (together with its successors and assigns, “Lender”), the principal sum of THREE MILLION FIVE HUNDRED FIFTY THOUSAND AND 00/100 Dollars (US $3,550,000.00), with interest on the unpaid principal balance, as hereinafter provided.
1.1 As used in herein the following terms shall have the meanings ascribed to them below:
“Attorneys’ Fees and Costs” means (i) fees and out-of-pocket costs of Lender’s attorneys, as applicable, including, without limitation, costs of Lender’s in-house counsel, support staff costs, costs of preparing for litigation, computerized research, telephone and facsimile transmission expenses, mileage, deposition costs, postage, duplicating, process service, videotaping and similar costs and expenses; (ii) costs and fees of any expert witnesses; and (iii) all investigatory fees.
“Bankruptcy or Insolvency Event” means: (i) the making of a general assignment for the benefit of creditors by Borrower or any guarantor of the Indebtedness; (ii) the voluntary appointment (at the request of any such party or with the consent of any such party) of a receiver, custodian, liquidator or trustee in bankruptcy of the property of Borrower or any guarantor of the Indebtedness; (iii) the filing by Borrower or any guarantor of the Indebtedness of a petition in bankruptcy or an adjudication of Borrower or any guarantor of the Indebtedness as bankrupt or insolvent; (iv) the filing by Borrower or any guarantor of the Indebtedness of any petition or answer seeking or acquiescing in any relief under any present or future federal, state or other law or regulation relating to bankruptcy, insolvency or other relief for debtors; (v) Borrower or any guarantor of the Indebtedness admitting in writing its insolvency or inability to pay its debts generally as they become due; or (vi) the filing against Borrower or any guarantor of the Indebtedness of a petition seeking any relief under any present or future federal, state or other law or regulation relating to bankruptcy, insolvency or other similar relief for debtors, or the involuntary appointment of a receiver, custodian, liquidator or trustee in bankruptcy of the property of Borrower or any guarantor of the Indebtedness, if such petition or appointment is not vacated or discharged within thirty (30) days after the filing or making thereof.
“Borrower” is defined in the preamble hereto.
“Business Day” means any day other than a Saturday, a Sunday or any other day on which the national banking associations are not open for business.
“Effective Date” means the date of this Note, first above written.
“Indebtedness” means the outstanding principal balance of this Note, together with all interest accrued thereon, and all other amounts due at any time under this Note or any other Loan Document, including late charges and default interest.
“Lender” is defined in the preamble hereto.
“Loan” means the loan evidenced by this Note.
“Loan Documents” means, collectively, the Note, the Security Instrument and any other documents now or in the future executed by Borrower or any guarantor or any other Person in connection with the Loan, as such documents may be amended from time to time.
“Maturity Date” means the earlier of (i) June 30, 2012, and (ii) the date on which the unpaid principal balance of this Note becomes due and payable by acceleration or otherwise pursuant to the Loan Documents or the exercise by Lender of any right or remedy under any Loan Document.
“Maximum Interest Rate” means the highest rate of interest permitted to be charged at any time by applicable law.
“Note” means this Secured Promissory Note as the same may be amended, restated or otherwise modified from time to time.
“Partnership” means Countryside North American Partners L.P., a New Jersey limited partnership.
“Person” means any individual, corporation, general or limited partnership, limited liability company, limited liability partnership, joint venture, estate, trust, joint stock company, unincorporated association, any other entity, any governmental authority and any fiduciary acting in such capacity on behalf of any of the foregoing.
“Property” means that certain multi-family housing development commonly known as Countryside Apartments, North American Drive, Howell, New Jersey.
“Security Instrument” means that certain Pledge and Security Agreement, effective as of the date of this Note, from Borrower to and for the benefit of Lender and securing this Note.
“Stated Rate” means a per annum interest rate of two percent (2%); provided, however, if the entire amount of the Indebtedness is not paid on or before March 31, 2012, the Stated Rate shall be seven percent (7%), effective as of the Effective Date.
1.2 Other capitalized terms used but not defined in this Note shall have the meanings given to such terms in the Security Instrument.
2. Representation and Warranties of Xxxxxxxx.
2.1 This Note and the Security Instrument have each been duly executed and delivered to Lender by Xxxxxxxx and/or each guarantor of the Indebtedness (as applicable) and each such document constitutes the legal, valid and binding obligation of each party thereto enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency or other laws affecting creditors’ rights generally and the exercise of judicial discretion in accordance with general equitable principles.
3. Payments; Address for Payment.
3.6 All payments under this Note shall be made in immediately available U.S. funds.
3.9 All payments made by Borrower hereunder shall be made irrespective of, and without any deduction for, any set-offs or counterclaims.
3.10 All payments due under this Note shall be payable at 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, or such other place as may be designated by notice to Borrower from or on behalf of Lender.
6.1 any failure by Borrower to pay or deposit when due any amount required by the Note;
6.5 the occurrence of any Bankruptcy or Insolvency Event; and
7.1 If any Monthly Installment or any other amount payable under this Note or under the Security Instrument or any other Loan Document is not received in full by Lender within three (3) Business Days after the Monthly Installment or other amount is due, counting from and including the date such Monthly Installment or other amount is due (unless applicable law requires a longer period of time before a late charge may be imposed, in which event such longer period shall be substituted), Borrower shall pay to Lender, immediately and without demand by Xxxxxx, a late charge equal to five percent (5%) of such Monthly Installment or other amount due (unless applicable law requires a lesser amount be charged, in which event such lesser amount shall be substituted).
10. Voluntary and Involuntary Prepayments.
11. Costs and Expenses. To the fullest extent allowed by applicable law, Borrower shall pay all expenses and costs, including Attorneys’ Fees and Costs incurred by Lender as a result of any default under this Note or in connection with efforts to collect any amount due under this Note, or to enforce the provisions of any of the other Loan Documents, including those incurred in post-judgment collection efforts and in any bankruptcy proceeding (including any action for relief from the automatic stay of any bankruptcy proceeding) or judicial or non-judicial foreclosure proceeding.
12. Forbearance; Not Waiver. Any forbearance by Xxxxxx in exercising any right or remedy under this Note, the Security Instrument, or any other Loan Document or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of that or any other right or remedy. The acceptance by Lender of any payment after the due date of such payment, or in an amount which is less than the required payment, shall not be a waiver of Lender’s right to require prompt payment when due of all other payments or to exercise any right or remedy with respect to any failure to make prompt payment. Enforcement by Lender of any security for Borrower’s obligations under this Note shall not constitute an election by Xxxxxx of remedies so as to preclude the exercise of any other right or remedy available to Lender.
(1) THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY, WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE.
(2) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER ARISING OUT OF OR RELATING TO THIS NOTE MAY AT XXXXXX’S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY CAMDEN, COUNTY OF CAMDEN, AND BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. HOWEVER, NOTHING IN THIS NOTE IS INTENDED TO LIMIT ANY RIGHT THAT LENDER MAY HAVE TO BRING ANY SUIT, ACTION OR PROCEEDING RELATING TO MATTERS ARISING UNDER THIS NOTE IN ANY COURT OF ANY OTHER JURISDICTION.
18. WAIVER OF TRIAL BY JURY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, XXXXXXXX AND XXXXXX EACH (A) AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS NOTE OR THE RELATIONSHIP BETWEEN THE PARTIES AS XXXXXX AND BORROWER THAT IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.
21. Notices; Written Modifications.
c/o AIMCO
0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx
Suite 1100
Denver, CO 80237
Attention: Xxxxx Xxxxxxx, Esq.
Facsimile: 000-000-0000
with a copy to:
Law Offices of Xxxxx X. Xxxxxx, Inc.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Los Angeles, CA 90017
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile: 000-000-0000
c/o AAH Management Co., Inc.
Laurelwood Corporate Center
0000 Xxxxxx Xxx Xxxx, Xxxxx 000X
Voorhees, NJ 08043
Attention: Xxxxx Xxxxxx
Facsimile: 000-000-0000
with a copy to:
Xxxx & Xxxx, P.C.
Laurelwood Corporate Center
0000 Xxxxxx Xxx Xxxx, Xxxxx 000X
Voorhees, NJ 08043
Attention: Xxxxxx X. Xxxx, Esq.
Facsimile: 000-000-0000
21. Sales/Re-financings. If, at any time after the date hereof, the Partnership, at the direction of Borrower or otherwise, (x) refinances any one or more of the mortgage loans encumbering the Property, (y) borrows any money secured by a mortgage encumbering the Property (or by a pledge of any direct or indirect ownership interests in the Borrower), or (z) sells the Property or any portion thereof (excluding the sale of less than all of the direct or indirect interest in the Borrower to one or more third party investors), then Borrower shall cause all net proceeds realized by Partnership from any of the foregoing transactions to be applied to the payment of the Indebtedness, which net proceeds shall be applied first to all interest and other sums due hereunder which have accrued and remain unpaid, and then to the principal balance of the Loan.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, Xxxxxxxx has caused this Note to be duly executed and delivered as of the date first above written.
BORROWER: HCI PROPERTIES LLC,
a New Jersey limited liability company
By /s/Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Managing Member
XXXXXX COUNTRYSIDE, INC.,
a New Jersey corporation
By /s/Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: President
A.A.H. MANAGEMENT COMPANY, INC.,
a New Jersey corporation
By /s/Xxxxx Xxxxxx
Name: Name: Xxxxx Xxxxxx
Title: President
