EXHIBIT 10(e) - Promissory Note by and between First Union National Bank and One
Price Realty, Inc. dated June 17, 1997
Loan No. 19-5113985
PROMISSORY NOTE
$8,125,000.00 June 17, 1997
FOR VALUE RECEIVED, the undersigned, ONE PRICE REALTY, INC., a
South Carolina corporation, ("Maker"), having an address at HWY. 290 - Commerce
Park 0000 Xxxx Xxxx Xxxxxx, Xxxxx X, X.X. Xxx 000, Xxxxxx, Xxxxx Xxxxxxxx 00000,
promises to pay to the order of FIRST UNION NATIONAL BANK, a national banking
association ("Payee"), at the office of Payee at One First Union Center, 000
Xxxxx Xxxxxxx Xxxxxx, XX-0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, or at such
other place as Payee may designate to Maker in writing from time to time, the
principal sum of ONE MILLION EIGHT HUNDRED TWENTY-FIVE THOUSAND AND NO/100
DOLLARS ($8,125,000.00), 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 9.125 percent (9.125%) per annum (the
"Note Rate"), together with all other amounts due hereunder or under the other
Loan Documents (as defined herein), 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
1.1 Computation of Interest. Interest shall be computed hereunder
based on a 360-day year and based on the actual number of days elapsed for any
month in which interest is being calculated. Interest shall accrue from the date
on which funds are advanced hereunder (regardless of the time of day) through
and including the day on which funds are credited pursuant to Section 1.2
hereof.
1.2 Payment of Principal and Interest. Payments in federal funds
immediately available at the place designated for payment received by Payee
prior to 2:00 p.m. local time on a day on which Payee is open for business at
said place of payment shall be credited prior to close of business, while other
payments, at the option of Payee, may not be credited until immediately
available to Payee in federal funds at the place designated for payment prior to
2:00 p.m. local time on a day on which Payee is open for business. Such
principal and interest shall be payable in equal consecutive monthly
installments of $73,757.19 each, beginning on the first day of the second full
calendar month following the date of this Note (or 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)
(the "First Payment Date"), and continuing on the first day of each and every
month thereafter through and including June 1, 2017 (each, a "Payment Date"). On
July 1, 2017 (the "Maturity Date"), the entire outstanding principal balance
hereof, together with all accrued but unpaid interest thereon, shall be due and
payable in full.
1.3 Application of Payments. So long as no Event of Default (as
hereinafter defined) exists hereunder or under any other Loan Document, each
such monthly installment shall be applied first, to any amounts hereafter
advanced by Payee hereunder or under any other Loan Document, second, to any
late fees and other amounts payable to Payee, third, to the payment of accrued
interest and last to reduction of principal.
1.4 Payment of ShortInterest. 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, Maker shall pay to Payee contemporaneously with the execution
hereof interest at the Note Rate for a period from the date hereof through and
including the last day of this calendar month.
1.5 Prepayment. (a) This Note may be prepaid in whole but not
in part
(except as otherwise specifically provided herein) at any time after the seventh
(7th) anniversary of the First Payment Date (the "Lock-out Expiration Date")
provided (i) written notice of such prepayment is received by Payee not more
than ninety (90) days and not less than sixty (60) days prior to the date of
such prepayment, (ii) such prepayment is made on a Payment Date, (iii) such
prepayment is accompanied by all interest accrued hereunder through and
including the date of such prepayment and all other sums due hereunder or under
the other Loan Documents, and (iii) if such prepayment occurs after the Lock-out
Expiration Date but on or before the date that is seventeen (17) years after the
date of this Note, Payee is paid a prepayment fee in an amount equal to the
greater of (A) one percent (1.0%) of the principal amount being prepaid, and (B)
the positive excess of (1) the present value ("PV"), as of the date of such
prepayment, of all future installments of principal and interest due under this
Note absent any such prepayment including the principal amount due at maturity
(collectively, "All Future Payments"), discounted at an interest rate per annum
equal to the Treasury Constant Maturity Yield Index (as hereinafter defined)
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, over (2) the then outstanding principal balance hereof 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, Payee shall deliver to Maker
a statement setting forth the amount and determination of the prepayment fee,
and, provided that Payee shall have in good faith applied the formula described
above, Maker 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 Payee on any day during the fifteen (15) day
period preceding the date of such prepayment. Payee shall not be obligated or
required to have actually reinvested the prepaid principal balance at the
Treasury Constant Maturity Yield Index 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 this Note made
after the date that is seventeen (17) years after the date of this Note. In
addition to the aforesaid prepayment fee, if, upon any such permitted or
required prepayment (whether prior to or after the date that is seventeen (17)
years after the date of this Note), the aforesaid prior written notice has not
been timely received by Payee, the prepayment fee shall be increased by, or if
no prepayment fee is otherwise due, there shall be due a prepayment fee equal
to, an amount equal to the lesser of (i) thirty (30) days' interest computed at
the Note Rate on the outstanding principal balance of this Note so prepaid and
(ii) interest computed at the Note Rate on the outstanding principal balance of
this Note so prepaid that would have been payable for the period from, and
including, the date of prepayment through the Maturity Date of this Note as
though such prepayment had not occurred.
(b) Partial prepayments of this Note shall not be permitted,
except for partial prepayments resulting from Payee's election to apply
insurance or condemnation proceeds to reduce the outstanding principal balance
of this Note as provided in the Security Instrument (as hereinafter defined), in
which event no prepayment fee or premium shall be due unless, at the time of
either Payee's receipt of such proceeds or the application of such proceeds to
the outstanding principal balance of this Note, an Event of Default, or an event
which, with notice or the passage of time, or both, would constitute an Event of
Default, shall have occurred, which default or Event of Default is unrelated to
the applicable casualty or condemnation, in which event the applicable
prepayment fee or premium shall be due and payable based upon the amount of the
prepayment. No notice of prepayment shall be required under the circumstances
specified in the preceding sentence. No principal amount repaid may be
reborrowed. Any such partial prepayments 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 1.2 above.
(c) Except as otherwise expressly provided in Section 1.5(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, including, without limitation, if such prepayment
results from Payee's exercise of its rights upon Maker'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. 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 applicable prepayment
fee. If, prior to the Lock-out Expiration Date, the indebtedness evidenced by
this Note shall have been declared due and payable by Payee pursuant to Article
II hereof or the provisions of any other Loan Document due to a default by
Maker, then there shall also then be immediately due and payable a sum equal to
the interest which would have accrued on the principal balance of this Note at
the Note Rate from the date of such acceleration to the Lock-out Expiration
Date, together with a prepayment fee in an amount equal to the prepayment fee
that would have been due and payable on the Lock-out Expiration Date as though
Maker were prepaying the entire indebtedness evidenced hereby on the first (1st)
day on which a prepayment would have been permitted pursuant to the provisions
set forth in this Note. If such acceleration is during any period when a
prepayment fee is payable pursuant to the provisions set forth in this Note,
then, in addition to all of the foregoing, such prepayment fee shall also then
be immediately due and payable as though Maker were prepaying the entire
indebtedness on the date of such acceleration. In addition to the amounts
described in the two preceding sentences, in the event of any tender of payment
of such indebtedness made on or prior to the first (1st) anniversary of the date
of this Note, there shall also then be immediately due and payable an additional
prepayment fee of three percent (3%) of the principal balance of this Note.
(d) (i) Notwithstanding any provision of this Section 1.5 to the
contrary, at any time after the date which (I) is two years after the "startup
day," within the meaning of Section 860G(a)(9) of the Internal Revenue Code of
1986, as amended from time to time or any successor statute (the "Code"), of a
"real estate mortgage investment conduit," within the meaning of Section 860D of
the Code, that holds this Note or (II) five years after the date hereof,
whichever shall first occur, and provided no Event of Default has occurred
hereunder or under any of the Loan Documents, Maker may cause the release of the
Security Property (as hereinafter defined) from the lien of the Security
Instrument and the other Loan Documents upon the satisfaction of the following
conditions:
(A) not less than thirty (30) days prior written notice
shall be given to Payee specifying a date (the "Release Date") on
which the Defeasance Collateral (as hereinafter defined) is to be
delivered, such date being a Payment Date;
(B) all accrued and unpaid interest and all other sums due
under this Note and under the other Loan Documents up to the
Release Date, including, without limitation, all costs and
expenses incurred by Payee or its agents in connection with such
release (including, without limitation, the review of the proposed
Defeasance Collateral and the preparation of the Defeasance
Security Agreement (as hereinafter defined) and related
documentation), shall be paid in full on or prior to the Release
Date; and
(C) Maker shall deliver to Payee on or prior to the
Release Date:
(1) a pledge and security agreement, in form and
substance satisfactory to Payee in its sole discretion,
creating a first priority security interest in favor of
Payee in the Defeasance Collateral (as hereinafter
defined) (the "Defeasance Security Agreement"), which
shall provide, among other things, that any excess
received by Payee from the Defeasance Collateral over the
amounts payable by Maker hereunder shall be refunded to
Maker promptly after each monthly Payment Date;
(2) direct, non-callable obligations of the
United States of America that provide for payments prior,
but as close as possible, to all successive monthly Debt
Service Payment Dates occurring after the Release Date,
with each such payment being equal to or greater than the
amount of the corresponding installment of principal and
interest required to be paid under this Note (including
all amounts due on the Maturity Date) for the balance of
the term hereof (the "Defeasance Collateral"), each of
which shall be duly endorsed by the holder thereof as
directed by Payee or accompanied by a written instrument
of transfer in form and substance satisfactory to Payee in
its sole discretion (including, without limitation, such
instruments as may be required by the depository
institution holding such securities or the issuer thereof,
as the case may be, to effectuate book-entry transfers and
pledges through the book-entry facilities of such
institution) in order to perfect upon the delivery of the
Defeasance Security Agreement the first priority security
interest in the Defeasance Collateral in favor of Payee in
conformity with all applicable state and federal laws
governing granting of such security interests;
(3) a certificate of Maker certifying
that all of the requirements set forth in this
subsection 1.5(d)(i) have been satisfied;
(4) an opinion of counsel for Maker in form and
substance and delivered by counsel satisfactory to Payee
in its sole discretion stating, among other things, that
Payee has a perfected first priority security interest in
the Defeasance Collateral and that the Defeasance Security
Agreement is enforceable against Maker in accordance with
its terms; and
(5) such other certificates, documents or
instruments as Payee may reasonably require.
(ii) Upon compliance with the requirements of subsection
1.5(d)(i), the Security Property shall be released from the lien
of the Security Instrument and the other Loan Documents, and the
Defeasance Collateral shall constitute collateral which shall
secure this Note and all other obligations under the Loan
Documents. Payee will, at Maker's expense, execute and deliver any
agreements reasonably requested by Maker to release the lien of
the Security Instrument from the Security Property.
(iii) Upon the release of the Security Property in
accordance with this Section 1.5(d), Maker may assign all its
obligations and rights under this Note, together with the pledged
Defeasance Collateral, to a successor entity designated by Maker
and approved by Payee in its sole discretion. Such successor
entity shall execute an assumption agreement in form and substance
satisfactory to Payee in its sole discretion pursuant to which it
shall assume Maker's obligations under this Note and the
Defeasance Security Agreement. As conditions to such assignment
and assumption, Maker shall (x) deliver to Payee an opinion of
counsel in form and substance and delivered by counsel
satisfactory to Payee in its sole discretion stating, among other
things, that such assumption agreement is enforceable against
Maker and such successor entity in accordance with its terms and
that this Note, the Defeasance Security Agreement and the other
Loan Documents, as so assumed, are enforceable against such
successor entity in accordance with their respective terms, and
(y) pay all costs and expenses incurred by Payee or its agents in
connection with such assignment and assumption (including, without
limitation, the review of the proposed transferee and the
preparation of the assumption agreement and related
documentation). Upon such assumption, Maker shall be relieved of
its obligations hereunder, under the other Loan Documents and
under the Defeasance Security Agreement.
(iv) Upon the release of the Security Property in
accordance with this Section 1.5(d), Maker shall have no further
right to prepay this Note pursuant to the other provisions of this
Section 1.5 or otherwise.
1.6 Security. The indebtedness evidenced by this Note and the
obligations created hereby are secured by, among other things, that certain
mortgage, deed of trust or deed to secure debt and security agreement (the
"Security Instrument") from Maker for the benefit of Payee, dated of even date
herewith, covering property located in Spartanburg County, South Carolina. The
Security Instrument, together with this Note and all other documents to or of
which Payee 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 filed for record on or about the date
hereof in the appropriate public records.
ARTICLE II
ARTICLE II DEFAULT
2.1 Events of 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 seven (7) 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 and
continue beyond any applicable notice and/or cure period under any other Loan
Document, then an Event of Default (an "Event of 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 Payee and without
notice to Maker, 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.
2.2 Late Charges. In the event that any payment is not received by
Payee on the date when due (subject to any applicable grace period), then, in
addition to any default interest payments due hereunder, Maker shall also pay to
Payee a late charge in an amount equal to five percent (5%) of the amount of
such overdue payment.
2.3 Default Interest Rate. So long as any Event of 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, from the date
due until the date credited, at a rate per annum equal to four percent (4%) in
excess of the Note Rate, or, if such increased rate of interest may not be
collected under applicable law, then at the maximum rate of interest, if any,
which may be collected from Maker under applicable law (the "Default Interest
Rate"), and such default interest shall be immediately due and payable.
2.4 Maker's Agreements. Maker acknowledges that it would be
extremely difficult or impracticable to determine Payee'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 Payee 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 Payee's discretion.
2.5 Maker to Pay Costs. In the event that this Note, or any part
hereof, is collected by or through an attorney-at-law, Maker agrees to pay all
costs of collection, including, but not limited to, reasonable attorneys' fees.
2.6 Exculpation. Notwithstanding anything in this Note or the
Loan Documents to the contrary, but subject to
the qualifications hereinbelow set forth, Payee agrees that:
(a) Maker 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, 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 Maker under the Loan Documents (collectively, the "Security
Property");
(b) if a 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 Maker under the Loan Documents, any
judicial proceedings brought by Payee against Maker 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 Maker under the Loan Documents, and no attachment, execution or
other writ of process shall be sought, issued or levied upon any assets,
properties or funds of Maker other than the Security Property, except with
respect to the liability described below in this section; and
(c) in the event of a foreclosure of such liens, security titles,
estates, assignments, rights or security interests securing the payment of this
Note and/or the other obligations of Maker under the Loan Documents, no judgment
for any deficiency upon the indebtedness evidenced hereby shall be sought or
obtained by Payee against Maker, except with respect to the liability described
below in this section; provided, however, that, notwithstanding the foregoing
provisions of this section, Maker shall be fully and personally liable and
subject to legal action (i) 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 Payee, but which, under the terms of the Loan Documents, should have been
delivered to Payee, (ii) for proceeds or awards resulting from the condemnation
or other taking in lieu of condemnation of all or any portion of the Security
Property, to the full extent of such proceeds or awards not previously delivered
to Payee, but which, under the terms of the Loan Documents, should have been
delivered to Payee, (iii) for all tenant security deposits or other refundable
deposits paid to or held by Maker 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, (iv)
for rent and other payments received from tenants under leases of all or any
portion of the Security Property paid more than one (1) month in advance, (v)
for rents, issues, profits and revenues of all or any portion of the Security
Property received or applicable to a period after the occurrence of any Event of
Default or any event which, with notice or the passage of time, or both, would
constitute an Event of Default, hereunder or under the Loan Documents which are
not either applied to the ordinary and necessary expenses of owning and
operating the Security Property or paid to Payee, (vi) for waste committed on
the Security Property, damage to the Security Property as a result of the
intentional misconduct or gross negligence of Maker or any of its principals,
officers, general partners or members, any guarantor, any indemnitor, or any
agent or employee of any such person, 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 Payee on account of such
occurrence, (vii) 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 except, with respect to any such
taxes or assessments, to the extent that funds have been deposited with Payee
pursuant to the terms of the Security Instrument specifically for the applicable
taxes or assessments and not applied by Payee to pay such taxes and assessments,
(viii) for all obligations and indemnities of Maker 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 Payee
as a result of the existence of such hazardous or toxic substances or failure to
comply with environmental laws or regulations, and (ix) for fraud, material
misrepresentation or failure to disclose a material fact by Maker or any of its
principals, officers, general partners or members, any guarantor, any indemnitor
or any agent, employee or other person authorized or apparently authorized to
make statements, representations or disclosures on behalf of Maker, any
principal, officer, general partner or member of Maker, any guarantor or any
indemnitor, to the full extent of any losses, damages and expenses of Payee 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 (1)
be deemed to be a release or impairment of the indebtedness evidenced by this
Note or the other obligations of Maker under the Loan Documents or the lien of
the Loan Documents upon the Security Property, or (2) preclude Payee from
foreclosing the Loan Documents in case of any default or from enforcing any of
the other rights of Payee except as stated in this section, or (3) limit or
impair in any way whatsoever (A) the Indemnity and Guaranty Agreement (the
"Indemnity Agreement") or (B) the Environmental Indemnity Agreement (the
"Environmental Indemnity Agreement"), each of even date herewith 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 the Indemnity Agreement or the Environmental Indemnity Agreement.
Notwithstanding anything to the contrary in this Note, the Security Instrument
or any of the other Loan Documents, Payee shall not be deemed to have waived any
right which Payee may have under Section 506(a), 506(b), 1111(b) or any other
provisions of the U.S. Bankruptcy Code to file a claim for the full amount of
the indebtedness evidenced hereby or secured by the Security Instrument or any
of the other Loan Documents or to require that all collateral shall continue to
secure all of the indebtedness owing to Payee in accordance with this Note, the
Security Instrument and the other Loan Documents.
ARTICLE III
ARTICLE III GENERAL CONDITIONS
3.1 No Waiver; Amendment. No failure to accelerate the
indebtedness 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 Payee 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 by any applicable laws; and Maker 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. No extension of the time for the
payment of this Note or any installment due hereunder 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 Maker
under this Note, either in whole or in part, unless Payee 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.
3.2 Waivers. Presentment for payment, demand, protest and notice
of demand, protest and nonpayment and all other notices are hereby waived by
Maker. Maker hereby further waives and renounces, to the fullest extent
permitted by law, all rights to the benefits of 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.
3.3 Limit of Validity. The provisions of this Note and of all
agreements between Maker and Payee, whether now existing or hereafter arising
and whether written or oral, including, but not limited to, the Loan Documents,
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 contracted for, charged, taken, reserved, paid or
agreed to be paid ("Interest") to Payee for the use, forbearance or detention 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 Maker and Payee 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, Payee 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 Payee, be paid over to Maker, and
not to the payment of Interest. All Interest (including any amounts or payments
judicially or otherwise under the law deemed to be Interest) contracted for,
charged, taken, reserved, paid or agreed to be paid to Payee shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full term of this Note, including any extensions and renewals
hereof until payment in full of the principal balance of this Note so that the
Interest thereon for such full term will not exceed at any time the maximum
amount permitted by applicable law. To the extent United States federal law
permits a greater amount of interest than is permitted under the law of the
State in which the Security Property is located, Payee will rely on United
States federal law for the purpose of determining the maximum amount permitted
by applicable law. Additionally, to the extent permitted by applicable law now
or hereafter in effect, Payee may, at its option and from time to time,
implement any other method of computing the maximum lawful rate under the law of
the State in which the Security Property is located or under other applicable
law by giving notice, if required, to Maker as provided by applicable law now or
hereafter in effect. This Section 3.3 will control all agreements between Maker
and Payee.
3.4 Use of Funds. Maker hereby warrants, represents and covenants
that no funds disbursed hereunder shall be used for personal, family or
household purposes.
3.5 Unconditional Payment. Maker 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 setoff. In the event that at any time any payment received by
Payee 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
Maker 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.
3.6 Governing Law. THIS NOTE SHALL BE INTERPRETED, CONSTRUED
AND ENFORCED ACCORDING TO THE LAWS OF THE STATE IN WHICH THE SECURITY PROPERTY
IS LOCATED.
ARTICLE IV
MISCELLANEOUS PROVISIONS
4.1 The terms and provisions hereof shall be binding upon and
inure to the benefit of Maker and Payee 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 "Maker" and "Payee" 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 Maker
consists of more than one person or entity, each shall be jointly and severally
liable to perform the obligations of Maker 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.
4.2 Maker's Tax Identification Number is 00-0000000.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
Borrower's Tax Identification Number:
00-0000000
IN WITNESS WHEREOF, Maker has executed this Note as of the date first
written above.
MAKER:
WITNESS: ONE PRICE REALTY, INC.
a South Carolina corporation
/s/ Xxxxxx Xxxxx
By: /s/ C. Xxxx Xxxxx
/s/ Xxxx Xxxxxx Name: C. Xxxx Xxxxx
Title: Treasurer
