UNSECURED NOTE NO.1
$86,346,000.00 Atlanta, Georgia
August 13, 1997
PPN 36241# AA7
FOR VALUE RECEIVED, the undersigned, GABLES REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership (herein, together with its successors and assigns,
"GRLP"), and GABLES - TENNESSEE PROPERTIES, a Tennessee general partnership
(herein, together with its successors and assigns, "GTP," and collectively with
GRLP, "Maker"), each having an address at 0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxx 00000, jointly and severally promise to pay to the order of
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA (herein, together with its
successors and assigns, "Holder") during regular business hours at its offices
at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as may be
designated from time to time in writing by Xxxxxx, the principal sum of
EIGHTY-SIX MILLION THREE HUNDRED FORTY-SIX THOUSAND AND NO/1OO DOLLARS
($86,346,000.00), together with interest at the rate of 8.30% per annum thereon
or on so much thereof as is from time to time outstanding and unpaid (the
"Coupon Interest Rate"), in the manner hereinafter more specifically set forth,
in lawful money of the United States of America which will at that time be
deemed to be legal tender in payment of all debts and dues, public and private,
such principal and interest to be paid in installments as follows:
1. Accrued and unpaid interest only on the unpaid principal balance at the
Coupon Interest Rate shall be due and payable on the first day of each
month after the date hereof to and including January 1, 1998.
2. Principal and accrued interest in the amount of $651,725.22 shall be due
and payable on February 1, 1998, and on the first day of each month
thereafter to and including December 1, 2002.
3. On December 31, 2002 (the "Maturity Date"), the entire unpaid principal
balance together with accrued and unpaid interest and all other sums due
hereunder and under the Conversion and Note Agreement (as hereinafter
defined) shall be due and payable.
Maker acknowledges that the monthly installments of principal and interest
provided in Paragraph 2 above will not fully repay the principal of this Note
and that a balloon payment of the entire unpaid principal balance, together with
accrued and unpaid interest thereon, will be due on the Maturity Date. Holder
has made no agreement to make financing available to Maker in connection with
such balloon payment.
The indebtedness evidenced by this Note may not be prepaid, in whole or in part,
except on the terms and conditions and in the amounts and with the premiums, if
any, set forth in the Conversion and Note Agreement.
This Note is one of two Unsecured Notes of the Maker in the aggregate principal
amount of $116,027,000.00 issued under and pursuant to the Conversion and Note
Agreement dated as of December 29, 1995, as amended (the "Conversion and Note
Agreement") and entered into by GRLP, GTP, Gables Residential Trust, a Maryland
real estate investment trust (the "Company"), and Holder, and the holder of this
Note is entitled to all the benefits provided for thereby or referred to
therein, to which Conversion and Note Agreement reference is hereby made for the
statement thereof.
Upon the occurrence of an Event of Default (as defined in the Conversion and
Note Agreement), the entire principal balance of this Note together with accrued
interest and all other sums due under the Conversion and Note Agreement will
become or may be declared to be immediately due and payable, without any notice
or demand whatsoever, notice of exercise of such option being waived by Maker.
Holder's failure to exercise its option to accelerate will not constitute a
waiver of the right to exercise such option at a later date (provided the Event
of Default continues) or upon the occurrence of a subsequent Event of Default.
Maker hereby waives and renounces for itself, and all its successors and
assigns, all right to the benefit of any moratorium, reinstatement, forbearance,
stay and extension now provided, or which hereafter may be provided, by the
Constitution and laws of the United States of America and of any state thereof,
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.
In the event of an Event of Default under the Conversion and Note Agreement and
upon acceleration of the entire indebtedness evidenced hereby, interest will
accrue thereafter on the unpaid principal balance of this Note at the rate of
five percent (5%) per annum plus the Coupon Interest Rate.
In addition to the foregoing, if Maker shall fail to timely make any payment of
interest or principal beyond any grace period provided in the Conversion and
Note Agreement, time being of the essence, including payments due on maturity,
then a late charge by way of damages will be immediately due and payable. Maker
recognizes that a default by Maker in making the payments under this Note and
under the Conversion and Note Agreement on or before the due date thereof will
result in Holder incurring additional expense in servicing the loan evidenced by
this Note and the other Unsecured Note outstanding under the Conversion and Note
Agreement, in a loss to Holder of the use of the money due and in frustration to
Holder in meeting its loan commitments. Maker agrees that if, for any reason,
Maker fails to pay the amounts due under this Note or under the Conversion and
Note Agreement on or before the due date thereof and such failure continues
beyond any such grace period, Holder will be entitled to damages for the
detriment caused thereby, but that it is extremely difficult and impractical to
ascertain the extent of such damages. Maker therefore agrees that a sum equal to
five cents ($.05) for each dollar ($1.00) of each payment which becomes and
remains delinquent is a reasonable estimate of the damages to Holder, which sum
Maker agrees to pay on demand.
If any suit or action is instituted to collect this Note or any part thereof, or
if it is placed in the hands of an attorney for collection, Maker promises and
agrees to pay reasonable attorneys' fees, court costs and fees of Holder or any
agent of Xxxxxx.
Maker and all endorsers or guarantors hereof and all others who may become
liable for all or any part of this obligation agree hereby to be jointly and
severally bound, and they jointly and severally waive and renounce, to the
extent permitted by law, demand, protest, notice of nonpayment (other than for
such notices as are expressly set forth in the Conversion and Note Agreement)
and any and all lack of diligence or delays in collection or enforcement
thereof, and expressly consent to any extension of time, release of any party
liable for this obligation, or any other indulgence or forbearance whatsoever.
Any such extension, release, indulgence or forbearance may be made without
notice to such party and without in any way affecting the liability of such
party.
Presentment for payment, demand, protest and notice of demand, notice of
dishonor and notice of non-payment, and all other notices not expressly provided
for herein or in the Conversion and Note Agreement, are hereby waived by Maker.
No failure to accelerate the debt evidenced hereby by reason of an Event of
Default, acceptance of a past due installment, or indulgence granted from time
to time will 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 Holder thereafter to insist upon strict
compliance with the terms of this Note, or (ii) to prevent the exercise of such
right of acceleration or of any other right granted hereunder by the laws of the
State of Georgia. 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 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, will operate to release, discharge, modify, change or affect the
original liability, if any, of Maker under this Note, either in whole or in
part. 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.
Notwithstanding any provision herein or in the Conversion and Note Agreement to
the contrary, it is not the intention of Holder to charge or collect, nor shall
there at any time be charged or become due and payable hereunder, any interest
(whether based on the Coupon Interest Rate or otherwise) which would result in a
rate of interest being charged which is in excess of the maximum rate, if any,
now permitted by law for this transaction to be charged; and in the event that
any sum in excess of the maximum rate of interest is paid or charged, the same
shall be deemed to have been a prepayment of principal (which prepayment shall
be permitted, and be without Prepayment Premium or penalty) when paid, and all
payments made thereafter shall be appropriately applied to interest and
principal to give such effect to the maximum rate permitted by law, and after
such application, any excess payment shall be immediately refunded to Maker.
If during the term of this Note the maximum rate of interest, if any, now
permitted by law for this transaction to be charged should be increased, then
for so long as such increase is in effect, the applicable maximum rate permitted
to be charged as referred to in the paragraph immediately preceding will be
deemed to be such increased rate. If such maximum rate of interest, if any, now
permitted by law to be charged for this transaction should be deleted so that
there would be no such maximum rate, then for purposes of this Note there will
thereafter be no maximum rate limiting the amount that can be charged.
This Note is intended as a contract under, and will be construed and enforced in
accordance with, the laws of the State of Georgia or the laws of the United
States of America, when and where applicable (including, without limitation, any
federal usury ceiling or other federal law preempting state usury laws, which
law, from time to time, may be applicable to the indebtedness evidenced hereby),
as Holder may elect.
As used herein, the terms "Maker" and "Holder" will be deemed to include their
respective successors, legal representatives and assigns, whether by voluntary
action by the parties or by the operation of law.
Any and all notices, demands or requests provided for or permitted to be given
pursuant to this Note will be given in the manner described in Section 7.02 of
the Conversion and Note Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Note as
of the date first above written.
MAKER:
GABLES REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Gables GP, Inc., a Texas corporation,
its sole general partner
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
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Title: Vice President
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GABLES - TENNESSEE PROPERTIES, a
Tennessee general partnership
By: Gables GP, Inc., a Texas corporation,
a general partner
By: /s/ Xxxxxx X. Xxxxx, Xx
----------------------------
Name: Xxxxxx X. Xxxxx, Xx.
----------------------------
Title: Vice President
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