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HomeMy WebLinkAboutDevelopment Corporation Augusta Richmond GA DOCUMENT NAME: o.o..Jd~ ~\XXo::b.Dl cl.; ClU'j--\~1 (1,A DOCUMENT TYPE: ~~~~ YEAR: 06) BOX NUMBER: \'S FILE NUMBER: \ 510k;) NUMBER OF PAGES: \0 PROMISSORY NOTE $400,000.00 January 30,2002 1. Promise to Pay. For value received, 30901 Development Corporation, a Georgia non-profit corporation ("Borrower"), promises to pay to the order of Augusta, Georgia, a Georgia corporation ("Lender") the principal sum of Four Hundred Thousand and No/100 Dollars ($400,000.00) or as much of that sum as may subsequently be disbursed, with interest on the outstanding principal balance as provided herein. All payments shall be made in, lawful money of the United States of America to Lender at 530 Greene Street, Augusta, Georgia 30911, or at such other place as Lender may specify. 2. Interest and Payment Provisions. (a) Payments. The principal balance of the indebtedness hereunder together with interest thereon shall be paid to Lender as follows: (i) No interest shall accrue on the outstanding balance hereunder for the first 24 months, and no payments of accrued interest or principal shall be due for the first 24 months. Thereafter, interest shall accrue at the rate of 1 % per annum on the then remaining principal balance. Principal and interest shall be amortized over the next 28 years and equal monthly payments of principal and accrued interest ("Amortized Payment") shall then be due and payable as of the 5th day of each month so that the full amount of the indebtedness shall be paid at the expiration of said 28 years. The Amortized Payment shall be referred to herein as the "Monthly Payment." All unpaid principal and accrued but unpaid interest shall be due and payable within 30 years hereof. (b) Application of Payments. Lender shall apply each payment received from Borrower first to the payment of unpaid late charges, next to accrued and unpaid interest, and then the remainder (if any) to the principal balance. (c) Late Charqes. If any Monthly Payment is not made within 15 calendar days of when due, Borrower shall pay Lender a late charge of 5.0% of the past-due amount to help defray the added expense incurred by Lender in handling the delinquent payment. 3. Default. If any payment under this Note is not made when due and remains unpaid for 15 calendar days after the due date or if there is a default that remains uncured after the expiration of any applicable period for notice and cure under any of the other loan documents executed by Borrower on the Linden Square Apartment 1 1433461v1 project, which is more particularly described in the deed to secure debt executed concurrently herewith (the "Property"), as such deed to secure debt is described in paragraph 5 below, the principal amount and any other sums advanced and all unpaid accrued interest, shall, at the option of Lender and without notice to Borrower, at once become due and payable. Interest shall accrue on the outstanding principal amount from the date of any default for so long as such default continues at the rate of 10% per annum. If Lender permits Borrower to cure a default, Borrower shall pay all default interest at the time of and as a condition precedent to the curing of the default. 4. Prepayment. This Note may be prepaid in full or in part at any time and from time to time without notice, penalty, prepayment fee, or payment of unearned interest. 5. Security. Among other things, this Note is secured by an assignment of a deed to secure debt from Borrower of even date herewith. 6. Attorney's Fees. In addition to any other amounts that may be due under this Note, Borrowers shall pay Lender all costs incurred in collecting this Note, including its reasonable attorney's fees actually incurred, whether or not suit is brought and whether incurred in connection with collection, trial, appeal, or otherwise. Any reference to attorney's fees in this Note shall mean reasonable attorney's fees, actually incurred without regard to any statutory definition or presumption as to what "reasonable" attorney's fees means. 7. Taxes. Borrower shall indemnify Lender against liability for the payment of state intangible, documentary, and recording taxes and other taxes (including interest and penalties), which may be payable in connection with this transaction. 8. Interest and USUry. In no event shall the amount of interest due or payable under this Note exceed the maximum rate allowed by law, and if Borrower pays an amount that includes interest exceeding the maximum allowable rate, the excess shall be credited as a payment of late charges and then principal, unless Borrower notifies Lender in writing that Borrower wants the excess returned. It is the express intent of Borrower and Lender that Borrower not pay and Lender not receive, directly or indirectly, interest in excess of that which may be lawfully paid by Borrower. All interest shall be, calculated on the basis of 360 days per year for the actual number of days elapsed. 9. Remedies Cumulative. Lender's remedies in this Note and the other Loan Documents shall be cumulative and concurrent and may be pursued singularly, successively, or together at Lender's sole discretion and may be exercised as often as occasion shall arises. 10. Waiver of Certain Riqhts. To the maximum extent permitted by applicable law, Borrower hereby waives and renounces all rights to the benefits of any statute of limitation and any moratorium, reinstatement, marshalling, forbearance, valuation, stay, extension, redemption, appraisement, exemption, and homestead now provided or 2 1433461v1 whichmay subsequently be provided by the Constitution or laws of the United States of America or any state, 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. To theextent Borrower has the power to do so, Borrower transfers, conveys, and assigns to Lender a sufficient amount of such homestead or exemption as may be set apart in bankruptcy to pay this Note in full with all costs of collection and directs any trustee in bankruptcy having possession of such homestead or exemption to deliver to Lender a sufficient amount of property or money set apart as exempt to pay the debt evidenced by this Note and, to the extent possible, appoints Lender as attorney-in-fact for Borrower to claim any and all exemptions allowed by law. Borrower and all sureties, endorsers, and guarantors of this Note, if any, hereby: (a) waive demand, presentment of payment, notice of dishonor, and nonpayment, protest, notice of protest, and all other notices, filing of suit, and diligence in collecting this Note, or in enforcing any of its rights under any guaranties securing its repayment; (b) agree to any substitution, addition, subordination, or release of all or part of any collateral for this Note (including the Property) or of any party or person primarily or secondarily liable on this Note; (c) agree that Lender shall not be required first to sue or exhaust its remedies against Borrower or any other liable person or party or against any collateral (including the Property) in order to enforce payment of this Note; (d) consent to any extension, rearrangement, renewal, alteration, or postponement of time of payment of this Note or the modification of any other term of this Note and any other indulgence with respect to the Note without notice, consent, or consideration to any of them; (e) agree that Lender may exercise or refrain from exercising any right or remedy that it may have; and (f) agree that, notwithstanding the occurrence of any of the foregoing (unless there is an express written release by Lender of any such person), they shall be and remain jointly and severally, directly and primarily, liable for all sums due under this Note. 11. Applicable Law. This Note shall be construed and enforced in accordance with the laws of the State of Georgia. 12. Exculpation. Except for the Property herein referenced and secured by the deed to secure debt executed concurrently herewith, no other property or assets of Borrower or any general or limited partner of Borrower shall be subject to levy, execution, or other enforcement procedures for the satisfaction of such a debt or judgment. Nothing in this section, however, shall: 1) release, impair, or otherwise affect the validity or enforceability of any of the loan documents or the perfection or priority of this note and Lender's interest and title in the Property for the loan; 2) constitute a waiver of any obligation evidenced or secured by any loan document or in any way be construed to release or impair the title or security interests created by any other loan document; 3) limit the rights or remedies of Lender under any of the loan documents, including the right to foreclose, either judicially or nonjudicially, Borrower's interest in the Property or to confirm any foreclosure or sale pursuant to the power of the sale in the security instruments or to bring actions against Borrower, so long as the exercise of any remedy does not extend to execution against any Property of Borrower or any general or limited 3 1433461v1 partner of Borrower other than the Property for the loan; or affect Lender's right to bring any action against any guarantor under any guaranty, enter a judgment, and satisfy any judgment obtained against any assets of any guarantor. The limitation of liability set forth in this section shall be void and of no effect if Borrower unreasonably delays or attempts to delay any foreclosure or exercise of the power of sale under any of the security instruments or any other remedy with respect to the collateral for the loan, including a claim by Borrower that any of the security instruments or other loan documents is invalid to the extent that Lender would be precluded from exercising its remedies against the Property for the loan. 13. Subordination. The loan evidenced by this Promissory Note will be subordinated in right of payment and priority to any construction loan(s) and any permanent loan(s) obtained previously or subsequently by Borrower in connection with the acquisition and rehabilitation of the Property. 14. Miscellaneous. TIME IS OF THE ESSENCE OF THIS NOTE. As used in this Note, the words "Borrower" and "Lender" shall include the respective successors and assigns of Borrower and Lender. Lender is not and shall not be construed to be a partner, joint venturer, co-principal, or associate, of Borrower, of any person or party claiming by, through, or under Borrower in the conduct of its business. No waiver or release by Lender shall be effective unless in writing. A waiver or release with reference to one event shall not be construed as continuing or as a bar to or waiver or release of any subsequent right, remedy, or recourse as to any subsequent event. A failure to accelerate the debt evidenced by this Note, acceptance of a past-due installment, or indulgences granted from time to time shall not be construed as a notation of this Note or as a reinstatement of the Loan or as a waiver of Lender's right of acceleration or the right of Lender subsequently to insist upon strict compliance with the terms of this Note or to prevent the exercise of its right of acceleration or any other right or remedy under this Note or Georgia law. To the maximum extent possible, Borrower waives the benefit of any present or further statute or rule of law or equity, 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 under it granted any person liable for the payment of this Note shall operate to release, discharge, modify, change, or affect the original liability of Borrower under this Note, whether in whole or in part, unless Lender specifically and expressly 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. 4 1433461 v1 IN WITNESS WHEREOF, Borrower has executed this Note as of the day and year first above written. 30901 Development Corporation, Inc. a Georgia -wof oration 1433461v1 PROMISSORY NOTE $400,000.00 January ~ , 2002 1. Promise to Pay. For value received, Linden Square, LP, a Georgia limited partnership ("Borrower"), promises to pay to the order of 30901 Development Corporation, Inc., a Georgia nonprofit corporation ("Lender") the principal sum of Four Hundred Thousand and No/100 Dollars ($400,000.00) or as much of that sum as may subsequently be disbursed, with interest on the outstanding principal balance as provided herein. All payments shall be made in lawful money of the United States of America to Lender at 1446 Linden Street, Augusta, Georgia 30901, or at such other place as Lender ,may specify. 2. Interest and Payment Provisions. --- (a) Payments. The principal balance of the indebtedness hereunder together with interest thereon shall be paid to Lender as follows: (i) No interest shall accrue on the outstanding balance hereunder for the first 24 months, and no payments of accrued interest or principal shall be due for the first 24 months. Thereafter, interest shall accrue at the rate of 1 % per annum on the then remaining principal balance. Principal and interest shall be amortized over the next 28 years and equal monthly payments of principal and accrued interest ("Amortized Payment") shall then be due and payable as of the fifth (5th) day of each month, so that the full amount of the indebtedness shall be paid at the expiration of said 28 years. The Amortized Payment shall be referred to herein as the "Monthly Payment." All unpaid principal and accrued .but unpaid interest shall be due and payable within 30 years hereof. (b) Application of Payments. Lender shall apply each payment received from Borrower first to the ~ayment of unpaid late charges, next to accrued--and unpaid interest, and then the remainder (if any) to the principal balance. (c) Late Charqes. If any Monthly Payment is not made within 15 calendar days of when due, Borrower shall pay Lender a late charge of 5.0% of the past-due amount to help defray the added expense incurred by Lender in handling the delinquent payment. 3. Default. If any payment under this Note is not made when due and remains unpaid for 15 calendar days after the due date or if there is a default that remains uncured after the expiration of any applicable period for notice and cure under any of 1 1427389v2 the other loan documents executed by Borrower on the Linden Square Apartment project, which is more particularly described in the deed to secure debt executed concurrently herewith (the "Property"), as such deed to secure debt is described in paragraph 5 below, the principal amount and any other sums advanced and all unpaid accrued interest, shall, at the option of Lender and without notice to Borrower, at once become due and payable. Interest shall accrue on the outstanding principal amount from the date of any default for so long as such default continues at the rate of 10% per annum. If Lender permits Borrower to cure a default, Borrower shall pay all default interest at the time of and as a condition precedent to the curing of the default. 4. Prepayment. This Note may be prepaid in full or in part at any time and from time to time without notice, penalty, prepayment fee, or payment of unearned interest. 5. Security., Among other things, this Note is secured by a deed to secure debt from Borrower of even date herewith. 6. Attorney's Fees. In addition to any other amounts that may b'e due under this Note, Borrowers shall pay Lender all costs .incurred in collecting this Note, including its reasonable attorney's fees actually incurred, whether or not suit is brought and whether incurred in connection with collection, trial, appeal, or otherwise. Any reference to attorney's fees in this Note shall mean reasonable attorney's fees, actually incurred without regard to any statutory definition or presumption as to what "reasonable" attorney's fees means. 7. Taxes. Borrower shall indemnify Lender against liability for the payment of state intangible, documentary, and recording taxes and other taxes (including interest and penalties), which may be payable in connection with this transaction. 8. Interest and USUry. In no event shall the amount of interest due or payable under this Note exceed the maximum rate allowed by law, and itBorrower pays an amount that includes interest exceeding the maximum allowable rate, the excess shall be credited as a payment of late charges and then principal, unle56 Borrower notifies Lender in writing that Borrower wants the excess returned. It is the express intent of Borrower and Lender that Borrower not pay and Lender not receive, directly or indirectly, interest in excess of that which may be lawfully paid by Borrower. All interest shall be, calculated on the basis of 360 days per year for the actual number of days elapsed. 9. Remedies Cumulative. Lender's remedies in this Note and. the other Loan Documents shall be cumulative and concurrent and may be pursued singularly, successively, or together at Lender's sole discretion and may be exercised as often as occasion shall arises. 10. Waiver of Certain Riqhts. To the maximum extent permitted by applicable law, Borrower hereby waives and renounces all rights to the benefits of any statute of limitation and any moratorium, reinstatement, marshalling, forbearance, valuation, stay, 2 1427389v2 extension, redemption, appraisement, exemption, and homestead now provided or which may subsequently be provided by the Constitution or laws of the United States of America or any state, 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. To the extent Borrower has the power to do so, Borrower transfers, conveys, and assigns to Lender a sufficient amount of such homestead or exemption as may be set apart in bankruptcy to pay this Note in full with all costs of collection and directs any trustee in bankruptcy having possession of such homestead or exemption to deliver to Lender a sufficient amount of property or money set apart as exempt to pay the debt evidenced by this Note and, to the extent possible, appoints Lender as attorney-in-fact for Borrower to claim any and all exemptions allowed by law. Borrower and all sureties, endorsers, and guarantors of this Note, if any, hereby: (a) waive demand, presentment of payment, notice of dishonor, and nonpayment, protest, notice of protest, and all other notices, filing of suit, and diligence in collecting this Note, or in enforcing any of its rights under any guaranties securing its repayment; (b) agree to any substitution, addition, subordination, or release of all or parrof any collateral for this Note (including the Property) or of any party or person primarily or secondarily liable on this Note; (c) agree that Lender shall not be required first to sue or exhaust its remedies against Borrower or any other liable person or party or against any collateral (including the Property) in order to enforce payment of this Note; (d) consent to any extension, rearrangement, renewal, alteration, or postponement of time of payment of this Note or the modification of any other term of this Note and any other indulgence with respect to the Note without notice, consent, or consideration to any of them; (e) agree that Lender may exercise or refrain from exercising any right or remedy that it may have; and (f) agree that, notwithstanding the occurrence of any of the foregoing (unless there is an express written release by Lender of any such person), they shall be and remain jointly and severally, directly and primarily, liable for all sums due under this Note. 11. Applicable Law. This Note shall be construed and enforced-in accordance with the laws of the State of Georgia. 12. Exculpation. Except for the Property herein referenced and secured by the deed to secure debt executed concurrently herewith, no other property or assets of Borrower or any general or limited partner of Borrower shall be subject to levy, execution, or other enforcement procedures for the satisfaction of such a debt or judgment. Nothing in this section, however, shall: 1) release, impair, or otherwise affect the validity or enforceability of any of the loan documents or the perfection or priority of this note and Lender's interest and title in the Property for the loan; 2) constitute a waiver of any obligation evidenced or secured by any loan document or in any way be construed to release or impair the title or security interests created by any other loan document; 3) limit the rights or remedies of Lender under any of the loan documents, including the right to foreclose, either judicially or nonjudicially, Borrower's interest in the Property or to confirm any foreclosure or sale pursuant to the power of the sale in the security instruments or to bring actions against Borrower, so long as the exercise of any remedy 3 1427389v2 does not extend to execution against any Property of Borrower or any general or limited partner of Borrower other than the Property for the loan; or affect Lender's right to bring any action against any guarantor under any guaranty, enter a judgment, and satisfy any judgment obtained against any assets of any guarantor. The limitation of liability set forth in this section shall be void and of no effect if Borrower unreasonably delays or attempts to delay any foreclosure or exercise of the power of sale under any of the security instruments or any other remedy with respect to the collateral for the loan, including a claim by Borrower that any of the security instruments or other loan documents is invalid to the extent that Lender would be precluded from exercising its remedies against the Property for the loan. 13. Subordination. The loan evidenced by this Note will be subordinated in right of payment and priority to the loan and First Priority Deed to Secure Debt from Borrower in favor of SunTrust Bank obtained previously by Borrower in connection with the acquisition of the Property. 14. Miscellaneous. TIME IS OF THE ESSENCE OF THIS No:r-i:. As used in this Note, the words "Borrower" and "Lender" shall include the respective successors and assigns of Borrower and Lender. Lender is not and shall not be construed to be a partner, joint venturer, co-principal, or associate, of Borrower, of any person or party claiming by, through, or under Borrower in the conduct of its business. No waiver or release by Lender shall be effective unless in writing. A waiver or release with reference to one event shall not be construed as continuing or as a bar to or waiver or release of any subsequent right, remedy, or recourse as to any subsequent event. A failure to accelerate the debt evidenced by this Note, acceptance of a past-due installment, or indulgences granted from time to time shall not be construed as a notation of this Note or as a reinstatement of the Loan or as a waiver of Lender's right of acceleration or the right of Lender subsequently to insist upon strict compliance with the terms of this Note or to prevent the exercise of its right of acceleration or any other right or remedy under this Note or Georgia law. To the maximum extent possible, Borrower waives the benefit of any present or further statute or rule of law or equity, which would produce a result contrary to or in conflict with the foregoing. No ~ension of time for the payment of this Note or any installment due under it granted any person liable for the payment of this Note shall operate to release, discharge, modify, change, or affect the original liability of Borrower under this Note, whether in whole or in part, unless Lender specifically and expressly 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. 4 1427389v2 IN WITNESS WHEREOF, Borrower has executed this Note as of the day and year first above written. Linden Square, LP, a Georgia limited partnership By: CHP - Linden, LLC, Its: General Partner By: 30901 - Linden, Inc., ~. By: ' . 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