$23,569,000.00
promissoryNOTE
THIS PROMISSORY NOTE (this “Note”) is made in Nashville, Tennessee as of October 18, 2012 (the “Effective Date”)in the principal amount of Twenty Three Million Five Hundred Sixty-Nine Thousand and No/100Dollars($23,569,000.00).
Recitals
A. This Note is made by23HUNDRED, LLC, a Delaware limited liability company (“Borrower”), and is payable to the order ofFIFTH THIRD BANK, an Ohio banking corporation, its successors and assigns (“Lender”) pursuant to the terms and conditions set forth in that certain Construction Loan Agreement dated as of even date herewith by and between Borrower and Lender (the “Loan Agreement”). The amount disbursed by Lender to Borrower, repayment of which is evidenced by this Note, is referred to as the “Loan”.
B. This Note is secured, among other items, by (i) a certain Deed of Trust, Security Agreement, Fixture Filing and Assignment of Leases and Rents (the “Security Instrument”), dated of even date herewith, executed and delivered by Borrower for the benefit of Lender, encumbering certain interests in real and personal property as more particularly described as the Mortgaged Property in the Security Instrument (the “Property”), and (ii) certain other documents securing repayment of this Note, including, without limitation, a Guaranty of Payment of even date herewith from Todd Jackovich (“Guarantor”) for the benefit of Lender (the “Payment Guaranty”), and (iii) a Guaranty of Completion of even date herewith from Guarantor for the benefit of Lender (the “Completion Guaranty”) (the Security Instrument, the Loan Agreement, the Payment Guaranty, the Completion Guaranty, and all other documents evidencing or securing the Loan are hereinafter collectively referred to herein as the “Loan Documents”). All of the agreements, conditions, covenants, provisions and stipulations contained in the Security Instrument and other Loan Documents are hereby made a part of this Note to the same extent and with the same force and effect as if they were fully set forth herein and Borrower covenants and agrees to keep and perform them, or cause them to be kept and performed, strictly in accordance with their terms.
1. Agreement to Pay.
A. Maturity Date.Borrowerhereby promises to pay to the order ofLenderthe principal sum of Twenty Three Million Five Hundred Sixty-Nine Thousandand No/100 Dollars ($23,569,000.00), or so much thereof as may be outstanding hereunder, in lawful money of theUnited States of Americaon or before the earlier of September 30, 2015(the “Maturity Date”) or upon acceleration of the Note,subject to two (2) extensions of the maturity of this Note of one (1) year each, on the terms and conditions provided herein,together with interest thereon at the rate or rates hereinbelow set forth.After any such extension, the term “Maturity Date” as used in this Note shall mean the date to which the maturity of this Note has been extended.
B. Interest Rate. Interest on theLoanshall accrue on the outstanding principal balance of thisNotefrom the date of the initial disbursement through theMaturity Date, at an annual rate equal to theAdjusted LIBOR Rate(as hereinafter defined).
2. Defined Terms. In addition to the terms defined elsewhere in thisNote, the following terms shall have the following meanings when used in thisNote. All capitalized terms used in thisNoteand not otherwise defined shall have the meanings ascribed thereto in theLoan Agreement.
A. “Adjusted LIBOR Rate” shall mean for any Interest Period for any LIBOR Rate Loan (i) prior to Construction Completion, a rate per annum equal to two and three-fourths percent (2¾%),plus the LIBOR Rate for such Interest Period; and (ii) after Construction Completion, a rate per annum equal to two and one-half percent (2½%)plus the LIBOR Rate for such Interest Period.
B. “Adjusted Prime Rate” shall mean the rate of interest determined by Lender in its reasonable judgment, as consistently applied in the normal course of business with similar borrowers, to be its cost of making, funding or maintaining the Loan, plus the applicable interest rate spread as set forth in Section 2(A) above, based upon a 360-day year and charged for the actual number of days elapsed.
C. “Business Day” shall mean any day other than aSaturday,Sundayor a legal holiday on which banks are authorized or required to be closed for the conduct of commercial banking business in Nashville, Tennessee.
D. “Default” shall mean when used in reference to thisNoteor any other document, or in reference to any provision or obligation under thisNoteor any other document, the occurrence of an event or the existence of a condition which, with the passage of time or the giving of notice, or both, would constitute anEvent of Defaultunder thisNoteor such other document, as the case may be.
E. “Default Rate” as defined in Section 6 hereof.
F. “Event of Default” shall mean (i) when used in reference to thisNote, one or more of the events or occurrences referred to inSection 11Aof thisNote; and (ii) when used in reference to any other document, adefaultor event of default under such document that has continued after the giving of any applicable notice and the expiration of any applicable grace or cure periods.
G. “Interest Period” shall mean a period of one month.
H. “Interest Rate” shall mean the Adjusted LIBOR Rate.
I. “Interest Rate Determination Date” shall mean, for the initial disbursement of theLoan, the date of such disbursement, and for all other purposes, the second (2nd)Business Dayprior to the proposed commencement of aLIBOR Rate Loanor aPrime Rate Loanor the conversion or continuation of aLIBOR Rate Loanor aPrime Rate Loan.
J. “LIBOR Rate” shall mean, the rate of interest rounded upwards, if necessaryto the next 1/8 of one percent (1%)and adjusted for reserves if Lender is required to maintain reserves with respect to relevant advances fixed by the British Banker’s Association at 11:00 a.m., London time, relating to quotations of the one month London Inter-Bank Offered Rates on U.S. Dollar deposits as published on Bloomberg LP, or, if no longer provided by Bloomberg LP, such rate as shall be determined in good faith by the Lender from such sources as it shall determine to be comparable to Bloomberg LP (or any successor) as determined by Lender at approximately 10:00 a.m., Cincinnati, Ohio time on the relevant date of determination. The LIBOR Rate shall initially be determined as of the date of the initial advance of funds to Borrower under this Note and shall be effective until the first Business Day of the month following the [one/two/three] month period after the initial advance. The LIBOR Rate shall be adjusted automatically on the first Business Day each [one/two/three] month(s) thereafter, commencing on the first Business Day of the month following the expiration of the initial LIBOR Rate determination under this Note. Interest shall be calculated based on [a 360-day year and charged for twelve (12) 30-day calendar months elapsed / a 360-day year and charged for the actual number of days elapsed / an actual day year and charged for the actual number of days elapsed.
3. Computation of Interest. Moneys deposited byLenderin an escrow shall be deemed to have been disbursed as of, and shall bear interest from, the date of deposit in escrow. Interest on thisNoteshall be payable for the day a disbursement of proceeds of theLoanis made. Regularly scheduled payments of interest on thisNoteshall include interest accrued to but not including the day on which the payment is made. Payments of principal on thisNoteshall include interest on the amount paid to but not including the date of payment if payment is received prior to 2:00 P.M. Central Time, and if payment is received after such time, payment of principal on thisNoteshall include interest to and including the day of payment.
4. LIBOR Provisions.
A. If, with respect to anyInterest Period, (i) any change occurs in any applicable law or governmental rule, regulation or order (or any interpretation thereof and including the introduction of any new law or governmental rule, legislation or order) affecting the London InterbankEurodollarmarket for suchInterest Periodor (ii) other circumstances affecting the London Interbank Eurodollar market for suchInterest Periodresults in the then applicableAdjusted LIBOR Ratenot adequately reflecting the cost toLenderof making, funding or maintainingLIBOR Rate Loans,Lendermay give notice thereof toBorrower, whereupon untilLenderhas determined that the circumstances giving rise to such inadequacy no longer exist, (A) the right ofBorrowerto elect to have any portion of theLoanbear interest at theAdjusted LIBOR Rateshall be suspended for suchInterest Period, and (B) each outstandingLIBOR Rate Loanshall bear interest at theAdjusted Prime Ratecommencing on the last day of the then currentInterest Periodtherefor, notwithstanding any prior election byBorrowerto the contrary.
B. In addition, notwithstanding anything herein contained to the contrary, if, prior to or during any period with respect to the LIBOR Rate, any change in any law, regulation or official directive, or in the interpretation thereof, by any governmental body charged with the administration thereof, shall make it unlawful for Lender to fund or maintain its funding in Eurodollars of any portion of the advance subject to the LIBOR Rate or otherwise to give effect to Lender’s obligations as contemplated hereby: (i) Lender may, by written notice to Borrower, declare Lender’s obligations in respect of the LIBOR Rate to be terminated forthwith, and (ii) the LIBOR Rate with respect to Lender shall forthwith cease to be in effect, and interest shall from and after such date be calculated at the Adjusted Prime Rate, and interest shall be paid on the first (1st) day of each calendar month. Borrower hereby agrees to reimburse and indemnify Lender from all increased costs or fees incurred by Lender subsequent to the date hereof relating to the offering of rates of interest based upon the LIBOR Rate. Borrower’s right to utilize LIBOR Rate index pricing as set forth in this Note shall be terminated automatically if Lender, by telephonic notice, shall notify Borrower that one, two or three month LIBOR deposits are not readily available in the London Inter-Bank Offered Rate Market, or that, by reason of circumstance affecting such Market, adequate and reasonable methods do not exist for ascertaining the rate of interest applicable to such deposits. In such event, amounts outstanding hereunder shall bear interest at a rate equal to the Adjusted Prime Rate.
C. If any amount as to which a LIBOR Rate Loan is in effect is repaid on a day other than the last day of the applicable LIBOR Interest Period, or becomes payable on a day other than the last day of the applicable LIBOR Interest Period due to acceleration or otherwise, Borrower shall pay, on demand by Lender, such amount (as determined by Lender) as is required to compensate Lender for any losses, costs or expense which Lender may incur as a result of such payment or acceleration, including, without limitation, any loss, cost or expense (including loss of profit) incurred by reason of liquidation or reemployment of deposits of other funds acquired by Lender to fund or maintain such amount bearing interest at the Interest Rate (collectively, the “Additional Costs”). Lender’s reasonable determination of the amount of such reimbursement shall be conclusive in the absence of manifest error.
D. If either (A) the introduction of or any change in (or a change in the authoritative interpretation of) any law or regulation regarding capital adequacy or (B) compliance byLenderwith any guideline from any central bank or other governmental body regarding capital adequacy (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) has the effect of reducing the rate of return on suchLender’s capital as a consequence of its obligations hereunder to fund or maintainLIBOR Rate Loansto a level below that which suchLenderwould have achieved but for such introduction, change or compliance, then, upon demand byLender,Borrowershall, within five (5)Business DaysfollowingBorrower’s receipt of the statement described below, pay to suchLenderadditional amounts sufficient to compensate suchLenderfor such reduction.Lender shall deliver to Borrower a written statement of such amounts promptly after the same have been determined, and such statement shall conclusively be deemed to be correct absent manifest error.
5. Payment Terms.
A. Commencing on the twentieth (20th) day of November, 2012and on the same day of each successive month thereafter, to and including the twentieth (20th) day of October, 2015,Borrowershall make payments toLenderof interest on the outstanding principal balance of the indebtedness evidenced by thisNote.
B. TheLoanshall be due and payable, andBorrowerhereby promises to pay the outstanding principal amount of theLoantoLender, together with all accrued interest thereon then remaining unpaid and all other unpaid amounts, charges, fees and expenses outstanding under thisNoteor under any of the otherLoan Documents, on theMaturity Date, subject to earlier prepayment as provided inSection 9hereof or as otherwise provided herein or in any otherLoan Document.
6. Late Payments; Default Rate; Fees. Subject to the applicable notice and cure provisions set forth in the Loan Agreement, if any payment is not paid when due (whether by acceleration or otherwise), Borrower agrees to pay to Lender a late payment fee as provided for in the Loan Agreement with a minimum fee of $20.00. After an Event of Default, Borrower agrees to pay to Lender a fixed charge of $25.00, or Borrower agrees that Lender may, without notice, increase the Interest Rate by three percentage points (3%) (the “Default Rate”), whichever is greater. Lender may impose a non-sufficient funds fee for any check that is presented for payment that is returned for any reason. In addition, Lender may charge loan documentation fees as may be reasonably determined by the Lender.
7. Rounding and Rate Management Agreement. At any time during which a Rate Management Agreement (as defined in the Security Instrument) is then in effect with respect to this Note, the provisions contained in this Note which round up the Interest Rate to the nearest 1/8th shall be disregarded and no longer of any force and effect, notwithstanding anything to the contrary contained in this Note.
8. MaximumInterest Rate. Notwithstanding any provisions of thisNoteor any instrument securing payment of the indebtedness evidenced by thisNoteto the contrary, it is the intent ofBorrowerandLenderthatLendershall never be entitled to receive, collect or apply, as interest on principal of the indebtedness, any amount in excess of the maximum rate of interest permitted to be charged by applicable law; and if under any circumstance whatsoever, fulfillment of any provision of thisNote, at the time performance of such provision shall be due, shall involve transcending the limit of validity prescribed by applicable law, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity; and in the eventLenderever receives, collects or applies as interest any such excess, such amount which would be excess interest shall be deemed a permitted partial prepayment of principal without penalty or premium and treated hereunder as such; and if the principal of the indebtedness evidenced hereby is paid in full, any remaining excess funds shall forthwith be paid toBorrower. In determining whether or not interest of any kind payable hereunder exceeds the highest lawful rate,BorrowerandLendershall, to the maximum extent permitted under applicable law,(a)characterize any non-principal payment as an expense, fee or premium rather than as interest, and(b)amortize, prorate, allocate and spread such payment so that the interest on account of such indebtedness does not exceed the maximum amount permitted by applicable law; provided that if the amount of interest received for the actual period of existence thereof exceeds the maximum lawful rate,Lendershall refund toBorrowerthe amount of such excess.Lendershall not be subject to any penalties provided by any laws for contracting for, charging or receiving interest in excess of the maximum lawful rate.
9. Prepayment.The portion of this Note bearing interest at the Adjusted LIBOR Rate may be prepaid only on the last day of an Interest Period; provided, however, that the Borrower may prepay a LIBOR Rate Loan, either in whole or in part, prior to such day so long as Borrower gives Lender five (5) days prior written notice to Lender and such prepayment is accompanied by a simultaneous payment of the Additional Costs described in Section 4(C) above,plus accrued interest on the LIBOR Rate Loan being prepaid through and including the date of prepayment (unless less than all of the principal amount of such LIBOR Rate Loan is being prepaid, in which case such interest shall be due and payable on the next scheduled interest payment date). No amount prepaid on thisNotemay be borrowed again.]
10. Extension of Maturity Date. Borrowershall have two (2) options to extend theMaturity Datefor twelve (12) month successive periods, the first such period to expire September 30, 2016and the second to expire September 30, 2017,subject to the following terms and conditions:
A. NoDefaultorEvent of Defaultunder thisNoteor any of the otherLoan Documents has occurred and is continuingas of the date notice of an extension is received byLenderor on the then currentMaturity Date;
B. Borrowershall giveLendernot less thanthirty (30)days, nor more than three hundred sixty-five (365) days written notice in advance of the then currentMaturity Dateof its election to exercise the first extension;and, not less than thirty (30) days, nor more than sixty (60) days in advance of the then current Maturity Date to exercise the second extension; and
C. Borrowershall pay toLenderan extension fee in the amount of 0.15% of the principal balance of the Loan for each extension;and
D. The Project has achieved a Debt Service Coverage Ratio of 1.15 to 1.00 as of the date the first extension option is exercised; and
E. The Project has achieved a Debt Service Coverage Ratio of 1.20 to 1.00 as of the date the second extension option is exercised.
F. During any extension period, Borrower shall make monthly payments of principal plus interest. Principal payments shall be in equal monthly amounts calculated by determining the first two (2) years’ aggregate principal reduction of a thirty (30) year amortizing loan at the greater of (i) the actual interest rate, (ii) a ten (10) year U.S. Treasury Note, plus two hundred fifty (250) basis points, or (iii) six and one-half percent (6.5%), divided by twenty-four (24).
11. Defaultand Remedies.
A. Subject to the applicable notice and cure provisions set forth in the Loan Agreement, an “Event of Default” shall occur under thisNoteupon the occurrence of(a) the failure ofBorrowerto make any principal or interest payment owing hereunder on the date which is five (5) days after the date when due,(b) the failure byBorrowerto pay any other amount payable toLenderunder thisNotewithinfive (5) daysafter the date when any such payment is due in accordance with the terms hereof or thereof,(c) a breach byBorrowerof any of the covenants, agreements, representations, warranties or other provisions hereof, or(d) the occurrence of anyEvent of Defaultunder any of the otherLoan Documents. AnEvent of Defaultunder thisNoteshall also be deemed anEvent of Defaultunder the otherLoan Documents.
B. If anEvent of Default has occurred and is continuing,Lendershall have the option, without demand or notice, other than specified herein or in the otherLoan Documents, to declare the unpaid principal of thisNote, together with all accrued interest, prepayment premium, if any, and other sums secured by theSecurity Instrument,Loan Agreement,or otherLoan Documents, at once due and payable to the extent permitted by law, to foreclose theSecurity Instrumentand the other liens or security interests securing the payment of thisNote, and to exercise any and all other rights and remedies available at law or in equity under theSecurity Instrumentor the otherLoan Documents.
C. The remedies ofLender, as provided herein or in theSecurity Instrumentor any of the otherLoan Documentsshall be cumulative and concurrent, and may be pursued singularly, successively or together, at the sole discretion ofLender, and may be exercised as often as occasion therefor shall arise. Noactof omission or commission ofLender, including specifically any failure to exercise any right, remedy or recourse, shall be deemed to be a waiver or release of the same, such waiver or release to be effected only through a written document executed byLenderand then only to the extent specifically recited therein. A waiver or release with reference to any one event shall not be construed as continuing, as a bar to, or as a waiver or release of, any subsequent right, remedy or recourse as to a subsequent event.
12. Costs and Attorneys’ Fees. If anyEvent of Defaultunder thisNoteshall occur, or ifLenderincurs any expenses or costs in connection with the protection or realization of any collateral, whether or not suit is filed thereon or on any instrument granting a security interest in said collateral,Borrowerpromises to pay all costs of collection of every kind, including but not limited to all appraisal costs, reasonable and actual attorneys’ fees, court costs, and expenses of every kind, incurred byLenderin connection with such collection or the protection or enforcement of any or all of the security for thisNote, whether or not any lawsuit is filed with respect thereto.
13. Waiver.Borrower, and each surety and endorser hereon waives grace, notice, notice of intent to accelerate, notice ofdefault, protest, demand, presentment for payment and diligence in the collection of thisNote (except as otherwise provided herein), and in the filing of suit hereon, and agrees that his or its liability and the liability of his or its heirs, beneficiaries, successors and assigns for the payment hereof shall not be affected or impaired by any release or change in the security or by any increase, modification, renewal or extension of the indebtedness or its mode and time of payment. It is specifically agreed by the undersigned that theLendershall have the right at all times to decline to make any such release or change in any security given to secure the payment hereof and to decline to make any such increase, modification, renewal or extension of the indebtedness or its mode and time of payment.
14. Notices. All notices or other communications required or permitted hereunder shall be delivered in the manner set forth in theLoan Agreement.
15. Application of Payments. All payments on account of the indebtedness evidencing theNoteshall first be applied to late charges and costs and fees incurred byLenderin enforcing its rights hereunder or under theSecurity Instrumentand the otherLoan Documents, second to accrued interest on the unpaid principal balance, and third to reduce unpaid principal inverse chronological order of maturity. All payments shall be applied in the manner set forth in Section 16.
16. Miscellaneous.
A. The headings of the paragraphs of thisNoteare inserted for convenience only and shall not be deemed to constitute a part hereof.
B. All payments under thisNoteshall be payable in lawful money of theUnited Stateswhich shall be legal tender for public and private debts at the time of payment; provided that a check will be deemed sufficient payment so long as it clears when presented for payment. Each payment of principal or interest under thisNoteshall be paid not later than 2:00 P.M. Central Standard Time on the date due therefor and funds received after that hour shall be deemed to have been received byLenderon the followingBusiness Day. If any payment of principal, interest or any other amount due under thisNoteshall become due on a day which is not aBusiness Day, the due date for such payment shall be automatically extended to the next succeedingBusiness Day, and, in the case of a principal payment, such extension of time shall be included in computing interest on such principal.Lenderis hereby authorized to charge any account ofBorrowermaintained withLenderfor each payment of principal, interest and other amounts due under thisNote, when each such payment becomes due. All amounts payable under thisNoteand the otherLoan Documentsshall be paid byBorrowerwithout offset or other reduction.
C. ThisNotehas been made and delivered in Nashville, Tennessee and all funds disbursed to or for the benefit ofBorrowerwill be disbursed in Nashville, Tennessee.
D. The obligations and liabilities under this Note ofBorrowershall be binding upon and enforceable againstBorrowerand its heirs, legatees, legal representatives, successors and assigns. ThisNoteshall inure to the benefit of and may be enforced byLender, its successors and assigns.
E. If any provision of thisNoteor any payments pursuant to the terms hereof shall be invalid or unenforceable to any extent, the remainder of thisNoteand any other payments hereunder shall not be affected thereby and shall be enforceable to the greatest extent permitted by law.
F. If thisNoteis executed by more than one party, the obligations and liabilities of eachBorrowerunder thisNoteshall be joint and several and shall be binding upon and enforceable against eachBorrowerand their respective successors and assigns.
G. Lendermay at any time assign its rights in thisNoteand theLoan Documents, or any part thereof and transfer its rights in any or all of the collateral, andLenderthereafter shall be relieved from all liability with respect to such collateral. In addition, theLendermay at any time sell one or more participations in theNote.Borrowermay not assign its interest in thisNote, or any other agreement withLenderor any portion thereof, either voluntarily or by operation of law, without the prior written consent ofLender.
H. Time is of the essence of thisNoteand of each and every provision hereof.
I. ThisNote, together with the otherLoan Documents, sets forth all of the covenants, promises, agreements, conditions and understandings of the parties relating to the subject matter of thisNote, and there are no covenants, promises, agreements, conditions or understandings, either oral or written between them relating to the subject matter of thisNoteor other than as areset forth hereinand in the otherLoan Documents. ThisNoteand the otherLoan Documentssupersede all prior written and oral commitments and agreements relating to theLoan.Borroweracknowledges that it is executing thisNotewithout relying on any statements, representations or warranties, either oral or written, that are not expresslyset forth herein or in the other Loan Documents.
J. ThisNoteand each provision hereof may be modified, amended, changed, altered, waived, terminated or discharged only by a written instrument signed by the party sought to be bound by such modification, amendment, change, alteration, waiver, termination or discharge.
K. Each party to thisNoteand the legal counsel to each party have participated in the drafting of thisNote, and accordingly the general rule of construction to the effect that any ambiguities in a contract are to be resolved against the party drafting the contract shall not be employed in the construction and interpretation of thisNote.
L. Borrower certifies that the proceeds of this Loan are to be used for business purposes.
17. Choice of Laws. ThisNoteshall be governed by and construed in accordance with the laws of theState of Tennessee.
18. JURY WAIVER. BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG BORROWER AND LENDER ARISING OUT OF OR IN ANY WAY RELATED TO THIS GUARANTY, ANY OTHER LOAN DOCUMENT, OR ANY RELATIONSHIP BETWEEN BORROWER AND LENDER. THIS PROVISION IS A MATERIAL INDUCEMENT TO LENDER TO PROVIDE THE LOAN DESCRIBED HEREIN AND IN THE OTHER LOAN DOCUMENTS.
19. JURISDICTION AND VENUE. BORROWER HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS INITIATED BYBORROWERAND ARISING DIRECTLY OR INDIRECTLY OUT OF THISNOTESHALL BE LITIGATED IN THE COURTS OF DAVIDSON COUNTY, TENNESSEE, OR THE UNITED STATES DISTRICT COURT FOR THE MIDDLEDISTRICT OF TENNESSEE. BORROWER HEREBY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED BY LENDER IN ANY OF SUCH COURTS. BORROWER WAIVES ANY CLAIM THAT DAVIDSON COUNTY, TENNESSEE OR THE MIDDLE DISTRICT OF TENNESSEE IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE. THE EXCLUSIVE CHOICE OF FORUM FOR BORROWER SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT BYLENDEROF ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE TAKING BYLENDEROF ANY ACTION TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE JURISDICTION, AND BORROWER HEREBY WAIVES THE RIGHT, IF ANY, TO COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.
20. LoanFee. In consideration ofLender’s agreement to make theLoan,Borrowershall pay toLendera non-refundable fee in the amount of One Hundred Seventeen Thousand Eight Hundred Forty-Five and 00/100 Dollars ($117,845.00), which shall be due and payable in full as a condition precedent to the first disbursement of proceeds under thisNote.
21. Patriot Act.Lenderhereby notifiesBorrowerthat pursuant to the requirements of theUSA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))(the “Act”), it is required to obtain, verify and record information that identifiesBorrower, which information includes the name and address ofBorrowerand other information that will allowLenderto identifyBorrowerin accordance with the Act.
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IN WITNESS WHEREOF,Borrowerhas executed, sealed and delivered thisNoteas of the date and year first above written.
| | BORROWER: |
| | |
| | 23HUNDRED, LLC, a Delaware limited liability company |
| | By: | BR Stonehenge 23Hundred JV, LLC, a Delaware limited liabilitycompany, as its sole Member and Manager |
| | By: | Stonehenge 23Hundred JV Member, LLC, aTennessee |
| | | limited liability company, as its Manager |
| | By: | Stonehenge 23Hundred Manager, LLC, a Tennessee |
| | | limited liability company, as its Manager |
| | By: | Stonehenge Real Estate Group, LLC, a |
| | | Georgia limited liability company, as its Manager |
| | By: | /s/ Todd Jackovich |
| | | Todd Jackovich, as its Manager |
