ADJUSTABLE RATE NOTE
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$4,000,000.00 March 31, 1999
FOR VALUE RECEIVED the undersigned promises to pay to the order
of EMPIRE FINANCIAL SERVICES, INC., at its main office in Milledgeville,
Georgia, or at such place as the holder may designate, the principal sum
of FOUR MILLION AND NO/100 DOLLARS, ($4,000,000.00) plus interest from
date on that part of the outstanding principal which has not been paid.
Beginning on the date of this Note, the undersigned will pay
interest at a yearly rate of eight and three-eighths percent (8.375%).
Monthly payments at this interest rate will be Thirty Four Thousand Three
Hundred Ninety Seven and 12/100 Dollars ($34,397.12) and shall be due and
payable on the first day of each month beginning May 1, 1999, and
continuing through the payment due on April 1, 2002.
Beginning on the first day of April, 2002 and on that day of the
month every thirty-six (36) months thereafter (the "Loan Adjustment
Date"), the interest rate applicable to the principal balance then
outstanding will equal the "Prime Rate" plus five-eighths percent (.625%).
Each adjusted interest rate will be in effect from the Loan Adjustment
Date (April 1st) through March 31st of the third year thereafter, with
monthly payments, at the adjusted interest rate, to be paid on the first
day of each month, beginning on the first day of May, and continuing
through the payment due on the first day of April of the third year
thereafter.
For purposes of this Note, the term "Prime Rate" shall mean the
interest rate published in the WALL STREET JOURNAL, Eastern Edition,
identified therein as the "Prime Rate" and currently described as the base
rate on corporate loans posted by at least 75% of the nation's 30 largest
banks. The "Prime Rate" published on the last publication date prior to
each Loan Adjustment Date shall be the index for interest rate
adjustments. In the event that the WALL STREET JOURNAL abandons the
practice of publishing the Prime Rate, the Note holder will designate a
comparable reference or index which shall thereafter be the Prime Rate for
this Note. The Note holder will round the amount of the change to the
nearest one-eighth (1/8) of one (1) percentage point. Note holder will
notify Borrower of the adjustment to be made and such notification, even
if given after the due date of the next monthly installment, shall apply
to all monthly installments due after each Loan Adjustment Date. The
monthly payments calculated at each Loan Adjustment Date shall be in the
amount that would completely amortize the principal amount owed on the
Loan Adjustment Date by the first day of April, 2019, if such monthly
payments were to continue until that date. Monthly payments shall continue
until all of said interest and principal have been paid in full except
that any balance remaining unpaid on the first day of March, 2008, shall
be due and payable, with all accrued interest thereon, on that date.
Each payment shall be applied first to accrued interest and to
other charges or fees accruing under this Note or the Deed of Trust of
even date herewith and the residue to principal. Any. amount may be
prepaid on this Note at any time without premium or fee, provided that
prepayment of only a portion of the balance due on this Note shall be
applied to the end of the Note and the monthly payments shall continue to
be due without interruption. Time is of the essence of this contract.
Lender may collect a late charge of 5 cents for each One ($1.00) Dollar of
each principal and interest payment, with a minimum charge of Five
Dollars, for each such payment fifteen (15) days or more in arrears to
cover the extra expense involved in handling delinquent payment. In the
event (a) of a default in the payment of principal and interest as
stipulated herein (including, without limitation, non-payment upon
maturity) or default in any other monetary obligation of the undersigned
which such default(s) continue for a period of five (5) days after notice
of such default by Note holder, or (b) upon failure of the undersigned to
comply with any other conditions or covenants contained in this Note or
any instrument(s) securing it which such default(s) continue for a period
of fifteen (15) days after notice of such default by Note holder, or (c)
upon the liquidation or dissolution of a Borrower, endorser or guarantor
that is a corporation, partnership (general or limited) or limited
liability company, then, and in any such event(s), the principal
indebtedness evidenced hereby, all accrued interest and any other sums
advanced hereunder or pursuant to any other loan documents shall, at the
option of Note holder and, without further notice to the undersigned, at
once become due and payable and may be collected forthwith, regardless of
the stipulated date of maturity. No omission on the part of Note holder to
exercise such option, when entitled to do so, shall be construed a waiver
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of such right. Upon the happening of any event of default the entire
unpaid principal balance shall bear interest at the contract rate then in
effect until the entire amounts in default have been paid by the
undersigned. If this Note is collected by law or through an attorney at
law, the undersigned shall pay all costs of collection, including
reasonable attorney's fees. The undersigned (whether maker, endorser,
surety, guarantor, or other party hereto) severally waives demand, protest
and notice of demand, protest and non-payment. It is agreed that this Note
may be renewed or extended from time to time, in whole or in part, without
the consent of or notice to any endorser, maker, guarantor, surety, or
other party hereto and without affecting or lessening the liability of any
such person. The powers granted herein are coupled with an interest, and
are irrevocable by death or otherwise. This Note is the joint and several
obligation of all makers, sureties, guarantors, endorsers and other
parties hereto, and shall be binding upon them, their heirs, personal
representatives and assigns. In this Note and any instrument securing it,
the singular shall include the plural, and the masculine shall include the
feminine and neuter.
If from any circumstances whatsoever, fulfillment of any
provision of this Note or of any other instrument securing the
indebtedness evidenced hereby, at the time performance of such provision
shall be due, shall involve transcending the limit of validity presently
prescribed by any applicable usury statute or any other applicable law,
with regard to obligations of like character and amount, then ipso facto,
the obligation to be fulfilled shall be reduced to the limit of such
validity, so that in no event shall any exaction be possible under this
Note or under any other instrument securing the indebtedness evidenced
hereby, that is in excess of the current limit of such validity, but such
obligation shall be fulfilled to the limit of Such validity.
This Note is secured by a Tennessee Reed of Trust, Assignment of
Leases and Rents, and Security Agreement of even date executed by the
undersigned to Empire Financial Services, Inc.
TO THE MAXIMUM EXTENT IT MAY LEGALLY DO SO, THE
UNDERSIGNED EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION, CAUSE OF ACTION OR
PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS NOTE
OR IN ANY WAY CONNECTED WITH OR RELATED TO OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO WITH
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RESPECT TO THIS NOTE OR THE TRANSACTIONS RELATED
HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING AND IRRESPECTIVE OF WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE. TO THE EXTENT IT MAY
LEGALLY DO SO, THE UNDERSIGNED HEREBY AGREES THAT ANY
SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR
PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A
JURY AND THAT EMPIRE FINANCIAL SERVICES, INC. MAY FILE
AN ORIGINAL COUNTERPART OR COPY OF THIS NOTE WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
UNDERSIGNED TO THE WAIVER OF ITS RIGHT TO TRIAL BY
JURY.
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Initials
WITNESS the hand and seat of the undersigned.
SUBURBAN HOLDINGS, L.P. [SEAL]
A Georgia Limited Partnership
By: SUBURBAN MANAGEMENT, INC.
A Georgia Corporation
By:
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Its:
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General Partner
The undersigned guarantor and surety hereby guarantees payment
and performance and, to the extent allowed by law, waives the right to
require the noteholder to first take action against the principal.
SUBURBAN LODGES OF AMERICA, INC. [SEAL]
By:
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By:
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Its:
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Guarantor
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SCHEDULE OF OMITTED DOCUMENTS
The following documents are substantially the same as the foregoing
exhibit except as indicated:
1. Adjustable Rate Note in the original principal amount of
$3,000,000; interest rate of 8.25% (Prime Rate plus one-half of one
percent); no waiver of jury trial; South Carolina governing law
2. Adjustable Rate Note in the original principal amount of
$3,250,000; interest rate of 8.50% (Prime Rate plus three-fourths of one
percent); no waiver of jury trial
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