Schedule to Exhibit 10.25
Suburban Lodges, Inc.
A Promissory Note to Finova Realty Capital Inc. with substantially the
same terms as this Exhibit 10.25 for each of the following groups of
properties are not being separately filed:
PROPERTY NAME/ ADDRESS COUNTY CITY, STATE
AMOUNT OF NOTE
Group 1/$14,780,000*
Forest Park 363 Forest Parkway Clayton Forest Park, GA
Roswell 1175 Hembree Road Fulton Roswell, GA
Greenville-Mauldin Road 408 Mauldin Road Greenville Greenville, SC
Dallas North Central 9355 Forest Lane Dallas Dallas, TX
South Dayton 8981 Kingsridge Drive Montgomery Dayton, OH
Group 2/$15,500,000
Lilburn/Hwy 78 4142 Stone Mountain Highway Gwinnett Lilburn, GA
Mableton 600 Lions Club Drive Cobb Mableton, Ga
Preston Highway 7121 Preston Highway Jefferson Louisville, KY
Taylors 2504 Wade Hampton Boulevard Greenville Greenville, SC
Chesapeake 2150 Old Greenbrier Road Chesapeake Chesapeake, VA
UNC Charlotte 110 Rocky River Road West Charlotte, NC
Group 3/$15,580,000
Norcross 6067 Buford Highway Gwinnett Norcross, GA
Jonesboro/Tara Blvd. 7021 Tara Boulevard Clayton Jonesboro, GA
Virginia Beach 416 South Independence Blvd. Virginia Beach, VA
Fairfield 6785 Fairfield Business Drive Butler Fairfield, OH
Pressley/I77 Charlotte 540 Pressley Road Mecklenburg Charlotte, NC
Fulton Industrial 660 Interchange Drive, SW Fulton Atlanta, GA
Group 4/$15,170,000
Indian Trail 1990 Willowtrail Parkway Gwinnett Norcross, GA
Douglasville 5820 Plaza Parkway Douglas Douglasville, GA
Matthews 9211 East Independence Blvd. Matthews, NC
Columbus/Eastland 4790 Hilton Corporate Drive Franklin Columbus, OH
Indianapolis, NW 5820 West 85th Street Marion Indianapolis, IN
Group 5/$14,500,000
Northside Drive 1375 Northside Drive Fulton Atlanta, GA
Gwinnett Place 3750 Satellite Boulevard Gwinnett Duluth, GA
Columbus/Northland 2420 Dublin Granville Road Franklin Columbus, OH
North Charleston 7371 Mazyck Road Charleston North Charleston, SC
Oxmoor 90 Oxmoor Road Jefferson Birmingham, AL
PROMISSORY NOTE
(Fixed -- Defeasance)
$14,780,000 Forest Park, Georgia
Roswell, Georgia
Greenville, South Carolina
Dallas, Texas
Dayton, Ohio
December 29, 1998
FOR VALUE RECEIVED, SLAM PROPERTIES I, L.L.C., a Georgia limited
liability company, as maker, having its principal place of business at
300 Galleria Parkway, Suite 1200, Atlanta, Georgia 30339, Attn:
Corporate Secretary ("Borrower"), hereby unconditionally promises to
pay to the order of FINOVA REALTY CAPITAL INC., a Delaware corporation
("Lender"), having an address at c/o Midland Loan Services, L.P., 210
West Tenth Street, Kansas City, Missouri 64105, or at such other place
as the holder hereof may from time to time designate in writing, the
principal sum of FOURTEEN MILLION SEVEN HUNDRED EIGHTY THOUSAND AND
NO/100 DOLLARS ($14,780,000), in lawful money of the United States of
America with interest thereon to be computed from the date of the
funding of this Note at the Applicable Interest Rate (defined below)
in accordance with the terms of this Note.
ARTICLE 1: PAYMENT TERMS
Borrower agrees that the amortization period for the Note shall
be 25 years and Borrower agrees to pay sums under this Note in
installments as follows:
(a) a constant payment of $116,532.93 on February 1, 1999 and on
the first day of each calendar month thereafter up to and including
December 1, 2008 (each, a "Payment Date"); each of the payments to be
applied as follows: (i) first, to the payment of interest computed at
the Applicable Interest Rate; and (ii) the balance toward the
reduction of the principal sum; and
(b) the balance of the principal sum and all interest thereon on
January 1, 2009 (the "Maturity Date").
ARTICLE 2: INTEREST
The interest rate on this Note is eight and one quarter percent
(8.25%) per annum (the "Applicable Interest Rate"). Interest on the
principal sum of this Note shall be calculated on the basis of a three
hundred sixty (360) day year calculated by multiplying the actual
number of calendar days elapsed in the monthly period for which such
interest is payable by a daily rate based on such three hundred sixty
(360) day year.
ARTICLE 3: DEFAULT AND ACCELERATION
If any payment required in this Note is not paid (a) prior to the
fifth (5th) day after a Payment Date, (b) on the Maturity Date or (c)
on the happening of any other default, after the expiration of any
applicable notice and grace periods, herein or under the terms of the
Security Instruments or any of the Other Security Documents (as
defined in the Security Instruments) (collectively, an "Event of
Default"), at the option of Lender (i) the whole of the principal sum
of this Note, (ii) interest, default interest, late charges and other
sums, as provided in this Note, the Security Instruments or the Other
Security Documents, (iii) all other monies agreed or provided to be
paid by Borrower in this Note, the Security Instruments or the Other
Security Documents, (iv) all sums advanced pursuant to the Security
Instruments to protect and preserve the Property (defined below) and
the lien and the security interest created thereby, and (v) all sums
advanced and costs and expenses incurred by Lender in connection with
the Debt (defined below) or any part thereof, any renewal, extension,
or change of or substitution for the Debt or any part thereof, or the
acquisition or perfection of the security therefor, whether made or
incurred at the request of Borrower or Lender (all the sums referred
to in (i) through (v) above shall collectively be referred to as the
"Debt") shall without notice become immediately due and payable.
ARTICLE 4: DEFAULT INTEREST
Borrower agrees that upon the occurrence of an Event of Default,
Lender shall be entitled to receive and Borrower shall pay interest on
the entire unpaid principal sum at a per annum rate equal to the
lesser of (a) five percent (5%) plus the Applicable Interest Rate or
(b) the maximum interest rate which Borrower may by law pay (the
"Default Rate"). The Default Rate shall be computed from the
occurrence of the Event of Default until the earlier of the date upon
which the Event of Default is cured or the date upon which the Debt is
paid in full. Interest calculated at the Default Rate shall be added
to the Debt, and shall be deemed secured by the Security Instruments.
This clause, however, shall not be construed as an agreement or
privilege to extend the date of the payment of the Debt, nor as a
waiver of any other right or remedy accruing to Lender by reason of
the occurrence of any Event of Default.
ARTICLE 5: LATE CHARGE
If any monthly installment payable under this Note is not paid
prior to the fifth (5th) day after the applicable Payment Date,
Borrower shall pay to Lender upon demand an amount equal to the lesser
of (a) five percent (5%) of such unpaid sum or (b) the maximum amount
permitted by applicable law to defray the expenses incurred by Lender
in handling and processing the delinquent payment and to compensate
Lender for the loss of the use of the delinquent payment and the
amount shall be secured by the Security Instruments and the Other
Security Documents.
ARTICLE 6: PREPAYMENT; DEFEASANCE
(a) The principal balance of this Note may not be prepaid in
whole or in part except as expressly permitted pursuant hereto.
(b) Subject to compliance with and satisfaction of the terms and
conditions of this Article 6 and provided that no Event of Default
exists under this Note, Borrower may elect to obtain a release (the
Release ) of the Property from the lien of the Security Instruments
on any Payment Date after the Lockout Period Expiration Date (defined
below) by delivering to Lender, as security for the payment of all
interest and principal due and to become due pursuant to this Note
through the Maturity Date, plus the principal balance of this Note
scheduled to be outstanding on the Maturity Date, Defeasance
Collateral (defined below) sufficient to generate Scheduled Defeasance
Payments (defined below) (the Release and the delivery of the
Defeasance Collateral, a Defeasance ).
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(c) As a condition precedent to a Defeasance, and prior to any
Release, Borrower shall have complied with all of the following:
(i) Borrower shall provide not less than sixty (60) days
prior written notice to Lender specifying a Payment Date upon which it
intends to effect a Defeasance hereunder (the Defeasance Date ).
(ii) All accrued and unpaid interest on the principal
balance of this Note to and including the Defeasance Date, the
scheduled amortization payment due on such Defeasance Date, and all
other sums due under this Note, the Security Instruments and the Other
Security Documents, shall be paid in full on or prior to the
Defeasance Date.
(iii) Borrower shall execute and deliver to Lender any
and all certificates, opinions, documents or instruments reasonably
required by Lender in connection with the Defeasance and Release,
including, without limitation, a pledge and security agreement
satisfactory to Lender creating a first priority lien on the
Defeasance Collateral (a Defeasance Security Agreement ). This Note
shall thereafter be secured by the Defeasance Collateral delivered in
connection with the Defeasance. After Defeasance, this Note cannot be
prepaid in whole or in part or be the subject of any further
Defeasance.
(iv) Borrower shall have delivered to Lender an opinion of
Borrower's counsel in form and substance satisfactory to Lender
stating (A) that the Defeasance Collateral and the proceeds thereof
have been duly and validly assigned and delivered to Lender and that
Lender has a valid, perfected, first priority lien and security
interest in the Defeasance Collateral delivered by Borrower and the
proceeds thereof, (B) that if the holder of this Note shall at the
time of the Release be a REMIC (defined below), (1) the Defeasance
Collateral has been validly assigned to the REMIC Trust which holds
this Note (the REMIC Trust ), (2) the Defeasance has been effected in
accordance with the requirements of Treasury Regulation 1.860(g)-
2(a)(8) (as such regulation may be amended or substituted from time to
time) and will not be treated as an exchange pursuant to Section 1001
of the IRS Code and (3) the tax qualification and status of the REMIC
Trust as a REMIC will not be adversely affected or impaired as a
result of the Defeasance and (C) that the delivery of the Defeasance
Collateral and the grant of a security interest therein to Lender
shall not constitute an avoidable preference under Section 547 of the
U.S. Bankruptcy Code or applicable state law. The term REMIC shall
mean a real estate mortgage investment conduit within the meaning of
Section 860D of the IRS Code. The term IRS Code shall mean the
United States Internal Revenue Code of 1986, as amended, and the
related Treasury Department regulations, including temporary
regulations.
(v) Borrower shall have delivered to Lender written
confirmation from the Rating Agencies (defined in the Security
Instruments) that such Defeasance will not result in a withdrawal,
downgrade or qualification of the then current ratings by the
applicable Rating Agencies of the Securities or Participations (each
as defined in the Security Instruments). If required by the Rating
Agencies, Borrower shall, at Borrower's expense, also deliver or cause
to be delivered a non-consolidation opinion with respect to the
Defeasance Obligor (as defined below), if any, in form and substance
reasonably satisfactory to Lender and the Rating Agencies.
(vi) Borrower shall have delivered to Lender a certificate
satisfactory to Lender given by Borrower's independent certified
public accountant (which accountant shall be satisfactory to Lender)
certifying that the Defeasance Collateral shall generate the Scheduled
Defeasance Payments.
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(d) In connection with any Defeasance hereunder, if Borrower
shall continue to own any assets other than the Defeasance Collateral
following the Release, Borrower shall, at Borrower's expense,
establish or designate a successor entity, which shall be a single
purpose, bankruptcy remote entity acceptable to Lender (the
"Defeasance Obligor") and Borrower shall transfer and assign all
obligations, rights and duties under and to this Note and the
Defeasance Security Agreement together with the pledged Defeasance
Collateral to such Defeasance Obligor. Such Defeasance Obligor shall
assume the obligations under the Note and any Defeasance Security
Agreement and shall be bound by and obligated under Sections 3.1,
7.2, 7.4(a), 11.2, 11.7 and 14.2 and Articles 13 and 15 of the
Security Instruments; provided, however, that all references therein
to "Property" or "Personal Property" shall be deemed to refer only to
the Defeasance Collateral delivered to Lender, and Borrower shall be
relieved of its obligations under such documents and, except with
respect to any provisions therein which by their terms expressly
survive payment of the Debt in full, the Other Security Documents.
(e) The following terms shall have the meaning set forth below:
(i) The term "Defeasance Collateral" as used herein shall
mean direct, non-callable and non-redeemable obligations of the United
States of America for the payment of which its full faith and credit
is pledged, each of which shall be duly endorsed by the holder thereof
as directed by Lender or accompanied by a written instrument of
transfer in form and substance wholly satisfactory to Lender
(including, without limitation, such instruments as may be required by
the depository institution holding such securities or by 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 Collateral a
first priority security interest therein in favor of the Lender in
conformity with all applicable state and federal laws governing the
granting of such security interests. Borrower shall authorize and
direct that the payments received from such obligations shall be made
directly to Lender or Lender's designee and applied to satisfy the
obligations of Borrower or, if applicable, the Defeasance Obligor,
under this Note.
(ii) The term "Scheduled Defeasance Payments" as used herein
shall mean the scheduled payments of interest and principal in
accordance with the terms of the Defeasance Collateral (without
consideration of any reinvestment of interest therefrom), providing
for payments prior, but as close as possible, to all successive
Payment Dates after the Defeasance Date through and including the
Maturity Date, and in amounts equal to or greater than the scheduled
payments of interest and principal due under this Note, including the
principal balance of this Note scheduled to be outstanding on the
Maturity Date.
(iii) The term Lockout Period Expiration Date shall
mean the date which is the earlier of (A) the second anniversary of
the date that is the startup day, within the meaning of Section
860G(a)(9) of the IRS Code, of a REMIC that holds this Note or (B) the
four (4) year anniversary of the first day of the first full calendar
month following the date of this Note.
(f) Upon Borrower's compliance with all of the conditions to
Defeasance and a Release set forth in this Article 6, Lender shall
release the Property from the lien of the Security Instruments and the
Other Security Documents. All costs and expenses of Lender incurred
in connection with the Defeasance and Release, including, without
limitation, Lender s counsel s fees and expenses, shall be paid by
Borrower simultaneously with the delivery of the Release
documentation. Any revenue, documentary stamp or intangible taxes or
any other tax or charge due in connection with the Defeasance shall be
paid by Borrower simultaneously with the occurrence of any Defeasance.
4
(g) If a Default Prepayment (defined below) occurs, Borrower
shall pay to Lender the entire Debt, including, without limitation, an
amount (the Default Consideration ) equal to the greater of (i) the
amount (if any) which when added to the then outstanding principal
amount of this Note will be sufficient to purchase Defeasance
Collateral providing the required Scheduled Defeasance Payments
assuming Defeasance would be permitted hereunder, or (ii) one percent
(1%) of the Default Prepayment. For purposes of this Note, the term
"Default Prepayment" shall mean a prepayment of the principal amount
of this Note made after the occurrence of any Event of Default or an
acceleration of the Maturity Date under any circumstances, including,
without limitation, a prepayment occurring in connection with
reinstatement of the Security Instruments provided by statute under
foreclosure proceedings or exercise of a power of sale, any statutory
right of redemption exercised by Borrower or any other party having a
statutory right to redeem or prevent foreclosure, any sale in
foreclosure or under exercise of a power of sale or otherwise.
(h) Notwithstanding anything to the contrary herein, Borrower
may prepay the principal balance of this Note without premium or
penalty (i) in whole during the three months prior to the Maturity
Date or (ii) in whole or in part in connection with a prepayment
resulting from the application of insurance proceeds or condemnation
awards pursuant to Sections 3.3 and 3.6 of the Security Instruments or
changes in tax and debt credit pursuant to Section 7.3 (a) or (b) of
the Security Instruments, but in each instance Borrower shall be
required to pay all other sums due hereunder, and no principal amount
repaid may be reborrowed.
ARTICLE 7: SECURITY
This Note is secured by those certain mortgage and security
agreements, deed of trust and security agreements, deed to secure debt
and security agreements or similar real estate security agreements,
dated the date hereof in the principal sum of $14,780,000, given by
Borrower to (or for the benefit of) Lender covering the fee estates of
Borrower in certain premises located in Clayton County, State of
Georgia, Fulton County, State of Georgia, Dallas County, State of
Texas, Greenville County, State of South Carolina, Montgomery County,
State of Ohio, and other property, as more particularly described
therein (collectively, the "Property") and intended to be duly
recorded in said Counties (the "Security Instruments"), and by the
Other Security Documents.
ARTICLE 8: LOAN CHARGES
This Note, the Security Instruments and the Other Security Documents
are subject to the express condition that at no time shall Borrower be
obligated or required to pay interest on the principal balance due
hereunder at a rate which could subject Lender to either civil or
criminal liability as a result of being in excess of the maximum
interest rate which Borrower is permitted by applicable law to
contract or agree to pay. If by the terms of this Note, the Security
Instruments and the Other Security Documents, Borrower is at any time
required or obligated to pay interest on the principal balance due
hereunder at a rate in excess of such maximum rate, the Applicable
Interest Rate or the Default Rate, as the case may be, shall be deemed
to be immediately reduced to such maximum rate and all previous
payments in excess of the maximum rate shall be deemed to have been
payments in reduction of principal and not on account of the interest
due hereunder. All sums paid or agreed to be paid to Lender for the
use, forbearance, or detention of the Debt, shall, to the extent
permitted by applicable law, be amortized, prorated, allocated, and
spread throughout the full stated term of the Note until payment in
full so that the rate or amount of interest on account of the Debt
does not exceed the maximum lawful rate of interest from time to time
in effect and applicable to the Debt for so long as the Debt is
outstanding.
5
ARTICLE 9: WAIVERS
Borrower and all others who may become liable for the payment of all
or any part of the Debt do hereby severally waive presentment and
demand for payment, notice of dishonor, protest and notice of protest
and non-payment and all other notices of any kind, except for notices
expressly provided for in this Note, the Security Instruments or the
Other Security Documents. No release of any security for the Debt or
extension of time for payment of this Note or any installment hereof,
and no alteration, amendment or waiver of any provision of this Note,
the Security Instruments or the Other Security Documents made by
agreement between Lender or any other person or party shall release,
modify, amend, waive, extend, change, discharge, terminate or affect
the liability of Borrower, and any other person or entity who may
become liable for the payment of all or any part of the Debt, under
this Note, the Security Instruments or the Other Security Documents.
No notice to or demand on Borrower shall be deemed to be a waiver of
the obligation of Borrower or of the right of Lender to take further
action without further notice or demand as provided for in this Note,
the Security Instruments or the Other Security Documents. If Borrower
is a partnership, corporation or limited liability company, the
agreements contained herein shall remain in full force and effect,
notwithstanding any changes in the individuals or entities comprising
the Borrower, and the term "Borrower," as used herein, shall include
any alternate or successor entity, but any predecessor entity, and its
partners or members, as the case may be, shall not thereby be released
from any liability. (Nothing in the foregoing sentence shall be
construed as a consent to, or a waiver of, any prohibition or
restriction on transfers of interests in Borrower which may be set
forth in the Security Instruments or any Other Security Document.)
ARTICLE 10: WAIVER OF TRIAL BY JURY
BORROWER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM,
WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR
INDIRECTLY TO THE LOAN EVIDENCED BY THIS NOTE, THE APPLICATION FOR THE
LOAN EVIDENCED BY THIS NOTE, THIS NOTE, THE SECURITY INSTRUMENTS OR
THE OTHER SECURITY DOCUMENTS OR ANY ACTS OR OMISSIONS OF LENDER, ITS
OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS IN CONNECTION THEREWITH.
ARTICLE 11: EXCULPATION
(a) Notwithstanding anything to the contrary contained in this
Note, the Security Instruments or any Other Security Document (but
subject to the provisions of subsections (b), (c) and (d) of this
Article 11), Lender shall not enforce the liability and obligation of
Borrower to perform and observe the obligations contained in this Note
or the Security Instruments by any action or proceeding wherein a
money judgment or any deficiency judgment or other judgment
establishing any personal liability shall be sought against Borrower,
Suburban Lodges of America, Inc., Suburban Holdings, L.P., Suburban
Management, Inc., or any parent, subsidiary, or affiliate of such
entities (except the Manager of Borrower pursuant to the Non-Recourse
Carve-Out Guarantee executed as of even date herewith) or any
principal, director, officer, senior employee, shareholder, partner,
member, trustee, agent or principal, director, officer or shareholder
of Suburban Lodges of America, Inc., Suburban Holdings, L.P., Suburban
Management, Inc. or of Borrower, or any person owning, directly or
indirectly, any legal or beneficial interest in the Borrower, or any
successors or assigns of any of the foregoing (collectively, the
6
"Exculpated Parties"), except that Lender may bring a foreclosure
action, action for specific performance or other appropriate action or
proceeding to enable Lender to enforce and realize upon this Note, the
Security Instruments, the Other Security Documents, and the interest
in the Property, the Rents (as defined in the Security Instruments)
and any other collateral given to Lender to secure this Note;
provided, however, subject to the provisions of subsections (b), (c)
and (d) of this Article 11, that any judgment in any such action or
proceeding shall be enforceable against Borrower only to the extent of
Borrower's interest in the Property, in the Rents and in any other
collateral given to Lender to secure this Note. Lender, by accepting
this Note and the Security Instruments, agrees that it shall not,
except as otherwise provided in this Article 11, sue for, seek or
demand any deficiency judgment against Borrower or any of the
Exculpated Parties, in any such action or proceeding, under or by
reason of or under or in connection with this Note, the Security
Instruments or the Other Security Documents. The provisions of this
Article 11 shall not, however, (i) constitute a waiver, release or
impairment of any obligation evidenced or secured by this Note, the
Security Instruments or the Other Security Documents delivered to
Lender; (ii) impair the right of Lender to name Borrower as a party
defendant in any action or suit for judicial foreclosure and sale
under the Security Instruments; (iii) affect the validity or
enforceability of any indemnity, guaranty, master lease or similar
instrument made in connection with this Note, the Security
Instruments, or the Other Security Documents; (iv) impair the right of
Lender to obtain the appointment of a receiver; (v) impair the
enforcement of the Assignment of Leases and Rents executed in
connection herewith; (vi) impair the right of Lender to enforce the
provisions of Section 12.2 of the Security Instruments; or (vii)
impair the right of Lender to obtain a deficiency judgment or other
judgment on the Note against Borrower if necessary to obtain any
insurance proceeds or condemnation awards to which Lender would
otherwise be entitled under the Security Instruments; provided
however, Lender shall only enforce such judgment to the extent of the
insurance proceeds and/or condemnation awards.
(b) Notwithstanding the provisions of this Article 11 to the
contrary, Borrower shall be personally liable to Lender for the Losses
(as defined in the Security Instruments) it incurs due to: (i) fraud
or intentional misrepresentation by Borrower or any of the Exculpated
Parties in connection with the execution and the delivery of this
Note, the Security Instruments or the Other Security Documents or any
documents or certificate now or at any time during the term of the
Loan evidenced by this Note; (ii) Borrower's misapplication or
misappropriation of Rents received by Borrower after the occurrence of
and during the continuance of an Event of Default; (iii) Borrower's
misapplication or misappropriation of tenant security deposits or
Rents collected in advance; (iv) the misapplication or
misappropriation of insurance proceeds or condemnation awards; (v)
Personal Property (as defined in the Security Instruments) taken from
the Property by or on behalf of Borrower or any of the Exculpated
Parties and not replaced with Personal Property of the same utility
and of the same or greater value; (vi) any act of arson by Borrower or
any of the Exculpated Parties; or (vii) any fees or commissions paid
by Borrower after the occurrence of and during the continuance of an
Event of Default to any Exculpated Party in violation of the terms of
this Note, the Security Instruments or the Other Security Documents.
(c) Notwithstanding the foregoing, the agreement of Lender not
to pursue recourse liability against the Borrower as set forth in
subsection (a) above SHALL BECOME NULL AND VOID as against the
Borrower, and shall be of no further force and effect in the event of
Borrower's default under Article 8 of the Security Instruments or if
the Property or any part thereof shall become an asset in (i) a
voluntary bankruptcy or insolvency proceeding, or (ii) an involuntary
bankruptcy or insolvency proceeding (other than one filed by Lender)
which is not dismissed within one hundred fifty (150) days of filing.
7
(d) Nothing herein shall be deemed to be a waiver of any right
which Lender may have under Section 506(a), 506(b), 1111(b) or any
other provision of the U.S. Bankruptcy Code to file a claim for the
full amount of the indebtedness secured by the Security Instruments or
to require that all collateral shall continue to secure all of the
indebtedness owing to Lender in accordance with this Note, the
Security Instruments and the Other Security Documents.
ARTICLE 12: AUTHORITY
Borrower represents that Borrower has full power, authority and legal
right to execute and deliver this Note, the Security Instruments and
the Other Security Documents and that this Note, the Security
Instruments and the Other Security Documents constitute valid and
binding obligations of Borrower.
ARTICLE 13: GOVERNING LAW
This Note shall be governed, construed, applied and enforced in
accordance with the laws of the State of Georgia.
ARTICLE 14: NOTICES
Except as expressly provided herein, all notices or other written
communications hereunder shall be deemed to have been properly given
(i) upon delivery, if delivered in person or by facsimile transmission
with receipt acknowledged by the recipient thereof and confirmed by
telephone by sender, (ii) one (1) Business Day (defined below) after
having been deposited for overnight delivery with any reputable
overnight courier service, or (iii) three (3) Business Days after
having been deposited in any post office or mail depository regularly
maintained by the U.S. Postal Service and sent by registered or
certified mail, postage prepaid, return receipt requested, addressed
to the addresses set forth in the preamble to this Agreement or as
such party may from time to time designate by written notice to the
other parties.
ARTICLE 15: INCORPORATION BY REFERENCE
All of the terms, covenants and conditions contained in the Security
Instruments and the Other Security Documents are hereby made part of
this Note to the same extent and with the same force as if they were
fully set forth herein.
ARTICLE 16: MISCELLANEOUS
(a)Wherever pursuant to this Note it is provided that Borrower pay any
costs and expenses, such costs and expenses shall include, but not be
limited to, reasonable legal fees and reasonable disbursements of
Lender with respect to retained firms. Borrower shall pay to Lender
on demand any and all expenses, including legal expenses and
reasonable attorneys' fees, incurred or paid by Lender in enforcing
this Note, whether or not any legal proceeding is commenced hereunder,
together with interest thereon at the Default Rate from the date paid
or incurred by Lender until such expenses are paid by Borrower.
Whenever a reference is made herein to payment by Borrower of
attorney's fees incurred by Lender, the amount payable by Borrower
shall be actual attorney's fees, at standard hourly rates, reasonably
incurred by Lender, without regard to any statutory presumption under
O.C.G.A. Section 13-1-11.
8
(b) This Note may not be modified, amended, waived, extended,
changed, discharged or terminated orally or by any act or failure to
act on the part of Borrower or Lender, but only by an agreement in
writing signed by the party against whom enforcement of any
modification, amendment, waiver, extension, change, discharge or
termination is sought.
(c) If Borrower consists of more than one person or party, the
obligations and liabilities of each person or party shall be joint and
several.
(d) Whenever used, the singular number shall include the plural,
the plural number shall include the singular, and the words "Lender"
and "Borrower" shall include their respective successors, assigns,
heirs, executors and administrators.
(e) BORROWER HEREBY ACKNOWLEDGES THAT INTEREST IN THIS NOTE IS
TO BE CALCULATED BY LENDER ON THE BASIS OF A THREE HUNDRED SIXTY (360)
DAY YEAR AND IS FULLY AWARE THAT SUCH CALCULATIONS MAY RESULT IN AN
ACCRUAL AND/OR PAYMENT OF INTEREST IN AMOUNTS GREATER THAN
CORRESPONDING INTEREST CALCULATIONS BASED ON A THREE HUNDRED SIXTY-
FIVE (365) DAY YEAR.
IN WITNESS WHEREOF, Borrower has duly executed this Note under
seal as of the day and year first above written.
BORROWER:
SLAM PROPERTIES I, L.L.C.,
a Georgia limited liability company
By: SLAM PROPERTIES MANAGEMENT I, L.L.C.,
a Georgia limited liability company
Its Manager
By: SUBURBAN MANAGEMENT, INC.
a Georgia corporation
Its Manager
By: /s/ David Krischer
Name: David Krischer
Title:_______________________
(CORPORATE SEAL)
Signed, sealed and delivered
in the presence of :
/s/ Kevin Psannes
Witness
____________________________
Notary Public
My Commission Expires:___________________________
(NOTARIAL SEAL)
9
STATE OF )
) ss.
COUNTY OF )
On__________________, before me, the undersigned, personally appeared
______________________________________________, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on
the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________
Notary Public in and for said
County and State
(SEAL)
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