Construction Loan Promissory
Note
(Floating
Rate)
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Maturity Date: July 1,
2010
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New
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Amount: $4,458,458.00
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(Street address
including county)
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111 Westwood
Place, Suite 200
Brentwood,
Williamson County, Tennessee 37027
(Name and
street address, including county)
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FOR VALUE
RECEIVED, the undersigned Borrower unconditionally (and jointly and
severally, if more than one) promises to pay to the order of Bank,
its successors and assigns, without setoff, at its offices
indicated at the beginning of this Note, or at such other place as
may be designated by Bank, the principal amount of Four
Million Four Hundred Fifty Eight Thousand Four Hundred Fifty Eight
and No/100 Dollars ($4,458,458.00), or so much thereof as
may be advanced hereunder, together with interest computed daily on
the outstanding principal balance hereunder, at an annual interest
rate, and in accordance with the payment schedule, indicated
below.
1.
Rate.
The Rate shall be that Rate or Rates
as set forth in Exhibit “B” , attached hereto
and made a part hereof by reference. Notwithstanding any provision
of this Note, Bank does not intend to charge and Borrower shall not
be required to pay any amount of interest or other charges in
excess of the maximum permitted by the applicable law of the State
of Tennessee; if any higher rate ceiling is lawful, then that
higher rate ceiling shall apply. Any payment in excess of such
maximum shall be refunded to Borrower or credited against
principal, at the option of Bank.
2.
Accrual
Method. Unless
otherwise indicated, interest at the Rate set forth above will be
calculated by the 365/360 day method (a daily amount of interest is
computed for a hypothetical year of 360 days; that amount is
multiplied by the actual number of days for which any principal is
outstanding hereunder).
3.
Rate Change
Date. Any Rate based
on a fluctuating index or base rate will change, unless otherwise
provided, each time and as of the date that the index or base rate
changes. In the event any index is discontinued, Bank shall
substitute an index determined by Bank to be comparable, in its
sole discretion.
4.
Payment
Schedule. All
payments received hereunder shall be applied first to the payment
of any expense or charges payable hereunder or under any other loan
documents executed in connection with this Note, then to interest
due and payable, with the balance applied to principal, or in such
other order as Bank shall determine at its option.
Principal
Payments . Principal
shall be paid in quarter-annual installments commencing April 1,
2008, and the 1 st day of each July, October, January
and April thereafter, in the amounts specified in the principal
amortization schedule attached hereto as Exhibit
“A” and incorporated herein by reference. Interest
thereon shall be paid monthly as set forth in Exhibit
“B” hereto, with a final payment of all unpaid
interest and principal at the stated maturity of this
Note.
5.
Automatic
Payment. If filled
in, Borrower has elected to authorize Bank to effect payment of
sums due under this Note by means of debiting Borrower’s
account number ________________________________. This authorization
shall not affect the obligation of Borrower to pay such sums when
due, without notice, if there are insufficient funds in such
account to make such payment in full on the due date thereof, or if
Bank fails to debit the account.
6.
Waivers, Consents and
Covenants .
Borrower, any indorser or guarantor hereof, or any other party
hereto (individually an “Obligor” and collectively
“Obligors”) and each of them jointly and severally: (a)
waive presentment, demand, protest, notice of demand, notice of
intent to accelerate, notice of acceleration of maturity, notice of
protest, notice of nonpayment, notice of dishonor, and any other
notice required to be given under the law to any Obligor in
connection with the delivery, acceptance, performance, default or
enforcement of this Note, any indorsement or guaranty of this Note,
or any other documents executed in connection with this Note or any
other note or other loan documents now or hereafter executed in
connection with any obligation of Borrower to Bank (the “Loan
Documents”); (b) consent to all delays, extensions, renewals
or other modifications of this Note or the Loan Documents, or
waivers of any term hereof or of the Loan Documents, or release or
discharge by Bank of any of Obligors, or release, substitution or
exchange of any security for the payment hereof, or the failure to
act on the part of Bank, or any indulgence shown by Bank (without
notice to or further assent from any of Obligors), and agree that
no such action, failure to act or failure to exercise any right or
remedy by Bank shall in any way affect or impair the obligations of
any Obligors or be construed as a waiver by Bank of, or otherwise
affect, any of Bank’s rights under this Note, under any
indorsement or guaranty of this Note or under any of the Loan
Documents; and (c) agree to pay, on demand, all costs and expenses
of collection or defense of this Note or of any indorsement or
guaranty hereof and/or the enforcement or defense of Bank’s
rights with respect to, or the administration, supervision,
preservation, or protection of, or realization upon, any property
securing payment hereof, including, without limitation, reasonable
attorney’s fees, including fees related to any suit,
mediation or arbitration proceeding, out of court payment
agreement, trial, appeal, bankruptcy proceedings or other
proceeding, in such amount as may be determined reasonable by any
arbitrator or court, whichever is applicable.
7.
Prepayments
. Prepayments may be made in whole
or in part at any time on any loan for which the Rate is based on
the Prime Rate, without premium. All prepayments of principal shall
be applied in the inverse order of maturity, or in such other order
as Bank shall determine in its sole discretion. No prepayment of
any advance hereunder that bears interest at the Eurodollar Fixed
Rate shall be permitted except at the expiration of the Eurodollar
Fixed Interest Period. Notwithstanding such prohibition, if there
is a prepayment of any such Eurodollar Fixed Rate advance, because
of acceleration or otherwise, Borrower shall, within 15 days of any
request by Bank, pay to Bank any loss or expense which Bank may
incur or sustain as a result of such prepayment. For the purposes
of calculating the amounts owed only, it shall be assumed that Bank
actually funded or committed to fund the advance through the
purchase of an underlying deposit in an amount and for a term
comparable to the advance, and such determination by Bank shall be
conclusive, absent a manifest error in computation.
8.
Delinquency
Charge . To the
extent permitted by law, a delinquency charge may be imposed in an
amount not to exceed four percent (4%) of any payment that is more
than fifteen days late.
9.
Events of
Default . The
following are events of default hereunder: (a) the failure to pay
or perform any obligation, liability or indebtedness of any Obligor
to Bank, or to any affiliate or subsidiary of Bank of America,
whether under this Note or any Loan Documents, within three (3)
days of the date when due (whether upon demand, at maturity or by
acceleration); (b) the failure to pay or perform any other
obligation, liability or indebtedness of any Obligor to any other
party; (c) the breach of any covenant contained in any of the Loan
Documents (subject to any cure procedure set forth therein); (d)
the resignation or withdrawal of any partner or a material owner of
Borrower, as determined by Bank in its sole discretion; (e) the
commencement of a proceeding against any Obligor for dissolution or
liquidation, the voluntary or involuntary termination or
dissolution of any Obligor or the merger or consolidation of
Borrower with or into another entity; (f) the insolvency of, the
business failure of, the appointment of a custodian, trustee,
liquidator or receiver for or for any of the property of, the
assignment for the benefit of creditors by, or the filing of a
petition under bankruptcy, insolvency or debtor’s relief law
or the filing of a petition for any adjustment of indebtedness,
composition or extension by or against any Obligor; (g) the
determination by Bank that any representation or warranty made to
Bank by any Obligor in any Loan Documents or otherwise is or was,
when it was made, untrue or materially misleading; (h) the failure
of any Obligor to timely deliver such financial statements,
including tax returns, other statements of condition or other
information, as Bank shall request from time to time; (i) the entry
of an uninsured judgment against any Obligor which Bank deems to be
of a material nature, in Bank’s sole discretion; (j) the
seizure or forfeiture of, or the issuance of any writ of
possession, garnishment or attachment, or any turnover order for
any material property of any Obligor; or (k) the failure of
Borrower’s business to comply with any law or regulation
controlling its operation that would have a material adverse affect
upon Borrower.
10.
Remedies upon
Default . Whenever
there is a default under this Note (a) the entire balance
outstanding hereunder and all other obligations of any Obligor to
Bank (however acquired or evidenced) shall, at the option of Bank,
become immediately due and payable and any obligation of Bank to
permit further borrowing under this Note shall immediately cease
and terminate, and/or (b) to the extent permitted by law, the Rate
of interest on the unpaid principal shall be increased at
Bank’s discretion up to the maximum rate allowed by law, or
if none, three percent (3%) per annum over the Prime Rate (the
“Default Rate”). The provisions herein for a Default
Rate shall not be deemed to extend the time for any payment
hereunder or to constitute a “grace period” giving
Obligors a right to cure any default. At Bank’s option, any
accrued and unpaid interest, fees or charges may, for purposes of
computing and accruing interest on a daily basis after the due date
of the Note or any installment thereof, be deemed to be a part of
the principal balance, and interest shall accrue on a daily
compounded basis after such date at the Default Rate provided in
this Note until the enti
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