MODIFIED PROMISSORY NOTE FOR $1,000,000.
MODIFIED PROMISSORY NOTE
U.S. .$1.000.000
Clearwater, Florida
YY1a~ r2 cg , 2003
BEING INDEBTED, FOR VALUE RECEIVED, the undersigned (the "Borrower"),
jointly and severally, promise to pay to the order of the City of Clearwater (the "Lender"),
or order, its successors or assigns, at its offices at P.O. Box 4748, Clearwater, Florida
33758-4748, the sum of One Million Dollars ($1,000,000), together with interest on the
unpaid balance, calculated in the manner hereinafter stated, from the dates of
disbursements until maturity, both principal and interest being payable in lawful money
of the United States of America. This is a modification to the original Promissory Note
dated on April 1, 2002, as referenced by the Mortgage and Security Agreement, dated
the same herewith, as recorded in O.R. Book 11928, Page 2494 of the Public Records
of Pinellas County, Florida.
DISBURSEMENT OF FUNDS: $1,000,000.00 disbursed under this note shall be
advanced in accordance with the following schedule:
a) $250,000 at 25% of completion as evidenced by certification of the architect;
b) $250,000 at 50% of completion as evidenced by certification of the architect;
c) $250,000 at 75% of completion as evidenced by certification of the architect;
d) $125,000 at Final as evidenced by certification of the architect;
e) $125,000 at stabilization as evidenced by certification of a CPA.
PAYMENT AND TAXES:
1. This Note has a term of eighteen (18) years. The maturity date of this
Note is April 1, 2020.
2. No payment of interest or principal shall be required during the initial three
(3) year term of this Note, or until May 1, 2005.
3. Thereafter, commencing on May 1, 2005 principal and interest payments,
with interest computed at three percent (3%) per annum on the unpaid balance, shall be
payable on the 1 st day of each month in the amount of Six Thousand Nine Hundred and
Five Dollars and Eiqhtv-Two Cents ($6,905.82) until April 1 ,2020.
SUBORDINATE NOTE:
The indebtedness evidenced by this Note is and shall be subordinate in right of
payment to the prior payment in full of the indebtedness evidenced by a Multifamily
Note of even date herewith in the original principal amount of $6,500,000 issued by
Greenwood Partners, LLC and payable to the Housing Finance Authority of Pinellas
County as assigned to U.S. Bank, National Association, as Trustee and Fannie Mae, as
their interest may appear (collectively, "Senior Lender"), or order, to the extent and in
the manner provided in that certain Subordination Agreement of even date herewith,
between the payee of this Note, the Senior Lender and the maker of this Note (the
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"Subordination Agreement"). The Mortgage securing this Note is and shall be subject
and subordinate in all respects to the liens, terms, covenants and conditions of
Multifamily Mortgage securing the Multifamily Note as more fully set forth in the
Subordination Agreement. The rights and remedies of the payee and each subsequent
holder of this Note under the Mortgage securing this Note are subject to the restrictions
and limitations set forth in the Subordination Agreement. Each subsequent holder of
this Note shall be deemed, by virtue of such holder's acquisition of the Note, to have
agreed to perform and observe all of the terms, covenants and conditions to be
performed or observed by the Subordinate Lender under the Subordination Agreement.
PARITY/PARRI-PASSU NOTE:
This Note is issued along with a companion promissory note in the face amount
of $300,000 payable to The Housing Finance Authority of Pinellas County. This Lender
agrees that the rights, powers, privileges and remedies granted hereunder are on parity
and parri-passu with The Housing Finance Authority of Pinellas County under its
$300,000 promissory note and relative mortgage. The Lender shall not take any action
which would cause its interests in the Premises to be superior to that of The Housing
Finance Authority of Pinellas County.
EXCESS INTEREST:
In no event shall the amount of interest due or payments made in the nature of
interest payable hereunder exceed the maximum rate of interest allowed by applicable
law, as amended from time to time, and in the event any such payment is paid by the
Borrower or received by the Lender, then such excess sums shall be credited as a
payment of principal, unless the Borrower shall notify the Lender, in writing, that the
Borrower elects to have such excess sum returned to it forthwith.
PREPAYMENT:
This Note may be prepaid in whole or in part at any time without payment of
premium or penalty. Any prepayments shall be applied to the last installments due
hereunder.
SECURED NOTE:
This Note is secured by a Mortgage and such other security or supporting
documents as are executed in conjunction with it (the "Loan Documents") between the
Borrower and Lender on real and/or personal property, improvements, furnishings,
fixtures, appurtenances, and hereditaments (the "Premises"). This Note and the Lender
are entitled to all of the benefits provided for in the Loan Documents or referred to within
them, to which Loan Documents reference is hereby specifically made and they are
hereby incorporated herein by reference for a statement of the terms and conditions
under which the due date of this Note may be accelerated.
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TIME OF THE ESSENCE, lATE CHARGES:
Time is of the essence of this obligation. If any installment or payment is not
received on or before the 15th day following the installment due date, the Borrower
agrees to pay a delinquency and collection charge of five cents ($.05) per dollar of the
installment then due, in addition to the amount of said installment.
In the event this Note is accelerated pursuant to a failure to timely payor
perform, then the entire unpaid principal shall bear interest at the maximum rate
permitted by applicable law as changed from time to time from the time that payment or
performance should have occurred. In the event a judgment is obtained, the judgment
amount shall bear interest at the default rate recited herein or the rate of interest
established by Section 55.03 Florida Statutes, which ever is the greater, until the full
amount of the judgment is collected.
COSTS, FEES AND NOTICE:
In the event of either a failure to pay any monetary sum when due, or an
occurrence of any default as defined under the Loan Documents, the principal sum
above mentioned or any balance remaining unpaid shall be immediately due and
payable from the Borrower to the Lender without further notice, together with all interest,
all just and reasonable expenses, costs and disbursements, including a reasonable
attorney's fee, whether incurred for suit enforcement, protection of the collateral or
collection, whether or not suit be brought, such attorney's fees to include those incurred
in appellate and Bankruptcy proceedings, if any. Notice, when required, shall be
deemed to have been made upon deposit in the United States mails by the Lender to
the Borrower, at the address shown beneath the signatures undersigned.
REMEDIES AND WAIVER:
The remedies of the Lender, as provided herein or in the Mortgage or any other
Loan Documents, shall be cumulative and concurrent, and may be pursued singularly,
successively or together, at the sole discretion of the Lender, and may be exercised as
often as occasion therefor shall arise. No act of omission or commission of the Lender,
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 by the Lender and then only to the extent
specifically recited therein. A waiver or release with reference to anyone event shall
not be construed as continuing, as a bar to, or as to a subsequent event.
MISCEllANEOUS:
Where applicable, the term Lender shall include any subsequent or successor
holder of this Note and the Loan Documents.
For and in consideration of the funding of this Note by the Lender or any renewal
or extension thereof, should any occur, the undersigned Borrower hereby agrees to
cooperate or to reexecute any and all Loan Documents deemed necessary or desirable
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in the Lender's discretion, in order to correct or to adjust for any clerical errors or
omissions contained in any document executed in connection with the loan.
WAIVER OF JURY TRIAL. BY THE EXECUTION HEREOF, BORROWER
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY AGREES THAT:
(A) NEITHER THE BORROWER NOR ANY ASSIGNEE, SUCCESSOR,
HEIR, OR LEGAL REPRESENTATIVE OF THE SAME SHALL SEEK A JURY TRIAL IN
ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION OR
PROCEDURE ARISING FROM OR BASED UPON THIS PROMISSORY NOTE, ANY
OTHER LOAN AGREEMENT OR ANY LOAN DOCUMENT EVIDENCING, SECURING
OR RELATING TO THE OBLIGATIONS OR TO THE DEALINGS OR RELATIONSHIP
BETWEEN OR AMONG THE PARTIES THERETO;
(B) NEITHER THE BORROWER NOR THE LENDER WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED,
WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN OR CANNOT
BE WAIVED;
(C) THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY
NEGOTIATED BY THE PARTIES HERETO AND THESE PROVISIONS SHALL BE
SUBJECT TO NO EXCEPTIONS;
(D) NEITHER THE BORROWER NOR THE LENDER HAS IN ANY WAY
AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE
PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES; AND
(E) THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER
TO ENTER INTO THIS TRANSACTION.
THE UNDERSIGNED ACKNOWLEDGE THAT THE LOAN EVIDENCED
HEREBY IS FOR COMMERCIAL PURPOSES ONLY AND NOT FOR PERSONAL
FAMILY OR HOUSEHOLD PURPOSE.
Florida Documentary stamps in the amount of $
and the proper stamps affixed to the Mortgage.
have been paid
GREENWOOD APARTMENTS, LLC,
a Florida limited liability company
By: BANC OF AMERICA COMMUNITY
DEVELOPMENT CORPORATION; its
man . member
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