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HomeMy WebLinkAboutPromissory Note PROMISSORY NOTE $1,500,000.00 February-b: 2007 Miami Beach, Florida FOR VALUE RECEIVED the undersigned, MBCDC MERIDIAN PLACE LLC, a Florida limited liability corporation ("Maker"), promises to pay to the order of the MIAMI BEACH REDEVELOPMENT AGENCY, a public body corporate and politic, together with any other holder of this Note ("Holder"), at 1700 Convention Center Drive, Miami Beach, Florida 33139, Attention: Executive Director or such other place as Holder may from time to time designate in writing, the principal sum of ONE MILLION FIVE HUNDRED THOUSAND AND NO/I00 DOLLARS ($1,500,000.00) (the "Principal Amount"), to be paid in lawful money ofthe United States of America in accordance with the terms of this Note. This Note may be prepaid in whole or in part at any time, without any fee, penalty or premium. Any prepayment hereunder shall be applied first to unpaid costs of collection, servicing fees, and late charges, if any, then to accrued, deferred and unpaid interest and the balance, if any, to the principal balance. This Note is secured by a Mortgage and Security Agreement of even date herewith from Maker in favor of Holder (the "Mortgage") encumbering certain real property (the "Property") located in Miami-Dade County, Florida. The foregoing and all other agreements, instruments and documents delivered in connection with the Mortgage and with this Note are collectively referred to as the "Loan Documents." This Note shall not bear interest. Commencing on December 31, 2011, and continuing each December 31 thereafter, Maker shall make principal payments to Holder in the amount of $150,000 until the Note is paid in full. Maker agrees to allocate annually for the repayment of this Note no less than $150,000 of the monies received from the City of Miami Beach or the Miami Beach Redevelopment Agency. Notwithstanding anything to the contrary herein, the entire unpaid Principal Amount shall be due and payable upon the sale or transfer of the Property prior to the expiration (and/or other termination) of the "Affordability Period" (as said term is defined in the Mortgage) by the Maker in accordance with the terms of paragraph I.I of the Mortgage. In the event of a default by the Maker under this Note, the Holder's sole remedy shall be limited to exercising its rights under the Loan Documents, including foreclosure and the exercise of the power of sale or other rights granted thereunder, but shall not include a right to proceed directly against the Maker, or any of its partners, or the right to obtain a deficiency judgment after foreclosure against the Maker or any of its partners. This Note has been executed and delivered in, and is to be governed by and construed under the laws of, the State of Florida, as amended, except as modified by the laws and regulations of the United States of America. ~ The "Default Interest Rate" and, in the event no specific Maximum Rate is applicable, the Maximum Rate shall be twelve percent (12%) per annum. Holder shall have the right to declare the total unpaid balance hereof to be immediately due and payable in advance of the Maturity Date upon the failure of Maker to comply with the Restrictive Covenants set forth in the Mortgage; or upon the occurrence of an event of default pursuant to anyone of the Loan Documents now or hereafter evidencing, securing or guaranteeing payment of the indebtedness evidenced by this Note. Exercise of this right shall be without notice to Maker or to any other person liable for payment of this Note, notice of such exercise is expressly waived. Any payment under this Note not paid when due (at maturity, upon acceleration or otherwise) taking into account applicable grace periods shall bear interest at the Default Interest Rate from the due date until paid. Time is of the essence. In the event that this Note is collected by law or through attorneys at law, or under their advice therefrom, Maker agrees, to pay all costs of collection, including reasonable attorneys' fees, whether or not suit is brought, and whether incurred in connection with collection, trial, appeal, bankruptcy or other creditors proceedings or otherwise. Acceptance of partial payments or payments marked "payment in full" or "in satisfaction" or words to similar effect shall not affect the duty of Maker to pay all obligations due under this Note, and shall not affect the right of Holder to pursue all remedies available to it under the Loan Documents. The remedies of Holder shall be cumulative and concurrent, and may be pursued singularly, successively or together, at the sole discretion of Holder, and may be exercised as often as occasion therefore shall arise. No action or omission of Holder, including specifically any failure to exercise or forbearance in the exercise of any remedy, shall be deemed to be a waiver or release of the same, such waiver or release to be effected only to the extent specifically recited in a written document executed by Holder. A waiver or release with reference to anyone event shall not be construed as continuing or as constituting a cause of dealing, nor shall it be construed as a bar to, or as a waiver or release of, any subsequent remedy as to a subsequent event. Any notice to be given or to be served upon the Maker or the Holder in connection with this Note, whether required or otherwise, may be given in any manner permitted under the Loan Documents. The term "other person liable for payment hereof" shall include any endorser, guarantor, surety or other person now or hereafter primarily or secondarily liable for the payment of this Note, whether by signing this or another instrument. Whenever the context so requires, the neuter gender includes the feminine and/or masculine, as the case may be, and the singular number includes the plural, and the plural number includes the singular. ~ Maker and any other person liable for the payment hereof respectively, hereby (a) expressly waive any valuation and appraisal, presentment, demand for payment, notice of dishonor, protest, notice of nonpayment or protest, all other forms of notice whatsoever, and diligence in collection; and (b) consent that Holder may, from time to time and without notice to any of them or demand, (i) extend, rearrange, renew or postpone any or all payments, (ii) release, exchange, add to or substitute all or any part of the collateral for this Note, and/or (iii) release Maker (or any co-maker) or any other person liable for payment hereof, without in any way modifying, altering, releasing, affecting or limiting their respective liability or the lien of any security instrument. BY EXECUTING THIS NOTE, MAKER KNOWINGLY, VOLUNTARILY AND INTENTIONALL Y WAIVES ITS RIGHTS OR THE RIGHTS OF ITS HEIRS, ASSIGNS, SUCCESSORS OR PERSONAL REPRESENTATIVES TO A TRIAL BY JURY, IF ANY, IN ANY ACTION, PROCEEDING OR SUIT, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, AND WHETHER ASSERTED BY WAY OF COMPLAINT, ANSWER, CROSSCLAIM, COUNTERCLAIM, AFFIRMATIVE DEFENSE OR OTHERWISE, BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS NOTE OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT TO BE EXECUTED IN CONNECTION HEREWITH OR WITH THE INDEBTEDNESS OR THE RENEWAL, MODIFICATION OR EXTENSION OF ANY OF THE FOREGOING OR ANY FUTURE ADVANCE THEREUNDER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR HOLDER'S EXTENDING CREDIT TO A BORROWER AND NO WAIVER OR LIMITATION OF HOLDER'S RIGHTS HEREUNDER SHALL BE EFFECTIVE UNLESS IN WRITING AND MANUALLY SIGNED ON HOLDER'S BEHALF. Maker acknowledges that the above paragraph has been expressly bargained for by Holder as part of the transaction with Maker and that, but for Maker's agreement to such paragraph, Holder would not have loaned the Principal Amount to the Maker pursuant to the terms of this Note. THE PROPER FLORIDA DOCUMENTARY STAMP TAX HAS BEEN PAID ON THIS NOTE AND EVIDENCE OF SUCH PAYMENT APPEARS ON THE MORTGAGE SECURING THIS NOTE. IN WITNESS WHEREOF, Maker has executed this Note on the day and year first above written. MBCDC MERIDIAN PLACELLC, a Florida limited liability corporation By: Miami Beach Community Development Corporation, A Florida non-profit corporation, its sole member BY~ _ Name: e 0 Datorre Title: resident