Exhibit 10.10
Federal Home Loan
Numbers:
Old Loan
#002649160
New Loan
#504180193
Sun
RiverVillageApartments
AMENDED AND RESTATED
MULTIFAMILY NOTE
MULTISTATE – FIXED RATE
(REVISION DATE 2-15-2008)
(Recast Transaction)
THIS AMENDED AND RESTATED MULTIFAMILY NOTE (“Amended and
Restated Note”) is made effective as of the 2nd day of
October, 2009, by CENTURY SUN RIVER, LIMITED PARTNERSHIP, an
Arizona limited partnership ("Borrower")and the FEDERAL HOME LOAN
MORTGAGE CORPORATION (“Lender”).
RECITALS
A. Borrower is the maker
of a Multifamily Note (the “ Note ”), dated May
23, 2001 in the original amount of Ten Million and 00/100 Dollars
($10,000,000.00) evidencing a loan (the “ Loan
”) to Borrower in such amount from LEND LEASE MORTGAGE
CAPITAL, L.P. , a Texas limited partnership (the “
Original Lender ”).
B. The Note is
secured by that certain Multifamily Deed of Trust, Assignment of
Rents and Security Agreement, dated May 23, 2001, from Borrower, as
grantor, to Original Lender, a beneficiary, recorded in the Office
of the Maricopa County Recorder, Arizona (the “ Land
Records ”) as Instrument No. 2001-0438719 (the “
Instrument ”). The Instrument encumbers, among
other things, Borrower’s interest in the land described in
Exhibit A to the Instrument and to the Amended and Restated
Instrument.
C. Pursuant to a Limited
Guaranty dated May 23, 2001,
AIMCO Properties, L.P. , a Delaware limited partnership,
guaranteed some or all of Borrower’s obligations under the
terms of the Note and the Instrument.
D. Original Lender (i)
endorsed the Note to Lender and (ii) assigned the Instrument to
Lender by Assignment of Security Instrument dated May 23, 2001 and
recorded in the Land Records as Instrument No. 2001-0438722.
E. Borrower has
confirmed to Lender that Borrower has no defenses or offsets of any
kind against any of the indebtedness due under the Note.
F. Borrower and
Lender now desire to amend and restate the Note as provided below
to, among other things, (i) reflect an aggregate current unpaid
balance of Seven Million Four Hundred Fifty-Two Thousand Three
Hundred Eighty-Three and 00/100 Dollars ($7,452,383.00) , and
(ii) amend the terms of payment. Borrower and Lender now also
desire to amend and restate the Instrument as provided below.
NOW, THEREFORE, in consideration of these premises, and other good
and valuable consideration, the receipt and sufficiency of which
are acknowledged, the parties agree that the Note is amended and
restated in its entirety in the form attached hereto and made a
part hereof.
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PAGE]
Federal Home Loan Numbers:
Old Loan
#002649160
New Loan
#504180193
Sun
RiverVillageApartments
MULTIFAMILY NOTE
MULTISTATE – FIXED RATE
(REVISION DATE 2-15-2008)
|
US
$7,452,383.00
|
Effective Date: October 2, 2009
|
FOR VALUE RECEIVED, the undersigned (together with such party's or
parties' successors and assigns, " Borrower ") jointly and
severally (if more than one) promises to pay to the order of
FEDERAL HOME LOAN MORTGAGE CORPORATION , whose address is
8200 Jones Branch Drive, McLean, Virginia 22102, as beneficiary
(“ Lender ”), the principal sum of Seven
Million Four Hundred Fifty-Two Thousand Three Hundred Eighty-Three
and 00/100 Dollars (US $7,452,383.00), with
interest on the unpaid principal balance, as hereinafter
provided.
1. Defined
Terms.
(a) As used in this
Note:
" Base Recourse " means a portion of the Indebtedness equal
to ZERO percent (0%) of the original principal balance of this
Note.
" Business Day " means any day other than a Saturday, a
Sunday or any other day on which Lender or the national banking
associations are not open for business.
" Default Rate " means an annual interest rate equal to four
(4) percentage points above the Fixed Interest Rate. However,
at no time will the Default Rate exceed the Maximum Interest
Rate.
" Fixed Interest Rate " means the annual interest rate of
seven and forty-two hundredths percent (7.42%).
" Installment Due Date " means, for any monthly installment
of interest only or principal and interest, the date on which such
monthly installment is due and payable pursuant to Section 3 of
this Note. The " First Installment Due Date " under this
Note is December 1, 2009 .
" Lender " means the holder from
time to time of this Note.
" Loan " means the loan evidenced by this Note.
" Maturity Date " means the earlier of (i) June 1,
2021 (the " Scheduled Maturity Date "), and (ii) the
date on which the unpaid principal balance of this Note becomes due
and payable by acceleration or otherwise pursuant to the Loan
Documents or the exercise by Lender of any right or remedy under
any Loan Document.
" Maximum Interest Rate " means the rate of interest that
results in the maximum amount of interest allowed by applicable
law.
" Prepayment Premium Period " means the period during which,
if a prepayment of principal occurs, a prepayment premium will be
payable by Borrower to Lender. The Prepayment Premium Period
is the period from and including the date of this Note until but
not including the first day of the Window Period.
" Security Instrument " means the multifamily mortgage, deed
to secure debt or deed of trust effective as of the effective date
of this Note, from Borrower to or for the benefit of Lender and
securing this Note.
" Treasury Security " means the 7.875% U.S. Treasury
Security due February 15, 2021.
`
" Window Period " means the six (6) consecutive calendar
month period prior to the Scheduled Maturity Date.
" Yield Maintenance Period " means the period from and
including the date of this Note until but not including June 1,
2016.
(b) Other capitalized
terms used but not defined in this Note shall have the meanings
given to such terms in the Security Instrument.
2. Address for
Payment. All payments due under this Note shall be
payable at P.O. Box 60253, Charlotte, North Carolina 28260-0253, or
such other place as may be designated by Notice to Borrower from or
on behalf of Lender.
3. Payments.
(a) Interest will accrue
on the outstanding principal balance of this Note at the Fixed
Interest Rate, subject to the provisions of Section 8 of this
Note.
(b) Interest under this
Note shall be computed, payable and allocated on the basis of a
360-day year consisting of twelve 30-day months.
(c) Unless disbursement
of principal is made by Lender to Borrower on the first day of a
calendar month, interest for the period beginning on the date of
disbursement and ending on and including the last day of such
calendar month shall be payable by Borrower simultaneously with the
execution of this Note. If disbursement of principal is made
by Lender to Borrower on the first day of a calendar month, then no
payment will be due from Borrower at the time of the execution of
this Note. The Installment Due Date for the first monthly
installment payment under Section 3(d) of interest only or
principal and interest, as applicable, will be the First
Installment Due Date set forth in Section 1(a) of this Note.
Except as provided in this Section 3(c) and in Section 10, accrued
interest will be payable in arrears.
(d) Beginning on the
First Installment Due Date, and continuing until and including the
monthly installment due on the Maturity Date, principal and accrued
interest shall be payable by Borrower in consecutive monthly
installments due and payable on the first day of each calendar
month. The amount of the monthly installment of principal and
interest payable pursuant to this Section 3(d) on an Installment
Due Date shall be Fifty-One Thousand Seven Hundred and 51/100
Dollars ($51,700.51) .
(e) All remaining
Indebtedness, including all principal and interest, shall be due
and payable by Borrower on the Maturity Date.
(f) All payments
under this Note shall be made in immediately available U.S.
funds.
(g) Any regularly
scheduled monthly installment of interest only or principal and
interest payable pursuant to this Section 3 that is received
by Lender before the date it is due shall be deemed to have been
received on the due date for the purpose of calculating interest
due.
(h) Any accrued interest
remaining past due for 30 days or more, at Lender's discretion, may
be added to and become part of the unpaid principal balance of this
Note and any reference to "accrued interest" shall refer to accrued
interest which has not become part of the unpaid principal
balance. Any amount added to principal pursuant to the Loan
Documents shall bear interest at the applicable rate or rates
specified in this Note and shall be payable with such interest upon
demand by Lender and absent such demand, as provided in this Note
for the payment of principal and interest.
4. Application of
Payments. If at any time Lender receives, from Borrower
or otherwise, any amount applicable to the Indebtedness which is
less than all amounts due and payable at such time, Lender may
apply the amount received to amounts then due and payable in any
manner and in any order determined by Lender, in Lender's
discretion. Borrower agrees that neither Lender's acceptance
of a payment from Borrower in an amount that is less than all
amounts then due and payable nor Lender's application of such
payment shall constitute or be deemed to constitute either a waiver
of the unpaid amounts or an accord and satisfaction.
5.
Security. The Indebtedness is secured by, among other
things, the Security Instrument, and reference is made to the
Security Instrument for other rights of Lender as to collateral for
the Indebtedness.
6.
Acceleration. If an Event of Default has occurred and is
continuing, the entire unpaid principal balance, any accrued
interest, any prepayment premium payable under Section 10, and
all other amounts payable under this Note and any other Loan
Document, shall at once become due and payable, at the option of
Lender, without any prior notice to Borrower (except if notice is
required by applicable law, then after such notice). Lender
may exercise this option to accelerate regardless of any prior
forbearance. For purposes of
exercising such option, Lender shall calculate the prepayment
premium as if prepayment occurred on the date of
acceleration. If prepayment occurs thereafter, Lender shall
recalculate the prepayment premium as of the actual prepayment
date.
7. Late
Charge.
(a) If any monthly
installment of interest or principal and interest or other amount
payable under this Note or under the Security Instrument or any
other Loan Document is not received in full by Lender within ten
(10) days after the installment or other amount is due, counting
from and including the date such installment or other amount is due
(unless applicable law requires a longer period of time before a
late charge may be imposed, in which event such longer period shall
be substituted), Borrower shall pay to Lender, immediately and
without demand by Lender, a late charge equal to five percent (5%)
of such installment or other amount due (unless applicable law
requires a lesser amount be charged, in which event such lesser
amount shall be substituted).
(b) Borrower acknowledges
that its failure to make timely payments will cause Lender to incur
additional expenses in servicing and processing the Loan and that
it is extremely difficult and impractical to determine those
additional expenses. Borrower agrees that the late charge
payable pursuant to this Section represents a fair and
reasonable estimate, taking into account all circumstances existing
on the date of this Note, of the additional expenses Lender will
incur by reason of such late payment. The late charge is
payable in addition to, and not in lieu of, any interest payable at
the Default Rate pursuant to Section 8.
8. Default
Rate.
(a) So long as
(i) any monthly installment under this Note remains past due
for thirty (30) days or more or (ii) any other Event of
Default has occurred and is continuing, then notwithstanding
anything in Section 3 of this Note to the contrary, interest under
this Note shall accrue on the unpaid principal balance from the
Installment Due Date of the first such unpaid monthly installment
or the occurrence of such other Event of Default, as applicable, at
the Default Rate.
(b) From and after the
Maturity Date, the unpaid principal balance shall continue to bear
interest at the Default Rate until and including the date on which
the entire principal balance is paid in full.
(c) Borrower acknowledges
that (i) its failure to make timely payments will cause Lender
to incur additional expenses in servicing and processing the Loan,
(ii) during the time that any monthly installment under this
Note is delinquent for thirty (30) days or more, Lender will incur
additional costs and expenses arising from its loss of the use of
the money due and from the adverse impact on Lender's ability to
meet its other obligations and to take advantage of other
investment opportunities; and (iii) it is extremely difficult
and impractical to determine those additional costs and
expenses. Borrower also acknowledges that, during the time
that any monthly installment under this Note is delinquent for
thirty (30) days or more or any other Event of Default has occurred
and is continuing, Lender's risk of nonpayment of this Note will be
materially increased and Lender is entitled to be compensated for
such increased risk. Borrower agrees that the increase in the
rate of interest payable under this Note to the Default Rate
represents a fair and reasonable estimate, taking into account all
circumstances existing on the date of this Note, of the additional
costs and expenses Lender will incur by reason of the Borrower's
delinquent payment and the additional compensation Lender is
entitled to receive for the increased risks of nonpayment
associated with a delinquent loan.
9. Limits on
Personal Liability.
(a) Except as otherwise
provided in this Section 9, Borrower shall have no personal
liability under this Note, the Security Instrument or any other
Loan Document for the repayment of the Indebtedness or for the
performance of any other obligations of Borrower under the Loan
Documents and Lender's only recourse for the satisfaction of the
Indebtedness and the performance of such obligations shall be
Lender's exercise of its rights and remedies with respect to the
Mortgaged Property and to any other collateral held by Lender as
security for the Indebtedness. This limitation on Borrower's
liability shall not limit or impair Lender's enforcement of its
rights against any guarantor of the Indebtedness or any guarantor
of any other obligations of Borrower.
(b) Borrower shall be
personally liable to Lender for the amount of the Base Recourse,
plus any other amounts for which Borrower has personal liability
under this Section 9.
(c) In addition to the
Base Recourse, B
