Exhibit 10.1
EXECUTION VERSION
FIXED FACILITY
NOTE
(Fixed+1 Maturity)
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US
$310,000,000.00
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August 3, 2009
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FOR VALUE RECEIVED
, the undersigned (individually and
collectively, “ Borrower ”) jointly and
severally (if more than one) promises to pay to the order of
DEUTSCHE BANK BERKSHIRE MORTGAGE, INC. , a Delaware
corporation (“ Lender ”), the principal
sum of THREE HUNDRED TEN MILLION AND NO/100 DOLLARS
(US $310,000,000.00), with interest accruing at the Interest
Rate on the unpaid principal balance from the Disbursement Date
until fully paid.
This Note is executed and delivered
by Borrower pursuant to that certain Master Credit Facility
Agreement, dated as of April 7, 2009, by and between Borrower,
Lender and others (as amended, restated or otherwise modified from
time to time, the “ Master Agreement ”),
to evidence the obligation of Borrower to repay a Fixed Advance
made by Lender to Borrower in accordance with the terms of the
Master Agreement. This Note is entitled to the benefit and security
of the Loan Documents provided for in the Master Agreement, to
which reference is hereby made for a statement of all of the terms
and conditions under which the Fixed Advance evidenced hereby is
made.
1. Defined Terms.
In addition to defined terms found
elsewhere in this Note, as used in this Note, the following
definitions shall apply:
Adjustable Rate
. From and after each Rate Change
Date until the next Rate Change Date, the Adjustable Rate shall be
the sum of (i) the Current Index, and (ii) the Margin,
which sum is then rounded to three decimal places, subject to the
limitations that the Adjustable Rate shall not be less than the
Margin.
Adjustable Rate Period
: The period commencing on the First
Rate Change Date and ending on the Maturity Date.
Advance : The Advance evidenced by this Note.
Advance Term
: 132 months.
Amortization Period
: 360 months.
Business Day
: Any day other than a Saturday,
Sunday or any other day on which Lender is not open for
business.
1
Current Index
: The published Index that is
effective on the fifteenth (15th) day before the applicable
Rate Change Date.
Debt Service Amounts
: Amounts payable under this Note,
the Security Instrument or any other Loan Document.
Default Rate
: A rate equal to the lesser of four
(4) percentage points above the Interest Rate or the maximum
interest rate which may be collected from Borrower under applicable
law.
Disbursement Date
: The date of disbursement of the
Advance hereunder.
First Payment Change
Date : The first day of
October, 2019.
First Payment Date or First
Interest Only Payment Date : The first day of October, 2009.
First Principal and Interest
Payment Date : The first
day of October, 2014.
First Rate Change Date
: The first day of September,
2019.
Fixed Rate
: The annual rate of five and
sixty-nine one hundredths percent (5.69%).
Indebtedness
: The principal of, interest on, or
any other amounts due at any time under, this Note, the Security
Instrument or any other Loan Document, including prepayment
premiums, late charges, default interest, and advances to protect
the security of the Security Instrument under Section 12 of
the Security Instrument.
Index : The British Bankers Association fixing of the
London Inter-Bank Offered Rate for 1-month
U.S. Dollar-denominated deposits as reported by Telerate
through electronic transmission. If the Index is no longer
available, or is no longer posted through electronic transmission,
Lender will choose a new index that is based upon comparable
information and provide notice thereof to Borrower.
Last Interest-Only Payment
Date : The first day of
September, 2014.
Lender : The holder of this Note.
Margin : The Adjustable Rate Period margin is three
percent (3%).
Maturity Date
: The first day of September, 2020,
or any earlier date on which the unpaid principal balance of this
Note becomes due and payable by acceleration or
otherwise.
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Payment Change Date
: The first day of the month
following each Rate Change Date until this Note is repaid in
full.
Remaining Amortization
Period : For an
amortizing Advance, as of each Payment Change Date, the
Amortization Period minus the number of scheduled monthly principal
and interest payments that have elapsed since the date of this
Note.
Rate Change Date
: The First Rate Change Date and the
first day of each month thereafter until this Note is repaid in
full.
Security Instrument
: Individually and collectively,
various multifamily mortgage, deeds to secure debt or deeds of
trust described in the Master Agreement.
Yield Maintenance Period Term or
Prepayment Premium Period Term : 120 months.
Yield Maintenance Period End Date
or Prepayment Premium Period End Date : The last day of August, 2019.
Event of Default and other
capitalized terms used but not defined in this Note shall have the
meanings given to such terms in the Master Agreement or, if not
defined in the Master Agreement, as defined in the Security
Instrument.
2. Address for
Payment. All payments due
under this Note shall be payable at DB Mortgage Services, LLC, One
Beacon Street, 14th Floor, Boston, Massachusetts 02108, or such
other place as may be designated by written notice to Borrower from
or on behalf of Lender.
3. Payment of Principal and
Interest. Principal and
interest shall be paid as follows:
(a) Short Month Interest. If
disbursement of principal is made by Lender to Borrower on any day
other than the first day of the month, interest for the period
beginning on the Disbursement Date and ending on and including the
last day of the month in which such disbursement is made shall be
payable simultaneously with the execution of this Note.
(b) Interest Computation.
Interest under this Note shall be computed on the basis of
(check one only) :
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30/360. A 360-day year consisting of twelve 30-day
months.
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x
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Actual/360.
A 360-day year. The amount of each
monthly payment made by Borrower pursuant to Section 3(d)
below that is allocated to interest will be based on the actual
number of calendar days during such month and shall be calculated
by multiplying the unpaid principal balance of this Note by the per
annum Interest Rate, dividing the product by three hundred sixty
(360)
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and multiplying the quotient by
the actual number of days elapsed during the month. Borrower
understands that the amount allocated to interest for each month
will vary depending on the actual number of calendar days during
such month.
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(c) Interest Accrual .
Interest shall accrue on the unpaid principal balance of this Note
at the Fixed Rate or the Adjustable Rate, as applicable. Interest
shall accrue at the Fixed Rate until the First Rate Change Date.
Thereafter, interest shall accrue at the Adjustable Rate. During
the Adjustable Rate Period, the Adjustable Rate shall change on
each Rate Change Date until the Advance is repaid in
full.
(d) Monthly
Installments.
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(1)
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Fixed Rate
Period. (Check one
only.)
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Consecutive monthly installments of
principal and interest, each in the amount of
Dollars (US
$ ),
shall be payable on the First Payment Date and on the first day of
every month thereafter, until and including the First Rate Change
Date
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Interest
Only Advance . (Check
one only)
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30/360 . If interest accrues based on a 30/360 interest
computation, then consecutive monthly installments of interest
only, each in the amount of
Dollars (US
$ ),
shall be payable on the First Payment Date and on the first day of
every month thereafter, until and including the First Rate Change
Date.
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¨
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Actual/360 . If interest accrues based on an Actual/360
interest computation, the amount of
Dollars (US
$ )
shall be payable on the First Payment Date and thereafter
consecutive monthly installments of interest only, shall be payable
as follows:
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(1)
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Dollars (US
$ ),
shall be payable on the first day of each month during the term
hereof which follows a 28-day month;
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4
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(2)
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Dollars (US
$ ),
shall be payable on the first day of each month during the term
hereof which follows a 29-day month,
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(3)
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Dollars (US
$ ),
shall be payable on the first day of each month during the term
hereof which follows a 30-day month, or
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(4)
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Dollars (US
$ ),
shall be payable on the first day of each month during the term
hereof which follows a 31-day month,
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until and including the First Rate
Change Date.
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x
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Partial
Interest Only Advance .
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(1)
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Interest
Only Period. Commencing
on the First Interest Only Payment Date and on the first day of
every month until and including the Last Interest Only Payment
Date, consecutive monthly installments of interest only shall be
payable and in an amount equal to one of the following (check
one only) :
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30/360 . If interest accrues based on a 30/360 interest
computation, then consecutive monthly installments of interest
only, each in the amount of
Dollars (US
$ ).
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x
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Actual/360 . If interest accrues based on an Actual/360
interest computation, the amount of One Million Four Hundred
Sixty-Nine Thousand Nine Hundred Sixteen and 67/100 Dollars (US
$1,469,916.67) shall be payable on the First Interest Only Payment
Date and thereafter consecutive monthly installments of interest
only shall be payable as follows:
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(i)
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One Million
Three Hundred Seventy-One Thousand Nine Hundred Twenty-Two and
22/100 Dollars (US $1,371,922.22), shall be payable on the first
day of each month during the term hereof which follows a 28-day
month;
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(ii)
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One Million
Four Hundred Twenty Thousand Nine Hundred Nineteen and 44/100
Dollars (US $1,420,919.44), shall be payable on the first day of
each month during the term hereof which follows a 29-day
month,
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(iii)
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One Million
Four Hundred Sixty-Nine Thousand Nine Hundred Sixteen and 67/100
Dollars (US $1,469,916.67), shall be payable on the first day of
each month during the term hereof which follows a 30-day month,
or
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(iv)
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One Million
Five Hundred Eighteen Thousand Nine Hundred Thirteen and 89/100
Dollars (US $1,518,913.89), shall be payable on the first day of
each month during the term hereof which follows a 31-day
month,
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(2)
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Amortizing
Period . Commencing on
the First Principal and Interest Payment Date and on the first day
of every month thereafter, until and including the First Rate
Change Date, consecutive monthly installments of principal and
interest shall be due and payable, each in the amount of One
Million Seven Hundred Ninety-Seven Thousand Two Hundred
Seventy-Seven and 31/100 Dollars (US $1,797,277.31).
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(2)
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Adjustable
Rate Period. (Check
one only)
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x
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Amortizing Advance
. If the Advance is an amortizing
Advance, consecutive monthly installments of principal and
interest, each in the amount of the “Required Monthly
Payment” (as calculated by Lender after the Rate Change Date
and prior to the Payment Change Date), shall be payable on the
first day of each month beginning on the First Payment Change Date
and on each Payment Change Date thereafter until the entire unpaid
principal balance evidenced by this Note is fully paid. The initial
Required Monthly Payment shall be the amount required to pay the
unpaid principal balance of this Note in equal monthly
installments, including accrued interest at the Adjustable Rate
over the Remaining Amortization Period. Thereafter, to the extent
that the Adjustable Rate has changed, the Required Monthly Payment
shall change on
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each Payment Change Date, and shall
be in such amount as shall cause the unpaid principal balance of
the Note to be amortized over the Remaining Amortization Period.
Notwithstanding the interest accrual method selected in
Section 3(b) above, the amount of the initial and all other
Required Monthly Payments shall be calculated utilizing a 30/360
interest calculation payment schedule whether the amount allocated
to interest on the loan is based on a 360-day year consisting of
twelve 30-day months or on a 360-day year consisting of the actual
number of days in each month. Any remaining principal and interest,
if not sooner paid, shall be due and payable on the Maturity
Date.
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Interest-Only Advance . If the Advance is an interest-only Advance,
consecutive monthly installments of interest only, each in the
amount of the Required Monthly Payment (defined below), shall be
payable on the First Payment Change Date and on each Payment Change
Date thereafter until the entire unpaid principal balance evidenced
by this Note is fully paid. The initial Required Monthly Payment
shall be calculated based on the outstanding principal balance and
the then-applicable Adjustable Rate. Thereafter, to the extent that
the Adjustable Rate has changed, the Required Monthly Payment shall
change on each Payment Change Date based on the then-applicable
Adjustable Rate. The amount of the initial and any changed Required
Monthly Payment shall be calculated utilizing the interest accrual
method selected in Section 3(b) above. The entire unpaid
principal balance and accrued but unpaid interest, if not sooner
paid, shall be due and payable on the Maturity Date.
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(i) Adjustable Rate . The
Adjustable Rate shall be in effect beginning on the First Rate
Change Date. From and after each Rate Change Date until the next
Rate Change Date, the Adjustable Rate shall be the sum of
(a) the Current Index, and (b) the Margin, which sum is
then rounded to three decimal places, subject to the limitations
that the Adjustable Rate shall not be less than the Margin. Accrued
interest on this Note shall be paid in arrears.
(ii) Notice of Interest Rate
Change . Before each Payment Change Date, Lender shall
re-calculate the Adjustable Rate and shall notify Borrower (in the
manner specified in the Security Instrument for giving notices) of
any change in the Adjustable Rate and the Required Monthly
Payment.
(iii) Correction to Required
Monthly Payment. If Lender at any time determines, in its sole
but reasonable discretion, that it has miscalculated the amount of
the Required Monthly Payment (whether
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because of a miscalculation of the
Adjustable Rate or otherwise), then Lender shall give notice to
Borrower of the corrected amount of the Required Monthly Payment
(and the corrected Adjustable Rate, if applicable) and (a) if
the corrected amount of the Required Monthly Payment represents an
increase, then Borrower shall, within thirty (30) calendar
days thereafter, pay to Lender any sums that Borrower would have
otherwise been obligated under this Note to pay to Lender had the
amount of the Required Monthly Payment not been miscalculated, or
(b) if the corrected amount of the Required Monthly Payment
represents a decrease thereof and Borrower is not otherwise in
breach or default under any of the terms and provisions of the
Note, the Security Instrument or any other loan document evidencing
or securing the Note, then Borrower shall thereafter be paid the
sums that Borrower would not have otherwise been obligated to pay
to Lender had the amount of the Required Monthly Payment not been
miscalculated.
(e) Payments Before Due Date.
Any regularly scheduled monthly installment of principal and
interest that is received by Lender before the date it is due shall
be deemed to have been received on the due date solely for the
purpose of calculating interest due.
(f) Accrued Interest. Any
accrued interest remaining past due for thirty (30) days or
more shall be added to and become part of the unpaid principal
balance and shall bear interest at the rate or rates specified in
this Note. Any reference herein to “accrued interest”
shall refer to accrued interest
