FIXED FACILITY
NOTE
(Standard Maturity)
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US
$91,000,000.00
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February 27, 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 PNC ARCS LLC , a
Delaware limited liability company (“ Lender
”) the principal sum of NINETY-ONE MILLION AND NO/100 DOLLARS
(US $91,000,000.00), with interest accruing on the unpaid principal
balance from the Disbursement Date until fully paid at the Interest
Rate.
This Note is
executed and delivered by Borrower pursuant to that certain Master
Credit Facility Agreement, dated as of February 27, 2009, by
and between Borrower and Lender (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:
Advance : The advance evidenced by this Note.
Advance
Term :
120 months.
Amortization
Period : N/A
Business
Day : Any day other than
a Saturday, Sunday or any other day on which Lender is not open for
business.
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 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 Advance proceeds hereunder.
First
Payment Date : The first
day of April, 2009.
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.
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Interest
Rate : The annual rate of
five and ninety-six one-hundredths percent (5.96%).
Lender : The holder of this Note.
Maturity
Date : The first day of
March, 2019, or any earlier date on which the unpaid principal
balance of this Note becomes due and payable by acceleration or
otherwise.
Security
Instrument : Individually
and collectively, various multifamily mortgages, deeds to secure
debt or deeds of trust described in the Master
Agreement.
Yield
Maintenance Period Term or Prepayment Premium Period
Term :
114 months.
Yield
Maintenance Period End Date or Prepayment Premium Period End
Date : The last day of
August, 2018.
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 PNC ARCS LLC, 26901 Agoura Road,
Suite 200, Calabasas Hills, California 91301, 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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Actual/360. A 360-day year. The amount of each
monthly payment made by Borrower pursuant to Paragraph 3(c) below
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) and multiplying the quotient
by the actual number of days elapsed during the month. Borrower
understands that the amount of interest for each month
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will vary depending on the actual
number of calendar days during such month.
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(c)
Monthly Installments (check one only):
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30/360 . [Select only if 30/360 is
selected in Paragraph 3(b) above.] 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 the entire unpaid principal
balance evidenced by this Note is fully paid. The entire principal
balance and accrued but unpaid interest shall be due and payable on
the Maturity Date. The unpaid principal balance shall continue to
bear interest after the Maturity Date at the Default Rate set forth
in this Note until and including the date on which it is paid in
full.
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Actual/360 . [Select only if Actual/360 is
selected in Paragraph 3(b) above.] If interest accrues
based on an Actual/360 interest computation, the amount of Four
Hundred Fifty-One Thousand Nine Hundred Sixty-Six and 67/100
Dollars (US $451,966.67) 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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Four Hundred Twenty-One Thousand
Eight Hundred Thirty-Five and 56/100 Dollars (US $421,835.56),
shall be payable on the first day of each month during the term
hereof which follows a 28-day month;
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(2)
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Four Hundred Thirty-Six Thousand
Nine Hundred One and 11/100 Dollars (US $436,901.11), 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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Four Hundred Fifty-One Thousand Nine
Hundred Sixty-Six and 67/100 Dollars (US $451,966.67), 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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(4)
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Four Hundred Sixty-Seven Thousand
Thirty-Two and 22/100 Dollars (US $467,032.22), 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 the entire unpaid principal
balance evidenced by this Note is fully paid. The entire principal
balance and accrued but unpaid interest shall be due and payable on
the Maturity Date. The unpaid principal balance shall
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continue to bear interest after the
Maturity Date at the Default Rate set forth in this Note until and
including the date on which it is paid in full.
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(d)
Payments Before Due Date. Any regularly scheduled monthly
installment of 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.
(e)
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
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 that is less than all amounts due and payable at such
time, Lender may apply that payment 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, among other
things, by the Security Instrument, and reference is made to the
Security Instrument for other rights of Lender concerning the
collateral for the Indebtedness.
6. Acceleration. If an Event of Default has occurred
and is continuing, the entire unpaid principal balance, any accrued
interest, the prepayment premium payable under Paragraph 10,
if any, 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. Lender may
exercise this option to accelerate regardless of any prior
forbearance.
7. Late
Charge. If any monthly installment due hereunder is not
received by Lender on or before the 10th day of each month or if
any other amount payable under this Note or under the Security
Instrument or any other Loan Document is not received by Lender
within 10 days after the date such amount is due, counting
from and including the date such amount is due, Borrower shall pay
to Lender, immediately and without demand by Lender, a late charge
equal to 5 percent of such monthly installment or other amount
due. Borrower acknowledges that its failure to make timely payments
will cause Lender to incur additional expenses in servicing and
processing the Advance and that it is extremely difficult and
impractical to determine those additional expenses. Borrower agrees
that the late charge payable pursuant to this Paragraph 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
Paragraph 8.
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8. Default Rate. So long as any monthly installment or
any other payment due under this Note remains past due for thirty
(30) days or more, interest under this Note shall accrue on
the unpaid principal balance from the earlier of the due date of
the first unpaid monthly installment or other payment due, as
applicable, at the Default Rate. If the unpaid principal balance
and all accrued interest are not paid in full on the Maturity Date,
the unpaid principal balance and all accrued interest shall bear
interest from the Maturity Date at the Default Rate. Borrower also
acknowledges that its failure to make
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