Exhibit 10.2
FIXED FACILITY
NOTE
(Standard
Maturity)
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US
$310,000,000.00
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April 7, 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 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 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:
Advance : The advance evidenced by this Note.
Advance Term
: 120 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.
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 Interest Only Payment
Date : The first day of
June, 2009.
First Principal and Interest
Payment Date : The first
day of June, 2014.
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 Only Term
: 60 months.
Interest Rate
: The annual rate of five and
fifty-seven one hundredths percent (5.57%).
Last Interest Only Payment
Date : The first day of
May, 2014.
Lender : The holder of this Note.
Maturity Date
: The first day of May, 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 October, 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 c/o 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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¨
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30/360. A 360-day year consisting of twelve 30-day
months.
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2
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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(c) 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) and multiplying the quotient by the actual number of
days elapsed during the month. Borrower understands that the amount
of interest for each month will vary depending on the actual number
of calendar days during such month.
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(c) Monthly Installments
(check one only):
(1) 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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¨
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30/360 . [Select only if 30/360 is selected in
Section 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 $
).
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x
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Actual/360 . [Select only if Actual/360 is selected in
Section 3(b) above.] If interest accrues based on an
Actual/360 interest computation, the amount of One Million Four
Hundred Thirty-Eight Thousand Nine Hundred Sixteen and 67/100
Dollars (US $1,438,916.67) 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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(1)
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One Million
Three Hundred Forty-Two Thousand Nine Hundred Eighty-Eight and
89/100 Dollars (US $1,342,988.89), 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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One Million
Three Hundred Ninety Thousand Nine Hundred Fifty-Two and 78/100
Dollars (US $1,390,952.78), 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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One Million
Four Hundred Thirty-Eight Thousand Nine Hundred Sixteen and 67/100
Dollars (US $1,438,916.67), 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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3
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(4)
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One Million
Four Hundred Eighty-Six Thousand Eight Hundred Eighty and 56/100
Dollars (US $1,486,880.56), 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.
(2) Amortizing Period .
Commencing on the First Principal and Interest Payment Date and on
the first day of every month thereafter, consecutive monthly
installments of principal and interest, each in the amount of One
Million Seven Hundred Seventy-Three Thousand Seven Hundred Eighty
Four and 87/100 Dollars (US $1,773,784.87) until the entire unpaid
principal balance evidenced by this Note is fully paid. Any
remaining principal and 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.
(d) Payments Before Due Date.
Any regularly scheduled monthly installment of interest only
(during the interest-only period set forth in paragraph 3(c) above)
or principal and interest (during the period in which principal and
interest is due also as set forth in paragraph 3(c) above) 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 which 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 Section 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.
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7. Late Charge.
If any monthly installment due
hereunder is not received by Lender on or before the 5th 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 5 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 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.
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 timely payments will cause
Lender to incur additional expenses in servicing and processing the
Advance, that, during the time that any monthly installment or
payment under this Note is delinquent for more than thirty
(30) days, 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 that it is extremely difficult and impractical
to determine those additional costs and expenses. Borrower also
acknowledges that, during the time that any monthly installment or
other payment due under this Note is delinquent for more than
thirty (30) days, 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 a
