FHLMC Loan
No. 504133543
Canyon Ridge
Apartments
MULTIFAMILY
NOTE
MULTISTATE – ADJUSTABLE RATE
(REVISION DATE 2-15-2008)
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Effective Date: As of September 15,
2008
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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 CAPMARK
BANK , a Utah industrial bank the principal sum of Twenty-Four
Million and 00/100 Dollars (US $24,000,000.00), with interest
on the unpaid principal balance as hereinafter provided.
1. Defined Terms.
(a) As used in this Note:
" Adjustable Interest Rate
” means the variable annual interest rate calculated for each
Interest Adjustment Period so as to equal the Index Rate for such
Interest Adjustment Period (truncated at the fifth (5 th
) decimal place if necessary) plus the Margin. However, in no event
will the Adjustable Interest Rate exceed the Capped Interest
Rate.
" Amortization Period ”
means a period of 360 full consecutive calendar months.
" 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.
" Capped Interest Rate
” means six and seventy-five hundredths percent (6.75%) per
annum.
" Default Rate ” means
a variable annual interest rate equal to four (4) percentage
points above the Adjustable Interest Rate in effect from time to
time. However, at no time will the Default Rate exceed the Maximum
Interest Rate.
" Index Rate ” means,
for any Interest Adjustment Period, the Reference Bill Index Rate
for such Interest Adjustment Period.
" 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 November 1, 2008.
" Interest Adjustment Period
” means each successive one (1) calendar month period
until the entire Indebtedness is paid in full, except that the
first Interest Adjustment Period is the period from the date of
this Note through September 30, 2008. Therefore, the second
Interest Adjustment Period shall be the period from October 1,
2008 through October 31, 2008, and so on until the entire
Indebtedness is paid in full.
" Lender ” means the
holder from time to time of this Note.
" LIBOR Index ” means
the British Bankers Association’s (BBA) one
(1) month LIBOR Rate for United States Dollar deposits, as
displayed on the LIBOR Index Page used to establish the LIBOR Index
Rate.
" LIBOR Index Rate ”
means, for any Interest Adjustment Period after the first Interest
Adjustment Period, the BBA’s LIBOR Rate for the LIBOR Index
released by the BBA most recently preceding the first day of such
Interest Adjustment Period, as such LIBOR Rate is displayed on the
LIBOR Index Page. The LIBOR Index Rate for the first Interest
Adjustment Period means the British Bankers Association’s
(BBA) LIBOR Rate for the LIBOR Index released by the BBA most
recently preceding the first day of the month in which the first
Interest Adjustment Period begins, as such LIBOR Rate is displayed
on the LIBOR Index Page. “ LIBOR Index Page ” is
the Bloomberg L.P., page “BBAM”, or such other page for
the LIBOR Index as may replace page BBAM on that service, or at the
option of Lender (i) the applicable page for the LIBOR Index
on another service which electronically transmits or displays BBA
LIBOR Rates, or (ii) any publication of LIBOR rates available
from the BBA. In the event the BBA ceases to set or publish a LIBOR
rate/interest settlement rate for the LIBOR Index, Lender will
designate an alternative index, and such alternative index shall
constitute the LIBOR Index Page.
" Loan ” means the loan
evidenced by this Note.
" Lockout Period ” is
not applicable, there is no Lockout Period under this Note.
" Margin ” means two
hundred forty-one (241) percentage points (241 basis
points).
" Maturity Date ” means
the earlier of (i) October 1, 2015 (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.
" Reference Bills
â
” means the unsecured general obligations of the Federal Home
Loan Mortgage Corporation (“ Freddie Mac ”)
designated by Freddie Mac as “Reference Bills â
Securities” and having original durations to maturity most
comparable to the term of the Reference Bill Index, and issued by
Freddie Mac at regularly scheduled auctions. In the event Freddie
Mac shall at any time cease to designate any unsecured general
obligations of Freddie Mac as “Reference Bills
Securities”, then at the option of Lender (i) Lender may
select from time to time another unsecured general obligation of
Freddie Mac having original durations to maturity most comparable
to the term of the Reference Bill Index and issued by Freddie Mac
at regularly scheduled auctions, and the term “Reference
Bills” as used in this Note shall mean such other unsecured
general obligations as selected by Lender; or (ii) for any one or
more Interest Adjustment Periods, Lender may use the applicable
LIBOR Index Rate as the Index Rate for such Interest Adjustment
Period(s).
" Reference Bill Index
” means the one month Reference Bills. One-month reference
bills have original durations to maturity of approximately
30 days.
" Reference Bill Index Rate
” means, for any Interest Adjustment Period after the first
Interest Adjustment Period, the Money Market Yield for the
Reference Bills as established by the Reference Bill auction
conducted by Freddie Mac most recently preceding the first day of
such Interest Adjustment Period, as displayed on the Reference Bill
Index Page. The Reference Bill Index Rate for the first Interest
Adjustment Period means the Money Market Yield for the Reference
Bills as established by the Reference Bill auction conducted by
Freddie Mac most recently preceding the first day of the month in
which the first Interest Adjustment Period begins, as displayed on
the Reference Bill Index Page. The “ Reference Bill Index
Page ” is the Freddie Mac Debt Securities Web Page
(accessed via the Freddie Mac internet site at www.freddiemac.com),
or at the option of Lender, any publication of Reference Bills
auction results available from Freddie Mac. However, if Freddie Mac
has not conducted a Reference Bill auction within the 60-calendar
day period prior to the first day of an Interest Adjustment Period,
the Reference Bill Index Rate for such Interest Adjustment Period
will be the LIBOR Index Rate for such Interest Adjustment
Period.
" Remaining Amortization
Period ” means, at any point in time, the number of
consecutive calendar months equal to the number of months in the
Amortization Period minus the number of scheduled monthly
installments of principal and interest that have elapsed
since the date of this Note.
" 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.
" Window Period ” means
the three (3) consecutive calendar month period prior to the
Scheduled Maturity Date.
" Yield Maintenance Period
” is not applicable, there is no Yield Maintenance Period
under this Note.
(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 c/o Capmark
Finance Inc., 116 Welsh Road, Horsham, Pennsylvania 19044, Attn:
Servicing — Account Manager, 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 Adjustable
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 an
actual/360 interest calculation schedule (interest is payable for
the actual number of days in each month, and each month’s
interest is calculated by multiplying the unpaid principal amount
of this Note as of the first day of the month for which interest is
being calculated by the applicable Adjustable Interest Rate,
dividing the product by 360, and multiplying the quotient by the
number of days in the month for which interest is being
calculated). For convenience in determining the amount of a monthly
installment of principal and interest under this Note, Lender will
use a 30/360 interest calculation payment schedule (each year is
treated as consisting of twelve 30-day months). However, as
provided above, the portion of the monthly installment actually
payable as and allocated to interest will be based upon an
actual/360 interest calculation schedule, and the amount of each
installment attributable to principal and the amount attributable
to interest will vary based upon the number of days in the month
for which such installment is paid. Each monthly payment of
principal and interest will first be applied to pay in full
interest due, and the balance of the monthly payment paid by
Borrower will be credited to principal.
(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.
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(d)
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(i) Beginning on the First Installment
Due Date, and continuing until and including the monthly
installment due on October 1, 2013, accrued interest only
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 interest only payable pursuant to
this Section 3(d)(i) on an Installment Due Date shall equal
the product of (A) annual interest on the unpaid principal
balance of this Note as of the first day of the Interest Adjustment
Period immediately preceding the Installment Due Date at the
Adjustable Interest Rate in effect for such Interest Adjustment
Period, divided by 360, multiplied by (B) the number of days
in such Interest Adjustment Period.
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(ii)
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Beginning on November 1, 2013, 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)(ii) on an Installment Due Date shall be
calculated so as to equal the monthly payment amount which would be
payable on the Installment Due Date as if the unpaid principal
balance of this Note as of the first day of the Interest Adjustment
Period immediately preceding the Installment Due Date was to be
fully amortized, together with interest thereon at the Adjustable
Interest Rate in effect for such Interest Adjustment Period, in
equal consecutive monthly payments paid on the first day of each
calendar month over the Remaining Amortization Period.
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(e) All remaining Indebtedness,
including all principal and interest, shall be due and payable by
Borrower on the Maturity Date.
(f) Lender shall provide
Borrower with Notice, given in the manner specified in the Security
Instrument, of the amount of each monthly installment due under
this Note. However, if Lender has not provided Borrower with prior
notice of the monthly payment due on any Installment Due Date, then
Borrower shall pay on that Installment Due Date an amount equal to
the monthly installment payment for which Borrower last received
notice. If Lender at any time determines that Borrower has paid one
or more monthly installments in an incorrect amount because of the
operation of the preceding sentence, or because Lender has
miscalculated the Adjustable Interest Rate or has otherwise
miscalculated the amount of any monthly installment, then Lender
shall give notice to Borrower of such determination. If such
determination discloses that Borrower has paid less than the full
amount due for the period for which the determination was made,
Borrower, within 30 calendar days after receipt of the notice from
Lender, shall pay to Lender the full amount of the deficiency. If
such determination discloses that Borrower has paid more than the
full amount due for the period for which the determination was
made, then the amount of the overpayment shall be credited to the
next installment(s) of interest only or principal and interest, as
applicable, due under this Note (or, if an Event of Default has
occurred and is continuing, such overpayment shall be credited
against any amount owing by Borrower to Lender).
(g) All payments under this Note
shall be made in immediately available U.S. funds.
(h) 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.
(i) 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.
(j) In accordance with
Section 14, interest charged under this Note cannot exceed the
Maximum Interest Rate. If the Adjustable Interest Rate at any time
exceeds the Maximum Interest Rate, resulting in the charging of
interest hereunder to be limited to the Maximum Interest Rate, then
any subsequent reduction in the Adjustable Interest Rate shall not
reduce the rate at which interest under this Note accrues below the
Maximum Interest Rate until the total amount of interest accrued
hereunder equals the amount of interest which would have accrued
had t