EXHIBIT 10.11
FHLMC Loan
No. 968717616
Lofton Place
MULTIFAMILY
NOTE-CME
MULTISTATE – FIXED
RATE
(REVISION DATE
8-14-2009)
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US
$12,000,000.00
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Effective Date: October 1,
2009
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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 CWCAPITAL LLC
, a Massachusetts limited liability company, the principal sum of
Twelve Million and 00/100 Dollars (US $12,000,000.00), 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.
“ Cut-off Date ”
means the twelfth (12 th ) Installment Due Date.
“ 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.
“ Defeasance Period
” is the period beginning the day after the Defeasance Date
until but not including the first day of the Window Period. The
Defeasance Period only applies if this Note is assigned to a REMIC
trust prior to the Cut-off Date.
“ Fixed Interest Rate
” means the annual interest rate of five and sixty-six
hundredths percent (5.66%).
“ 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, 2009.
“ Lender ” means
the holder from time to time of this Note.
“ Loan ” means
the loan evidenced by this Note.
“ Lockout Period
” means the period beginning on the day that this Note is
assigned to a REMIC trust until and including the Defeasance Date.
The Lockout Period only applies if this Note is assigned to a REMIC
trust prior to the Cut-off Date.
“ Maturity Date ”
means the earlier of (i) October 1, 2019 (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 earlier to occur of the following (i) the day that this
Note is assigned to a REMIC trust if this Note is assigned to a
REMIC trust prior to the Cut-off Date or (ii) the first day of
the Window Period. The Prepayment Premium Period only applies if
this Note is not assigned to a REMIC trust or if this Note is
assigned to a REMIC trust on or after the Cut-off Date.
“ 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 3.125% U.S. Treasury Security due May 15,
2019.
“ Window Period ”
means the three (3) 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 the earlier to occur of the
following (i) the first day that the Note is assigned to a
REMIC trust or (ii) April 1, 2019 (the “ Yield
Maintenance Expiration Date ”). The Yield Maintenance
Period only applies if this Note is not assigned to a REMIC trust
or if this Note is assigned to a REMIC trust on or after the
Cut-off Date.
(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 One Charles River Place, 63
Kendrick Street, Needham, Massachusetts 02494, 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 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 Fixed 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). The portion of the monthly installment of
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principal and interest under this Note
attributable to principal and the portion 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 installment 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), Section 10 and
in Section 11, accrued interest will be payable in
arrears.
(d) (i) Beginning
on the First Installment Due Date, and continuing until and
including the monthly installment due on October 1, 2011,
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 each monthly installment of interest
only payable pursuant to this Subsection 3(d)(i) on an Installment
Due Date shall vary, and shall equal $1,886.66667 multiplied by the
number of days in the month prior to the Installment Due
Date.
(ii) Beginning on
November 1, 2011, 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 Subsection 3(d)(ii) on an
Installment Due Date shall be Sixty-Nine Thousand Three Hundred
Forty-Four and 17/100 Dollars ($69,344.17).
(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
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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
Section 11, 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.
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(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, Borrower shall be personally liable
to Lender for the repayment of a further portion of the
Indebtedness equal to any loss or damage suffered by Lender as a
result of the occurrence of any of the following events:
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(i)
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Borrower fails
to pay to Lender upon demand after an Event of Default all Rents to
which Lender is entitled under Section 3(a) of the Security
Instrument and the amount of all security deposits collected by
Borrower from tenants then in residence. However, Borrower will not
be personally liable for any failure described in this
subsection (i) if Borrower is unable to pay to Lender all
Rents and security deposits as required by the Security Instrument
because of a valid order issued in a bankruptcy, receivership, or
similar judicial proceeding.
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(ii)
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Borrower fails
to apply all insurance proceeds and condemnation proceeds as
required by the Security Instrument. However, Borrower will not be
personally liable for any failure described in this
subsection (ii) if Borrower is unable to apply insurance or
condemnation proceeds as required by the Security Instrument
because of a valid order issued in a bankruptcy, receivership, or
similar judicial proceeding.
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(iii)
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Borrower fails
to comply with Section 14(g) or (i) of the Security
Instrument relating to the delivery of books and records,
statements, schedules and reports.
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(iv)
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Borrower fails
to pay when due in accordance with the terms of the Security
Instrument the amount of any item below marked
“Deferred”; provided however, that if no item is marked
“Deferred”, this Section 9(c)(iv) shall be of no
force or effect.
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[Collect]
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Hazard
Insurance premiums or other insurance premiums,
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[Collect]
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Taxes,
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[Deferred]
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water and sewer
charges (that could become a lien on the Mortgaged
Property),
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[N/A]
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ground
rents,
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[Deferred]
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assessments or
other charges (that could become a lien on the Mortgaged
Property)
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(v)
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Borrower
engages in any willful act of material waste of the Mortgaged
Property.
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(d) In
addition to the Base Recourse, Borrower shall be personally liable
to Lender for:
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(i)
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the performance
of all of Borrower’s obligations under Section 18 of the
Security Instrument (relating to environmental matters);
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(ii)
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the costs of
any audit under Section 14(g) of the Security Instrument;
and
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(iii)
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any costs and
expenses incurred by Lender in connection with the collection of
any amount for which Borrower is personally liable under this
Section 9, including Attorneys’ Fees and Costs and the
costs of conducting any independent audit of Borrower’s books
and records to determine the amount for which Borrower has personal
liability.
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(e) All
payments made by Borrower with respect to the Indebtedness and all
amounts received by Lender from the enforcement of its rights under
the Security Instrument and the other Loan Documents shall be
applied first to the portion of the Indebtedness for which Borrower
has no personal liability.
(f) Notwithstanding the
Base Recourse, Borrower shall become personally liable to Lender
for the repayment of all of the Indebtedness upon the occurrence of
any of the following Events of Default:
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(i)
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Borrower or any
SPE Equity Owner fails to comply with Section 33 of the
Security Instrument;
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(ii)
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a Transfer (including, but not
limited to, a lien or encumbra
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