EX-10.71.08
MULTIFAMILY
NOTE
MULTISTATE – FIXED TO
FLOAT
(REVISION DATE
2-15-2008)
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US
$6,400,000.00
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Effective Date: October 16,
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 KEYCORP REAL
ESTATE CAPITAL MARKETS, INC., an Ohio corporation, the principal
sum of Six Million Four Hundred Thousand and No/100 Dollars
(US $6,400,000.00), 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.
"
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.
" Default
Rate " means (i) during the Fixed Rate Period, an annual
interest rate equal to four (4) percentage points above the Fixed
Interest Rate; and (ii) during the Extension Period, 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.
" Extended
Maturity Date " means, if the Extension Period becomes
effective pursuant to this Note, the earlier of (i) November 1,
2019, 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 thereunder.
" Extension
Period " means the twelve (12) consecutive calendar months
period commencing on the Scheduled Initial Maturity
Date.
" Fixed
Interest Rate " means the annual interest rate of six and four
hundred ninety thousandths percent (6.490%).
" Fixed Rate
Period " means the period beginning on the date of this Note
and continuing through October 31,
2018.
" Index
Rate " means, for any Interest Adjustment Period, the Reference
Bill â Index Rate for such Interest
Adjustment Period.
" Initial
Maturity Date " means the earlier of
(i) November 1, 2018 (the " Scheduled Initial
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 thereunder.
"
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 December 1, 2008.
" Interest
Adjustment Period " means each successive one
calendar month period during the Extension
Period and 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.
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" Margin
" means two and one-half (2.5) percentage points (250 basis
points).
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" Maturity
Date " means the Extended Maturity Date unless pursuant to
Section 3(e) of this Note the Extension Period does not or cannot
become effective, in which case the Maturity Date means the Initial
Maturity Date.
" 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. For this
Note, the Prepayment Premium Period equals the Yield Maintenance
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.
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" Treasury
Security " means the 9.000% U.S. Treasury Security due November
15, 2018.
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" Window
Period " means the Extension Period.
" Yield
Maintenance Period " means the period from and including the
date of this Note until but not including the Scheduled Initial
Maturity 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 127 Public Square, Cleveland, Ohio 44114,
or such other place as may be designated by Notice to Borrower from
or on behalf of Lender.
3.
Payments.
(a) During
the Fixed Rate Period, 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. During the Extension
Period, 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 Fixed Interest Rate (during the
Fixed Rate Period) or the applicable Adjustable Interest Rate
(during the Extension Period), 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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Beginning on
the First Installment Due Date, and continuing until and including
the monthly installment due on November 1, 2010 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 $1,153.77778 multiplied by the
number of days in the month prior to the Installment Due
Date.
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Beginning on
December 1, 2010, and continuing until and including the monthly
installment due on the Initial 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 Forty Thousand Four Hundred Ten and
27/100 Dollars ($40,410.27).
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(e) Except
as otherwise provided in this Section 3(e), all remaining
Indebtedness, including all principal and interest, shall be due
and payable by Borrower on the Initial Maturity
Date. However, so long as (i) the Initial Maturity Date
has not occurred prior to the Scheduled Initial Maturity Date, and
(ii) no Event of Default or event or circumstance which, with the
giving of notice or passage of time or both, could constitute an
Event of Default exists on the Scheduled Initial Maturity Date,
then the Extension Period automatically will become effective and
the date for full payment of the Indebtedness automatically shall
be extended until the Extended Maturity Date. If the
Extension Period becomes effective, monthly installments of
principal and interest or interest only will be payable during the
Extension Period as provided in Section 3(f). Anything
in Section 21 of the Security Instrument to the contrary
notwithstanding, during the Extension Period, Borrower will not
request that Lender consent to, and Lender will not consent to, a
Transfer that, absent such consent, would constitute an Event of
Default.
(f) If
the Extension Period becomes effective, beginning on December 1,
2018, and continuing until and including the monthly installment
due on the Extended 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(f) 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.
(g) During
the Extension Period, 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).
(h) All
payments under this Note shall be made in immediately available
U.S. funds.
(i) 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.
(j) 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.
(k) 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 the Adjustable Interest Rate at all times
been in effect.
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
tim
