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$19,456,000
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December 21, 2005
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FOR
VALUE RECEIVED, PZ05 MAPLE HEIGHTS OH LLC, a Delaware limited
liability company, WMI05 COLUMBUS OH LLC, a Delaware limited
liability company, and OB CRENSHAW GCC, LP, a Delaware limited
partnership (collectively, “ Maker ”), promises
to pay to the order of COUNTRYWIDE COMMERCIAL REAL ESTATE FINANCE,
INC., a California corporation (together with any subsequent holder
of this Note, and their respective successors and assigns, “
Holder ”) at such address as Holder may from time to
time designate in writing, the principal sum of NINETEEN MILLION
FOUR HUNDRED FIFTY SIX THOUSAND AND 00/100 DOLLARS ($19,456,000)
together with interest thereon and all other sums due and/or
payable under any Loan Document; such principal and other sums to
be calculated and payable as provided in this Note. This Note is
being executed and delivered in connection with, and is entitled to
the rights and benefits of, that certain Loan Agreement of even
date herewith between Maker and Holder (as amended, modified and
supplemented and in effect from time to time, the “ Loan
Agreement ”). Capitalized terms used herein without
definition shall have the meanings ascribed to such terms in the
Loan Agreement.
Maker
agrees to pay the principal sum of this Note together with interest
thereon and all other sums due and/or payable under any Loan
Document in accordance with the following terms and
conditions:
1.
Interest Rate . Interest shall accrue on the
Indebtedness at five and seven thousand one hundred seven
ten-thousandths percent (5.7107%) per annum (the “
Interest Rate ”) commencing on the date of this Note.
Interest shall be computed on the actual number of days elapsed
based on a 360-day year.
2.
Payments . Maker shall make the following payments to
Holder:
(a) On
the date hereof (unless the date hereof is the same calendar day as
a Payment Date), a payment of interest only for the first Interest
Accrual Period.
(b) On
February 8, 2006 (the “ First Payment Date
”) and on the same calendar day of each calendar month (each,
a “ Payment Date ”) through and including the
Payment Date occurring in January, 2008, Maker shall pay to Holder
a monthly payment of interest only based on the Interest Rate and
the outstanding Principal Indebtedness. On the Payment Date
occurring in February, 2008, and on each subsequent Payment Date
during the term of the Loan, Maker shall pay to Holder a monthly
payment in the amount of $113,054.67 which amount is based on the
Interest Rate and a 360-month amortization schedule.
(c) The
entire outstanding Indebtedness shall be due and payable on the
Payment Date occurring in January, 2016 (the “ Maturity
Date ”), or such earlier date resulting from acceleration
of the Indebtedness by Holder.
(d)
“ Interest Accrual Period ” means, initially,
the period commencing on the Closing Date and continuing to and
including the calendar day preceding the next Payment Date, and
thereafter each period running from and including a Payment Date to
and including the calendar day preceding the next Payment Date
during the term of the Loan.
(e) For
purposes of making payments hereunder, but not for purposes of
calculating Interest Accrual Periods, if the Payment Date of a
given month shall not be a Business Day, then the Payment Date for
such month shall be the preceding Business Day.
3.
Event of Default; Default Interest; Late Charge .
Upon the occurrence of an Event of Default, the Indebtedness shall
(a) become due and payable as provided in Article 8 of
the Loan Agreement, and (b) bear interest at a per annum
interest rate equal to the lesser of (i) the Maximum Amount
(as defined in Section 8), and (ii) the Interest Rate
plus five percent (5%) (the “ Default Rate
”). If Maker fails to pay any sums due under the Loan
Documents on the date when the same is due, Maker shall pay to
Holder upon demand a late charge on such sum in an amount equal to
the lesser of (i) five percent (5%) of such unpaid amount, and
(ii) the maximum late charge permitted to be charged under the
laws of the State of where the Property is located (a “
Late Charge ”). Maker will also pay to Holder, after
an Event of Default occurs, in addition to the amount due and any
Late Charges, all reasonable costs of collecting, securing, or
attempting to collect or secure this Note or any other Loan
Document, including, without limitation, court costs and reasonable
attorneys’ fees (including reasonable attorneys’ fees
on any appeal by either Maker or Holder and in any bankruptcy
proceedings).
4.
Prepayment; Defeasance .
(a) Maker
shall not be permitted at any time to prepay all or any part of the
Loan except as expressly provided in this Section 4 .
Provided no Event of Default then exists, and so long as Maker has
given Holder not less than thirty (30) days’ (and not
more than sixty (60) days’) prior written notice, Maker
may voluntarily prepay the Indebtedness in full but not in part
only on or after the date which is three (3) Payment Dates
prior to the Maturity Date (and there shall be no Yield Maintenance
Premium or penalty assessed against Maker by reason of such
prepayment). If any such prepayment is not made on a Payment Date,
Maker shall also pay to Holder interest calculated at the Interest
Rate that would have accrued on such prepaid Principal Indebtedness
through the end of the Interest Accrual Period in which such
prepayment occurs.
(b) Provided
that no Event of Default then exists, after the earlier to occur of
(i) two (2) years after “start-up day” (within the
meaning of Section 860G(a)(9) of the Code) of any real estate
mortgage investment conduit (as defined under Section 860D of
the Code) (a “ REMIC ”) that holds the Note, and
(ii) three (3) years after the Closing Date, Maker may
cause the release of a Release Property (as defined in the Loan
Agreement) from the Liens of the Loan Documents upon satisfaction
of the following conditions:
(i) Maker
shall (A) provide not less than thirty (30) days’
(and not more than sixty (60) days’) prior written notice to
Holder specifying a Payment Date (the “ Defeasance Release
Date ”) on which the payments and deposits provided in
clauses (B) through (E) below are to be made and the
Release Property that is proposed to be released; (B) pay
all
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interest
accrued and unpaid on the Indebtedness to and including the
Defeasance Release Date; (C) pay all reasonable fees and
expenses associated with the defeasance of the Loan (including,
without limitation, fees of Rating Agencies and accountants, and
attorneys) and all other sums then due and payable under the Loan
Documents; (D) deposit with Holder immediately-available funds
in an amount sufficient to purchase, or at Holder’s request
deliver to Holder, “government securities” as used in
section 2(a)(16) of the Investment Company Act of 1940, as amended
(15 U.S.C. 80a-1) and which are not subject to prepayment, call or
early redemption (“ U.S. Obligations ”) (1)
having maturity dates or being redeemable on or prior to, but as
close as possible to, the Business Day immediately preceding each
successive scheduled Payment Date (after the Defeasance Release
Date) through and including the Maturity Date, (2) in amounts
sufficient to pay all scheduled principal and interest payments on
this Note (or, in the case of a defeasance of less than the full
amount of the Loan, the Defeased Note (as defined below)) on each
Payment Date through and including the Maturity Date, including the
payment due on the Maturity Date, and (3) payable directly to
Holder; and (E) deliver to Holder (1) a security
agreement, in form and substance satisfactory to Holder, creating a
first priority perfected Lien on the deposits required pursuant to
this Section 4(b) and the U.S. Obligations purchased in
accordance with this Section 4(b) (a “ Security
Agreement ”), (2) for execution by Holder, a release
of the Release Property from the Lien of the Mortgage in a form
appropriate for the jurisdiction in which the Release Property is
located, (3) a written certification that the requirements set
forth in this Section 4(b) have been satisfied,
(4) an opinion of Maker’s counsel in form and substance
satisfactory to Holder stating, among other things, that
(x) the U.S. Obligations have been duly and validly assigned
and delivered to Holder and Holder has a first priority perfected
security interest in and Lien on the deposits required pursuant to
this Section 4(b) and a first priority perfected
security interest in and Lien on the U.S. Obligations purchased
pursuant hereto and the proceeds thereof, (y) the defeasance
will not adversely affect the status of any REMIC formed in
connection with a Secondary Market Transaction, and (z) in the
event of a bankruptcy proceeding or similar occurrence with respect
to Maker, none of the U.S. Obligations purchased pursuant hereto
nor any proceeds thereof will be property of Maker’s estate
under Section 541 of the Bankruptcy Code or any similar
statute and the grant of security interest therein to Holder shall
not constitute an avoidable preference under Section 547 of
the Bankruptcy Code or applicable state law, and (5) such
other certificates, documents or instruments as Holder may request
including, without limitation, (y) written confirmation from
the relevant Rating Agencies that such defeasance will not cause
any Rating Agency to withdraw, qualify or downgrade the
then-applicable rating on any security issued in connection with
any Secondary Market Transaction, and (z) a certificate from a
certified public accountant reasonably acceptable to Holder
certifying that the amounts of the U.S. Obligations satisfy all of
the requirements of this Note. In connection with the foregoing,
Maker appoints Holder as Maker’s agent for the purpose of
applying the amounts delivered pursuant to this
Section 4(b) to purchase U.S. Obligations.
(ii) If
any notice of defeasance is given, Maker shall be required to
defease the Loan on the Defeasance Release Date (unless such notice
is revoked in writing by Maker prior to the date specified therein
in which event Maker shall immediately reimburse Holder for any
reasonable costs incurred by Holder in connection with
Maker’s giving of such notice and revocation).
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(iii) In
connection with a defeasance of the Loan, Maker may (or, in the
case of a defeasance of less than the full amount of the Loan,
shall) assign to such other entity or entities established or
designated by Holder in its discretion (the “ Successor
Obligor ”) all of Maker’s obligations under this
Note (or, in the case of a defeasance of less than the full amount
of the Loan, the Defeased Note), the other Loan Documents and the
Security Agreement together with the pledged U.S. Obl
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