FHLMC Loan No. 002697238
MULTIFAMILY NOTE
(MULTISTATE - REVISION DATE 11-01-2000)
US $10,000,000.00 ______________, 2002
FOR VALUE RECEIVED, the undersigned ("BORROWER") jointly and severally
(if more than one) promises to pay to the order of PRIMARY CAPITAL ADVISORS LC,
a Georgia limited liability company, the principal sum of Ten Million and
no/100th Dollars (US $10,000,000.00), with interest on the unpaid principal
balance at the annual rate of six and seventy-six hundredths percent (6.76%).
1. DEFINED TERMS. As used in this Note, (i) the term "LENDER"
means the holder of this Note, and (ii) the term "INDEBTEDNESS" means the
principal of, interest on, and 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. "Event
of Default" and 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 2060 Mt. Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, XX 00000, 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) Unless disbursement of principal is made by Lender to Borrower
on the first day of the month, interest for the period beginning on the date of
disbursement 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. Interest under this Note shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
(b) Consecutive monthly installments of principal and interest,
each in the amount of Sixty-Four Thousand Nine Hundred Twenty-Six and 30/100
Dollars (US $64,926.30), shall be payable on the first day of each month
beginning on January 1, 2003, until the entire unpaid principal balance
evidenced by this Note is fully paid.
(c) Any accrued interest remaining past due for 30 days or more
may, at Xxxxxx's discretion, be added to and become part of the unpaid principal
balance and shall bear interest at the rate or rates specified in this Note, and
any reference below to "accrued interest" shall refer to
PAGE 1
accrued interest which has not become part of the unpaid principal balance. Any
remaining principal and interest shall be due and payable on December 1, 2012 or
on any earlier date on which the unpaid principal balance of this Note becomes
due and payable, by acceleration or otherwise (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) Any regularly scheduled monthly installment of principal and
interest 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.
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
Xxxxxx, in Xxxxxx's discretion. Xxxxxxxx agrees that neither Xxxxxx'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
a multifamily mortgage, deed to secure debt or deed of trust dated as of the
date of this Note (the "SECURITY INSTRUMENT"), and reference is made to the
Security Instrument for other rights of Xxxxxx 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, the
prepayment premium payable under Paragraph 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 (except
if notice is required by applicable law, then after such notice). Lender may
exercise this option to accelerate regardless of any prior forbearance.
7. LATE CHARGE. If any monthly amount payable under this Note or
under the Security Instrument or any other Loan Document is not received by
Lender within ten (10) days after the 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 amount (unless applicable law requires a lesser amount be charged,
in which event such lesser amount shall be substituted). Borrower acknowledges
that its failure to make timely payments will cause Lender to incur additional
expenses in servicing and processing the loan evidenced by this Note (the
"LOAN"), and that it is extremely difficult and impractical to determine those
additional expenses. Xxxxxxxx agrees that the late charge payable pursuant to
this Paragraph 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
PAGE 2
late payment. The late charge is payable in addition to, and not in lieu of, any
interest payable at the Default Rate pursuant to Paragraph 8.
8. DEFAULT RATE. So long as (a) any monthly installment under
this Note remains past due for thirty (30) days or more, or (b) any other Event
of Default has occurred and is continuing, 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 the occurrence of such other Event of Default, as
applicable, at a rate (the "DEFAULT RATE") equal to the lesser of four (4)
percentage points above the rate stated in the first paragraph of this Note and
the maximum interest rate which may be collected from Borrower under applicable
law. 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 Loan, that, during the time
that any monthly installment under this Note is delinquent for more than thirty
(30) days, Xxxxxx 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. Xxxxxxxx also acknowledges that, during the
time that any monthly installment under this Note is delinquent for more than
thirty (30) days or any other Event of Default has occurred and is continuing,
Xxxxxx's risk of nonpayment of this Note will be materially increased and Lender
is entitled to be compensated for such increased risk. Xxxxxxxx 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 Paragraph 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 Xxxxxx'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 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 obligations of Borrower.
(b) Borrower shall be personally liable to Lender for the
repayment of a portion of the Indebtedness equal to zero percent (0.00%) of the
original principal balance of this Note, plus any other amounts for which
Borrower has personal liability under this Paragraph 9.
PAGE 3
(c) In addition to Xxxxxxxx's personal liability under Paragraph
9(b), 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
Xxxxxx as a result of (1) failure of Borrower 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; (2) failure of Borrower to apply all
insurance proceeds and condemnation proceeds as required by the Security
Instrument; or (3) failure of Borrower to comply with Section 14(d) or (e) of
the Security Instrument relating to the delivery of books and records,
statements, schedules and reports.
(d) For purposes of determining Borrower's personal liability
under Paragraph 9(b) and Paragraph 9(c), all payments made by Borrower or any
guarantor of this Note with respect to the Indebtedness and all amounts received
by Lender from the enforcement of its rights under the Security Instrument shall
be applied first to the portion of the Indebtedness for which Borrower has no
personal liability.
(e) 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: (1) Borrower's acquisition of any property or operation of
any business not permitted by Section 33 of the Security Instrument; (2) a
Transfer (including, but not limited to, a lien or encumbrance) that is an Event
of Default under Section 21 of the Security Instrument, other than a Transfer
consisting solely of the involuntary removal or involuntary withdrawal of a
general partner in a limited partnership or a manager in a limited liability
company; or (3) fraud or written material misrepresentation by Borrower or any
officer, director, partner, member or employee of Borrower in connection with
the application for or creation of the Indebtedness or any request for any
action or consent by Xxxxxx.
(f) In addition to any personal liability for the Indebtedness,
Borrower shall be personally liable to Lender for (1) the performance of all of
Borrower's obligations under Section 18 of the Security Instrument (relating to
environmental matters); (2) the costs of any audit under Section 14(d) of the
Security Instrument; and (3) any costs and expenses incurred by Lender in
connection with the collection of any amount for which Borrower is personally
liable under this Paragraph 9, including fees and out of pocket expenses of
attorneys and expert witnesses and the costs of conducting any independent audit
of Xxxxxxxx's books and records to determine the amount for which Xxxxxxxx has
personal liability.
(g) To the extent that Borrower has personal liability under this
Paragraph 9, Lender may exercise its rights against Xxxxxxxx personally without
regard to whether Xxxxxx has exercised any rights against the Mortgaged Property
or any other security, or pursued any rights against any guarantor, or pursued
any other rights available to Lender under this Note, the Security Instrument,
any other Loan Document or applicable law. For purposes of this Paragraph 9, the
term "MORTGAGED PROPERTY" shall not include any funds that (1) have been applied
by
PAGE 4
Borrower as required or permitted by the Security Instrument prior to the
occurrence of an Event of Default or (2) Borrower was unable to apply as
required or permitted by the Security Instrument because of a bankruptcy,
receivership, or similar judicial proceeding. To the fullest extent permitted by
applicable law, in any action to enforce Xxxxxxxx's personal liability under
this Paragraph 9, Borrower waives any right to set off the value of the
Mortgaged Property against such personal liability.
10. VOLUNTARY AND INVOLUNTARY PREPAYMENTS.
(a) A prepayment premium shall be payable in connection with any
prepayment (any receipt by Lender of principal, other than principal required to
be paid in monthly installments pursuant to Paragraph 3(b), prior to the
scheduled Maturity Date set forth in Paragraph 3(c)) under this Note as provided
below:
(1) Borrower may voluntarily prepay all of the unpaid
principal balance of this Note on a Business Day designated as the date for such
prepayment in a written notice from Borrower to Lender given at least 30 days
prior to the date of such prepayment. Such prepayment shall be made by paying
(A) the amount of principal being prepaid, (B) all accrued interest, (C) all
other sums due Lender at the time of such prepayment, and (D) the prepayment
premium calculated pursuant to Paragraph 10(c). For all purposes including the
accrual of interest, any prepayment received by Lender on any day other than the
last calendar day of the month shall be deemed to have been received on the last
calendar day of such month. For purposes of this Note, a "BUSINESS DAY" means
any day other than a Saturday, Sunday or any other day on which Lender is not
open for business. Unless expressly provided for in the Loan Documents, Borrower
shall not have the option to voluntarily prepay less than all of the unpaid
principal balance. However, if a partial prepayment is provided for in the Loan
Documents or is accepted by Xxxxxx in Lender's discretion, a prepayment premium
calculated pursuant to Paragraph 10(c) shall be due and payable by Borrower.
(2) Upon Xxxxxx's exercise of any right of acceleration
under this Note, Borrower shall pay to Lender, in addition to the entire unpaid
principal balance of this Note outstanding at the time of the acceleration, (A)
all accrued interest and all other sums due Lender, and (B) the prepayment
premium calculated pursuant to Paragraph 10(c).
(3) Any application by Lender of any collateral or other
security to the repayment of any portion of the unpaid principal balance of this
Note prior to the Maturity Date and in the absence of acceleration shall be
deemed to be a partial prepayment by Borrower, requiring the payment to Lender
by Borrower of a prepayment premium.
(b) Notwithstanding the provisions of Paragraph 10(a), no
prepayment premium shall be payable with respect to (A) any prepayment made
during the period from ninety (90) days before the scheduled Maturity Date to
the scheduled Maturity Date, or (B) any prepayment
PAGE 5
occurring as a result of the application of any insurance proceeds or
condemnation award under the Security Instrument.
(c) Any prepayment premium payable under this Note shall be
computed as follows:
(1) If the prepayment is made between the date of this
Note and the date that is one-hundred fourteen (114) months after the first day
of the first calendar month following the date of this Note (the "YIELD
MAINTENANCE PERIOD"), the prepayment premium shall be whichever is the greater
of subparagraphs (i) and (ii) below:
(i) 1.0% of the unpaid principal balance of this Note; or
(ii) the product obtained by multiplying:
(A) the amount of principal being prepaid,
by
(B) the excess (if any) of the Monthly Note Rate
over the Assumed Reinvestment Rate,
by
(C) the Present Value Factor.
For purposes of subparagraph (ii), the following definitions
shall apply:
MONTHLY NOTE RATE: one-twelfth (1/12) of the annual interest
rate of this Note, expressed as a decimal calculated to five
digits.
PREPAYMENT DATE: in the case of a voluntary prepayment, the
date on which the prepayment is made; in the case of the
application by Lender of collateral or security to a portion
of the principal balance, the date of such application; and in
any other case, the date on which Lender accelerates the
unpaid principal balance of this Note.
ASSUMED REINVESTMENT RATE: one-twelfth (1/12) of the yield
rate as of the date 5 Business Days before the Prepayment
Date, on the 4.875% U.S. Treasury Security due February 1,
2012, as reported in The Wall Street Journal, expressed as a
decimal calculated to five digits. In the event that no yield
is published on the applicable date for the Treasury Security
used to determine the Assumed Reinvestment Rate, Lender, in
its discretion, shall select the non-callable Treasury
Security maturing in the same year as the Treasury Security
specified above with the lowest yield published in The Wall
Street Journal as of the applicable date. If the publication
of such yield rates in The Wall Street Journal is discontinued
for any reason, Lender shall select a security with a
comparable rate and term to the Treasury Security used to
determine the Assumed Reinvestment Rate. The
PAGE 6
selection of an alternate security pursuant to this Paragraph
shall be made in Xxxxxx's discretion.
PRESENT VALUE FACTOR: the factor that discounts to present
value the costs resulting to Lender from the difference in
interest rates during the months remaining in the Yield
Maintenance Period, using the Assumed Reinvestment Rate as the
discount rate, with monthly compounding, expressed numerically
as follows:
[EQUATION]
n = number of months remaining in Yield Maintenance Period
ARR = Assumed Reinvestment Rate
(2) If the prepayment is made after the expiration of the
Yield Maintenance Period but before the period set forth in Paragraph 10(b)(A)
above, the prepayment premium shall be 1.0% of the unpaid principal balance of
this Note.
(d) Any permitted or required prepayment of less than the unpaid
principal balance of this Note shall not extend or postpone the due date of any
subsequent monthly installments or change the amount of such installments,
unless Xxxxxx agrees otherwise in writing.
(e) Borrower recognizes that any prepayment of the unpaid
principal balance of this Note, whether voluntary or involuntary or resulting
from a default by Borrower, will result in Xxxxxx's incurring loss, including
reinvestment loss, additional expense and frustration or impairment of Xxxxxx's
ability to meet its commitments to third parties. Xxxxxxxx agrees to pay to
Xxxxxx upon demand damages for the detriment caused by any prepayment, and
agrees that it is extremely difficult and impractical to ascertain the extent of
such damages. Xxxxxxxx therefore acknowledges and agrees that the formula for
calculating prepayment premiums set forth in this Note represents a reasonable
estimate of the damages Lender will incur because of a prepayment.
(f) Borrower further acknowledges that the prepayment premium
provisions of this Note are a material part of the consideration for the Loan,
and acknowledges that the terms of this Note are in other respects more
favorable to Borrower as a result of the Borrower's voluntary agreement to the
prepayment premium provisions.
11. COSTS AND EXPENSES. To the fullest extent allowed by
applicable law, Borrower shall pay all expenses and costs, including fees and
out-of-pocket expenses of attorneys
PAGE 7
(including Xxxxxx's in-house attorneys) and expert witnesses and costs of
investigation, incurred by Xxxxxx as a result of any default under this Note or
in connection with efforts to collect any amount due under this Note, or to
enforce the provisions of any of the other Loan Documents, including those
incurred in post-judgment collection efforts and in any bankruptcy proceeding
(including any action for relief from the automatic stay of any bankruptcy
proceeding) or judicial or non-judicial foreclosure proceeding.
12. FORBEARANCE. Any forbearance by Xxxxxx in exercising any right
or remedy under this Note, the Security Instrument, or any other Loan Document
or otherwise afforded by applicable law, shall not be a waiver of or preclude
the exercise of that or any other right or remedy. The acceptance by Lender of
any payment after the due date of such payment, or in an amount which is less
than the required payment, shall not be a waiver of Lender's right to require
prompt payment when due of all other payments or to exercise any right or remedy
with respect to any failure to make prompt payment. Enforcement by Lender of any
security for Borrower's obligations under this Note shall not constitute an
election by Xxxxxx of remedies so as to preclude the exercise of any other right
or remedy available to Lender.
13. WAIVERS. Presentment, demand, notice of dishonor, protest,
notice of acceleration, notice of intent to demand or accelerate payment or
maturity, presentment for payment, notice of nonpayment, grace, and diligence in
collecting the Indebtedness are waived by Borrower and all endorsers and
guarantors of this Note and all other third party obligors.
14. LOAN CHARGES. Neither this Note nor any of the other Loan
Documents shall be construed to create a contract for the use, forbearance or
detention of money requiring payment of interest at a rate greater than the
maximum interest rate permitted to be charged under applicable law. If any
applicable law limiting the amount of interest or other charges permitted to be
collected from Borrower in connection with the Loan is interpreted so that any
interest or other charge provided for in any Loan Document, whether considered
separately or together with other charges provided for in any other Loan
Document, violates that law, and Xxxxxxxx is entitled to the benefit of that
law, that interest or charge is hereby reduced to the extent necessary to
eliminate that violation. The amounts, if any, previously paid to Lender in
excess of the permitted amounts shall be applied by Lender to reduce the unpaid
principal balance of this Note. For the purpose of determining whether any
applicable law limiting the amount of interest or other charges permitted to be
collected from Borrower has been violated, all Indebtedness that constitutes
interest, as well as all other charges made in connection with the Indebtedness
that constitute interest, shall be deemed to be allocated and spread ratably
over the stated term of the Note. Unless otherwise required by applicable law,
such allocation and spreading shall be effected in such a manner that the rate
of interest so computed is uniform throughout the stated term of the Note.
15. COMMERCIAL PURPOSE. Borrower represents that the Indebtedness
is being incurred by Xxxxxxxx solely for the purpose of carrying on a business
or commercial enterprise, and not for personal, family, household, or
agricultural purposes.
PAGE 8
16. COUNTING OF DAYS. Except where otherwise specifically
provided, any reference in this Note to a period of "days" means calendar days,
not Business Days.
17. GOVERNING LAW. This Note shall be governed by the law of the
jurisdiction in which the Land is located.
18. CAPTIONS. The captions of the paragraphs of this Note are for
convenience only and shall be disregarded in construing this Note.
19. NOTICES; WRITTEN MODIFICATIONS. All notices, demands and other
communications required or permitted to be given by Xxxxxx to Borrower pursuant
to this Note shall be given in accordance with Section 31 of the Security
Instrument. Any modification or amendment to this Note shall be ineffective
unless in writing signed by the party sought to be charged with such
modification or amendment; provided, however, that in the event of a Transfer
under the terms of the Security Instrument, any or some or all of the
Modifications to Multifamily Note may be modified or rendered void by Xxxxxx at
Lender's option by notice to Borrower/transferee.
20. CONSENT TO JURISDICTION AND VENUE. Xxxxxxxx agrees that any
controversy arising under or in relation to this Note shall be litigated
exclusively in the jurisdiction in which the Land is located (the "PROPERTY
JURISDICTION"). The state and federal courts and authorities with jurisdiction
in the Property Jurisdiction shall have exclusive jurisdiction over all
controversies which shall arise under or in relation to this Note. Borrower
irrevocably consents to service, jurisdiction, and venue of such courts for any
such litigation and waives any other venue to which it might be entitled by
virtue of domicile, habitual residence or otherwise.
21. WAIVER OF TRIAL BY JURY. XXXXXXXX AND XXXXXX EACH (A) AGREES
NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS NOTE
OR THE RELATIONSHIP BETWEEN THE PARTIES AS XXXXXX AND BORROWER THAT IS TRIABLE
OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO
SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS
WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY
AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.
ATTACHED EXHIBIT. THE FOLLOWING EXHIBIT IS ATTACHED TO THIS NOTE:
|X| EXHIBIT A MODIFICATIONS TO MULTIFAMILY NOTE
PAGE 9
IN WITNESS WHEREOF, Xxxxxxxx has signed and delivered this Note under
seal or has caused this Note to be signed and delivered under seal by its duly
authorized representative. Borrower intends that this Note shall be deemed to be
signed and delivered as a sealed instrument.
XXXXXXX PROPERTIES RESIDENTIAL,
L.P., a Georgia limited partnership
By: XXXXXXX REALTY INVESTORS,
INC., a Georgia corporation
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
[Corporate Seal]
Taxpayer ID No: 00-0000000
PAY TO THE ORDER OF
__________________________________
WITHOUT RECOURSE
PRIMARY CAPITAL ADVISORS LC
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Xxxxx X. Xxxxxxxx
Managing Director
Commercial Mortgage Banking
PAGE 10
EXHIBIT A
MODIFICATIONS TO MULTIFAMILY NOTE
The following modifications are made to the text of the instrument that precedes
this Exhibit:
1. Paragraph 9(c) is amended to add the following as subparagraph (4):
"(4) failure by Borrower to pay the amount of any fire, hazard or other
insurance premiums, real estate taxes, water and sewer charges,
assessments or other charges and expenses in accordance with the terms
of the Security Instrument."
PAGE A-1
