MULTIFAMILY NOTE MULTISTATE – FIXED RATE (REVISION DATE 2-15-2008)
EX-10.72.09
FHLMC
Loan No. 504125613
Summerville
at Xxxxxxxx Court
MULTISTATE
– FIXED RATE
(REVISION
DATE 2-15-2008)
|
US
$5,351,000.00
|
Effective
Date: As of December 19,
2008
|
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 Five Million Three Hundred Fifty-One
Thousand and 00/100 Dollars (US $5,351,000.00), with interest on the unpaid
principal balance, as hereinafter provided.
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.
"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.
"Fixed Interest Rate" means the
annual interest rate of five and ninety-seven hundredths percent
(5.97%).
"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 February 1, 2009.
"Lender" means the holder from
time to time of this Note.
"Loan" means the loan evidenced
by this Note.
"Maturity Date" means the earlier of (i) January 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 first day of the Window Period.
1
"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
4.000% U.S. Treasury Security due August 15, 2018.
"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 July 1, 2018.
Other
capitalized terms used but not defined in this Note shall have the meanings
given to such terms in the Security Instrument.
Address for
Payment. All payments due under this Note shall be payable at
c/o Capmark Finance Inc., 000 Xxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxxx 00000, Attn: Servicing - Account Manager, or
such other place as may be designated by Notice to Borrower from or on behalf of
Lender.
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 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.
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 Xxxxxx 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.
|
(d)
|
(i) Beginning
on the First Installment Due Date, and continuing until and including the
monthly installment due on January 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
|
2
$887.37417
multiplied by the number of days in the month prior to the Installment Due
Date.
|
(ii)
|
Beginning
on February 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 Thirty-One Thousand Nine
Hundred Seventy-Eight and 81/100 Dollars
($31,978.81).
|
All
remaining Indebtedness, including all principal and interest, shall be due and
payable by Borrower on the Maturity Date.
All
payments under this Note shall be made in immediately available U.S.
funds.
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.
Any
accrued interest remaining past due for 30 days or more, at Xxxxxx'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.
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 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.
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.
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 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, Xxxxxx shall recalculate the prepayment premium as of the actual
prepayment date.
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,
3
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 Xxxxxx, 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).
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. Xxxxxxxx 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.
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.
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.
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. Xxxxxxxx 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, 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.
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 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 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.
4
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.
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 Xxxxxx as a result of the occurrence of any of the following
events:
|
Xxxxxxxx
fails to pay to Lender upon demand after an Event of Default all Rents to
which Xxxxxx 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.
|
|
Xxxxxxxx
fails to apply all insurance proceeds and condemnation proceeds as
required by the Security Instrument. However, Xxxxxxxx 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.
|
|
Borrower
fails to comply with Section 14(g) or (h) of the Security Instrument
relating to the delivery of books and records, statements, schedules and
reports.
|
|
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.
|
[Deferred] Hazard
Insurance premiums or other insurance premiums,
[Collect] Taxes,
|
|
[Deferred]
|
water
and sewer charges (that could become a lien on the Mortgaged
Property),
|
[N/A] ground
rents,
|
|
[Deferred]
|
assessments
or other charges (that could become a lien on the Mortgaged
Property)
|
In
addition to the Base Recourse, Borrower shall be personally liable to Lender
for:
|
the
performance of all of Borrower's obligations under Section 18 of the
Security Instrument (relating to environmental
matters);
|
|
the
costs of any audit under Section 14(g) of the Security Instrument;
and
|
|
any
costs and expenses incurred by Xxxxxx in connection with the collection of
any amount for which Xxxxxxxx is personally liable under this
Section 9, including Attorneys' Fees and Costs and the costs of
conducting any independent audit of Xxxxxxxx's books and records to
determine the amount for which Borrower has personal
liability.
|
5
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 Xxxxxxxx has no personal liability.
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:
|
Borrower's
ownership of any property or operation of any business not permitted by
Section 33 of the Security
Instrument;
|
|
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
|
|
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.
|
To the
extent that Xxxxxxxx has personal liability under this Section 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. To the fullest extent permitted by
applicable law, in any action to enforce Borrower's personal liability under
this Section 9, Borrower waives any right to set off the value of the
Mortgaged Property against such personal liability.
(a) Any
receipt by Lender of principal due under this Note prior to the Maturity Date,
other than principal required to be paid in monthly installments pursuant to
Section 3, constitutes a prepayment of principal under this
Note. Without limiting the foregoing, any application by Xxxxxx,
prior to the Maturity Date, of any proceeds of collateral or other security to
the repayment of any portion of the unpaid principal balance of this Note
constitutes a prepayment under this Note.
Borrower
may voluntarily prepay all of the unpaid principal balance of this Note on an
Installment Due Date so long as Borrower designates the date for such prepayment
in a Notice from Borrower to Lender given at least 30 days prior to the date of
such prepayment. If an Installment Due Date (as defined in Section
1(a)) falls on a day which is not a Business Day, then with respect to payments
made under this Section 10 only, the term "Installment Due Date" shall mean the
Business Day immediately preceding the scheduled Installment Due
Date.
Notwithstanding
subsection (b) above, Borrower may voluntarily prepay all of the unpaid
principal balance of this Note on a Business Day other than an Installment Due
Date if Borrower provides Lender with the Notice set forth in subsection (b) and
meets the other requirements set forth in this subsection. Borrower
acknowledges that Xxxxxx has agreed that Borrower may prepay principal on a
Business Day other than an Installment Due Date only because Lender shall deem
any prepayment received by Lender on any day other than an Installment Due Date
to have been received on the Installment Due Date immediately
following
6
such
prepayment and Borrower shall be responsible for all interest that would have
been due if the prepayment had actually been made on the Installment Due Date
immediately following such prepayment.
Unless
otherwise expressly provided in the Loan Documents, Borrower may not voluntarily
prepay less than all of the unpaid principal balance of this Note. In
order to voluntarily prepay all or any part of the principal of this Note,
Borrower must also pay to Lender, together with the amount of principal
being prepaid, (i) all accrued and unpaid interest due under this Note,
plus (ii) all other sums due to Lender at the time of such prepayment, plus
(iii) any prepayment premium calculated pursuant to
Section 10(e).
Except as
provided in Section 10(f), a prepayment premium shall be due and payable by
Borrower in connection with any prepayment of principal under this Note during
the Prepayment Premium Period. The prepayment premium shall be
computed as follows:
|
For
any prepayment made during the Yield Maintenance Period, the prepayment
premium shall be whichever is the greater of subsections (A) and (B)
below:
|
|
1.0%
of the amount of principal being prepaid;
or
|
|
the
product obtained by multiplying:
|
|
the
amount of principal being prepaid or
accelerated,
|
by
|
the
excess (if any) of the Monthly Note Rate over the Assumed Reinvestment
Rate,
|
by
|
the
Present Value Factor.
|
For
purposes of subsection (B), the following definitions shall
apply:
Monthly Note Rate: one-twelfth
(1/12) of the Fixed Interest Rate, 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.
Assumed Reinvestment
Rate: one-twelfth (1/12) of the yield rate, as of the close of
the trading session which is 5 Business Days before the Prepayment Date, on the
Treasury Security, 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, Lender,
in its discretion, shall select the non-callable Treasury Security maturing in
the same year as the Treasury Security 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
7
term to
the Treasury Security. The selection of an alternate security
pursuant to this Section 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:
n = the number of months
remaining in Yield Maintenance Period; provided, however, if a prepayment occurs
on an Installment Due Date, then the number of months remaining in the Yield
Maintenance Period shall be calculated beginning with the month in which such
prepayment occurs and if such prepayment occurs on a Business Day other than an
Installment Due Date, then the number of months remaining in the Yield
Maintenance Period shall be calculated beginning with the month immediately
following the date of such prepayment.
ARR = Assumed Reinvestment
Rate
|
For
any prepayment made after the expiration of the Yield Maintenance Period
but during the remainder of the Prepayment Premium Period, the prepayment
premium shall be 1.0% of the amount of principal being
prepaid.
|
Notwithstanding
any other provision of this Section 10, no prepayment premium shall be
payable with respect to (i) any prepayment made during the Window Period,
or (ii) any prepayment occurring as a result of the application of any
insurance proceeds or condemnation award under the Security
Instrument.
Unless
Lender agrees otherwise in writing, a 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.
Borrower
recognizes that any prepayment of any of the unpaid principal balance of this
Note, whether voluntary or involuntary or resulting from an Event of 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. Borrower further acknowledges that the prepayment premium
provisions of this Note are a material part of the consideration for the Loan,
and 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.
8
Costs and
Expenses. To the fullest extent allowed by applicable law,
Borrower shall pay all expenses and costs, including Attorneys' Fees and Costs
incurred by Lender 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.
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.
Waivers. Borrower
and all endorsers and guarantors of this Note and all other third party obligors
waive 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.
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. 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 this
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 this Note.
Commercial
Purpose. Borrower represents that Borrower is incurring the
Indebtedness solely for the purpose of carrying on a business or commercial
enterprise, and not for personal, family, household, or agricultural
purposes.
Counting of
Days. Except where otherwise specifically provided, any
reference in this Note to a period of "days" means calendar days, not Business
Days.
Governing Law. This
Note shall be governed by the law of the Property Jurisdiction.
9
Notices; Written Modifications.
(a) All
Notices, demands and other communications required or permitted to be given
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, in the event of a Transfer under the terms of the Security
Instrument that requires Xxxxxx's consent, any or some or all of the
Modifications to Multifamily Note set forth in Exhibit A to this Note may
be modified or rendered void by Lender at Lender's option, by Notice to Borrower
and the transferee, as a condition of Xxxxxx's consent.
Consent to Jurisdiction and
Venue. Xxxxxxxx agrees that any controversy arising under or
in relation to this Note may be litigated in the Property
Jurisdiction. The state and federal courts and authorities with
jurisdiction in the Property Jurisdiction shall have jurisdiction over all
controversies that 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. However, nothing in this Note is intended to limit any
right that Lender may have to bring any suit, action or proceeding relating to
matters arising under this Note in any court of any other
jurisdiction.
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.
State-Specific
Provisions. If a guarantor is liable for only a portion of the
Indebtedness, Borrower hereby waives its rights under California Civil Code
Section 2822(a) to designate the portion of the Indebtedness that shall be
satisfied by Xxxxxxxx's partial payment.
ATTACHED
EXHIBIT. The Exhibit noted below, if marked with an "X" in the
space provided, is attached to this Note:
|
X
|
Exhibit
A
|
Modifications
to Multifamily Note
|
IN WITNESS WHEREOF, and in
consideration of the Lender's agreement to lend Borrower the principal amount
set forth above, Borrower 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.
10
|
|
EMERIVENT XXXXXXXX COURT
INC, a Delaware corporation
|
By: /s/
Xxxx
Xxxxxxxxxx
Xxxx
Xxxxxxxxxx
Senior
Vice President Corporate Development
Borrower's
Social Security/Employer ID Number
11
PAY TO
THE ORDER OF FEDERAL HOME LOAN MORTGAGE CORPORATION, WITHOUT
RECOURSE.
|
|
CAPMARK BANK, a Utah
industrial bank
|
By: /s/
Xxx X.
Xxxxx
Xxx X.
Xxxxx
Limited
Signer
FHLMC
Loan No. 504125613
12
EXHIBIT
A
MODIFICATIONS
TO MULTIFAMILY NOTE
The
following modifications are made to the text of the Note that precedes this
Exhibit.
|
1.
|
Section
7(a) is amended by adding the following phrase after “Loan Document” in
the second line, “other than the payment of the entire outstanding
principal balance due and payable on the Maturity
Date,”
|
|
2.
|
Section
9(c) is amended by adding the following phrase in both subsection (i) and
subsection (ii), in each case after the word "in" and before the phrase "a
bankruptcy, receivership, or similar judicial
proceeding":
|
"or
'automatic stay' applicable because of".
3. Section
9(d) is amended by adding the following new subsection (iv) as
follows:
|
|
"(iv)
|
any
costs, fees, and expenses incurred by Xxxxxx as a result of an insurance
claim not being covered by Xxxxxxxx’s captive insurer, which claim would
or should have been covered by the insurance required under Section 19 of
the Security Instrument, in Xxxxxx’s reasonable
determination."
|
A
- 1
