AMENDED AND RESTATED MULTIFAMILY NOTE
AMENDED
AND RESTATED
THIS
AMENDED AND RESTATED MULTIFAMILY NOTE is made and entered into as of
the 31st day of August, 2007, by and between MERIWEG-SYRACUSE, LLC, a
Delaware limited liability company (“Borrower”) and RED
MORTGAGE CAPITAL, INC., an Ohio corporation
(“Lender”).
PRELIMINARY
STATEMENTS
A. Lender
is the holder of that certain Amended and Restated Promissory Note dated
November 14, 1996, in the original principal amount of $10,470,000.00, from
Wegman/Manors Number Two, LLC, a New York limited liability company
(“Wegman”), as assigned to Lender pursuant to that certain
Allonge to Note dated as of the date hereof from LaSalle Bank National
Association, formerly known as LaSalle National Bank, as Trustee for the
Registered Holders of RMF Commercial Mortgage Pass-Through Certificates Series
1997-1, to Lender (the “Original Note”).
B. Borrower
has agreed to assume Wegman’s obligations under the Original Note pursuant
hereto.
C. Borrower
has requested and Lender has agreed to make certain amendments to the Original
Note. The Original Note is being amended and restated in its entirety
to reflect such amendments.
D. The
Borrower hereby acknowledges and agrees that there remains outstanding on the
Original Note the principal amount of $8,404,296.21. The Borrower
further acknowledges and agrees that on the date hereof, the Lender has advanced
to the Borrower the additional principal amount of $5,811,703.79, which
additional principal amount is evidenced by this Note and shall be due and
payable in accordance with the terms and subject to the conditions
hereof. The outstanding principal amount of the Original Note and the
additional amount advanced by the Lender to the Borrower on the date hereof
is
hereby consolidated so that there is now outstanding the total principal amount
of $14,216,000 which principal amount, the Borrower hereby acknowledges and
agrees, is evidenced by this Note and shall be due and payable in accordance
with the terms and subject to the conditions hereof.
NOW,
THEREFORE, in consideration of the
premises and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Borrower and Lender agree that the
Borrower hereby assumes all of Wegman’s obligations under the Original Note and
such Original Note and all of Borrower’s obligations, representations and
warranties
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4100-PIO Mltifamily Interest Only Fixed Note Bellevue Manor
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thereunder
are hereby amended and restated in their entirety as follows (as amended and
restated, the “Note”):
US
$14,216,000.00
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August
31, 2007
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FOR
VALUE RECEIVED,
the undersigned ("Borrower") jointly and severally (if more
than one) promises to pay to the order of RED MORTGAGE CAPITAL, INC.,
an Ohio corporation, the principal sum of Fourteen Million Two Hundred Sixteen
Thousand Dollars (US $14,216,000), with interest accruing at the Interest
Rate on the unpaid principal balance from the Disbursement Date until fully
paid.
1. Defined
Terms. In addition to defined terms found elsewhere in this
Note, as used in this Note, the following definitions shall apply:
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Amortization
Period: 360
months.
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Business
Day: Any day other than a Saturday, Sunday or
any other day on which Lender is not open for business.
Debt
Service Amounts: Amounts payable under this Note, the
Security Instrument or any other Loan Document.
Disbursement
Date: The date of disbursement of Loan proceeds
hereunder.
Default
Rate: A rate equal to the lesser of 4 percentage points
above the Interest Rate or the maximum interest rate which may be collected
from
Borrower under applicable law.
First
Interest Only Payment Date: The first day of
October, 2007.
First
Principal and Interest Payment Date: The first
day of October, 2009.
Indebtedness: The
principal of, interest on, or 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.
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Interest
Only Term: 24
months.
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4100-PIO Mltifamily Interest Only Fixed Note Bellevue Manor
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Interest
Rate: The annual rate of six and 185/1000 percent
(6.185%).
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|
Last
Interest Only Payment Date: The first day of
September, 2009.
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Lender: The
holder of this Note.
Loan: The
loan evidenced by this Note.
Loan
Term: 84 months.
Maturity
Date: The first day of September, 2014, or any
earlier date on which the unpaid principal balance of this Note becomes due
and
payable by acceleration or otherwise.
Property
Jurisdiction: The jurisdiction in which the Land is
located.
Security
Instrument: An Increased, Consolidated and Restated Mortgage
and Security Agreement dated as of the date of this Note.
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Yield
Maintenance Period Term: 78
months.
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Yield
Maintenance Period End Date: The last day of February,
2014.
Event
of
Default, Key Principal 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 Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx,
Xxxxxxxx,
Xxxx 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) Short
Month Interest. If disbursement of principal is made by
Lender to Borrower on any day other than the first day of the month, interest
for the period beginning on the Disbursement Date 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.
(b)
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Interest
Computation. Interest under this Note shall be
computed on the basis of (check one
only):
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4100-PIO Mltifamily Interest Only Fixed Note Bellevue Manor
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30/360. A
360-day year consisting of twelve 30-day months.
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x
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Actual/360. A
360-day year. The amount of each monthly payment made by
Borrower pursuant to Paragraph 3(c) below that is allocated to interest
will be based on the actual number of calendar days during such month
and
shall be calculated by multiplying the unpaid principal balance of
this
Note by the per annum Interest Rate, dividing the product by 360
and
multiplying the quotient by the actual number of days elapsed during
the
month. Borrower understands that the amount allocated to
interest for each month will vary depending on the actual number
of
calendar days during such month.
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(c)
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Monthly
Installments:
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(1) Interest
Only Period. Commencing on the First Interest Only Payment
Date and on the first day of every month until and including the Last Interest
Only Payment Date, consecutive monthly installments of interest only shall
be
payable and in an amount equal to one of the following (check one
only):
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30/360. If
interest accrues based on a 30/360 interest computation, then consecutive
monthly installments of interest only, each in the amount of
___________________________________________________________________________
Dollars (US
$__________________________).
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x
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Actual/360. If
interest accrues based on an Actual/360 interest computation, the
amount
of Seventy-Three Thousand Two Hundred Seventy-One Dollars and Sixty-Three
Cents (US $73,271.63) shall be payable on the First Interest Only
Payment
Date and thereafter consecutive monthly installments of interest
only,
shall be payable as follows:
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(1)
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Sixty-Eight
Thousand Three Hundred Eighty-Six Dollars and Eighty-Six Cents (US
$68,386.86), shall be payable on the first day of each month during
the
term hereof which follows a 28-day
month;
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(2)
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Seventy
Thousand Eight Hundred Twenty-Nine Dollars and Twenty-Five Cents
(US
$70,829.25), shall be payable on the first day of each month during
the
term hereof which follows a 29-day
month,
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4100-PIO Mltifamily Interest Only Fixed Note Bellevue Manor
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(3)
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Seventy-Three
Thousand Two Hundred Seventy-One Dollars and Sixty-Three Cents (US
$73,271.63), shall be payable on the first day of each month during
the
term hereof which follows a 30-day month,
or
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(4)
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Seventy-Five
Thousand Seven Hundred Fourteen Dollars and Two Cents (US $75,714.02),
shall be payable on the first day of each month during the term hereof
which follows a 31-day month,
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(2)
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Amortizing
Period. Commencing on the First Principal and Interest
Payment Date and on the first day of every month thereafter, consecutive
monthly installments of principal and interest, each in the amount
of
Eighty-Six Thousand Nine Hundred Thirty Dollars and Twenty-Six Cents
(US
$86,930.26), until the entire unpaid principal balance evidenced
by this
Note is fully paid.
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Any
remaining principal and interest shall be due and payable on 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) Payments
Before Due Date. Any regularly scheduled monthly installment
of interest only (during the interest-only period set forth in paragraph 3(c)
above) or principal and interest (during the period in which principal and
interest is due also as set forth in paragraph 3(c) above) 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.
(e) Accrued
Interest. Any accrued interest remaining past due for 30
days or more shall be added to and become part of the unpaid principal balance
and shall bear interest at the rate or rates specified in this
Note. Any reference herein 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 that payment to amounts
then due and payable in 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.
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4100-PIO Mltifamily Interest Only Fixed Note Bellevue Manor
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5. Security. The
Indebtedness is secured, among other things, by the Security Instrument, and
reference is made to the Security Instrument for other rights of Lender
concerning the 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. Lender may exercise this option to
accelerate regardless of any prior forbearance.
7. Late
Charge. If any monthly installment due hereunder is not
received by Lender on or before the 10th day of
each month
or if any other amount payable under this Note or under the Security Instrument
or any other Loan Document is not received by Lender within 10 days after the
date such amount is due, counting from and including the date such amount is
due, Borrower shall pay to Lender, immediately and without demand by Lender,
a
late charge equal to 5 percent of such monthly installment or other amount
due. 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 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 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 any monthly installment or any other
payment due under this Note remains past due for 30 days or more, 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 other payment due, as
applicable, at the Default Rate. 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 or payment under this Note is delinquent for more than 30 days,
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
that it is extremely difficult and impractical to determine those additional
costs and expenses. Borrower also acknowledges that, during the time
that any monthly installment or other payment due under this Note is delinquent
for more than 30 days, 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
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4100-PIO Mltifamily Interest Only Fixed Note Bellevue Manor
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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 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 (as such term is defined in the Security Instrument) 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 any loss or damage suffered by Lender 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;
(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;
(4) fraud
or written material misrepresentation by Borrower, Key Principal 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 Lender; or
(5) failure
to apply Rents, first, to the payment of reasonable operating expenses (other
than Property management fees that are not currently payable pursuant to the
terms of an Assignment of Management Agreement or any other agreement with
Lender executed in connection with the Loan) and then to Debt Service Amounts,
except that Borrower will not be personally liable (i) to the extent that
Borrower lacks the legal
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4100-PIO Mltifamily Interest Only Fixed Note Bellevue Manor
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right
to
direct the disbursement of such sums because of a bankruptcy, receivership
or
similar judicial proceeding, or (ii) with respect to Rents that are distributed
in any calendar year if Borrower has paid all operating expenses and Debt
Service Amounts for that calendar year.
(c) 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; or
(2) a
Transfer that is an Event of Default under Section 21 of the Security
Instrument.
(d) To
the extent that Borrower has personal liability under this Paragraph 9, Lender
may exercise its rights against Borrower personally without regard to whether
Lender 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
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.
10. Voluntary
and Involuntary Prepayments.
(a) A
prepayment premium shall be payable in connection with any prepayment made
under
this Note as provided below:
(1)
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Borrower
may voluntarily prepay all (but not less than all) of the unpaid
principal
balance of this Note only on the last calendar day of a calendar
month
(the "Last Day of the Month") and only if Borrower has complied with
all
of the following:
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(i)
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Borrower
must give Lender at least 30 days (if given via U.S. Postal Service)
or 20
days (if given via facsimile, email or overnight courier), but not
more
than 60 days, prior written notice of Borrower's intention to make
a
prepayment (the "Prepayment Notice"). The Prepayment Notice
shall be given in writing (via facsimile, email, U.S. Postal Service
or
overnight courier) and addressed to Lender. The Prepayment
Notice shall include, at a
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4100-PIO Mltifamily Interest Only Fixed Note Bellevue Manor
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(ii)
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minimum,
the Business Day upon which Borrower intends to make the prepayment
(the
"Intended Prepayment Date").
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(iii)
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Borrower
acknowledges that the Lender is not required to accept any voluntary
prepayment of this Note on any day other than the Last Day of the
Month
even if Borrower has given a Prepayment Notice with an Intended Prepayment
Date other than the Last Day of the Month or if the Last Day of the
Month
is not a Business Day. Therefore, even if Lender accepts a
voluntary prepayment on any day other than the Last Day of the Month,
for
all purposes (including the accrual of interest and the calculation
of the
prepayment premium), any prepayment received by Lender on any day
other
than the Last Day of the Month shall be deemed to have been received
by
Lender on the Last Day of the Month and any prepayment calculation
will
include interest to and including the Last Day of the Month in which
such
prepayment occurs. If the Last Day of the Month is not a
Business Day, then the Borrower must make the payment on the Business
Day
immediately preceding the Last Day of the
Month.
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(iv)
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Any
prepayment shall be made by paying (A) the amount of principal being
prepaid, (B) all accrued interest (calculated to the Last Day of
the
Month), (C) all other sums due Lender at the time of such prepayment,
and
(D) the prepayment premium calculated pursuant to
Schedule A.
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(v)
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If,
for any reason, Borrower fails to prepay this Note (A) within five
(5)
Business Days after the Intended Prepayment Date or (B) if the prepayment
occurs in a month other than the month stated in the original Prepayment
Notice, then Lender shall have the right, but not the obligation,
to
recalculate the prepayment premium based upon the date that Borrower
actually prepays this Note and to make such calculation as described
in
Schedule A attached hereto. For purposes of such recalculation,
such new prepayment date shall be deemed the "Intended Prepayment
Date."
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(2) Upon
Lender'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, (i) all accrued interest and all
other sums due Lender under this Note and the other Loan Documents, and
(ii) the prepayment premium calculated pursuant to Schedule
A.
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(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 (1)
with respect to any prepayment occurring as a result of the application of
any
insurance proceeds or condemnation award under the Security Instrument, or
(2)
as provided in subparagraph (c) of Schedule A.
(c) Schedule
A is hereby incorporated by reference into this Note.
(d) Any
required prepayment of less than the entire 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 Lender 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 Lender's incurring loss, including reinvestment loss, additional
expense and frustration or impairment of Lender's ability to meet its
commitments to third parties. Borrower agrees to pay to Lender 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. Borrower therefore acknowledges and agrees that the formula
for calculating prepayment premiums set forth on Schedule A 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 evidenced by this Note, 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. Borrower shall pay on demand all expenses and
costs, including fees and out-of-pocket expenses of attorneys and expert
witnesses and costs of investigation, 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.
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4100-PIO Mltifamily Interest Only Fixed Note Bellevue Manor
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12. Forbearance. Any
forbearance by Lender 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
Lender 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, Key Principal, and all endorsers and guarantors of this Note and
all
other third party obligors.
15. Commercial
Purpose. Borrower represents that the Indebtedness is being
incurred by Borrower solely for the purpose of carrying on a business or
commercial enterprise, and not for personal, family or household
purposes.
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4100-PIO Mltifamily Interest Only Fixed Note Bellevue Manor
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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.
19. Notices. All
notices, demands and other communications required or permitted to be given
by
Lender to Borrower pursuant to this Note shall be given in accordance with
Section 31 of the Security Instrument.
20. Consent
to Jurisdiction and Venue. Borrower and Key Principal
each agrees that any controversy arising under or in relation to this Note
shall
be litigated exclusively in 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 and Key Principal each
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. BORROWER, KEY PRINCIPAL AND LENDER 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 LENDER, KEY PRINCIPAL 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
SCHEDULES. The
following Schedules are attached to this Note:
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Schedule
A
|
Prepayment
Premium (required)
|
|
Schedule
B
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Modifications
to Multifamily Note (Seniors
Housing)
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4100-PIO Mltifamily Interest Only Fixed Note Bellevue Manor
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IN
WITNESS WHEREOF,
Borrower has signed and delivered this Note or has caused this Note to be signed
and delivered by its duly authorized representative.
BORROWER
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MERIWEG-SYRACUSE,
LLC,
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|
a
Delaware limited liability company
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By:
Emeritus Corporation,
a
Washington corporation
By:
_/s/ Xxxx Mendelsohn_______________
Xxxx
Xxxxxxxxxx
Director
of Real Estate and
Business
Legal Affairs
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Borrower's
Social Security/Employer ID Number:
Xxxxxx
Xxx Commitment Number: 851888
|
Form
4100-PIO Mltifamily Interest Only Fixed Note Bellevue Manor
Red
Mortgage Capital, Inc., holder of the Original Note, signs below to acknowledge
its consent to the terms of this Amended and Restated Multifamily
Note.
RED
MORTGAGE CAPITAL,
INC.,
an
Ohio corporation
By:__/s/
X. Xxxxx
Kallmerten______________
Name: X.
Xxxxx Xxxxxxxxxx
Title: Senior
Managing Director
Xxxxxx
Mae Commitment Number: 851888
Form
4100-PIO Mltifamily Interest Only Fixed Note Bellevue Manor
PAY
TO THE ORDER OF XXXXXX MAE, without recourse
|
|
RED
MORTGAGE CAPITAL, INC.,
an
Ohio corporation
|
|
By: /s/ X.
Xxxxx Xxxxxxxxxx
|
|
Name: X.
Xxxxx Kallmerten
|
|
Title: Senior
Managing Director
|
|
Xxxxxx
Xxx Commitment Number: 851888
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Form
4100-PIO Mltifamily Interest Only Fixed Note Bellevue Manor
SCHEDULE
A
PREPAYMENT
PREMIUM
Any
prepayment premium payable under Paragraph 10 of this Note shall be computed
as
follows:
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(a)
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If
the prepayment is made at any time after the date of this Note and
before
the Yield Maintenance Period End Date, the prepayment premium shall
be the
greater of:
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(i)
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1%
of the amount of principal being prepaid;
or
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(ii)
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The
product obtained by multiplying:
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(A)
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the
amount of principal being prepaid,
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by
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(B)
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the
difference obtained by subtracting from the Interest Rate on this
Note the
yield rate (the "Yield Rate") on the 4.75% U.S. Treasury
Security due May, 2014 (the "Specified U.S. Treasury
Security"), on the twenty-fifth Business Day preceding (x) the
Intended Prepayment Date, or (y) the date Lender accelerates the
Loan or
otherwise accepts a prepayment pursuant to Paragraph 10(a)(3) of
this
Note, as the Yield Rate is reported in The Wall Street
Journal,
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by
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(C)
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the
present value factor calculated using the following
formula:
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1
- (1
+ r)-n/12
r
[r
= Yield
Rate
n
= the number of
months remaining between (1) either of the following: (x) in the case
of a voluntary prepayment, the last calendar day of the calendar month during
which the prepayment is made, or (y) in any other case, the date on which
Lender accelerates the unpaid principal balance of this Note and (2) the
Yield Maintenance Period End Date]
Form
4100-PIO Mltifamily Interest Only Fixed Note Bellevue Manor
A
- 1
In
the
event that no Yield Rate is published for the Specified U.S. Treasury Security,
then the nearest equivalent non-callable U.S. Treasury Security having a
maturity date closest to the Yield Maintenance Period End Date of this Note
shall be selected at Lender's discretion. If the publication of such
Yield Rates in The Wall Street Journal is discontinued, Lender shall
determine such Yield Rates from another source selected by Lender.
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(b)
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If
the prepayment is made on or after the Yield Maintenance Period End
Date
but before the last calendar day of the 4th month prior to the month
in
which the Maturity Date occurs, the prepayment premium shall be 1%
of the
amount of principal being prepaid.
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(c)
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Notwithstanding
the provisions of Paragraph 10(a) of this Note, no prepayment premium
shall be payable with respect to any prepayment made on or after
the last
calendar day of the 4th month prior to the month in which the Maturity
Date occurs.
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__/s/
EM_______
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Borrower
Initials
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__/s/
BK__________
Lender
Initials
Form
4100-PIO Mltifamily Interest Only Fixed Note Bellevue Manor
A
- 2
SCHEDULE
B
MODIFICATIONS
TO NOTE
(Seniors
Housing)
The
following modifications are made to the text of the Note that precedes this
Schedule:
1.
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Section
9(b)(3) of the Note is hereby amended to read as
follows:
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“Failure
of Borrower to comply with Sections 14(d), 14(e), or 14(g) of the Instrument
relating to the delivery of books and records, statements, schedules, and
reports.”
2. Section
9(b) of the Note is hereby amended to delete the word “or” immediately preceding
paragraph (5) thereof and to insert a semi-colon in lieu of the period and
the
word “or”, and add the following paragraph (6) at the end thereof:
“or
(6)
Borrower’s failure to cause the renewal, continuation, extension or maintenance
of all Licenses required to legally operate the Mortgaged Property as a Seniors
Housing Facility, as defined in the Instrument.”
3. All
capitalized terms used in this Schedule not specifically defined herein shall
have the meanings set forth in the text of the Note that precedes this
Schedule.
BORROWER’S
INITIALS: __/s/ EM___
LENDER’S
INITIALS: ____/s/
BK__
Form
4100-PIO Mltifamily Interest Only Fixed Note Bellevue Manor
B
- 1