FORM OF NOTE
$25,000,000 July 16, 1998
FOR VALUE RECEIVED, the undersigned WELLSFORD/WHITEHALL HOLDINGS
II, L.L.C., a Delaware limited liability company, hereby promises to pay to
BANKBOSTON, N.A. or order, in accordance with the terms of that certain
Mezzanine Loan Agreement dated as of July 16, 1998 (the "Credit Agreement"),
as from time to time in effect, among the undersigned, BankBoston, N.A., for
itself and as Agent, Xxxxxxx Xxxxx Mortgage Company, and such other Banks as
may be from time to time named therein, to the extent not sooner paid, on or
before the Maturity Date, the principal sum of TWENTY-FIVE MILLION AND NO/100
DOLLARS ($25,000,000), or such amount as may be advanced by the payee hereof
under the Credit Agreement with daily interest from the date hereof, computed
as provided in the Credit Agreement, on the principal amount hereof from time
to time unpaid, at a rate per annum on each portion of the principal amount
which shall at all times be equal to the rate of interest applicable to such
portion in accordance with the Credit Agreement, and with interest on overdue
principal and, to the extent permitted by applicable law, on overdue
installments of interest and late charges at the rates provided in the Credit
Agreement. Interest shall be payable on the dates specified in the Credit
Agreement, except that all accrued interest shall be paid at the stated or
accelerated maturity hereof or upon the prepayment in full hereof.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings set forth in the Credit Agreement.
Payments hereunder shall be made to BankBoston, N.A., as Agent for
the payee hereof, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
This Note is one of one or more Notes evidencing borrowings under
and is entitled to the benefits and subject to the provisions of the Credit
Agreement. The principal of this Note may be due and payable in whole or in
part prior to the maturity date stated above and is subject to mandatory
prepayment in the amounts and under the circumstances set forth in the Credit
Agreement, and may be prepaid in whole or from time to time in part, all as
set forth in the Credit Agreement.
Notwithstanding anything in this Note to the contrary, all
agreements between the Borrower and the Banks and the Agent, whether now
existing or hereafter arising and whether written or oral, are hereby limited
so that in no contingency, whether by reason of acceleration of the maturity
of any of the Obligations or otherwise, shall the interest contracted for,
charged or received by the Banks exceed the maximum amount permissible under
applicable law. If, from any circumstance whatsoever, interest would
otherwise be payable to the Banks in excess of the maximum lawful amount, the
interest payable to the Banks shall be reduced to the maximum amount
permitted under applicable law; and if from any circumstance the Banks shall
ever receive anything of value deemed interest by applicable law in excess of
the maximum lawful amount, an amount equal to any excessive interest shall be
applied to the reduction of the principal balance of the Obligations and to
the payment of interest or, if such excessive interest exceeds the unpaid
balance of principal of the Obligations, such excess shall be refunded to the
Borrower. All interest paid or agreed to be paid to the Banks shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full period until payment in full of the principal of
the Obligations (including the period of any renewal or extension thereof) so
that the interest thereon for such full period shall not exceed the maximum
amount permitted by applicable law. This paragraph shall control all
agreements between the Borrower and the Banks and the Agent.
In case an Event of Default shall occur, the entire principal
amount of this Note may become or be declared due and payable in the manner
and with the effect provided in said Credit Agreement.
This Note shall be governed by and construed in accordance with the
laws of the State of New York (without giving effect to the conflict of laws
rules of any jurisdiction).
The undersigned maker and all guarantors and endorsers, hereby
waive presentment, demand, notice, protest, notice of intention to accelerate
the indebtedness evidenced hereby, notice of acceleration of the indebtedness
evidenced hereby and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note, except as
specifically otherwise provided in the Credit Agreement, and assent to
extensions of time of payment or forbearance or other indulgence without
notice.
IN WITNESS WHEREOF the undersigned has by its duly authorized
officers, executed this Note under seal as of the day and year first above
written.
WELLSFORD/WHITEHALL PROPERTIES
II, L.L.C., a Delaware
limited liability company
By: Wellsford Commercial
Properties Trust, a
Maryland real estate
investment trust, its
manager
By:/s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: CFO & Treasurer
