Exhibit 10.28
MORTGAGE NOTE
$53,030,000.00 September 28, 2000
For value received, FIRST STATES PARTNERS 000 XXXXX XXXXX XX, X.X a
Delaware limited partnership, having its principal place of business at 0000 Xxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 19046 (hereinafter referred to as "Maker"),
promises to pay to the order of Credit Suisse First Boston Mortgage Capital LLC,
a Delaware limited liability company ("Lender" and also sometimes "Payee"),
having its principal office at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or
at such place as the holder hereof may from time to time designate in writing,
the principal sum of FIFTY-THREE MILLION THIRTY THOUSAND AND 00/100 Dollars
($53,030,000.00), in lawful money of the United States of America, with interest
thereon to be computed on the unpaid principal balance from time to time
outstanding at the Applicable Interest Rate (as hereinafter defined), and to be
paid in installments as follows:
A. A payment of interest only on the date hereof with respect to the
interest accrual period from the date hereof to and including October
10, 2000;
B. A constant payment of $405,127.00 (such amount hereinafter the
"Monthly Payment Amount"), on the eleventh day of November, 2000 and
on the eleventh day of each calendar month thereafter up to and
including the eleventh day of September, 2030; (each a "Payment
Date"); each of such payments to be applied (a) to the payment of
interest computed at the Initial Term Interest Rate (as hereinafter
defined); and (b) the balance applied toward the reduction of the
principal sum;
and the balance of said principal sum together with all accrued and unpaid
interest thereon shall be due and payable on the eleventh day of October, 2030
(the "Maturity Date"). Interest on the principal sum of this Note shall be
calculated on the basis of the actual number of days elapsed and a
three-hundred-sixty (360) day year. The constant payment required hereunder is
based on an amortization schedule of three hundred sixty (360) months. For
purposes of making payments hereunder, but not for purposes of calculating
interest accrual periods if the eleventh (11th) day of a given month is not a
Business Day (as hereinafter defined), then amounts due on the Payment Date for
such month shall be due on the next succeeding Business Day. All amounts due
under this Note shall be payable without setoff, counterclaim or any other
deduction whatsoever.
1. As used in this Note:
(a) The term "Annual Budget" shall mean an annual budget submitted by
Maker to Payee in accordance with the terms of Paragraph 8(b) herein.
(b) The term "Anticipated Repayment Date" shall mean October 11, 2007.
(c) The term "Applicable Interest Rate" shall mean from (a) the date
of this Note through but not including the Anticipated Repayment Date, the
Initial Term Interest Rate,
and (b) from and after the Anticipated Repayment Date through and including the
date this Note is paid in full, the Extended Term Rate.
(d) The term "Approved Annual Budget" shall mean each Annual Budget
approved by Payee in accordance with terms herein.
(e) The term "Assignment of Leases" shall mean that certain Assignment
of Leases and Rents of even date herewith executed by Maker in favor of Xxxxx.
(f) The term "Business Day" shall mean a day other than (i) a Saturday
or Sunday, or (ii) any day on which commercial banks in New York City are not
open for general banking business.
(g) The term "Capital Expenditures" shall mean for any period, the
amount expended for items capitalized under generally accepted accounting
principles including expenditures for building improvements or major repairs,
leasing commissions and tenant improvements.
(h) The term "Cash Expenses" shall mean for any period, the operating
expenses for the Mortgaged Property as set forth in an Approved Annual Budget to
the extent that such expenses are actually incurred by Maker minus payments into
the Tax and Insurance Impound Fund (as defined in the Mortgage), Leasing Escrow
Fund (as defined in the Mortgage) and the Replacement Escrow Fund (as defined in
the Mortgage).
(i) The term "Cash Trap" shall mean the Contingent Debt Service Sweep
Event and the Debt Service Escrow Sweep Event, each as defined in the Mortgage.
(j) The term "Cash Management Agreement" shall have the meaning
assigned to such term in the Mortgage.
(k) The term "Debt" shall mean, collectively, the whole of the
principal sum of this Note, together with all interest accrued and unpaid
thereon and all other sums due under the Loan Documents
(l) The term "Default Rate" shall mean, a rate per annum which equal
to the lesser of (a) the maximum rate permitted by applicable law, or (b) five
percent (5%) above the Applicable Interest Rate.
(m) The term "Defeasance Option" shall mean the right and option of
maker to release the Mortgaged Property (as defined in the Mortgage) from the
lien of the Mortgage in accordance with the provision set forth in Paragraph 55
of the Mortgage.
(n) The term "Extended Term Rate" shall mean a rate per annum equal to
(i) whenever clause (ii) below is not applicable, the Initial Term Interest Rate
plus five (5) percentage points or (ii) for so long as the Note is an asset of a
trust, partnership, corporation or other entity formed in connection with a
Securitization (as defined in the Mortgage) pursuant to which securities rated
by any Rating Agency (as defined in the Mortgage) have been issued, the Initial
Term Interest Rate plus two (2) percentage points.
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(o) The term "Excess Cash Flow" shall mean, for any period, the sum
(determined in accordance with generally accepted accounting principles,
consistently applied) of (a) net operating income (calculated as all income
derived from the operation of the Mortgaged Property after payment of taxes and
expenses) for such period, plus (b) depreciation and amortization (to the extent
deducted in determining net operating income) for such period, plus (c)
disbursements made during such period from the Tax and Insurance Impound Fund,
the Replacement Escrow Fund, the Leasing Escrow Fund or any other escrows or
reserves approved by Payee or provided for under the Loan Documents, but only to
the extent disbursed to Maker and not applied to the payment of, or
reimbursement for, taxes, insurance and other amounts for which such reserves
were set aside, minus (d) actual payments of the regularly scheduled principal
and interest payments (calculated at the Applicable Interest Rate, or at the
Default Rate, if applicable) due and payable in accordance with this Note during
an applicable period, minus (e) actual Capital Expenditures in excess of
payments from the Replacement Escrow Fund, the Leasing Escrow Fund and funding
of reserves for working capital and Extraordinary Expenses as approved by Lender
in its sole discretion, and minus (1) payments into the Replacement Escrow Fund,
the Tax and Insurance Impound Fund, the Leasing Escrow Fund and other escrows
and reserves required under the Loan Documents.
(p) The term "Extraordinary Expense" shall mean an extraordinary
operating expense or capital expense not set forth in the Approved Annual Budget
or allotted for in the Replacement Escrow Fund.
(q) The term "Initial Term Interest Rate" shall mean a rate of eight
and forty-three one-hundredths percent (8.43%) per annum.
(r) The term "Loan" shall mean that certain loan made by Payee to
Maker contemporaneously with the issuance of this Note.
(s) The term "Loan Documents" shall mean collectively this Note, the
Mortgage, the Assignment of Leases and any and all other documents securing,
evidencing, or guaranteeing all or any portion of the Loan or otherwise executed
and/or delivered in connection with this Note and the Loan.
(t) The term "Mortgage" shall mean that certain Mortgage, Assignment
of Leases and Rents and Security Agreement of even date herewith in the amount
of this Note given by Maker for the use and benefit of Payee covering the fee
estate of Maker in certain premises as more particularly described therein.
(u) The term "Net Capital Expenditures" shall mean for any period the
amount by which Capital Expenditures during such period exceeds reimbursements
for such items during such period from any fund established pursuant to the Loan
Documents.
2. This Note is evidence of the Loan and of the obligation of the
Maker to repay the Loan in accordance with the terms hereof. This Note is
secured inter alia by (a) the Mortgage, (b) an Assignment of Leases, and (c) the
other Loan Documents.
3. If any sum payable under this Note is not paid on or before the
date on which it is due (except for the payment due on the Maturity Date), Maker
shall pay to Payee
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upon demand an amount equal to the lesser of three percent (3%) of such unpaid
sum or the maximum amount permitted by applicable law in order to defray a
portion of the expenses incurred by Payee in handling and processing such
delinquent payment and to compensate Payee for the loss of the use of such
delinquent payment. If the day when any payment required under this Note is due
is not a Business Day, then payment shall be due on the first Business Day
thereafter.
4. The Debt or any portion thereof, shall without notice become
immediately due and payable at the option of Payee upon the happening of any
Event of Default (as defined in the Mortgage). In the event that it should
become necessary to employ counsel to collect or enforce the Debt or to protect
or foreclose the security therefor, Maker also shall pay on demand all costs of
collection incurred by Xxxxx, including attorneys' fees and costs reasonably
incurred for the services of counsel whether or not suit be brought.
5. Maker does hereby agree that upon the occurrence and during the
continuance of an Event of Default (including upon the failure of Maker to pay
the Debt in full on the Maturity Date), Payee shall be entitled to receive and
Maker shall pay interest on the entire unpaid principal sum and any other
amounts due at the Default Rate.
6. Maker hereby agrees that upon the occurrence of an Event of Default
Maker shall pay to Payee on the eleventh day of each month while such Event of
Default continues, an aggregate amount equal to the Excess Cash Flow for the
prior month, such Excess Cash Flow to be applied by Payee to the payment of the
Debt in such order as Payee shall determine in its sole discretion, including,
without limitation, alternating applications thereof between interest and
principal. Interest at the Default Rate and Excess Cash Flow shall both be
computed from the occurrence of the Event of Default until the earlier of (i)
actual receipt and collection of the Debt or (ii) the Payee accepts a cure of
such Event of Default. Interest at the Default Rate shall be added to the Debt
and shall be secured by the Mortgage. This Paragraph, however, shall not be
construed as an agreement or privilege to extend the date of the payment of the
Debt, nor as a waiver of any other right or remedy accruing to Payee by reason
of the occurrence of any Event of Default; the acceptance of any payment of
Excess Cash Flow shall not be deemed to cure or constitute a waiver of any Event
of Default; and Payee retains its rights under this Note to accelerate and to
continue to demand payment of the Debt upon the happening of any Event of
Default despite any payment of Excess Cash Flow.
7. This Note may not be prepaid prior to the Anticipated Repayment
Date; provided, however, Maker shall have the right and option to release the
Mortgaged Property from the lien of the Mortgage in accordance with the terms
and provisions of the Defeasance Option. Notwithstanding the foregoing sentence,
Maker shall have the privilege to prepay the entire principal balance of this
Note and any other amounts outstanding on any Payment Date and upon not less
than fifteen (15) days prior written notice from Maker to Payee during the month
immediately preceding the Anticipated Repayment Date without payment of the
Yield Maintenance Premium (as defined in the Mortgage) or any other premium or
penalty. Any prepayment prior to the Anticipated Repayment Date on a date other
than a Payment Date, shall, in any event, include interest through the following
Payment Date. In addition, on the Anticipated Repayment Date or on any Payment
Date thereafter, the Maker may, at its option and upon fifteen (15) days prior
written notice from Maker to Payee, prepay in whole or in part,
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in $100,000 increments only, the outstanding principal balance of this Note and
any other amounts outstanding without payment of the Yield Maintenance Premium
or any other premium or penalty. If prior to the Anticipated Repayment Date and
following the occurrence of any Event of Default, Maker shall tender payment of
an amount sufficient to satisfy the Debt at any time prior to a sale of the
Mortgaged Property, either through foreclosure or the exercise of the other
remedies available to Payee under the Mortgage, such tender by Maker shall be
deemed to be voluntary and Maker shall pay, in addition to the Debt, the Yield
Maintenance Premium, if any, that would be required under the Defeasance Option.
8. (a) During any Sweep Period (as defined in the Cash Management
Agreement), Maker shall cause all Rents (as defined in the Mortgage) to be
deposited in the Clearing Account (as defined in the Cash Management Agreement).
Commencing on the first day of each Collection Period (as defined in the Cash
Management Agreement), all Rents deposited in the Cash Collateral Account (as
defined in the Cash Management Agreement) shall be allocated in the following
order of priority:
(i) First, to fund the Tax and Insurance Impound Fund Account (as
established pursuant to the Cash Management Agreement) until the
amount on deposit therein is equal to the amount required to be
deposited in the Tax and Insurance Impound Fund (as defined in
the Mortgage) on the related Payment Date in accordance with the
terms and conditions of the Mortgage;
(ii) Second, to fund the Monthly Debt Service Subaccount (as
established pursuant to the Cash Management Agreement) until the
amount on deposit therein is equal to the Monthly Payment
Amount;
(iii) Third, to fund the Monthly Debt Service Subaccount with any
other amounts due to the Payee under the Loan Documents not
otherwise addressed by this Paragraph;
(iv) Fourth, to fund the Replacement Escrow Fund Subaccount (as
established pursuant to the Cash Management Agreement) until the
amount on deposit therein is equal to the amount required to be
deposited in the Replacement Escrow Fund (as defined in the
Mortgage) on the related Payment Date in accordance with the
terms and conditions of the Mortgage;
(v) Fifth, to fund the Leasing Escrow Fund Subaccount (as
established pursuant to the Cash Management Agreement) until the
amount on deposit therein is equal to the amount required to be
deposited in the Leasing Escrow Fund (as defined in the
Mortgage) on the related Payment Date in accordance with the
terms and conditions of the Mortgage;
(vi) Sixth, to fund the Duke Contract Fund Subaccount (as established
pursuant to the Cash Management Agreement) until the amount on
deposit therein is equal to the amount required to be deposited
in the Duke Contract Escrow Fund (as defined in the Mortgage) on
the related
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Payment Date in accordance with the terms and conditions of the
Mortgage;
(vii) Seventh, in the event of a Cash Trap, to fund the Operating
Expense Subaccount (as established pursuant to the Cash
Management Agreement) until the amount on deposit therein is
equal to the Cash Expenses, other than management fees payable
to affiliates of Maker, for the month in which such Collection
Period ends pursuant to the terms and conditions of the related
Approved Annual Budget;
(viii) Eighth, in the event of a Cash Trap, to fund the Operating
Expense Subaccount with any Net Capital Expenditures for the
month in which such Collection Period ends pursuant to the
terms and conditions of the related Approved Annual Budget;
(ix) Ninth, in the event of a Cash Trap, to fund the Operating
Expense Subaccount with the Extraordinary Expenses, if any,
approved by Payee for the for the month in which such
Collection Period ends;
(x) Tenth, in the event of a Debt Service Escrow Sweep Event (as
defined in the Mortgage) to fund the Debt Service Escrow
Reserve (as established pursuant to the Cash Management
Agreement) until the amount on deposit therein is equal to the
amount required to be deposited in the Debt Service Escrow Fund
(as defined in the Mortgage) on the related Payment Date in
accordance with the terms of the Mortgage;
(xi) Eleventh, in the event of a Contingent Debt Service Sweep Event
(as defined in the Mortgage) to fund the Contingent Debt
Service Reserve Subaccount (as established pursuant to the Cash
Management Agreement) until the amount on deposit therein is
equal to the amount required to be deposited in the Contingent
Debt Service Escrow Fund (as defined in the Mortgage) on the
related Payment Date in accordance with the terms of the
Mortgage; and
(xii) Lastly, to pay to the Maker any Rents remaining after making
the foregoing payments.
(b) In the event that the Maker must incur an Extraordinary Expense,
then the Maker shall promptly deliver to Payee a reasonably detailed explanation
of such proposed Extraordinary Expense for the Payee's approval, which approval
may be granted or denied in the Payee's sole discretion; provided however, such
approval shall not be unreasonably withheld if the Maker certifies to Payee that
the item to be funded is necessary for the preservation of the structure
situated on the Mortgaged Property or for the health or safety of its occupants
or the public in general or otherwise is required by law.
Nothing in this Paragraph 8 shall limit, reduce or otherwise affect Maker's
obligations to pay the Monthly Payment Amount, make payments to the Tax and
Insurance Impound Fund, Leasing
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Escrow Fund, Replacement Escrow Fund due hereunder and pay other amounts due
under the other Loan Documents, whether or not Rents are available to make such
payments.
(c) As of the date hereof Payee acknowledges receipt and approval of
the Annual Budget for calendar year 2000. For each calendar year thereafter, the
Maker shall submit to the Payee for the Payee's written approval an Annual
Budget not later than sixty (60) days prior to the commencement of such calendar
year, in form satisfactory to Payee setting forth in reasonable detail budgeted
monthly operating income and monthly operating capital and other expenses for
the Mortgaged Property. Each Annual Budget shall contain, among other things,
limitations on management fees, third party service fees, and other expenses as
the Maker may reasonably determine. Payee shall have the right to approve such
Annual Budget which approval shall not be unreasonably withheld, and in the
event that Payee objects to the proposed Annual Budget submitted by Maker, Payee
shall advise Maker of such objections within fifteen (15) days after receipt
thereof (and deliver to Maker a reasonably detailed description of such
objections) and Maker shall within three (3) days after receipt of notice of any
such objections revise such Annual Budget and resubmit the same to Payee. Payee
shall advise Maker of any objections to such revised Annual Budget within ten
(10) days after receipt thereof (and deliver to Maker a reasonably detailed
description of such objections) and Maker shall revise the same in accordance
with the process described in this subparagraph until the Payee approves an
Annual Budget, provided, however, that if Payee shall not advise Maker of its
objections to any proposed Annual Budget within the applicable time period set
forth in this paragraph, then such proposed Annual Budget shall be deemed
approved by Payee. Until such time that Payee approves a proposed Annual Budget,
the most recently Approved Annual Budget shall apply; provided that, such
Approved Annual Budget shall be adjusted to reflect actual increases in real
estate taxes, insurance premiums and utilities expenses.
9. In the event that the Maker does not pay the Debt in full on or
before the Anticipated Repayment Date, the provisions of Paragraph 8 as set
forth above shall remain in full force and effect to the extent not inconsistent
with this Paragraph 9 (but Paragraph 9 shall control), and the following
subparagraphs also shall apply:
(a) From and after the Anticipated Repayment Date, interest shall
accrue on the unpaid principal balance from time to time outstanding on this
Note at the Extended Term Rate. Interest accrued at the Extended Term Rate and
not paid pursuant to this Paragraph 9 shall be deferred and added to the Debt
and shall earn interest at the Extended Term Rate to the extent permitted by
applicable law (such accrued interest is hereinafter defined as "Accrued
Interest"). All of the Debt, including any Accrued Interest, shall be due and
payable on the Maturity Date.
(b) All Rents deposited in the Cash Collateral Account during each
Collection Period shall be allocated in the following order of priority, in each
case to the extent sufficient funds remain therefor:
(i) First, to fund the Tax and Insurance Impound Fund Subaccount
until the amount on deposit therein is equal to the amount
required to be deposited in the Tax and Insurance Impound Fund on
the related Payment Date in accordance with the terms and
conditions of the Mortgage;
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(ii) Second, to fund the Monthly Debt Service Subaccount until the
amount on deposit therein is equal to the Monthly Payment
Amount (to be applied first to the payment of interest computed
at the Initial Term Interest Rate with the remainder applied to
the reduction of the outstanding principal balance of this
Note);
(iii) Third, to fund the Monthly Debt Service Subaccount with any
other amounts due to the Payee under the Loan Documents and not
otherwise addressed by this Paragraph;
(iv) Fourth, to fund the Replacement Escrow Fund Subaccount until
the amount on deposit therein is equal to the amount required
to be deposited in the. Replacement Escrow Fund on the related
Payment Date in accordance with the terms and conditions of the
Mortgage;
(v) Fifth, to fund the Leasing Escrow Fund Subaccount until the
amount on deposit therein is equal to the amount required to be
deposited in the Leasing Escrow Fund on the related Payment
Date in accordance with the terms and conditions of the
Mortgage;
(vi) Sixth, to fund the Duke Contract Fund Subacount until the
amount on deposit therein is equal to the amount required to be
deposited in the Duke Contract Escrow Fund on the related
Payment Date in accordance with the terms and conditions of the
Mortgage;
(vii) Seventh, to fund the Operating Expense Subaccount until the
amount on deposit therein is equal to the Cash Expenses, other
than management fees payable to affiliates of Maker, for the
month in which such Collection Period ends pursuant to the
terms and conditions of the related Approved Annual Budget;
(viii) Eighth, to fund the Operating Expense Subaccount with any Net
Capital Expenditures for the month in which such Collection
Period ends pursuant to the terms and conditions of the related
Approved Annual Budget;
(ix) Ninth, to fund the Operating Expense Subaccount with any
Extraordinary Expenses approved by Payee for the for the month
in which such Collection Period ends, if any;
(x) Tenth, to fund the Monthly Debt Service Subaccount with any
amount equal to the remaining principal balance of the Note, to
be applied against the outstanding principal due under this
Note until such principal amount is paid in full;
(xi) Eleventh, to fund the Monthly Debt Service Subaccount with any
amount equal to any Accrued Interest, to be applied against the
outstanding amount thereof until all such Accrued Interest has
been repaid; and
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(xii) Lastly, to pay to the Maker any excess amounts.
(c) In the event that the Maker must incur an Extraordinary Expense,
then the Maker shall promptly deliver to Payee a reasonably detailed explanation
of such proposed Extraordinary Expense for the Payee's approval, which approval
may be granted or denied in the Payee's sole discretion; provided however, such
approval shall not be unreasonably withheld if the Maker certifies to Payee that
the item to be funded is necessary for the preservation of the structure
situated on the Mortgaged Property or for the health or safety of its occupants
or the public in general or otherwise is required by law.
(d) Nothing in this Paragraph 9 shall limit, reduce or otherwise
affect Maker's obligations to make payments of the Monthly Payment Amount,
payments to the Tax and Insurance Impound Fund, the Replacement Escrow Fund, and
Leasing Escrow Fund due hereunder and under the other Loan Documents, whether or
not Rents are available to make such payments.
10. It is expressly stipulated and agreed to be the intent of Maker
and Payee at all times to comply with applicable state law or applicable United
States federal law (to the extent that it permits Payee to contract for, charge,
take, reserve, or receive a greater amount of interest than under state law) and
that this Paragraph (and the similar paragraph contained in the Mortgage) shall
control every other covenant and agreement in this Note and the other Loan
Documents. If the applicable law (state or federal) is ever judicially
interpreted so as to render usurious any amount called for under this Note or
under any of the other Loan Documents, or contracted for, charged, taken,
reserved, or received with respect to the Debt, or if Xxxxx's exercise of the
option to accelerate the Maturity Date, or if any prepayment or the exercise of
any Defeasance Option by Maker results in Maker having paid any interest in
excess of that permitted by applicable law, then it is Payee's express intent
that all excess amounts theretofore collected by Xxxxx shall be credited on the
principal balance of this Note and all other Debt and the provisions of this
Note and the other Loan Documents immediately be deemed reformed and the amounts
thereafter collectible hereunder and thereunder reduced, without the necessity
of the execution of any new documents, so as to comply with the applicable law,
but so as to permit the recovery of the fullest amount otherwise called for
hereunder or thereunder and permitted by law. All sums paid or agreed to be paid
to Payee for the use, forbearance, or detention of the Debt shall, to the extent
permitted by applicable law, be amortized, prorated, allocated, and spread
throughout the full stated term of the Debt until payment in full so that the
rate or amount of interest on account of the Debt does not exceed the maximum
lawful rate from time to time in effect and applicable to the Debt for so long
as the Debt is outstanding. Notwithstanding anything to the contrary contained
herein or in any of the other Loan Documents, it is not the intention of Payee
to accelerate the maturity of any interest that has not accrued at the time of
such acceleration or to collect unearned interest at the time of such
acceleration.
11. This Note may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
Maker or Payee, but only by an agreement in writing signed by the party against
whom enforcement of any modification, amendment, waiver, extension, change,
discharge or termination is sought. Whenever used, the singular number shall
include the plural, the plural the singular, and the words "Payee" and "Maker"
shall include their respective successors, assigns, heirs, executors
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and administrators. If Maker consists of more than one person or party, the
obligations and liabilities of each such person or party shall be joint and
several.
12. Maker and all others who may become liable for the payment of all
or any part of the Debt do hereby severally waive presentment and demand for
payment, notice of dishonor, protest, notice of protest, notice of nonpayment,
notice of intent to accelerate the maturity hereof and of acceleration. No
release of any security for the Debt or any person liable for payment of the
Debt, no extension of time for payment of this Note or any installment hereof,
and no alteration, amendment or waiver of any provision of the Loan Documents
made by agreement between Payee and any other person or party shall release,
modify, amend, waive, extend, change, discharge, terminate or affect the
liability of Maker, and any other person or party who may become liable under
the Loan Documents for the payment of all or any part of the Debt.
13. Subject to the qualifications below, Payee shall not enforce the
liability and obligation of Maker or its constituent members, partners,
shareholders, directors, employees or agents to perform and observe the
obligations contained in this Note, the Mortgage or the other Loan Documents by
any legal, equitable or other action or proceeding wherein a judgment shall be
sought against Maker or its constituent members, partners, shareholders,
directors, employees or agents, except that Payee may bring a foreclosure
action, and may bring against the Maker or the Mortgaged Property an action for
specific performance or any other appropriate action or proceeding to enable
Payee to enforce and realize upon its interest under this Note, the Mortgage and
the other Loan Documents, or in the Mortgaged Property, the Rents, or any other
collateral given to Payee pursuant to the Loan Documents; provided, however,
that, except as specifically provided herein, any judgment in any such action or
proceeding shall be enforceable against Maker only to the extent of Maker's
interest in the Mortgaged Property, in the Rents and in any other collateral
given to Payee, and Payee, by accepting this Note, the Mortgage and the other
Loan Documents, agrees that it shall not sue for, seek or demand any deficiency
judgment against Maker in any such action or proceeding under or by reason of or
under or in connection with this Note, the Mortgage or the other Loan Documents.
The provisions of this Paragraph shall not, however, (a) constitute a waiver,
release or impairment of any obligation evidenced or secured by any of the Loan
Documents; (b) impair the right of Payee to name Maker as a party defendant in
any action or suit for foreclosure and sale under the Mortgage; (c) affect the
validity or enforceability of or any guaranty made in connection with the Loan
or any of the rights and remedies of the Payee thereunder; (d) impair the right
of Payee to obtain the appointment of a receiver; (e) impair the enforcement of
the Assignment of Leases; or (f) constitute a waiver of the right of Payee to
enforce the liability and obligation of Maker, by money judgment or otherwise,
to the extent of any loss, damage, cost, expense, liability, claim or other
obligation incurred by Payee (including reasonable attorneys' fees and costs)
arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Maker or any guarantor
in connection with the Loan;
(ii) intentionally omitted;
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(iii) physical waste of the Mortgaged Property arising out of the
intentional acts or willful misconduct of Maker;
(iv) the breach of any representation or warranty, or the breach of
any covenant or indemnification provision, in that certain
Environmental and Hazardous Substance Indemnification Agreement
of even date herewith given by Maker to Payee or in the
Mortgage concerning environmental laws, hazardous substances or
asbestos;
(v) the misappropriation of any personal property which constitutes
any portion of the Mortgaged Property after an Event of
Default;
(vi) the misapplication or conversion by Maker of (A) any insurance
proceeds paid by reason of any loss, damage or destruction to
the Mortgaged Property, (B) any awards or other amounts
received in connection with the condemnation of all or a
portion of the Mortgaged Property, (C) any Rents following an
Event of Default, or (D) any Rents paid more than one month in
advance;
(vii) failure to pay charges for labor or materials or taxes or other
charges that can create liens on any portion of the Mortgaged
Property except, with respect to taxes, to the extent that
funds have been deposited with Payee pursuant to the terms of
the Mortgage specifically for the applicable taxes and not
applied by Payee to pay such taxes; and
(viii) any security deposits collected with respect to the Mortgaged
Property which are not delivered to Payee upon a foreclosure of
the Mortgaged Property or other action in lieu thereof, except
to the extent any such security deposits were applied in
accordance with the terms and conditions of any of the Leases
(as defined in the Mortgage) or previously delivered to Payee
prior to the occurrence of the Event of Default that gave rise
to such sale or foreclosure or action in lieu thereof.
Notwithstanding anything to the contrary in this Note or any of the other Loan
Documents, (A) Payee shall not be deemed to have waived any right which Payee
may have under Section 506(a), 506(b), 1111(b) or any other provisions of the
U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by
the Mortgage or to require that all collateral shall continue to secure all of
the Debt owing to Payee in accordance with the Loan Documents, and (B) the Debt
shall be fully recourse to Maker in the event that: (i) the first full monthly
payment of principal and interest under this Note is not paid when due; (ii)
Maker fails to maintain its status as a single purpose entity, as required by,
and in accordance with the terms and provisions of, the Mortgage; (iii) Maker
fails to obtain Xxxxx's prior written consent to any subordinate financing or
other voluntary lien encumbering the Mortgaged Property; (iv) Maker fails to
obtain Xxxxx's prior written consent to any voluntary assignment, transfer, or
conveyance of the Mortgaged Property or any interest therein as required by the
Mortgage or (v) a receiver, liquidator or trustee of Maker or of any guarantor
shall be appointed in the case of a voluntary bankruptcy, or if Maker or any
guarantor shall be adjudicated insolvent in the case of voluntary
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bankruptcy, or if any petition for bankruptcy, reorganization or arrangement
pursuant to federal bankruptcy law, or any similar federal or state law, shall
be filed by, consented to, or acquiesced in by, Maker or any guarantor or if any
proceeding for the dissolution or liquidation of Maker or of any guarantor shall
be instituted by Maker or any guarantor.
14. Maker (and the undersigned representative of Maker, if any)
represents that Maker has full power, authority and legal right to execute,
deliver and perform its obligations pursuant to this Note, the Mortgage and the
other Loan Documents to which Maker is a party and that this Note, the Mortgage
and the other Loan Documents constitute valid and binding obligations of Maker.
15. All notices or other communications required or permitted to be
given pursuant hereto. shall be given in the manner specified in the Mortgage
directed to the parties at their respective addresses as provided therein.
16. MAKER XXXXXX AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE
TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE
EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN
DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY MAKER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE
AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE.
XXXXX IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER BY MAKER.
17. This Note shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania and the applicable laws of the
United States of America.
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Maker has duly executed this Note the day and year first above
written.
MAKER:
FIRST STATES PARTNERS 000 XXXXX XXXXX XX, X.X.
a Delaware limited partnership
By: FIRST STATES PARTNERS 000 XXXXX
XXXXX XX, LLC, a Delaware limited
liability company, its sole general partner
By:_________________________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Pay to the order of ______________________,
without recourse.
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC,
a Delaware limited liability company
By: _____________________________,
Name:
Title:
Commonwealth of )
) ss.
County of )
On this ____ day of September, 2000, before me, the undersigned officer,
personally appeared Xxxxxxx X. Xxxxxxxxx, who acknowledged himself to be the
Vice President of First States Partners 123 South Broad II, LLC, which is the
sole general partner of Maker, and that he, as such officer of the general
partner of Maker, being authorized to do so, executed the foregoing instrument
for the purposes therein contained by signing the name of the company, as an
officer of the company on behalf of the Maker.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
___________________________________
Name:
My Commission expires:
