MULTIFAMILY NOTE
US $1,100,000 New Orleans, Louisiana
as of July 9, 1998
FOR VALUE RECEIVED, the undersigned ("Borrower") jointly and severally (if
more than one) promises to pay to the order of INVESTMENT PROPERTY MORTGAGE,
L.L.C., a Louisiana limited liability company, the principal sum of One Million
One Hundred Thousand and No/100ths Dollars (US$],] 00,000), with interest on
the unpaid principal balance at the annual rate of Six and 69/1 00ths percent
(6.69%).
1. Defined Terms. As used in this Note, (i) the term "Lender" means the
holder of tills Note, and (11) the term "Indebtedness" means 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. 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 (as
defined in Paragraph 5).
2. Address for Payment. All payments due under tills Note shall be payable
at 000 Xxxxx, Xxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx 00000, or such other
place as may be designated by written notice to Borrower from or on behalf of
Lender.
3. Payment of Principal and Interest. Principal and interest shall be paid
as follows:
(a) Unless disbursement of principal is made by Xxxxxx to Borrower on the
first day of tile month, interest for the period beginning oil the date of
disbursement and ending on and including tile last day of the month in which
such disbursement is made shall be payable simultaneously with the execution of
tills Note. Interest under this Note shall be computed oil the basis of a
360-day year consisting of twelve 30-day months.
(b) Consecutive monthly installments of principal and interest, each in
the amount of Seven Thousand Ninety and 76/100ths Dollars (US $7,090.76), shall
be payable oil the first day of each month beginning on September 1, 1998,
until the entire unpaid principal balance evidenced by tills Note is fully
paid. 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, and any reference below
to "accrued interest" shall refer to accrued interest which has not become part
of the unpaid principal balance. Any remaining principal and interest shall be
due and payable on August 1, 2008 or oil any earlier date oil which tile unpaid
principal balance of this Note becomes due and payable, by acceleration or
otherwise (tile "Maturity Date"). The unpaid principal balance shall continue
to bear interest after the Maturity Date at the Default Rate set forth Ili
tills Note until and including the date oil which it is paid in full.
(c) Any regularly scheduled monthly Installment of principal and Interest
that is received by Lender before tile date it is due shall be deemed to have
been received oil the due date solely for tile purpose of calculating interest
due.
4. Application of Payments. If at any time Lender receives, from Borrower
or otherwise, any amount applicable to tile Indebtedness which is less than all
amounts due and payable at such time, Lender may apply that payment to amounts
then due and payable in any manner and in any order determined by Xxxxxx, in
Xxxxxx's discretion. Xxxxxxxx agrees that neither Xxxxxx's acceptance of a
payment from Borrower in an amount that is less than all amounts then due and
payable nor Lender's application of such payment shall constitute or be deemed
to constitute either a waiver of the unpaid amounts or an accord and
satisfaction.
5. Security. The Indebtedness is secured, among other things, by a
multifamily mortgage, deed to secure debt or deed of trust dated as of the date
of this Note (the "Security Instrument"), and reference is made to the Security
Instrument for other rights of Lender concerning tile collateral for the
Indebtedness.
6. Acceleration. If all 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 tills Note and any
other Loan Document shall at once become due and payable, at tile 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 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 amount is due, Borrower shall pay to Lender, immediately and
without demand by Xxxxxx, a late charge equal to 5 percent of such amount.
Borrower acknowledges that its failure to make timely payments will cause
Lender to incur additional expenses in servicing and processing the loan
evidenced by this Note (tile "Loan"), and that it is extremely difficult and
impractical to determine those additional expenses. Xxxxxxxx agrees that the
late charge payable pursuant to tills Paragraph represents a fair and
reasonable estimate, taking into account all circumstances existing oil 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 tills
Note shall accrue oil tile unpaid principal balance from tile earlier of the
due date of the first unpaid monthly installment or other payment due, as
applicable, at a rate (the "Default Rate") equal to the lesser of 4 percentage
points above tile rate stated in the first paragraph of this Note or the
maximum interest rate which may be collected from Borrower Under applicable
law. If the unpaid principal balance and all accrued interest are not paid in
full oil 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 tills 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 oil Lender's ability to meet its other obligations and to take advantage
of other investment opportunities, and that It is extremely difficult and
impractical to determine those additional costs and expenses. Xxxxxxxx also
acknowledges that, during the time that any monthly installment or other
payment due under tills Note is delinquent for more than 30 days, 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 tile increase
in the rate of interest payable under this Note to tile Default Rate
represents a fair and reasonable estimate, taking into account all
circumstances existing oil 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 tills Paragraph 9, Borrower shall have
no personal liability under this Note, the Security Instrument or any other
Loan Document for the repayment of tile Indebtedness or for the performance of
any other obligations of Borrower under the Loan Documents, and Xxxxxx's only
recourse for the satisfaction of the Indebtedness and the performance of such
obligations shall be Lender's exercise of its rights and remedies with respect
to the Mortgaged Property and any other collateral held by Xxxxxx as security
for the Indebtedness. This limitation oil 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 (I) 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 tile
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
Xxxxxxxx, 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 Xxxxxx; or (5) failure
to apply Rents, first, to tile payment of reasonable operating expenses (other
than Property management fees that are not currently payable pursuant to the
terms of all Assignment of Management Agreement or any other agreement with
Lender executed in connection with the Loan) and then to amounts ("Debt Service
Amounts") payable under this Note, the Security Instrument or any other Loan
Document (except that Borrower will not be personally liable (1) to the extent
that Borrower lacks the legal right to direct the disbursement of such sums
because of a bankruptcy, receivership or similar Judicial proceeding, or (11)
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) Xxxxxxxx shall become personally liable to Lender for tile repayment
of all of tile 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 all Event of Default under Section 21 of the Security
Instrument.
(d) To the extent that Borrower has personal liability under tills
Paragraph 9, Lender may exercise its rights against Xxxxxxxx personally without
regard to whether Xxxxxx has exercised any rights against tile 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 tills
Paragraph 9, tile term "Mortgaged Property" shall not include any funds that
(I) 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) Borrower may voluntarily prepay all (but not less than all) of
the unpaid principal balance of this Note oil the last Business Day of a
calendar month if Borrower has given Lender at least 30 days prior notice
of its Intention to make such prepayment. Such prepayment shall be made by
paying (A) the amount of principal being prepaid, (B) all accrued
interest, (C) all other sums due Lender at the time of such prepayment,
and (D) the prepayment premium calculated pursuant to Schedule A. For all
purposes, including the accrual of interest, any prepayment received by
Lender on any day other than the last calendar day of the month shall be
deemed to have been received on the last calendar day of such month. For
purposes of this Note, a "Business Day" means any day other than a
Saturday, Sunday or any other day oil which Lender is not open for
business.
(2) Upon Xxxxxx's exercise of any right of acceleration under this
Note, Borrower shall pay to Lender, in addition to the entire unpaid
principal balance of this Note outstanding at the time of the
acceleration, (A) all accrued interest and all other sums due Lender under
this Note and the other Loan Documents, and (B) the prepayment premium
calculated pursuant to Schedule A.
(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 tile payment to
Lender by Borrower of a prepayment premium. Tile amount of any such
partial prepayment shall be computed so as to provide to Lender a
prepayment premium computed pursuant to Schedule A without Borrower having
to pay out-of-pocket any additional amounts.
(b) Notwithstanding the provisions of Paragraph 10(a), no prepayment
premium shall be payable with respect to (A) any prepayment made no more than
90 days before the Maturity Date, or (B) any prepayment occurring as a result
of tile application of any insurance proceeds or condemnation award under the
Security Instrument.
(c) Schedule A is hereby Incorporated by reference into this Note.
(d) Any required prepayment of less than the unpaid principal balance of
this Note shall not extend or postpone the due date of any subsequent monthly
installments or change the amount of such installments, unless Xxxxxx agrees
otherwise in writing.
(e) Borrower recognizes that any prepayment of tile unpaid principal
balance of this Note, whether voluntary or Involuntary or resulting from a
default by Borrower, will result in Xxxxxx's incurring loss, including
reinvestment loss, additional expense and frustration or impairment of Xxxxxx's
ability to meet its commitments to third parties. Xxxxxxxx agrees to pay to
Xxxxxx upon demand damages for the detriment caused by any prepayment, and
agrees that it is extremely difficult and impractical to ascertain the extent
of such damages. Xxxxxxxx therefore acknowledges and agrees that the formula
for calculating prepayment premiums set forth 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 tills Note are a material part of the consideration for the loan evidenced
by this Note, and acknowledges that tile 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 Xxxxxx as a result of any
default under this Note or in connection with efforts to collect any amount due
under this Note, or to enforce the provisions of any of the other Loan
Documents, including those incurred in post-Judgment collection efforts and in
any bankruptcy proceeding (including any action for relief from the automatic
stay of any bankruptcy proceeding) or judicial or non-judicial foreclosure
proceeding.
12. Forbearance. Any forbearance by Xxxxxx in exercising any right or
remedy under this Note, the Security Instrument, or any other Loan Document or
otherwise afforded by applicable law, shall not be a waiver of or preclude the
exercise of that or any other right or remedy. The acceptance by Lender of any
payment after tile due date of such payment, or in an amount which is less than
tile 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 all election by Xxxxxx of remedies so as to preclude the exercise of
any other right or remedy available to Lender.
13. Waivers. Presentment, demand, notice of dishonor, protest, notice of
acceleration, notice of intent to demand or accelerate payment or maturity,
presentment for payment, notice of nonpayment, grace, and diligence in
collecting the Indebtedness are waived by Xxxxxxxx, Key Principal, and all
endorsers and guarantors of tills Note and all other third party obligors.
14. Loan Charges. 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 tile benefit of that law, that interest or charge is hereby reduced
to tile extent necessary to eliminate that violation. Tile amounts, if any,
previously paid to Lender in excess of tile 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 tile Indebtedness that constitute interest, shall be deemed to
be allocated and spread ratably over the stated term of the Note. Unless
otherwise required by applicable law, such allocation and spreading shall be
effected in such a manner that tile rate of interest so computed is uniform
throughout the stated term of tile Note.
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.
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 tile Land is located.
18. Captions. The captions of the paragraphs of this Note are for
convenience only and shall be disregarded in construing this Note.
19. Notices. 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 3 1 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 jurisdiction in which the Land is located (the
"Property Jurisdiction"). The state and federal courts and authorities with
jurisdiction in the Property Jurisdiction shall have exclusive jurisdiction
over all controversies which shall arise under or in relation to this Note.
Borrower 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. XXXXXXXX, 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:
Schedule A Prepayment Premium (required)
Schedule B Modifications to Multifamily
Note
IN WITNESS WHEREOF, Xxxxxxxx has signed and delivered this Note or has
caused this Note to be signed and delivered by its duly authorized
representative.
BORROWER:
000 XXXXX XXXXXX ASSOCIATES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: HISTORIC PRESERVATION PROPERTIES 1989
LIMITED PARTNERSHIP, a Delaware limited
partnership ("HPP"), its General Partner
By: BOSTON HISTORIC PARTNERS LIMITED
PARTNERSHIP, a Massachusetts limited
partnership
("BHP"), HPP's General Partner
By: PORTFOLIO ADVIS
a Massachusetts
corporation,
BHP's General Partner
By:
Xxxxxxxx X. Xxxxxxxx
President
By:
Xxxxxxxx X. Xxxxxxxx,
BHP's General Partner
"NE VARIETUR "for identification with an Act of Mortgage passed this day before
me, Notary.
MA, July 1998
XXXXXX X. XXXXXX
Name: My commission
expires: Notary Public
My Commission Expires October
29, 2004
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
BORROWER:
000 XXXXX XXXXXX ASSOCIATES LIMITED PARTNERSHIP,
a Delaware limited partnership
By:
Xxxxx X. Xxxxxxx, its General
Partner
By:
X. Xxxxx Xxxx, its General
Partner
Xxxxxxxx's Social Security/Employer ID Number:
00-0000000
"NE VARIETUR "for
identification with an Act of
Mortgage passed this day
before me. Notary.
New Orleans, LA., July _,
1998
Name: Xxxx X. Xxxxxx, Xx., My commission
expires at my death.
Pay to the Order of XXXXXX XXX Without Recourse.
INVESTMENT PROPERTY MORTGAGE, L.L.C.
a Louisiana limited
liability company
BY: STANDARD MORTGAGE CORPORATION
a Louisiana corporation
Manager
By:
X. Xxxx Xxxxxxxx
Vice President
"NE I/ARIETUR "for identification, with an Act of Assignment of Mor1gage passed
this day before me, Notary New Orleans, LA., July , 1998
Name: Xxxx X. Xxxxxx, Xx.
My commission expires at my
death.
SCHEDULE A
PREPAYMENT PREMIUM
Any prepayment premium payable under Paragraph 10 of this Note shall
be computed as
follows:
(a) If the prepayment is made during the first 9Y2 years beginning on the
date of the Note
(the "Yield Maintenance Period"), the prepayment premium
shall be tile greater of-
(i) % of the unpaid principal balance of this Note; or (i i)
The product obtained by multiplying:
(A) the amount of principal being
prepaid,
by
(B) the difference obtained by subtracting from the
interest rate on
this Note the yield rate (the "Yield Rate") on the
5.625% U.S. Treasury Security due 05/2008 (the
"Specified U.S. Treasury Security"), as the Yield
Rate is reported in The Wall Street Journal on the
fifth Business Day preceding (x) the date notice of
prepayment is given to Lender where prepayment is
voluntary, or (y) the date Lender accelerates the
Loan,
by
(C) the present value factor calculated using the
following formula:
1 - (1 + r) -n
r
[r = Yield Rate
n = the number of 365-day years (or 366-day
years, if applicable), and any fraction thereof,
remaining between the Prepayment Date and the
expiration of the Yield Maintenance Period]
In the event that no Yield Rate is published for the
Specified U.S. Treasury Security, then the nearest
equivalent U.S. Treasury Security shall be selected
at Xxxxxx's discretion. If tile publication of such
Yield Rates in The Wall Street Journal is
discontinued, Lender shall determine such Yield Rates
from another source selected by Lender.
For purposes of subparagraph (ii)(C), the "Prepayment
Date" shall be (x) in the case of a voluntary
prepayment, the date on which the prepayment is made,
and (y) in any other case, the date on which Lender
accelerates the unpaid principal balance of this
Note.
(b) If the prepayment is made after the expiration of the Yield
Maintenance Period but more
than 90 days before the Maturity Date, the prepayment premium shall
be 1% of the unpaid principal balance of this Note.
INITIAL(S)
INITIAL(S)
INITIAL(S)
INITIAL(S)
