FIRST MORTGAGE NOTE
New York, New York
FOR VALUE RECEIVED _______________________________
________________, a _______ limited partnership, having its
principal place of business at _____________________________
______________________________________ (hereinafter referred
to as "Maker"), promises to pay to the order of [ORIGINATOR],
a ________ corporation, at its principal place of business at
_____________________________________________________________
(hereinafter referred to as "Payee"), or at such other
place as the holder hereof may from time to time designate
in writing, the principal sum of ________________________
________ AND 00/100 DOLLARS ($_______________) in lawful
money of the United States of America with interest thereon
to be computed from the date of this Note at the Applicable
Interest Rate (hereinafter defined), and to be paid as
hereinafter provided.
A. PAYMENT TERMS
Maker shall pay to Payee:
(i) a payment of interest only on the date hereof for
the period commencing on the date hereof and
ending December 31, 1995;
(ii) a constant payment of $_________ (the "Monthly
Payment") on February 1, 1996 and on the first
day of each calendar month (the "Monthly Payment
Date") thereafter to and including the first day
of December, 2005; and
(iii) the balance of the principal sum then outstanding
and all interest thereon shall be due and payable
on the first day of January, 2006 (the "Maturity
Date").
Each of such payments shall be applied as follows:
(i) First to the payment of interest computed at the
Applicable Interest Rate; and
(ii) The balance applied toward the reduction of the
principal sum.
B. INTEREST
The term "Applicable Interest Rate" as used in this
Note shall mean _____% per annum.
Interest on the principal sum of this Note will be
due and payable monthly, in level payments, on the first day
of each calendar month, based on a year of twelve months of
thirty days each.
C. DEFAULT AND ACCELERATION
The whole of the principal sum of this Note,
together with all interest accrued and unpaid thereon and all
other sums due under the Mortgage (hereinafter defined) and
this Note (all such sums hereinafter collectively referred to
as the "Debt") shall without notice become immediately due
and payable at the option of Payee if any payment required in
this Note is not paid within ten (10) days after written
notice from the Payee notifying Maker that the same is due or
on the happening of any other default, after the expiration
of any applicable notice and grace periods, herein or under
the terms of the Mortgage (hereinafter collectively an "Event
of Default"). All of the terms, covenants and conditions
contained in the Mortgage and the Other Security Documents
(hereinafter defined) are hereby made part of this Note to
the same extent and with the same force as if they were fully
set forth herein. In the event that it should become
necessary to employ counsel to collect the Debt or to
protect, sell or foreclose the security hereof, Xxxxx also
agrees to pay reasonable attorney's fees for the services of
such counsel whether or not suit be brought.
D. PREPAYMENT
The principal balance of this Note may not be
prepaid, in whole or in part, prior to January 1, 2000.
Commencing on January 1, 2000 and at any time thereafter,
provided no default exists under the Mortgage or under this
Note, the principal balance of the Note may be prepaid in
whole, but not in part, on the first day of any calendar
month, upon not less than thirty (30) days or more than forty
five (45) days prior written notice (the "Prepayment Notice")
by certified mail to Payee specifying the date (the
"Prepayment Date") on which prepayment is to be made. Upon
any prepayment of this Note, whether voluntary or
involuntary, including, without limitation, any prepayment
as a result of acceleration or prepayment by court order or
trustee sale, Maker shall pay to Payee (a) all interest
accrued and unpaid on the principal balance of this Note to
and including the Prepayment Date, (b) all other sums due
under the Mortgage, this Note or the Other Security Documents
and (c) a prepayment premium (the "Premium") in an amount
equal to the greater of (i) one percent (1%) of the principal
balance of this Note outstanding after the application of the
Monthly Payment, if any, due on such Prepayment Date or (ii)
the product of (A) a fraction whose numerator is an amount
equal to the portion of the principal balance of the Debt
being prepaid and whose denominator is the entire outstanding
principal balance of the Debt on the date of such prepayment,
multiplied by (B) an amount equal to the remainder obtained
by subtracting (x) an amount equal to the entire outstanding
principal balance of the Debt as of the date of such
prepayment from (y) the present value as of the date of such
prepayment of the remaining scheduled payments of principal
and interest on the entire Debt (including any ballon
payment) determined by discounting such payments at the
Discount Rate (hereinafter defined). The calculation of the
Premium shall be made by Payee (or the then holder of the
Debt, as applicable), and shall, absent manifest error, be
final, conclusive and binding upon all parties.
"Discount Rate" shall mean the rate which, when
compounded monthly, is equivalent to the Treasury Rate
(hereinafter defined) when compounded semi-annually.
"Treasury Rate" shall mean the yield calculated by
the linear interpolation of the yield, as reported in Federal
Reserve Statistical Release H.15-Selected Interest Rates
under the heading "U.S. government securities/Treasury
constant maturities" for the week ending prior to the date
of the relevant prepayment of the Debt, of U.S. Treasury
constant maturities with a maturity date (one longer and one
shorter) most nearly approximating the maturity date of the
Debt. In the event Release H.15 is no longer published,
Payee (or the then holder of the Debt, as applicable) shall
select a comparable publication to determine the Treasury
Rate.
In no event shall Payee be required to (i) accept
any prepayment hereunder without the payment of the Premium
then due or (ii) reinvest any prepayment proceeds in U.S.
Treasury obligations or otherwise. The Premium shall not be
due and payable for any prepayment (unless such prepayment
occurs after an acceleration of the Debt by Payee) made
during the six (6) month period immediately prior to the
Maturity Date.
Notwithstanding the foregoing: if 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 foreclosure sale of the Mortgaged Property
(as defined in the Mortgage), and if at the time of such
tender prepayment of the Debt is not permitted, Maker shall,
in addition to the entire Debt, also pay to Payee a sum equal
to (a) all interest which would have accrued on the
outstanding principal balance of this Note at the Applicable
Interest Rate from the date of such tender to January 1, 2000
and (b) the Premium which would have been payable as of
January 1, 2000.
E. DEFAULT INTEREST
Maker does hereby agree that upon the occurrence
of an Event of Default or 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 ("Default
Interest") on the entire unpaid principal sum at the rate of
(i) four percent (4%) over the Applicable Interest Rate then
in effect or (ii) the maximum rate of interest which Maker
may by law pay, whichever is lower, to be computed from the
occurrence of the Event of Default until the actual receipt
and collection of the Debt (the "Default Interest Rate").
This charge shall be added to the Debt, and shall be deemed
secured by the Mortgage. This clause, 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.
F. SECURITY
This Note is secured by the Mortgage and the Other
Security Documents. The term "Mortgage" as used in this Note
shall mean the First Mortgage and Security Agreement dated as
of the date hereof in the principal sum of $_____________
given by Maker to Payee encumbering the fee estate of Maker
in certain premises located in _______ County, State of
_______, and other property, as more particularly described
therein and intended to be duly recorded in said County. The
term "Other Security Documents" as used in this Note shall
mean all and any of the documents other than this Note or the
Mortgage now or hereafter executed by Maker and/or others and
by or in favor of Payee, which wholly or partially secure or
guarantee payment of this Note. 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 and administrators.
G. SAVINGS CLAUSE
This Note is subject to the express condition that
at no time shall Maker be obligated or required to pay
interest on the principal balance due hereunder at a rate
which could subject Payee to either civil or criminal
liability as a result of being in excess of the maximum
interest rate which Maker is permitted by applicable law to
contract or agree to pay. If by the terms of this Note, Maker
is at any time required or obligated to pay interest on the
principal balance due hereunder at a rate in excess of such
maximum rate, the Applicable Interest Rate shall be deemed to
be immediately reduced to such maximum rate and all previous
payments in excess of the maximum rate shall be deemed to
have been payments in reduction of principal and not on
account of the interest due hereunder.
H. LATE CHARGE
If any sum payable under this Note is not paid on
or before the date on which it is due, without taking into
account any applicable notice or grace period, Maker shall
pay to Payee upon demand an amount equal to the lesser of
five percent (5%) of such unpaid sum or the maximum amount
permitted by applicable law to defray 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 and such amount shall be secured by the
Mortgage and the Other Security Documents. Nothing contained
herein is intended to affect the rights of Payee in and to
any Default Interest due to Payee pursuant to the provisions
of paragraph E hereof entitled "Default Interest."
I. MISCELLANEOUS
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.
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. The foregoing sentence, however,
is not intended to affect the limited liability of any
limited partner or stockholder of Maker afforded by
applicable partnership or corporate law.
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 and notice of protest and non-payment. No release of
any security for the Debt or extension of time for payment of
this Note or any installment hereof, and no alteration,
amendment or waiver of any provision of this Note, the
Mortgage or the Other Security 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 who may become
liable for the payment of all or any part of the Debt, under
this Note, the Mortgage or the Other Security Documents.
Maker (and the undersigned representative of Maker,
if any) represents that Maker has full power, authority and
legal right to execute and deliver this Note, the Mortgage
and the Other Security Documents and that this Note, the
Mortgage and the Other Security Documents constitute valid
and binding obligations of Maker.
This Note shall be governed and construed in
accordance with the laws of the State of New York and the
applicable laws of the United States of America.
J. EXCULPATION
Payee shall not enforce the liability and
obligation of Maker to perform and observe the obligations
contained in this Note or the Mortgage by any action or
proceeding wherein a money judgment shall be sought against
Maker or any general or limited partner of Maker (hereinafter
collectively referred to as the "Exculpated Parties"), except
that Payee may bring a foreclosure action, action for
specific performance or other appropriate action or
proceeding to enable Payee to enforce and realize upon this
Note, the Mortgage, the Other Security Documents, and the
interest in the Mortgaged Property, the Rents (as defined in
the Mortgage) and any other collateral given to Payee created
by this Note, the Mortgage and the Other Security Documents;
provided, however, that any judgment in any such action or
proceeding shall be enforceable against the Exculpated
Parties only to the extent of Maker's interest in the
Mortgaged Property, in the Rents and in any other collateral
given to Payee. Payee, by accepting this Note and the
Mortgage, agrees that it shall not sue for, seek or demand
any deficiency judgment against the Exculpated Parties in any
such action or proceeding, under or by reason of or under or
in connection with the Mortgage, the Other Security Documents
or this Note. The provisions of this paragraph shall not,
however, (i) constitute a waiver, release or impairment of
any obligation evidenced or secured by the Mortgage, the
Other Security Documents or this Note; (ii) impair the right
of Payee to name Maker as a party defendant in any action or
suit for judicial foreclosure and sale under the Mortgage;
(iii) affect the validity or enforceability of any guaranty
made in connection with the Mortgage, this Note, or the Other
Security Documents; (iv) impair the right of Payee to obtain
the appointment of a receiver; (v) impair the enforcement of
the First Assignment of Leases and Rents dated the date
hereof given by Maker to Payee executed in connection
herewith; (vi) impair the right of Payee to bring suit with
respect to fraud or intentional misrepresentation by Maker,
the Exculpated Parties or any other person or entity in
connection with the Mortgage, this Note or the Other Security
Documents; (vii) impair the right of Payee to obtain the
Rents received by any of the Exculpated Parties after the
occurrence of an Event of Default; (viii) impair the right of
Payee to bring suit with respect to the Exculpated Parties'
misappropriation of tenant security deposits or Rents
collected in advance; (ix) impair the right of Payee to
obtain insurance proceeds or condemnation awards due to Payee
under the Mortgage; (x) impair the right of Payee to enforce
the provisions of sub-paragraphs 36(g) through 36(j),
inclusive and paragraphs 34 and 35 of the Mortgage against
the Maker (excluding the general and limited partners of
Maker); or (xi) impair the right of Payee to recover any part
of the Debt from the Maker (excluding the general and limited
partners of Maker) following the breach of any covenant
contained in paragraphs 9 or 56 of the Mortgage.
K. [LOCAL LAW PROVISIONS]
1. In the event of any inconsistencies between this
paragraph K and any other provisions of this Note, the terms
and conditions of this paragraph K shall control and be
binding.
[ADD LOCAL PROVISIONS, IF ANY]
[NO FURTHER TEXT ON THIS PAGE]
IN WITNESS WHEREOF, Xxxxx has duly executed this
Note the day and year first above written.
Witnesses: _______________________________
________________, a _______
limited partnership
______________________ By: ___________________________,
Name: ___________________________
a ___________ corporation,
its general partner
______________________ By:_______________________,
Name: Name:
Title:
This instrument prepared by:
Xxxxxxx X. Xxxxxx, Esq.
White & Case
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
