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EXHIBIT 10.6
MULTIFAMILY NOTE
US $3,786,000.00
July 16, 1999
FOR VALUE RECEIVED, the undersigned ("BORROWER") jointly and severally
(if more than one) promises to pay to the order of AMRESCO CAPITAL, L.P., a
Delaware limited partnership, the principal sum of THREE MILLION SEVEN HUNDRED
EIGHTY-SIX THOUSAND AND NO/100 (US $3,786,000.00), with interest on the unpaid
principal balance at the annual rate of Seven and Eighty-three hundredths
percent (7.83%).
1. DEFINED TERMS. As used in this Note, (i) the term "LENDER" means the
holder of this Note, and (ii) 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 this Note shall be payable
at AMRESCO Services, L.P., 000 Xxxxxxxxx Xxxxxx Xxxxxx, X.X., Xxxxx 0000,
Xxxxxxx, Xxxxxxx 00000-1231, or such other place as may be designated by
written notice to Xxxxxxxx from or on behalf of Xxxxxx.
3. PAYMENT OF PRINCIPAL AND INTEREST. Principal and interest shall be
paid as follows:
(a) Unless disbursement of principal is made by Lender to Borrower on the
first day of the month, interest for the period beginning on the date of
disbursement 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. Interest under this Note shall be computed on 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 Twenty-Eight Thousand Seven Hundred Ninety-Five and 88/100 Dollars
(US $28,795.88), shall be payable on the first day of each month beginning on
September 1, 1999, until the entire unpaid principal balance evidenced by this
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, 2009 or on any earlier date on which the unpaid
principal balance of this Note becomes due and payable, by acceleration or
otherwise (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
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paid in full.
(c) Any regularly scheduled monthly installment of principal and interest
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.
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 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 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 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 (the "LOAN"), and that it is extremely difficult and
impractical to determine those additional expenses. Xxxxxxxx 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 a rate (the "DEFAULT RATE") equal to the lesser of 4 percentage
points above the 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
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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. Xxxxxxxx also acknowledges that, during the time that any monthly
installment or other payment due under this 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 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
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 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 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 Xxxxxx as a
result of (1) failure of Borrower to pay to Lender upon demand after an Event of
Default. All Rents to which Xxxxxx is entitled under Section 3(a) of the
Security Instrument and the amount of all security deposits collected by
Xxxxxxxx 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 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 Xxxxxx
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
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personally liable (i) 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 (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) Borrowers 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 Xxxxxx 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) Borrower may voluntarily prepay all (but not less than all) of
the unpaid principal balance of this Note on 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 on 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.
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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. The 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
the 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 the 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 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 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
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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
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 this Note and all other third party obligors.
14. LOAN CHARGES. Xxxxxxxx agrees to pay an effective rate of interest
equal to the sum of the interest rate provided for in this Note and any
additional rate of interest resulting from any other charges of interest or in
the nature of interest paid or to be paid in connection with the loan evidenced
by this Note and any other fees or amounts to be paid by Borrower pursuant to
any of the other Loan Documents. Neither this Note nor any of the other Loan
Documents shall be construed to create a contract for the use, forbearance or
detention of money requiring payment of interest at a rate greater than the
maximum interest rate permitted to be charged under applicable law. 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 the benefit of that
law, that interest or charge is hereby reduced to the extent necessary to
eliminate that violation. The amounts, if any, previously paid to Lender in
excess of the 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 the 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 the rate
of interest so computed is uniform throughout the stated term of the 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
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which the Land is located.
1.8. 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 Xxxxxx 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 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:
X SCHEDULE A PREPAYMENT PREMIUM (REQUIRED)
X SCHEDULE B MODIFICATIONS TO MULTIFAMILY NOTE
[SIGNATURES APPEAR ON NEXT PAGE]
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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:
ALS KANSAS, INC.,
a Delaware corporation
By:
----------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
00-0000000
Borrower's Social Security/Employer ID Number
Xxxxxx Xxx Loan Number: 985996
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PAY TO THE ORDER OF
-------------------------------------
WITHOUT RECOURSE
AMRESCO CAPITAL, L.P.,
a Delaware limited partnership
By: AMRESCO Mortgage Capital, Inc.,
a Delaware corporation
Its Sole General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------
Title: Senior Vice President
---------------------------------
Date: July 16, 1999
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ACKNOWLEDGMENT AND AGREEMENT OF KEY PRINCIPAL TO
PERSONAL LIABILITY FOR EXCEPTIONS TO NON-RECOURSE LIABILITY
Key Principal, who has an economic interest in Borrower or who will
otherwise obtain a material financial benefit from the Loan, hereby absolutely,
unconditionally and irrevocably agrees to pay to Lender, or its assigns, on
demand, all amounts for which Borrower is personally liable under Paragraph 9 of
the Multifamily Note to which this Acknowledgment is attached (the "NOTE"). The
obligations of Key Principal shall survive any foreclosure proceeding, any
foreclosure sale, any delivery of any deed in lieu of foreclosure, and any
release of record of the Security Instrument. Lender may pursue its remedies
against Key Principal without first exhausting its remedies against the Borrower
or the Mortgaged Property. All capitalized terms used but not defined in this
Acknowledgment shall have the meanings given to such terms in the Security
Instrument. As used in this Acknowledgment, the term "Key Principal" (each if
more than one) shall mean only those individuals or entities that execute this
Acknowledgment.
The obligations of Key Principal shall be performed without demand by
Lender and shall be unconditional irrespective of the genuineness, validity, or
enforceability of the Note, or any other Loan Document, and without regard to
any other circumstance which might otherwise constitute a legal or equitable
discharge of a surety or a guarantor. Key Principal hereby waives the benefit of
all principles or provisions of law, which are or might be in conflict with the
terms of this Acknowledgment, and agrees that Key Principal's obligations shall
not be affected by any circumstances which might otherwise constitute a legal or
equitable discharge of a surety or a guarantor. Key Principal hereby waives the
benefits of any right of discharge and all other rights under any and all
statutes or other laws relating to guarantors or sureties, to the fullest extent
permitted by law, diligence in collecting the Indebtedness, presentment, demand
for payment, protest, all notices with respect to the Note including this
Acknowledgment, which may be required by statute, rule of law or otherwise to
preserve Xxxxxx's rights against Key Principal under this Acknowledgment,
including notice of acceptance, notice of any amendment of the Loan Documents,
notice of the occurrence of any default or Event of Default, notice of intent to
accelerate, notice of acceleration, notice of dishonor, notice of foreclosure,
notice of protest, notice of the incurring by Borrower of any obligation or
indebtedness and all rights to require Lender to (a) proceed against Borrower,
(b) proceed against any general partner of Borrower, (c) proceed against or
exhaust any collateral held by Xxxxxx to secure the repayment of the
Indebtedness, or (d) if Borrower is a partnership, pursue any other remedy it
may have against Xxxxxxxx, or any general partner of Xxxxxxxx. In addition, Key
Principal waives, to the fullest extent allowed by applicable law, all of Key
Principal's rights under Chapter 846, Wis. Statutes, including ss. 846.103.
At any time without notice to Key Principal, and without affecting the
liability of Key Principal hereunder, (a) the time for payment of the principal
of or interest on the Indebtedness may be extended or the Indebtedness may be
renewed in whole or in part; (b) the time for Borrower's performance of or
compliance with any covenant or agreement contained in the Note, or any other
Loan Document, whether presently existing or hereinafter entered into, may be
extended or such performance or compliance may be waived; (c) the maturity of
the Indebtedness may be accelerated
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as provided in the Note or any other Loan Document; (d) the Note or any other
Loan Document may be modified or amended by Xxxxxx and Borrower in any respect,
including an increase in the principal amount; and (e) any security for the
Indebtedness may be modified, exchanged, surrendered or otherwise dealt with or
additional security may be pledged or mortgaged for the Indebtedness.
Key Principal acknowledges that Key Principal has received a copy of the
Note and all other Loan Documents. Neither this Acknowledgment nor any of its
provisions may be waived, modified, amended, discharged, or terminated except by
an agreement in writing signed by the party against which the enforcement of the
waiver, modification, amendment, discharge, or termination is sought, and then
only to the extent set forth in that agreement. Key Principal agrees to notify
Xxxxxx (in the manner for giving notices provided in Section 31 of the Security
Instrument) of any change of Key Principal's address within 10 Business Days
after such change of address occurs. Any notices to Key Principal shall be given
in the manner provided in Section 31 of the Security Instrument. Key Principal
agrees to be bound by Paragraphs 20 and 21 of the Note.
THIS ACKNOWLEDGMENT IS AN INSTRUMENT SEPARATE FROM, AND NOT A PART
OF, THE NOTE. BY SIGNING THIS ACKNOWLEDGMENT, KEY PRINCIPAL DOES NOT INTEND TO
BECOME AN ACCOMMODATION PARTY TO, OR AN ENDORSER OF, THE NOTE.
IN WITNESS WHEREOF, Key Principal has signed and delivered this
Acknowledgment or has caused this Acknowledgment to be signed and delivered by
its duly authorized representative.
KEY PRINCIPAL:
ALTERRA HEALTHCARE CORPORATION,
a Delaware corporation
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President, Finance
Address: 000 X. Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxx 00000
Social Security/Employer ID No.:
00-0000000
--------------------------------------------------------------------------------
FOR WISCONSIN MARRIED RESIDENTS ONLY: Each Key Principal who signs above
represents that this obligation is incurred in the interest of his or her
marriage or family.
X X
--------------------------- ---------------------------
--------------------------------------------------------------------------------
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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 nine and one-half (9.5)
years beginning on the date of the Note (the "YIELD MAINTENANCE
PERIOD"), the prepayment premium shall be the greater of:
(i) I % of the unpaid principal balance of this Note; or
(ii) 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 5.50% U.S. Treasury Security due May,
2009 (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]
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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 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.
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.
-------------------------------
BORROWER'S INITIAL(S)
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SCHEDULE B
MODIFICATIONS TO MULTIFAMILY NOTE
(SENIORS HOUSING)
The Multifamily Note dated July 16, 1999 in the original principal amount
of $3,786,000.00 (the "Note") issued by ALS KANSAS, INC., a Delaware corporation
("Borrower") and payable to the order of AMRESCO CAPITAL, L.P., a Delaware
limited partnership ("Lender") is hereby amended as follows:
1. The last sentence of Paragraph 3(a) of the Note is hereby deleted and
the following new sentence is inserted in lieu thereof: "Interest shall be
computed on basis of a 360-day year."
2. The following new sentence is hereby added at the end of Paragraph
3(b) of the Note:
"The amount of each monthly payment made by Borrower pursuant to this
Paragraph 3(b) that is allocated to interest will be based on the
actual number of calendar days during such 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."
3. Section 9(b)(3) of the Note is hereby amended to read as follows:
"Failure of Borrower to comply with Sections 14(d), 14(e), or 14(f) of
the Security Instrument relating to the delivery of books and records,
statements schedules and reports."
4. Section 9(b) of the Note is hereby amended to delete paragraph (2)
thereof in its entirety and to substitute in its place the following
paragraph (2):
"(2) failure of Borrower to apply all insurance proceeds, insurance
deductible amounts in excess of $10,000.00 and condemnation proceeds
as required by the Security Instrument."
and 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:
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"; or (6) Borrower's failure to renew, continue, extend, or maintain
all permits, licenses or other certificates or other approvals
required to legally operate the Mortgaged Property as a Seniors
Housing Facility, as defined in the Security Instrument."
5. 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.
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BORROWER'S INITIAL(S)
