Exhibit A
MORTGAGE NOTE
_____________ March 30, 1998
FOR VALUE RECEIVED Windsor Real Estate Investment Trust 8, an
unincorporated California business trust, having an address at 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as "Maker"), promises
to pay to the order of Chateau Communities, Inc. at its address at 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as "Payee"),
or at such place as the holder hereof may from time to time designate in
writing, the principal sum of ______________ 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
follows:
ARTICLE 1: PAYMENT TERMS
Accrued interest shall be due and payable on the 1st day of May, 1998,
and on the same day of each succeeding month, and the balance of said principal
sum and all accrued, unpaid interest thereon shall be due and payable on the
31st day of March, 1999 (the "Maturity Date"). Interest on the principal sum of
this Note shall be calculated on the basis of a three hundred sixty (360) day
year composed of twelve (12) months of thirty (30) days each except that
interest due and payable for a period of less than a full month shall be
calculated by multiplying the actual number of days elapsed in such period by a
daily rate based on said 360 day year.
The term "Applicable Interest Rate" as used in this Note shall mean one
percent (1%) per annum over such base rate of interest ("Base Rate") as may be
adopted by First Chicago NBD Corporation from time to time as its base or prime
commercial lending rate. Regardless of the term that may be used from time to
time to describe the Base Rate (such as "prime rate"), Base Rate does not
necessarily mean the lowest interest rate charged by First Chicago NBD
Corporation to other borrowers. The Applicable Rate shall be adjusted on the
first day of each calendar quarter during the term of this Note, with the
adjusted rate being based upon the Base Rate prevailing on the date of such
adjustment.
ARTICLE 2: 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 this Note and the
Mortgage (hereinafter defined) (all such sums hereinafter collectively referred
to as the "Debt") shall without notice become immediately due and payable at the
option of Payee (i) if any payment required in this Note is not paid within ten
(10) days of the date when due, (ii) if the entire Debt is not paid on the
Maturity Date or (iii) on the happening of any other default, after the
expiration of any applicable notice and grace periods, herein, under the terms
of the Mortgage, ((i), (ii) or (iii) hereinafter an "Event of Default"). All of
the terms, covenants and conditions contained in the Mortgage are hereby made
part of this Note tot he 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 or foreclose the security hereof,
Maker also agrees to pay attorney's fees for the services of such counsel
whether or note suit be brought.
ARTICLE 3: DEFAULT INTEREST
Maker does hereby agree that upon the occurrence of an Event of
Default, Payee shall be entitled to receive and Maker shall pay interest on the
entire unpaid principal sum at the rate of the lesser of (i) 5% above the
Applicable Interest Rate, or (ii) the maximum rate of interest which Maker may
by law pay (the "Default Rate"). The Default Rate shall be computed from the
occurrence of the Event of Default until such Event of Default is cured or the
date upon which the Debt is paid in full, as the case may be. 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.
ARTICLE 4: PREPAYMENT
The principal balance of this Note may be prepaid in whole or in part
at anytime.
ARTICLE 5: SECURITY
This Note is secured by the Mortgage. The term "Mortgage" as used in
this Note shall mean the Mortgage and Security Agreement given by Maker to Payee
covering the fee estate of Maker in certain premises located in Xxxxxxxxxx
County, State of Alabama, and other property, as more particularly described
therein and intended to be duly recorded in said County. 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; however, nothing in this paragraph shall be deemed
to modify the provisions of paragraph 9 of the Mortgage regarding a transfer of
the Mortgaged Property by Maker.
ARTICLE 6: 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 Debt or any portion
thereof 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 Debt or any portion thereof at a rate in excess of such maximum rate, the
rate of interest under this Note shall be deemed to be immediately reduced to
such maximum rate and the interest payable shall be computed at such maximum
rate and all prior interest 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.
ARTICLE 7: LATE CHARGE
If any sum payable under this Note is not paid within 10 days of the
date on which it is due, Maker shall pay to Payee 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 such amount shall be secured by the
Mortgage; provided, however, no such late charge will be charged or collected if
the amount of such late charge when added to all interest constructed for,
charged or received by Xxxxx xxxxxxxxx would exceed the maximum amount of
interest allowed by applicable law. 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.
ARTICLE 8: NO ORAL CHANGE
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.
ARTICLE 9: JOINT AND SEVERAL LIABILITY
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.
ARTICLE 10: WAIVERS
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
Notice or any installment hereof, and no alteration, amendment or waiver of any
provision of this Note or the Mortgage 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 or
the Mortgage.
ARTICLE 11: AUTHORITY
Maker (and the undersigned representative of the Maker, if any)
represents that Maker has full power, authority and legal right to execute,
deliver and perform its obligations pursuant to this Note and the Mortgage and
that this Note and the Mortgage constitute valid and binding obligations of
Maker.
ARTICLE 12: EXCULPATION
Intentionally omitted.
ARTICLE 13: NOTICES
All notices or other written communications hereunder shall be deemed
to have been properly given (i) upon delivery, if delivered in person or by
facsimile transmissions, (ii) one (1) Business Day (defined below) after having
been deposited for overnight delivery with any reputable overnight courier
service, or (iii) three (3) Business Days after having been deposited in any
post office or mail depository regularly maintained by the U.S. Postal Service
and sent by registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
If to Maker: Windsor Real Estate Investment Trust 8
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Xxxxxxxxx No.: (000) 000-0000
If to Payee: Chateau Communities, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Xxxxxxxxx No.: (000) 000-0000
or addressed as such party may from time to time designate by written notice to
the other parties. Either party by notice to the other may designate additional
or different addresses for subsequent notices or communications. "Business Day"
shall mean a day upon which commercial banks are not authorized or required by
law to close in New York.
ARTICLE 14: WAIVER OF TRIAL BY JURY
Maker hereby waives, to the fullest extent permitted by law, the right
to trial by jury in any action, proceeding or counterclaim, whether in contract,
tort or otherwise, relating directly or indirectly to the loan evidenced by this
Note, the application for the loan evidenced by this Note or the Mortgage or any
acts or omissions of Payee, its officers, employees, directors or agents in
connection herewith.
ARTICLE 15: GOVERNING LAW
This Note shall be deemed to be a contract entered into pursuant to the
laws of the State of Alabama and shall in all respects be governed, construed,
applied and enforced in accordance with the laws of the State of Alabama and the
applicable laws of the United States of America.
IN WITNESS WHEREOF, Xxxxx has duly executed this Note as of the day and
year first written above.
WINDSOR REAL ESTATE INVESTMENT
TRUST 8, an unincorporated California business
trust
By: ________________________________________
Xxxx X. XxXxxxxx
Trustee
By: _________________________________________
Xxxxxxx X. Xxxxxx
Trustee
By: __________________________________________
Xxxxxxx X. Xxx
Xxxxxxx
