CONSOLIDATED, AMENDED, RENEWED AND RESTATED
MORTGAGE NOTE
$122,028,471
New York, New York
August 7, 1998
This CONSOLIDATED, AMENDED, RENEWED AND RESTATED MORTGAGE
NOTE, dated as of August 7, 1998 (the "Note"), is made by HOMESTEAD VILLAGE
LIMITED PARTNERSHIP ("Maker"), a Delaware limited partnership having a principal
office at c/o Homestead Village Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, in favor of MIDLAND LOAN SERVICES, INC., a Delaware corporation
(together with its successors and assigns, "Payee"), having its principal office
at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, ▇▇▇▇▇ is the holder by assignment of those certain
mortgage notes described on Schedule A annexed hereto and made a part hereof
(the "Original Notes") made by Homestead Village Incorporated, a Maryland
corporation ("Homestead") and Atlantic Homestead Village Limited Partnership, a
Delaware limited partnership ("AHV"), which Original Notes have been assigned by
Homestead and AHV to, and assumed by, Maker;
WHEREAS, the principal indebtedness evidenced by the Original
Notes is Ninety-Eight Million Twenty-Eight Thousand Four Hundred Seventy-One
Dollars ($98,028,471);
WHEREAS, on the date hereof, Assignee made an additional loan
to Assignor in the amount of $24,000,000;
WHEREAS, the Maker and Payee intend to consolidate, amend,
renew, restate, supercede, substitute and replace the Original Note by this
Note, and this Note shall evidence one consolidated joint and several
indebtedness of Maker in the principal amount of ONE HUNDRED TWENTY-TWO MILLION
TWENTY EIGHT THOUSAND FOUR HUNDRED SEVENTY ONE DOLLARS ($122,028,471) (the
"Loan"); and
WHEREAS, Maker and Payee intend these recitals to form an
integral part or this Note.
NOW THEREFORE, by Maker's execution and delivery of this Note
and ▇▇▇▇▇'s acceptance of delivery from Maker of this Note, this Note is deemed
to consolidate, amend, renew and restate and substitute the Original Notes and
the same are hereby restated in their entirety to read as follows:
FOR VALUE RECEIVED, Maker promises to pay to the order of
Payee, or its assigns, the Principal Amount (as defined below), together with
interest from the date hereof as provided in this Note. Interest accruing
hereunder shall be calculated on the basis of a 360-day year and the actual
number of days elapsed.
WHEN USED HEREIN, the following capitalized terms shall have
the following meanings.
"Anticipated Securitization Maturity Date" if applicable,
shall mean the date so designated by the Securitization Extension Notice, which
date shall not be earlier than June 30, 2006 or later than June 30, 2008.
"Commencement Date" shall mean the first Business Day of the
month following the Closing Date.
"Closing Date" shall be the date of this Note.
"Default Rate" shall be the then interest rate applicable to
the Loan Amount (i.e., Initial Interest Rate, Securitization Interest Rate or
Revised Interest Rate) immediately prior to an Event of Default, plus 5.0
percent (5.0%) per annum.
"Final Maturity Date" shall mean the later of (i) the Initial
Maturity Date and (ii) if the Securitization Extension Notice is delivered, the
date that is provided in the Securitization Extension Notice (as hereinafter
defined), which date shall be between the twentieth (20th) and twenty-third
(23rd) anniversary of the Anticipated Securitization Maturity Date.
"Initial Interest Rate" shall mean (a) from the date of this
Note through but not including October 1, 1998, a rate of LIBOR plus 1.70
percent (1.70%) per annum, and from October 1, 1998 through but not including
December 1, 1998, a rate of LIBOR plus 2.00 percent (2.0%), and from December 1,
1998 through but not including the Initial Maturity Date, at a rate of LIBOR
plus 2.25 percent (2.25%).
"Initial Maturity Date" shall mean June 30, 1999 or, if the 2
Year Extension Notice is delivered, then June 30, 2001.
"Interest Period" shall mean each successive period following
the first Payment Date, commencing on a Payment Date and ending on the day
immediately preceding the following Payment Date.
"LIBOR" shall mean the one (1) month London Interbank Offered
Rate for dollar denominated deposits with respect to each Interest Period,
rounded up to the nearest one sixteenth of one percent (1/16 %), as determined
by Lender in its sole and absolute discretion on the first Business Day of any
Interest Period and the Interest Rate shall be adjusted on the first Business
Day of the following Interest Period to reflect any changes in LIBOR.
"Monthly Amount" shall be the applicable monthly payment
required hereunder at the Initial Interest Rate, the Securitization Interest
Rate, if applicable or the Revised Interest Rate, if applicable, as the case may
be.
"Mortgage" shall mean that certain Consolidated Amended and
Restated Mortgage, Deed of Trust, Deed to Secure Debt, Security Agreement,
Financing Statement, Fixture Filing and Assignment of Leases, Rents and Security
Deposits, dated as of the Closing Date, from Maker to Payee.
"Payment Date" shall be the first Business Day of each month
commencing on the first business day of the second full month after the Closing
Date and continuing to and including the Final Maturity Date.
"Principal Amount" $122,028,471
"Revised Interest Rate" shall mean, if applicable, on and
after the Anticipated Securitization Maturity Date, the Securitization Interest
Rate plus 2.0 percent (2.0%).
"Securitization Interest Rate" shall mean, if applicable,
during the Securitization Extension Term (as hereinafter defined), a rate equal
to either LIBOR or the Treasury Rate, plus 2.50 percent (2.50%), as selected in
Payee's sole discretion; provided, however, that if the aggregate Net Operating
Income from all of the Properties, as determined by Payee in its sole and
absolute discretion, for the twelve (12) month period commencing on June 30,
1998 and ending on June 30, 1999, as adjusted with an assumed management fee of
4% of Operating Income (as defined in the Mortgage) and an FF&E reserve of 4% of
Operating Income, is less than $18,000,000, at a rate equal to LIBOR or the
Treasury Rate, as selected in ▇▇▇▇▇'s sole discretion, plus 3.5 percent (3.5%).
"Treasury Rate" shall mean, as of the Initial Maturity Date,
the yields, calculated by linear interpolation (rounded to the nearest
one-thousandth of one percent (1%)) of noncallable United States Treasury
obligations with a term of fifteen years, on the basis of Federal Reserve
Statistical Release H.15 Selected Interest Rates under the heading U.S.
Governmental Security/Treasury Constant Maturities or other recognized source of
comparable financial market information selected by Payee for the week prior to
the Initial Maturity Date.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Mortgage.
The Principal Amount and interest thereon shall be due and
payable in lawful money of the United States as follows:
(a) On the date hereof, all interest on the unpaid balance
through the end of the month in which the Closing Date occurs shall be
due and payable. Thereafter, commencing on the Commencement Date and
continuing until the Initial Maturity Date, monthly installments of
interest in the Monthly Amount at the Initial Interest Rate shall be
due and payable. Each monthly installment shall be due on each Payment
Date.
(b) In the event the Securitization Extension Notice (as
hereinafter defined), is delivered, during the Securitization Extension
Term (as hereinafter defined), monthly installments of interest in the
Monthly Amount at the Securitization Interest Rate shall be due and
payable. Each monthly installment shall be due on each Payment Date.
(c) In the event the Securitization Extension Notice is
delivered and Maker does not pay the entire Principal Amount of this
Note and any other amounts outstanding on or before the Anticipated
Securitization Maturity Date, then interest shall thereafter accrue on
the unpaid principal balance from time to time outstanding on this Note
at the Revised Interest Rate and Maker shall pay on the Anticipated
Securitization Maturity Date and on each Payment Date thereafter up to
and including the Final Maturity Date the payments provided for in
Section 4 of the Cash Collateral Agreement (as defined below) in the
order of priority set forth therein. Interest accrued at the Revised
Interest Rate and not paid pursuant to the preceding sentence shall be
deferred and added to the Debt and shall accrue interest at the Revised
Interest Rate (to the extent permitted by applicable law) (such accrued
interest is hereinafter referred to as "Accrued Interest"). All of the
Debt, including Accrued Interest, shall be due and payable on the Final
Maturity Date.
(d) In addition, all amounts advanced by Payee pursuant to
applicable provisions of the Loan Documents (as hereinafter defined),
together with any interest at the Default Rate (payable after any
applicable grace period set forth herein or in the Mortgage) or other
charges as therein provided, shall be immediately due and payable
hereunder. In the event any such advance is not so repaid by Maker,
Payee may, at its option, first apply any payments received hereunder
to repay said advances together with any interest thereon or other
charges as provided in the Loan Documents, and the balance, if any,
shall be applied in payment of any installment then due. The entire
remaining unpaid balance of principal of this Note, all interest
accrued thereon and all other sums payable hereunder or under the Loan
Documents (collectively, the "Debt") shall be due and payable in full
on the Final Maturity Date.
(e) Amounts due on this Note shall be payable, without any
counterclaim, setoff or deduction whatsoever, at the office of Payee or
its agent or designee at the address set forth in the recitals above or
at such other place as Payee or its agent or designee may from time to
time designate in writing.
2. This Note is secured by (i) the Mortgage (the
"Mortgage"), (ii) an Assignment of Rents and Leases of even date herewith from
Maker to Payee, recorded in the above referenced recording offices (the
"Assignment ") and (iii) all other documents executed by Maker to or for the
benefit of ▇▇▇▇▇. The Mortgage, Assignment and any other instrument given at any
time to evidence or secure this Note are hereinafter collectively called the
"Loan Documents."
3. At any time prior to the Initial Maturity Date, Maker
shall have the right to prepay the principal of this Note in full or in part on
any Payment Date or on any other date provided that Maker pays any breakage
costs or other costs reasonably incurred by Payee in connection with any
prepayment of the Loan or any date other than a Payment Date. Such prepayment
shall be made upon not less than fourteen (14) days' prior written notice to
Payee, (such date of prepayment shall hereinafter be referred to as the
"Prepayment Date"). If the Final Maturity Date is extended beyond the Initial
Maturity Date by a Securitization Extension Notice, then Maker shall have the
right to prepay the principal of this Note only in accordance with and as
provided by the provisions of Securitization Extension Notice.
4. If Maker defaults in the payment of any installment of
principal and interest on the date on which it shall fall due or in the
performance of any of the other agreements, conditions, covenants, provisions or
stipulations contained in this Note or in the Loan Documents, and if such
default (other than related to the payment of principal and interest) shall
continue beyond any applicable notice or grace period provided for in the
Mortgage so as to constitute an Event of Default thereunder, then Payee, at its
option and without further notice to Maker, may declare immediately due and
payable the entire unpaid principal balance of this Note, together with interest
thereon at an annual rate from and after the date of such default equal to the
Default Rate, together with all sums due from Maker under the Loan Documents,
anything herein or in the Loan Documents to the contrary notwithstanding. After
an Event of Default, interest shall accrue, relating back to the date of the
default that gave rise to the Event of Default, at the Default Rate, regardless
of whether Payee accelerates the principal balance of the Note. The foregoing
provision shall not be construed as a waiver by Payee of its right to pursue any
other remedies available to it under the Mortgage, this Note or any other Loan
Document, nor shall it be construed to limit in any way the application of the
Default Rate. Any payment hereunder may be enforced and recovered in whole or in
part at such time by one or more of the remedies provided to Payee in this Note
or in the Loan Documents. In the event that: (i) this Note or any Loan Document
is placed in the hands of an attorney for collection or enforcement or is
collected or enforced through any legal proceeding; (ii) an attorney is retained
to represent Payee in any bankruptcy, reorganization, receivership, or other
proceedings affecting creditors' rights and involving a claim under this Note or
any Security Document; (iii) an attorney is retained to protect or enforce the
lien of the Mortgage or any other Loan Document; or (iv) an attorney is retained
to represent Payee in any other proceedings whatsoever in connection with this
Note, the Mortgage, any of the other Loan Documents or any portion of the
Mortgaged Property subject thereto, then Maker shall pay to Payee all reasonable
attorney's fees, costs and expenses incurred in connection therewith, including
costs of appeal, together with interest on any judgment obtained by Payee at the
Default Rate or at the rate permitted by applicable law.
5. If Maker defaults in the payment of any monthly
installment on the Payment Date and such default is not cured within five (5)
days, then Maker shall pay to Payee a late payment charge in an amount equal to
five percent (5%) of the amount of the installment not paid as aforesaid which
late charge shall relate back to the date when such installment was first due
and payable. Said late charge payments, if payable, shall be secured by the
Mortgage and the other Loan Documents, shall be payable without notice or demand
by Payee, and are independent of and have no effect upon the rights of Payee
under paragraph 4 above. No late charge will be assessed on principal payable on
the Final Maturity Date.
6. Notwithstanding any other provision of this Note, Payee
shall have the following rights to extend the term of this Note:
(a) Payee shall have the right until December 15, 1998, upon
delivery of a written notice to Maker (the "2 Year Extension Notice"), to extend
the term of the Loan to June 30, 2001. Upon delivery of the 2 Year Extension
Notice, (i) the Initial Maturity Date shall be deemed to be June 30, 2001; (ii)
the Initial Interest Rate shall be deemed to be LIBOR plus 2.25 percent (2.25%),
(iii) Maker shall be required to deliver to Payee (A) legal opinions regarding
the non-consolidation of Maker with any other Person and any other matters
reasonably requested by Payee in the 2 Year Extension Notice, from an
independent counsel acceptable to Payee, in its sole and absolute discretion and
in form and substance acceptable to Payee in its sole and absolute discretion
and (B) all other documents identified in the 2 Year Extension Notice and
customarily required by Payee in connection with the closing of similar loans
that have not been previously delivered to Payee and (iv) Payee shall no longer
have the right to deliver the Securitization Extension Notice (as hereinafter
defined) pursuant to the terms of Section 6(b).
(b) Provided Payee has not previously delivered the 2 Year
Extension Notice, Payee shall have the right at any time prior to June 10, 1999,
upon the delivery of a written notice to Maker (the "Securitization Extension
Notice"), to extend the term of the Loan for an additional seven (7) to ten (10)
year period, as determined by Payee in its sole and absolute discretion. The
period between the Initial Maturity Date and the date identified in the
Securitization Extension Notice as the Anticipated Securitization Maturity Date
shall be herein referred to as the "Securitization Extension Term." Upon
delivery of the Securitization Extension Notice, (i) the Anticipated
Securitization Maturity Date shall be deemed to be the date specified as the
Anticipated Securitization Maturity Date in the Securitization Extension Notice;
(ii) the Final Maturity Date shall be the date that is provided in the
Securitization Extension Notice (as hereinafter defined), which date shall be
between the twentieth (20th) and twenty-third (23rd) anniversary of the
Anticipated Securitization Maturity Date; (iii) the Securitization Interest Rate
beginning on July 1, 1999 shall be deemed to be a rate equal to either LIBOR or
the Treasury Rate, plus 2.50 percent (2.50%), as selected in Payee's sole
discretion; provided, however, that if the aggregate Net Operating Income from
all of the Properties, as determined by Payee in its sole and absolute
discretion, for the twelve (12) month period commencing on June 30, 1998 and
ending on June 30, 1999, as adjusted with an assumed management fee of 4% of
Operating Income and an FF&E reserve of 4% of Operating Income, is less than
$18,000,000, then the Securitization Interest Rate shall be deemed to be LIBOR
or the Treasury Rate, as selected in Payee's sole discretion, plus 3.5 percent
(3.5%); (iv) Maker shall be required to pay to Payee on the Initial Maturity
Date an extension fee payment equal to $1,220,285 (i.e., one percent (1%) of the
Principal Amount) and (v) Maker shall be required to deliver to Payee (A) legal
opinions regarding the non-consolidation of Maker with any other Person and any
other matters reasonably requested by Payee in the Securitization Extension
Notice, from an independent counsel acceptable to Payee, in its sole and
absolute discretion and in form and substance acceptable to Payee in its sole
and absolute discretion and (B) all other documents identified in the
Securitization Extension Notice and customarily required by Payee in connection
with the closing of similar loans that have not been previously delivered to
Payee
7. Maker and all endorsers, sureties and guarantors hereby
jointly and severally waive all applicable exemption rights, valuation and
appraisement, presentment for payment, demand, notice of demand, notice of
nonpayment or dishonor, protest and notice of protest of this Note, and all
other notices in connection with the delivery, acceptance, performance, default
or enforcement of the payment of this Note. Maker and all endorsers, sureties
and guarantors consent to any and all extensions of time, renewals, waivers or
modifications that may be granted by Payee with respect to the payment or other
provisions of this Note and to the release of the collateral or any part
thereof, with or without substitution, and agree that additional makers,
endorsers, guarantors or sureties may become parties hereto without notice to
them or affecting their liability hereunder. SUBJECT TO THE PROVISIONS OF
SECTION 33 OF THE MORTGAGE, MAKER ACKNOWLEDGES THAT IT SHALL BE LIABLE AND
RESPONSIBLE FOR (I) THE DEBT, (II) ALL SUMS THAT WILL, FROM TIME TO TIME, BECOME
DUE AND PAYABLE UNDER THIS NOTE, (III) ANY OF THE OBLIGATIONS CONTAINED IN, OR
THAT MAY ARISE FROM, ANY OF THE LOAN DOCUMENTS AND (IV) ANY AND ALL OBLIGATIONS
UNDER ANY LOAN DOCUMENT, INCLUDING, WITHOUT LIMITATION, THE MORTGAGE.
8. Payee shall not be deemed, by any act of omission or
commission, to have waived any of its rights or remedies hereunder unless such
waiver is in writing and signed by ▇▇▇▇▇, and then only to the extent
specifically set forth in writing. A waiver of one event shall not be construed
as continuing or as a bar to or waiver of any right or remedy to a subsequent
event.
9. This Note has been negotiated, executed and delivered in
the State of New York and shall be governed by and construed in accordance with
the internal laws of the State of New York (the "State"),without regard to
choice of law rules.
10. The parties hereto intend and believe that each
provision in this Note comports with all applicable law. However, if any
provision in this Note is found by a court of law to be in violation of any
applicable law, and if such court should declare such provision of this Note to
be unlawful, void or unenforceable as written, then it is the intent of all
parties hereto that such provision shall be given full force and effect to the
fullest possible extent that is legal, valid and enforceable, that the remainder
of this Note shall be construed as if such unlawful, void or unenforceable
provision were not contained therein, and that the rights, obligations and
interest of Maker and the holder hereof under the remainder of this Note shall
continue in full force and effect; provided, however, that if any provision of
this Note which is found to be in violation of any applicable law concerns the
imposition of interest hereunder, the rights, obligations and interests of Maker
and Payee with respect to the imposition of interest hereunder shall be governed
and controlled by the provisions of the following paragraph.
11. It being the intention of Payee and Maker to comply with
the laws of the State with regard to the rate of interest charged hereunder, it
is agreed that, notwithstanding any provision to the contrary in this Note, the
Mortgage, or any of the other Loan Documents, no such provision, including
without limitation any provision of this Note providing for the payment of
interest or other charges, shall require the payment or permit the collection of
any amount ("Excess Interest") in excess of the maximum amount of interest
permitted by law to be charged for the use or detention, or the forbearance in
the collection, of all or any portion of the indebtedness evidenced by this
Note. If any Excess Interest is provided for, or is adjudicated to be provided
for, in this Note, the Mortgage, or any of the other Loan Documents, then in
such event:
(i) the provisions of this paragraph shall govern;
(ii) Maker shall not be obligated to pay any Excess
Interest;
(iii) any Excess Interest that Payee may have
received hereunder shall, at the option of ▇▇▇▇▇, be (x)
applied as a credit against the unpaid principal balance then
due under this Note, accrued and unpaid interest thereon not
to exceed the maximum amount permitted by law, or both, (y)
refunded to the payor thereof or (z) any combination of the
foregoing;
(iv) the applicable interest rate or rates provided
for herein shall be automatically subject to reduction to the
maximum lawful rate allowed to be contracted for in writing
under the applicable usury laws of the aforesaid State, and
this Note, the Mortgage and the other Loan Documents shall be
deemed to have been, and shall be, reformed and modified to
reflect such reduction in such interest rate or rates; and
(v) Maker shall not have any action or remedy
against Payee for any damages whatsoever or any defense to
enforcement of this Note, the Mortgage or any other Loan
Document arising out of the payment or collection of any
Excess Interest (provided such Excess Interest is paid as set
forth above).
12. Upon any endorsement, assignment, or other transfer of
this Note by ▇▇▇▇▇ or by operation of law, the term "Payee," as used herein,
shall mean such endorsee, assignee, or other transferee or successor to ▇▇▇▇▇
then becoming the holder of this Note. This Note shall inure to the benefit of
Payee and its successors and assigns and shall be binding upon the undersigned
and its successors and assigns. The term "Maker" as used herein shall include
the respective successors and assigns, legal and personal representatives,
executors, administrators, devisees, legatees and heirs of Maker.
13. Any notice, demand or other communication which any
party may desire or may be required to give to any other party shall be in
writing and shall be given as provided in the Mortgage.
14. To the extent that Maker makes a payment or Payee
receives any payment or proceeds for Maker's benefit, which are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to
be repaid to a trustee, debtor in possession, receiver, custodian or any other
party under any bankruptcy law, common law or equitable cause, then, to such
extent, the obligations of Maker hereunder intended to be satisfied shall be
revived and continue as if such payment or proceeds had not been received by
Payee.
15. Maker shall execute and acknowledge (or cause to be
executed and acknowledged) and deliver to Payee all documents, and take all
actions, reasonably required by Payee from time to time to confirm the rights
created or now or hereafter intended to be created under this Note and the Loan
Documents, to protect and further the validity, priority and enforceability of
this Note and the Loan Documents, to subject to the Loan Documents any property
of Maker intended by the terms of any one or more of the Loan Documents to be
encumbered by the Loan Documents, or otherwise carry out the purposes of the
Loan Documents and the transactions contemplated thereunder; provided, however,
that no such further actions, assurances and confirmations shall increase
Maker's obligations under this Note.
16. No modification, amendment, extension, discharge,
termination or waiver (a "Modification") of any provision of this Note, or any
one or more of the other Loan Documents, nor consent to any departure by Maker
therefrom, shall in any event be effective unless the same shall be in a writing
signed by the party against whom enforcement is sought, and then such waiver or
consent shall be effective only in the specific instance, and for the purpose,
for which given. Except as otherwise expressly provided herein, no notice to, or
demand on, Maker shall entitle Maker to any other or future notice or demand in
the same, similar or other circumstances. ▇▇▇▇▇ does not hereby agree to, nor
does Payee hereby commit itself to, enter into any Modification.
17. Maker hereby expressly and unconditionally waive, in
connection with any suit, action or proceeding brought by Payee on this Note,
any and every right it may have to (a) a trial by jury, (b) interpose any
counterclaim therein (other than a counterclaim which if not asserted in the
suit, action or proceeding brought by Payee on this Note could be barred) and
(c) have the same consolidated with any other or separate suit, action or
proceeding.
18. Notwithstanding anything in this Note, the Mortgage or
the other Loan Documents, no personal liability shall be asserted or enforceable
against (i) Maker, (ii) any Affiliate of Maker, (iii) any Person owning directly
or indirectly, any legal or beneficial interest in Maker or any Affiliate of
Maker, or (iv) any partner, principal, officer, controlling person, beneficiary,
trustee, advisor, shareholder, employee, agent, Affiliate or director of any
Persons described in clauses (i) through (iii) above (collectively, the
"Exculpated Parties") by Payee in respect of the Obligations, this Note, the
Mortgage or any other Loan Document, or the making, issuance or transfer
thereof, all such liability, if any, being expressly waived by Payee, and each
successive holder of this Note shall accept the Mortgage and this Note upon the
express condition of this provision and limitation that in the case of the
occurrence and continuance of an Event of Default, ▇▇▇▇▇'s remedies in its sole
discretion shall be any or all of:
(1) Foreclosure of the lien of the Mortgage in accordance with
the terms and provisions set forth in the Mortgage;
(2) Action against any other security at any time given to
secure the payment of this Note and under the other Loan
Documents; and
(3) Exercise of any other remedy set forth in the Mortgage or
any other Loan Document.
The lien of any judgment against Maker and any proceeding
instituted on, under or in connection with this Note or the Mortgage, or both,
shall not extend to any property now or hereafter owned by Maker or any
Exculpated Party other than the Net Operating Income from, and the ownership
interest of Maker in, the Mortgaged Property and the other security for the
payment of the Mortgage or this Note.
Notwithstanding anything to the contrary in this Note or any
of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Debt evidenced by
this Note or to require that all collateral shall continue to secure all of the
Debt owing to Payee in accordance with the Loan Documents.
Notwithstanding anything in this Note to the contrary, there
shall at no time be any limitation on Maker's liability for the payment to Payee
of: (1) condemnation awards or insurance proceeds which Maker has received and
to which Payee is entitled pursuant to the terms of this Note or any of the Loan
Documents to the extent the same have not been applied toward payment of sums
due under this Note or the Mortgage, or used for the repair or replacement of
the Mortgaged Property pursuant to the Mortgage, or (2) all loss, damage and
expense as incurred by ▇▇▇▇▇ and arising from any fraud, or intentional
misrepresentation of Maker, or (3) any misappropriation of Rents or security
deposits by Maker or any Affiliate of Maker after an Event of Default, to the
extent of such misappropriation.
19.ab Any legal action or proceeding with respect to this Note
and any action for enforcement of any judgment in respect thereof may be brought
in the courts of the State of New York or of the United States of America for
the Southern District of New York, and, by execution and delivery of this Note,
Maker hereby accepts for itself and in respect of its property, generally and
unconditionally, the non-exclusive jurisdiction of the aforesaid courts and
appellate courts from any thereof. Maker irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding
by service of process upon Maker at the address for notices set forth herein.
Maker hereby irrevocably waives any objection which it may now or hereafter have
to the laying of venue of any of the aforesaid actions or proceedings arising
out of or in connection with this Note brought in the courts referred to above
and hereby further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum. Nothing herein shall affect the right of Payee
to serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against Maker in any other jurisdiction.
20. This Note may be executed in counterparts, which
together shall constitute one and the same instrument.
21. Payee shall maintain a register, setting forth the name
of the holder or holders of this Note. From time to time, at the request of
Maker, ▇▇▇▇▇ shall inform Maker of the name or name of such holder(s).
22. Maker and Payee agree that the interest rate, from time
to time, applicable to the Loan Amount or any other amounts due under this Note
shall not exceed the Maximum Lawful Rate (as hereinafter defined). Maker and
▇▇▇▇▇ agree that the Default Rate hereunder shall not exceed the Maximum Lawful
Rate, and in no event shall the late charges set forth in paragraph 5 hereof,
together with all other interest on the indebtedness evidenced by this Note,
exceed the Maximum Lawful Rate. Maker and Payee agree that if all or any portion
of the late payment charge described in Section 5 of this Note, or all or any
portion of the Prepayment Premium (as may be provided in the Securitization
Extension Notice) is deemed to be interest under applicable law, in no event
shall interest in excess of the Maximum Lawful Rate be due or payable. As used
herein, "Maximum Lawful Rate " means the maximum rate (or, if the context so
permits or requires, an amount calculated at such rate) of interest that, at the
time in question, would not cause the interest charged on this Note at such time
to exceed the maximum amount that Payee would be allowed to contract for,
charge, take, reserve or receive under applicable law after taking into account,
to the extent required by applicable law, any and all relevant payments, fees or
charges under this Note or the other Loan Documents. If under applicable law
there is no legal limitation on the amount or rate of interest that may be
charged on amounts outstanding under this Note, there shall be no Maximum Lawful
Rate, notwithstanding any reference thereto herein or in any of the other Loan
Documents. This paragraph shall control over any contrary provision set forth in
this Note or in the other Loan Documents.
IN WITNESS WHEREOF, Maker and Payee have caused this
Consolidated, Amended, Renewed and Restated Mortgage Note to be executed and
delivered as of the day and year first above written.
MAKER:
HOMESTEAD VILLAGE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: HVI Incorporated, a Delaware corporation,
its General Partner
By:________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Attest:______________________________
Name: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Secretary
[CORPORATE SEAL]
Signed, sealed and delivered
in the presence of:
______________________________
Witness
______________________________
Witness
PAYEE:
MIDLAND LOAN SERVICES, INC.,
a Delaware corporation
By:________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
[CORPORATE SEAL]
Signed, sealed and delivered
in the presence of:
________________________________
Witness
________________________________
Witness
