EXHIBIT 10.10
FIXED FACILITY NOTE
US $77,362,500 April 5, 2004
FOR VALUE RECEIVED, the undersigned (collectively, the "BORROWER") promise
to pay to the order of ARCS COMMERCIAL MORTGAGE CO., L.P., a California limited
partnership ("LENDER") the principal sum of Seventy-seven Million Three Hundred
Sixty-two Thousand Five Hundred AND NO/100 DOLLARS (US $77,362,500), with
interest accruing on the unpaid principal balance from the date of disbursement
until fully paid at the annual rate of Four and Fifty-One Hundredths percent
(4.51%).
This Note is executed and delivered by Xxxxxxxx pursuant to that certain
Master Credit Facility Agreement, dated as of May 29, 2002 by and between
Borrower and Xxxxxx (as amended from time to time, the "MASTER AGREEMENT"), to
evidence the obligation of Borrower to repay a Fixed Advance made by Lender to
Borrower in accordance with the terms of the Master Agreement. This Note is
entitled to the benefit and security of the Loan Documents provided for in the
Master Agreement, to which reference is hereby made for a statement of all of
the terms and conditions under which the Fixed Advance evidenced hereby is made.
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 Instruments or any other Loan Document, including prepayment
premiums, late charges, default interest, and advances to protect the security
of the Security Instruments under Section 12 of the Security Instruments and
(iii) a "BUSINESS DAY" means any day on which Xxxxxx Xxx is open for business.
Event of Default and other capitalized terms used but not defined in this Note
shall have the meanings given to such terms in the Master Agreement or, if not
defined in the Master Agreement, as defined in the Security Instruments (as
defined in Paragraph 5).
2. ADDRESS FOR PAYMENT. All payments due under this Note shall be
payable at ARCS Commercial Mortgage Co., L.P., 00000 Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx Xxxxx, Xxxxxxxxxx 00000-9932, or such other place as may be designated
by written notice to Borrower from or on behalf of Lender.
3. PAYMENT OF PRINCIPAL AND INTEREST. Principal and interest shall be
paid as follows:
(a) Unless disbursement of principal is made by Xxxxxx to Borrower on
the first day of 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.
(b) Interest under this Note shall be computed on the basis of a 360-day
year. The amount of each monthly payment made by Borrower pursuant to Paragraph
3(c) below that is allocated to interest will be based on the actual number of
calendar days during such month and shall be calculated by multiplying the
unpaid principal balance of this Note by the per annum interest rate, dividing
the product by 360 and multiplying the quotient by the actual number of days
elapsed during the 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.
(c)(1) (a) A single installment of interest only in the amount of Two
Hundred Fifty One Thousand Nine Hundred Eighty Six and 80/100 Dollars
($251,986.80) shall be payable on the date of this Note.
(b) Consecutive monthly installments of interest only, each in the
amount of Two Hundred Ninety Thousand Seven Hundred Fifty Four and 06/100
Dollars (US $290,754.06), shall be payable on the first day of each month
beginning on June 1, 2004, until May 1, 2006.
(c)(2) Consecutive monthly installments of principal and interest, each in
the amount of Three Hundred Ninety Two Thousand Four Hundred Forty Four and
23/100 Dollars (US $392,444.23) shall be payable on the first day of each month
beginning on June 1, 2006, 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. Unless extended pursuant to
Schedule B to this Note, any remaining principal and interest shall be due and
payable on May 1, 2013 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"). If the Maturity Date is extended pursuant to Schedule B to
this Note, any remaining principal and interest shall be due and payable on May
1, 2014 or on any earlier date on which the unpaid principal balance of this
Note becomes due and payable by acceleration or otherwise. 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 paid in
full.
(d) Any regularly scheduled monthly installment of principal and/or
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 that 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
multifamily mortgages, deeds to secure debt or deeds of trust dated as of the
date of this Note (the "SECURITY INSTRUMENTS"), and reference is made to the
Security Instruments 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 installment due hereunder is not
received by Lender on or before the 10th day of each month or if any other
amount payable under this Note or under the Security Instruments or any other
Loan Document is not received by Lender within 10 days after the date such
amount is due, counting from and including the date such amount is due, Borrower
shall pay to Lender, immediately and without demand by Lender, a late charge
equal to 5 percent of such monthly installment or other amount due. 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 interest are not paid in full on the
Maturity Date (as such Maturity Date may be extended pursuant to Schedule B to
this Note), 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 Xxxxxx'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 Xxxxxxxx's delinquent payment and the additional compensation Lender
is entitled to receive for the increased risks of nonpayment associated with a
delinquent loan.
9. PERSONAL LIABILITY OF THE BORROWER.
The provisions of Article 15 of the Master Agreement (entitled "PERSONAL
LIABILITY OF THE BORROWER") concerning the non-recourse nature of the
Indebtedness are hereby incorporated into this Note by this reference to the
fullest extent as if the text of such Article were set forth in its entirety
herein.
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 or part of the unpaid principal
balance of this Note only on the last calendar day of a calendar month and only
if Xxxxxxxx has complied with all of the following:
(i) Borrower must give Lender at least 30 days, but not more than
60 days, prior written notice of its intention to make such
prepayment (the "PREPAYMENT NOTICE").
(ii) The Prepayment Notice shall be addressed to Lender and shall
include, at a minimum, the date upon which Borrower intends to
make the prepayment (the "INTENDED PREPAYMENT DATE"). Borrower
acknowledges that the Lender is not required to accept any
voluntary prepayment of this Note on any day other than the
last calendar day of a calendar month. If the last calendar
day of a calendar month is not a Business Day, then the
Borrower must make the payment on the Business Day immediately
preceding the last calendar day of a calendar month. For all
purposes, including the accrual of interest and the
calculation of the prepayment premium, any prepayment received
by Lender on any day other than the last calendar day of a
calendar month shall be deemed to
have been received on the last calendar day of the month in
which such prepayment occurs.
(iii) Any 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.
(iv) If, for any reason, Xxxxxxxx fails to prepay this Note (i)
within five (5) Business Days after the Intended Prepayment
Date or (ii) if the prepayment occurs in a month other than
the month stated in the original Prepayment Notice, then
Lender shall have the right, but not the obligation, to
recalculate the prepayment premium based upon the date that
Borrower actually prepays this Note and to make such
calculation as described in Schedule A attached hereto. For
purposes of such recalculation, such new prepayment date shall
be deemed the "INTENDED PREPAYMENT DATE."
(2) Upon Xxxxxx's exercise of any right of acceleration under this
Note, Borrower shall pay to Lender, in addition to the entire unpaid
principal balance of this Note outstanding at the time of the
acceleration, (A) all accrued interest and all other sums due Lender under
this Note and the other Loan Documents, and (B) the prepayment premium
calculated pursuant to Schedule A.
(3) Any application by Lender of any collateral or other security
to the repayment of any portion of the unpaid principal balance of this
Note prior to the Maturity Date and in the absence of acceleration shall
be deemed to be a partial prepayment by Borrower, requiring the payment to
Lender by Borrower of a prepayment premium.
(b) Notwithstanding the provisions of Paragraph 10(a), no prepayment
premium shall be payable with respect to (A) any prepayment made no more than
twelve (12) months before the Extended Maturity Date (as defined in Schedule B),
or (B) any prepayment occurring as a result of the application of any insurance
proceeds or condemnation award under any Security Instrument or as provided in
subparagraph (c) of Schedule A.
(c) Schedule A and Schedule B are hereby incorporated by reference into
this Note.
(d) Any required prepayment of less than the entire 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. Upon the making of any voluntary prepayment of less
than the entire unpaid principal balance of this Note, the required monthly
installments of principal and interest shall be adjusted based on the then
outstanding principal balance of this Note and
utilizing the methodology used to determine the monthly installments of
principal and interest payable in respect of this Note on the closing of this
Note.
(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 Xxxxxxxx's voluntary agreement to the
prepayment premium provisions.
11. COSTS AND EXPENSES. Borrower shall pay within 15 days after demand
all expenses and costs, including reasonable 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 Lender in exercising any right or
remedy under this Note, the Security Instruments, 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. Except as expressly provided in the Master Agreement,
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 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; CONSENT TO JURISDICTION AND VENUE; WAIVER OF TRIAL BY
JURY. The provisions of Section 17.06 of the Master Agreement (entitled "Choice
of Law; Consent to Jurisdiction; Waiver of Jury Trial") are hereby incorporated
into this Note by this reference to the fullest extent as if the text of such
Section were set forth in its entirety herein.
18. CAPTIONS. The captions of the paragraphs of this Note are for
convenience only and shall be disregarded in construing this Note.
19. NOTICES. All notices, demands and other communications required or
permitted to be given by Xxxxxx to Borrower pursuant to this Note shall be given
in accordance with Section 17.08 of the Master Agreement.
20. SECURITY FOR THIS NOTE. The indebtedness evidenced by this Note is
secured by other Security Documents executed by Borrower or its Affiliates.
Reference is made hereby to the Master Agreement and the Security Documents for
additional
rights and remedies of Lender relating to the indebtedness evidenced
by this Note. Each Security Document shall be released in accordance with the
provisions of the Master Agreement and the Security Documents.
21. FIXED FACILITY. This Note is issued as part of the Fixed Facility
established in accordance with the terms of the Master Agreement. Borrower may
not re-borrow any amounts under this Note which it has previously borrowed and
repaid under this Note.
22. CROSS-DEFAULT WITH MASTER AGREEMENT. The occurrence of an Event of
Default under the Master Agreement shall constitute an "EVENT OF DEFAULT" under
this Note, and, accordingly, upon the occurrence of an Event of Default under
the Master Agreement, the entire principal amount outstanding hereunder and
accrued interest thereon shall at once become due and payable, at the option of
the holder hereof.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, Xxxxxxxx has signed and delivered this Note under seal
or has caused this Note to be signed and delivered under seal by its duly
authorized representative. Borrower intends that this Note shall be deemed to be
signed and delivered as a sealed instrument.
BORROWER:
SUN SECURED FINANCING LLC, a Michigan
limited liability company
By: Sun Communities Operating Limited
Partnership, a Michigan limited
partnership, its Sole Member
By: Sun Communities, Inc., a Maryland
Corporation, its General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxx
Title:Executive Vice President-Acquisitions
ASPEN - FT. XXXXXXX LIMITED
PARTNERSHIP, a Michigan limited partnership
By: Sun GP L.L.C., a Michigan limited liability
company, its General Partner
By: Sun Communities, Inc., a Maryland
Corporation, its Manager
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxx
Title:Executive Vice President-Acquisitions
SUN SECURED FINANCING HOUSTON LIMITED
PARTNERSHIP, a Michigan limited partnership
By: Sun Secured Financing GP, Inc., a Michigan
corporation, its General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxx
Title:Executive Vice President-Acquisitions
ATTACHED SCHEDULES. THE FOLLOWING SCHEDULES ARE ATTACHED TO THIS
NOTE:
[X] SCHEDULE A PREPAYMENT PREMIUM (USE IF YIELD
MAINTENANCE IS ELECTED)
[ ] SCHEDULE B MODIFICATIONS TO MULTIFAMILY NOTE
[DEFEASANCE] (USE IF DEFEASANCE IS ELECTED); OR
[X] SCHEDULE B MODIFICATIONS TO MULTIFAMILY NOTE
[EXTENDED MATURITY] (USE IF EXTENDED MATURITY
IS ELECTED)
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 at any time after the date of this Note
and before the first calendar day of May, 2013 ("YIELD MAINTENANCE PERIOD
END DATE"), the prepayment premium shall be the greater of: (i) 1% of the
amount of principal being prepaid; 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 4.25%
U.S. Treasury Security due November, 2013 (the "SPECIFIED U.S.
TREASURY SECURITY"), as the Yield Rate is reported in The Wall
Street Journal on the twenty-fifth Business Day preceding (x)
the Intended Prepayment Date, or (y) the date Lender
accelerates the Loan or otherwise accepts a prepayment
pursuant to Paragraph 10(a)(3) of this Note,
by
(C) the present value factor calculated using the following
formula:
1 - (1 + r)(-n/12)
-------------------
r
[r = Yield Rate
n = the number of months remaining between (1) either
of the following: in the case of a voluntary
prepayment, the last calendar day of the calendar
month during the date on which the prepayment is
made, or (y) in any other case, the date on which
Lender accelerates the unpaid principal balance of
this Note and (2) the Yield Maintenance Period End
Date.
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 Xxxxxx.
(B) Notwithstanding the provisions of Paragraph 10(a) of this Note, no
prepayment premium shall be payable with respect to any prepayment
made on or after the last calendar day of the 13th month prior to
the month in which the Extended Maturity Date (as defined in
Schedule B) occurs.
[Initial page follows.]
INITIAL PAGE TO SCHEDULE A
TO FIXED FACILITY NOTE
INITIAL(S)
JMC
--------------------
SCHEDULE B
EXTENDED MATURITY LOAN
MODIFICATIONS TO MULTIFAMILY NOTE
The Fixed Facility Note dated April 5, 2004, in the original principal
amount of $77,362,000.00 (the "NOTE") issued by (a) SUN SECURED FINANCING LLC, a
Michigan limited liability company, (b) ASPEN - FT. XXXXXXX LIMITED PARTNERSHIP,
a Michigan limited partnership and (c) SUN SECURED FINANCING HOUSTON LIMITED
PARTNERSHIP, a Michigan limited partnership (collectively, "BORROWER") and
payable to the order of ARCS COMMERCIAL MORTGAGE CO., L.P., a California limited
partnership ("LENDER") is hereby amended as follows:
1. Paragraph 3(c) of the Note is hereby modified by adding the
following new sentence at the end thereof:
"Notwithstanding the foregoing, if the Extension [defined and
described in Paragraph 3(e) below] becomes effective, then (i) the monthly
payments required herein will be payable through the Maturity Date, (ii)
thereafter, consecutive monthly installments of principal and interest
will be payable as provided in Paragraph 3(e) below, (iii) any remaining
principal and interest shall be due and payable on the first day of the
month that is one year after the Maturity Date (the "Extended Maturity
Date"), and (iv) any reference to the term "Maturity Date" contained in
this Note or in any other Loan Document will be deemed to be a reference
to the Extended Maturity Date."
2. The following paragraph is hereby added as Paragraph 3(e) of the
Note:
"(e) Unless the Borrower notifies the Lender in writing not less
than 30 days from, but not more than 60 days prior to, the Maturity Date
(in the manner specified in the Master Agreement for giving notices) that
it does not desire the Extension to be effective and the conditions set
forth in paragraphs 1, 2 and 3 below are satisfied, the Maturity Date of
this Note shall be automatically extended (the "Extension") for a one-year
period beginning on the Maturity Date and ending on the Extended Maturity
Date (the "Extension Period") on the terms set forth in paragraphs 4, 5,
6, 7, and 8 below:
(1) No Event of Default has occurred and is continuing (or
any event which, with the giving of notice or the passage of time,
or both, would constitute an Event of Default) and no material Event
of Default has occurred during the 12 months immediately preceding
the commencement of the Extension Option.
(2) No monthly payment or any other payment due under this
Note has been past due for 30 days or more during the 12 months
immediately preceding the commencement of the Extension Period.
(3) On the initial Maturity Date, Borrower makes an
installment of principal and interest in an amount equal to the
regularly scheduled monthly payment due prior to the initial
Maturity Date as set forth in Paragraph 3(c) above.
(4) During the Extension Period, interest shall accrue on
the unpaid principal balance of this Note at the Adjustable Rate.
The Adjustable Rate shall change on each Rate Change Date (defined
below) until the loan is repaid in full. The Adjustable Rate shall
be the rate per annum that is equal to the sum of (i) the Current
Index (defined below), and (ii) the Margin (defined below), which
sum is then rounded to three decimal places. Accrued interest on
this Note shall be paid in arrears.
(5) Consecutive monthly installments of principal and
interest, each in the amount of the Required Monthly Payment
(defined below), shall be due and payable on the first day of the
month following the initial Maturity Date and on the first day of
each month thereafter, 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, if not sooner paid, shall be due and payable on the
Extended Maturity Date. The initial Required Monthly Payment shall
be the amount required to pay the unpaid principal balance of this
Note in equal monthly installments, including accrued interest at
the Adjustable Rate over the Remaining Amortization Period (defined
below). Thereafter, to the extent that the Adjustable Rate has
changed, the Required Monthly Payment shall change on each Payment
Change Date, and shall be in such amount as shall cause the unpaid
principal balance of the Note to be amortized over the Remaining
Amortization Period (defined below). The Required Monthly Payment
shall be calculated utilizing an actual/360 interest calculation
payment schedule based on a 360-day year consisting of the actual
number of days in each month. The amount of the Required Monthly
Payment that is allocated to interest shall be calculated utilizing
the accrual method set forth in Paragraph 3(b) above. The balance of
the Required Monthly Payment will be allocated to principal and such
amount will vary depending on the amount of the Required Monthly
Payment that is allocated to interest.
(6) Before each Payment Change Date, Lender shall
re-calculate the Adjustable Rate and shall notify Borrower (in the
manner specified in
the Security Instrument for giving notices) of any change in the
Adjustable Rate and the Required Monthly Payment.
(7) If Lender at any time determines, in its sole but
reasonable discretion, that it has miscalculated the amount of the
Required Monthly Payment (whether because of a miscalculation of the
Adjustable Rate or otherwise), then Lender shall give notice to
Borrower of the corrected amount of the Required Monthly Payment
(and the corrected Adjustable Rate, if applicable) and (i) if the
corrected amount of the Required Monthly Payment represents an
increase, then Borrower shall, within 30 calendar days thereafter,
pay to Lender any sums that Borrower would have otherwise been
obligated under this Note to pay to Lender had the amount of the
Required Monthly Payment not been miscalculated, or (ii) if the
corrected amount of the Required Monthly Payment represents a
decrease thereof and Borrower is not otherwise in breach or default
under any of the terms and provisions of the Note, the Security
Instrument or any other loan document evidencing or securing the
Note, then Borrower shall thereafter be paid the sums that Borrower
would not have otherwise been obligated to pay to Lender had the
amount of the Required Monthly Payment not been miscalculated.
(8) For purposes of this Section, the following definitions
shall apply:
CURRENT INDEX: The published Index that is effective on
the 15th day before the applicable Rate Change Date.
INDEX: The British Bankers Association fixing of the
London Inter-Bank Offered Rate for 1-month U.S.
Dollar-denominated deposits as reported by Telerate through
electronic transmission. If the Index is no longer available,
or is no longer posted through electronic transmission, Lender
will choose a new index that is based upon comparable
information and provide notice thereof to Borrower.
MARGIN: 2.40% (which Margin includes the Variable
Facility Fee).
ORIGINAL AMORTIZATION PERIOD: 360 months.
PAYMENT CHANGE DATE: The first day of the month
following each Rate Change Date until this Note is repaid in
full.
RATE CHANGE DATE: The initial Maturity Date and the
first day of each month thereafter until this Note is repaid
in full.
REMAINING AMORTIZATION PERIOD: For an amortizing Loan,
as of the initial Maturity Date and the applicable Payment
Change Date thereafter, the Original Amortization Period minus
the number of scheduled monthly payments that have elapsed
since the date of this Note."
3. The following new sentence is hereby added to Paragraph 8 of the Note:
"Notwithstanding the foregoing, if the Extension Option becomes effective,
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 the Default Rate which is equal to the lesser of 4 percentage points
above the then-current Adjustable Rate or the maximum interest rate which
may be collected from Borrower under applicable law."
[Initial page follows.]
INITIAL PAGE TO SCHEDULE B
TO FIXED FACILITY NOTE
JMC
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INITIALS
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