MULTIFAMILY NOTE (MULTISTATE – REVISION DATE 11-01-2000)
FHLMC
Loan No. 002732432
(MULTISTATE
– REVISION DATE 11-01-2000)
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US
$5,250,000.00
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As
of December 27, 2000
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FOR
VALUE RECEIVED, the undersigned
("Borrower") jointly and severally (if more than
one) promises to pay to the order of NORTHLAND / MARQUETTE
CAPITAL GROUP, INC., a Minnesota corporation, the principal sum of Five Million
Two Hundred Fifty Thousand and no/100 Dollars (US $5,250,000.00) with
interest on the unpaid principal balance at the annual rate of seven and
twenty-two one hundredths percent (7.22%).
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, and 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" and other
capitalized terms used but not defined in this Note shall have the meanings
given to such terms in the Security Instrument.
2. Address
for Payment. All payments due under this Note shall be
payable at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇-4435 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 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 Thirty-Five Thousand Seven Hundred Seven and 49/100 Dollars (US $35,707.49),
shall be payable on the first day of each month beginning on February 1, 2001
until the entire unpaid principal balance evidenced by this Note is fully
paid.
(c) Any
accrued interest remaining past due for 30 days or more may, at ▇▇▇▇▇▇’s
discretion, 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
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1
accrued
interest which has not become part of the unpaid principal
balance. Any remaining principal and interest shall be due and
payable on January 1, 2011 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 paid in
full.
(d) 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 ▇▇▇▇▇▇, in
▇▇▇▇▇▇'s discretion. ▇▇▇▇▇▇▇▇ agrees that neither ▇▇▇▇▇▇'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 as to 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 (except if notice is required by applicable law,
then after such notice). 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 ten (10) days after the amount is due (unless applicable law
requires a longer period of time before a late charge may be imposed, in which
event such longer period shall be substituted), Borrower shall pay to Lender,
immediately and without demand by Lender, a late charge equal to five percent
(5%) of such amount (unless applicable law requires a lesser amount be charged,
in which event such lesser amount shall be substituted). 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. ▇▇▇▇▇▇▇▇ 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
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2
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 (a) any monthly installment under this Note
remains past due for thirty (30) days or more, or (b) any other Event of Default
has occurred and is continuing, 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 the occurrence of such other Event of Default, as
applicable, at a rate (the "Default Rate") equal to the lesser
of four (4) percentage points above the rate stated in the first paragraph
of
this Note and 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, 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 under
this Note is delinquent for more than thirty (30) days, ▇▇▇▇▇▇ 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. ▇▇▇▇▇▇▇▇ also acknowledges that, during the time that any
monthly installment under this Note is delinquent for more than thirty (30)
days
or any other Event of Default has occurred and is continuing, ▇▇▇▇▇▇’s risk of
nonpayment of this Note will be materially increased and Lender is entitled
to
be compensated for such increased risk. ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇'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 zero percent (0%) of the original principal balance of
this Note, plus any other amounts for which Borrower has personal liability
under this Paragraph 9.
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3
(c) In
addition to ▇▇▇▇▇▇▇▇’s personal liability under Paragraph 9(b), Borrower shall
be personally liable to Lender for the repayment of a further portion of the
Indebtedness equal to any loss or damage suffered by ▇▇▇▇▇▇ as a result of
(1)
failure of Borrower to pay to Lender upon demand after an Event of Default
all
Rents to which Lender is entitled under Section 3(a) of the Security Instrument
and the amount of all security deposits collected by Borrower from tenants
then
in residence; (2) failure of Borrower to apply all insurance proceeds and
condemnation proceeds as required by the Security Instrument; or (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.
(d)
For purposes of determining Borrower's personal liability under Paragraph 9(b)
and Paragraph 9(c), all payments made by Borrower or any guarantor of this
Note
with respect to the Indebtedness and all amounts received by Lender from the
enforcement of its rights under the Security Instrument shall be applied first
to the portion of the Indebtedness for which Borrower has no personal
liability.
(e) 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)
Borrower’s acquisition of any property or operation of any business not
permitted by Section 33 of the Security Instrument; (2) a Transfer
(including, but not limited to, a lien or encumbrance) that is an Event of
Default under Section 21 of the Security Instrument, other than a Transfer
consisting solely of the involuntary removal or involuntary withdrawal of a
general partner in a limited partnership or a manager in a limited liability
company; or (3) fraud or written material misrepresentation by Borrower 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 ▇▇▇▇▇▇.
(f) In
addition to any personal liability for the Indebtedness, Borrower shall be
personally liable to Lender for (1) the performance of all of Borrower’s
obligations under Section 18 of the Security Instrument (relating to
environmental matters); (2) the costs of any audit under Section 14(d) of the
Security Instrument; and (3) any costs and expenses incurred by Lender in
connection with the collection of any amount for which Borrower is personally
liable under this Paragraph 9, including fees and out of pocket expenses of
attorneys and expert witnesses and the costs of conducting any independent
audit
of ▇▇▇▇▇▇▇▇'s books and records to determine the amount for which ▇▇▇▇▇▇▇▇
has
personal liability.
(g) To
the extent that Borrower has personal liability under this Paragraph 9, Lender
may exercise its rights against ▇▇▇▇▇▇▇▇ personally without regard to whether
▇▇▇▇▇▇ 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
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4
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. To
the fullest extent permitted by applicable law, in any action to enforce
▇▇▇▇▇▇▇▇’s personal liability under this Paragraph 9, Borrower waives any right
to set off the value of the Mortgaged Property against such personal
liability.
10. Voluntary
and Involuntary Prepayments.
(a) A
prepayment premium shall be payable in connection with any prepayment (any
receipt by Lender of principal, other than principal required to be paid in
monthly installments pursuant to Paragraph 3(b), prior to the scheduled Maturity
Date set forth in Paragraph 3(c)) under this Note as provided
below:
(1) Borrower
may voluntarily prepay all of the unpaid principal balance of this Note on
a
Business Day designated as the date for such prepayment in a written notice
from
Borrower to Lender given at least 30 days prior to the date of 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 Paragraph 10(c). 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. Unless
expressly provided for in the Loan Documents, Borrower shall not have the option
to voluntarily prepay less than all of the unpaid principal
balance. However, if a partial prepayment is provided for in the Loan
Documents or is accepted by ▇▇▇▇▇▇ in Lender’s discretion, a prepayment premium
calculated pursuant to Paragraph 10(c) shall be due and payable by
Borrower.
(2) Upon
▇▇▇▇▇▇'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, and (B) the prepayment premium calculated pursuant
to Paragraph 10(c).
(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 during the period from one hundred
eighty (180) days before the scheduled Maturity Date to the scheduled Maturity
Date, or (B) any
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5
prepayment
occurring as a result of the application of any insurance proceeds or
condemnation award under the Security Instrument.
(c) Any
prepayment premium payable under this Note shall be computed as
follows:
(1) If
the prepayment is made between the date of this Note and the date that is 114
months after the first day of the first calendar month following the date of
this Note (the "Yield Maintenance Period"), the prepayment
premium shall be whichever is the greater of subparagraphs (i) and (ii)
below:
(i) 1.0%
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
excess (if any) of the Monthly Note Rate over the Assumed
Reinvestment
Rate,
by
(C) the
Present Value Factor.
For
purposes of subparagraph (ii), the
following definitions shall apply:
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Monthly
Note Rate: one-twelfth (1/12) of the annual interest rate of this
Note, expressed as a decimal calculated to five
digits.
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Prepayment
Date: in the case of a voluntary prepayment, the date
on which the prepayment is made; in the case of the application by
Lender
of collateral or security to a portion of the principal balance,
the date
of such application; and in any other case, the date on which Lender
accelerates the unpaid principal balance of this
Note.
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Assumed
Reinvestment Rate: one-twelfth (1/12) of the yield
rate as of the date 5 Business Days before the Prepayment Date, on
the
5.750% U.S. Treasury Security due August 1, 2010, as reported in
The
Wall Street Journal, expressed as a decimal calculated to five
digits. In the event that no yield is published on the
applicable date for the Treasury Security used to determine the Assumed
Reinvestment Rate, Lender, in its discretion, shall select the
non-callable Treasury Security maturing in the same year as the Treasury
Security specified above with the lowest yield published in The Wall
Street Journal as of the applicable date. If the
publication of such yield rates in The Wall Street Journal is
discontinued for any reason, Lender shall select a security with
a
comparable rate and term to the Treasury Security used to determine
the
Assumed Reinvestment
Rate. The
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6
selection
of an alternate security pursuant to this Paragraph shall be made in ▇▇▇▇▇▇’s
discretion.
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Present
Value Factor: the factor that discounts to present
value the costs resulting to Lender from the difference in interest
rates
during the months remaining in the Yield Maintenance Period, using
the
Assumed Reinvestment Rate as the discount rate, with monthly compounding,
expressed numerically as follows:
|
n
= number of months
remaining in Yield Maintenance Period
ARR
=
Assumed
Reinvestment Rate
(2) If
the prepayment is made after the expiration of the Yield Maintenance Period
but
before the period set forth in Paragraph 10(b)(A) above, the prepayment premium
shall be 1.0% of the unpaid principal balance of this Note.
(d) Any
permitted or 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇'s incurring loss, including reinvestment loss, additional
expense and frustration or impairment of ▇▇▇▇▇▇'s ability to meet its
commitments to third parties. ▇▇▇▇▇▇▇▇ agrees to pay to ▇▇▇▇▇▇ 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. ▇▇▇▇▇▇▇▇ therefore acknowledges and agrees that the formula
for calculating prepayment premiums set forth in this Note 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, 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. To the fullest extent allowed by applicable
law, Borrower shall pay all expenses and costs, including fees and out-of-pocket
expenses of attorneys
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7
(including
▇▇▇▇▇▇’s in-house attorneys) and expert witnesses and costs of investigation,
incurred by ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ in exercising any right or remedy under 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
▇▇▇▇▇▇ 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
Borrower and all endorsers and guarantors of this Note and all other third
party
obligors.
14. Loan
Charges. 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 ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ solely for the purpose of carrying on a
business or commercial enterprise, and not for personal, family, household,
or
agricultural purposes.
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8
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 which the Land is located.
18. Captions. The
captions of the paragraphs of this Note are for convenience only and shall
be
disregarded in construing this Note.
19. Notices;
Written Modifications. All notices, demands and other communications
required or permitted to be given by ▇▇▇▇▇▇ to Borrower pursuant to this Note
shall be given in accordance with Section 31 of the Security
Instrument. Any modification or amendment to this Note shall be
ineffective unless in writing signed by the party sought to be charged with
such
modification or amendment; provided, however, that in the event of a Transfer
under the terms of the Security Instrument, any or some or all of the
Modification to Multifamily Note may be modified or rendered void by Lender
at
Lender’s option by notice to Borrower/transferee.
20. Consent
to Jurisdiction and Venue. ▇▇▇▇▇▇▇▇ 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 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. ▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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
EXHIBIT. The
following Exhibit is attached to this Note:
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X
| Exhibit
A Modifications
to Multifamily Note
PAGE
9
IN
WITNESS WHEREOF,
▇▇▇▇▇▇▇▇ 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.
REGENCY
NORTH ASSOCIATES, L.P.,
a
Missouri limited partnership
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By:
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KELCOR,
INC., a Missouri corporation
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Its: General
Partner
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇
▇.
▇▇▇▇▇▇▇, Vice President
Borrower’s
Social Security/Employer ID Number:
▇▇-▇▇▇▇▇▇▇
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10
PAY
TO
THE ORDER OF FEDERAL HOME LOAN MORTGAGE CORPORATION, WITHOUT RECOURSE, THE
27TH DAY OF
DECEMBER, 2000.
NORTHLAND / MARQUETTE
CAPITAL GROUP, INC.,
a
Minnesota corporation
By: _____________________________
▇▇▇▇
▇.
▇▇▇▇▇▇
Vice
President
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11
EXHIBIT
A
MODIFICATIONS
TO MULTIFAMILY NOTE
Paragraph
9(c) is amended to add the following subparagraph (4):
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(4)
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failure
by Borrower to pay the amount of
any
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o
fire, hazard or other
insurance premiums,
o
Taxes,
x
water and sewer
charges,
x
ground
rents,
x
assessments or other
charges
in
accordance with the terms of the Security Instrument.
PAGE
A-1