Exhibit 10.29
MULTIFAMILY NOTE
US $38,400,000
December 29, 2003
FOR VALUE RECEIVED, the undersigned ("BORROWER") jointly and severally (if
more than one) promises to pay to the order of RED MORTGAGE CAPITAL, INC., an
Ohio corporation, the principal sum of Thirty Eight Million Four Hundred
Thousand and 00/100 Dollars (US $38,400,00.00), with interest accruing on the
unpaid principal balance from the date of disbursement until fully paid at the
annual rate of Six and 24/100 percent (6.24%).
1. DEFINED TERMS. As used in this Note, (i) the term "LENDER" means the
holder of this Note, (ii) the term "INDEBTEDNESS" means the principal of,
interest on, or any other amounts due at any time under, this Note, the Security
Instrument or any other Loan Document, including prepayment premiums, late
charges, default interest, and advances to protect the security of the Security
Instrument under Section 12 of the Security Instrument, and (iii) a "BUSINESS
DAY" means any day other than a Saturday, Sunday or any other day on which
Lender is not open for business. Event of Default, Key Principal and other
capitalized terms used but not defined in this Note shall have the meanings
given to such terms in the Security Instrument (as defined in Paragraph 5).
2. ADDRESS FOR PAYMENT. All payments due under this Note shall be payable
at Two Miranova Place, 12th Floor, Columbus, OH 43215, Attention: Servicing, or
such other place as may be designated by written notice to Borrower from or on
behalf of ▇▇▇▇▇▇.
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.
(b) Interest under this Note shall be computed on the basis of (check one
only):
|X| a 360-day year consisting of twelve 30-day months.
| | 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) Consecutive monthly installments of principal and interest, each in
the amount of TWO HUNDRED FIFTY THREE THOUSAND SEVENTY FIVE AND 73/100 Dollars
(US $253,075.73), shall be payable on the first day of each month beginning on
February 1, 2004, 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
▇▇▇▇▇▇ ▇▇▇ MULTIFAMILY NOTE - TEXAS FORM 4144 04/03 Page 1
interest which has not become part of the unpaid principal balance. Any
remaining principal and interest shall be due and payable on January 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 "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 Deed of Trust, Assignment of Rents and Security Agreement and
Fixture Filing dated as of the date of this Note (the "SECURITY INSTRUMENT"),
and reference is made to the Security Instrument for other rights of Lender
concerning the collateral for the Indebtedness.
6. ACCELERATION. If an Event of Default has occurred and is continuing,
the entire unpaid principal balance, any accrued interest, the prepayment
premium payable under Paragraph 10, if any, and all other amounts payable under
this Note and any other Loan Document shall at once become due and payable, at
the option of Lender, without any prior notice to Borrower. Lender may exercise
this option to accelerate regardless of any prior forbearance.
7. LATE CHARGE. If any monthly 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 Instrument 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. ▇▇▇▇▇▇▇▇ 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, 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
▇▇▇▇▇▇ ▇▇▇ MULTIFAMILY NOTE - TEXAS FORM 4144 04/03 Page 2
monthly installment or other 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 ▇▇▇▇▇▇'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 or other payment due under this Note is
delinquent for more than 30 days, ▇▇▇▇▇▇'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 any loss or damage suffered by Lender 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; (3) failure of Borrower to comply with Section 14(d) or (e) of the
Security Instrument relating to the delivery of books and records, statements,
schedules and reports; (4) fraud or written material misrepresentation by
▇▇▇▇▇▇▇▇, Key Principal or any officer, director, partner, member or employee of
Borrower in connection with the application for or creation of the Indebtedness
or any request for any action or consent by Lender; or (5) failure to apply
Rents, first, to the payment of reasonable operating expenses (other than
Property management fees that are not currently payable pursuant to the terms of
an Assignment of Management Agreement or any other agreement with Lender
executed in connection with the Loan) and then to amounts ("DEBT SERVICE
AMOUNTS") payable under this Note, the Security Instrument or any other Loan
Document (except that Borrower will not be personally liable (i) to the extent
that Borrower lacks the legal right to direct the disbursement of such sums
because of a bankruptcy, receivership or similar judicial proceeding, or (ii)
with respect to Rents that are distributed in any calendar year if Borrower has
paid all operating expenses and Debt Service Amounts for that calendar year).
(c) ▇▇▇▇▇▇▇▇ 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; or (2) a Transfer that
is an Event of Default under Section 21 of the Security Instrument.
(d) To the extent that Borrower has personal liability under this
Paragraph 9, Lender may exercise its rights against Borrower personally without
regard to whether ▇▇▇▇▇▇ has exercised any rights against the Mortgaged Property
or any other security, or pursued any rights against any guarantor, or
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pursued any other rights available to Lender under this Note, the Security
Instrument, any other Loan Document or applicable law. For purposes of this
Paragraph 9, the term "MORTGAGED PROPERTY" shall not include any funds that (1)
have been applied by Borrower as required or permitted by the Security
Instrument prior to the occurrence of an Event of Default, or (2) Borrower was
unable to apply as required or permitted by the Security Instrument because of a
bankruptcy, receivership, or similar judicial proceeding.
10. VOLUNTARY AND INVOLUNTARY PREPAYMENTS.
(a) A prepayment premium shall be payable in connection with any
prepayment made under this Note as provided below:
(1) Borrower may voluntarily prepay all (but not less than all) of
the unpaid principal balance of this Note only on the last calendar day of
a calendar month and only if ▇▇▇▇▇▇▇▇ 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, ▇▇▇▇▇▇▇▇ fails to prepay this Note
within five (5) Business Days after the Intended
Prepayment Date, then Lender shall have the right, but
not the obligation, to recalculate the prepayment
premium based upon the Yield Rate as reported in The
Wall Street Journal on the twenty-fifth Business Day
preceding the delayed intended Prepayment Date and to
make such calculation as described in Schedule A
attached hereto. Notwithstanding the foregoing, if the
delayed prepayment occurs in a month other than the
month stated in the original Prepayment Notice, then
Lender shall (a) have the right, but not the obligation,
to recalculate the prepayment premium based upon the
Yield Rate as reported in The Wall Street Journal on
the twenty-fifth Business Day preceding the delayed
Intended Prepayment Date and to make such
▇▇▇▇▇▇ ▇▇▇ MULTIFAMILY NOTE - TEXAS FORM 4144 04/03 Page 4
calculation as described in Schedule A attached hereto
and (h) recalculate the amount of interest payable. In
either instance, for purposes of recalculation, such new
prepayment date shall be deemed the "Intended Prepayment
Date."
(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 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 any prepayment occurring as a result of
the application of any insurance proceeds or condemnation award under the
Security Instrument or as provided in subparagraph (c) of Schedule A.
(c) Schedule A is 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 ▇▇▇▇▇▇
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 on Schedule A represents a reasonable
estimate of the damages Lender will incur because of a prepayment.
(f) Borrower further acknowledges that the prepayment premium provisions
of this Note are a material part of the consideration for the loan evidenced by
this Note, and acknowledges that the terms of this Note are in other respects
more favorable to Borrower as a result of the Borrower's voluntary agreement to
the prepayment premium provisions.
11. COSTS AND EXPENSES. Borrower shall pay on demand all expenses and
costs, including fees and out-of-pocket expenses of attorneys and expert
witnesses and costs of investigation, incurred by ▇▇▇▇▇▇ 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
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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 ▇▇▇▇▇▇▇▇, Key Principal, and all
endorsers and guarantors of this Note and all other third party obligors.
14. LOAN CHARGES. Borrower and ▇▇▇▇▇▇ intend at all times to comply with
the law of the State of Texas governing the maximum rate or amount of interest
payable on or in connection with this Note and the Indebtedness (or applicable
United States federal law to the extent that it permits Lender to contract for,
charge, take, reserve or receive a greater amount of interest than under Texas
law). If the applicable law is ever judicially interpreted so as to render
usurious any amount payable under this Note or under any other Loan Document, or
contracted for, charged, taken, reserved or received with respect to the
Indebtedness, or of acceleration of the maturity of this Note, or if any
prepayment by Borrower results in Borrower having paid any interest in excess of
that permitted by any applicable law, then Borrower and Lender expressly intend
that all excess amounts collected by Lender shall be applied to reduce the
unpaid principal balance of this Note (or, if this Note has been or would
thereby be paid in full, shall be refunded to Borrower), and the provisions of
this Note, the Security Instrument and any other Loan Documents immediately
shall be deemed reformed and the amounts thereafter collectible under this Note
or any other Loan Document reduced, without the necessity of the execution of
any new documents, so at to comply with any applicable law, but so as to permit
the recovery of the fullest amount otherwise payable under this Note or any
other Loan Document. The right to accelerate the maturity of this Note does not
include the right to accelerate any interest which has not otherwise accrued on
the date of such acceleration, and Lender does not intend to collect any
unearned interest in the event of acceleration. All sums paid or agreed to be
paid to Lender for the use, forbearance or detention of the Indebtedness shall,
to the extent permitted by any applicable law, be amortized, prorated, allocated
and spread throughout the full term of the Indebtedness until payment in full so
that the rate or amount of interest on account of the Indebtedness does not
exceed the applicable usury ceiling. Notwithstanding any provision contained in
this Note, the Security Instrument or any other Loan Document that permits the
compounding of interest, including any provision by which any accrued interest
is added to the principal amount of this Note, the total amount of interest that
Borrower is obligated to pay and Lender is entitled to receive with respect to
the Indebtedness shall not exceed the amount calculated on a simple (i.e.
noncompounded) interest basis at the maximum rate on principal amounts actually
advanced to or for the account of Borrower, including all current and prior
advances and any advances made pursuant to the Security Instrument or other Loan
Documents (such as for the payment of taxes, insurance premiums and similar
expenses or costs).
15. COMMERCIAL PURPOSE. Borrower represents that the Indebtedness is being
incurred by Borrower solely for the purpose of carrying on a business or
commercial enterprise, and not for personal, family or household purposes.
16. COUNTING OF DAYS. Except where otherwise specifically provided, any
reference in this Note to a period of "days" means calendar days, not Business
Days.
17. GOVERNING LAW. This Note shall be governed by the law of the
jurisdiction in which the Land is located.
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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 ▇▇▇▇▇▇ to Borrower pursuant to this Note shall be given
in accordance with Section 31 of the Security Instrument.
20. CONSENT TO JURISDICTION AND VENUE. Borrower and Key Principal each
agrees that any controversy arising under or in relation to this Note shall be
litigated exclusively in the jurisdiction in which the Land is located (the
"PROPERTY JURISDICTION"). The state and federal courts and authorities with
jurisdiction in the Property Jurisdiction shall have exclusive jurisdiction over
all controversies which shall arise under or in relation to this Note. Borrower
and Key Principal each irrevocably consents to service, jurisdiction, and venue
of such courts for any such litigation and waives any other venue to which it
might be entitled by virtue of domicile, habitual residence or otherwise.
21. WAIVER OF TRIAL BY JURY. ▇▇▇▇▇▇▇▇, KEY PRINCIPAL AND LENDER EACH (A)
AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF
THIS NOTE OR THE RELATIONSHIP BETWEEN THE PARTIES AS LENDER, KEY PRINCIPAL AND
BORROWER THAT IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY
JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR
IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH
PARTY, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.
▇▇▇▇▇▇ ▇▇▇ MULTIFAMILY NOTE - TEXAS FORM 4144 04/03 Page 7
ATTACHED SCHEDULES. THE FOLLOWING SCHEDULES ARE ATTACHED TO THIS NOTE:
|X| SCHEDULE A PREPAYMENT PREMIUM (REQUIRED)
|X| SCHEDULE B-1 MODIFICATIONS TO MULTIFAMILY NOTE (SENIORS HOUSING)
|X| SCHEDULE B-2 MODIFICATIONS TO MULTIFAMILY NOTE (BORROWER REQUESTED)
|X| SCHEDULE C PRINCIPAL ALLOCATION
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ has signed and delivered this Note or has
caused this Note to be signed and delivered by its duly authorized
representative.
BORROWER:
TEXAS ALC PARTNERS, L.P.,
By: Texas ALC, Inc.
Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇: Sr. VP, CFO and Treasurer
▇▇▇▇▇▇▇▇'s Employer ID Number: ▇▇-▇▇▇▇▇▇▇
ALC PROPERTIES, INC.,
a Nevada corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇: Sr. VP, CFO and Treasurer
▇▇▇▇▇▇▇▇'s Employer ID Number: ▇▇-▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ Commitment Number: 996835
▇▇▇▇▇▇ ▇▇▇ MULTIFAMILY NOTE - TEXAS FORM 4144 04/03 Page 8
Pay to the order of ▇▇▇▇▇▇ ▇▇▇, without
recourse.
LENDER:
RED MORTGAGE CAPITAL, INC.,
an Ohio corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Sr. Managing Director
▇▇▇▇▇▇ ▇▇▇ Commitment Number: 996835
▇▇▇▇▇▇ ▇▇▇ MULTIFAMILY NOTE - TEXAS FORM 4144 04/03 Page 9
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 before the last calendar day of
June, 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 August 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: (x) in the case of a
voluntary prepayment, the last calendar day of the
calendar month during 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]
▇▇▇▇▇▇ ▇▇▇ MULTIFAMILY NOTE - TEXAS FORM 4144 04/03 Page A-1
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
▇▇▇▇▇▇'s discretion. If the publication of such Yield
Rates in The Wall Street Journal is discontinued,
Lender shall determine such Yield Rates from another
source selected by Lender.
(b) If the prepayment is made on or after the Yield Maintenance Period End
Date but before the last calendar day of the 4th month prior to the month
in which the Maturity Date occurs, the prepayment premium shall be 1% of
the amount of principal being prepaid.
(c) 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 4th month prior to the month in
which the Maturity Date occurs.
BORROWER'S INITIALS: [illegible]
------------
BORROWER'S INITIALS: [illegible]
------------
▇▇▇▇▇▇ ▇▇▇ MULTIFAMILY NOTE - TEXAS FORM 4144 04/03 Page A-2
SCHEDULE B-1
MODIFICATIONS TO MULTIFAMILY NOTE
(SENIORS HOUSING)
The following modifications are made to the text of the Note that precedes
this Schedule:
1. Section 9(b)(3) of the Note is hereby amended to read as follows:
"Failure of Borrower to comply with Sections 14(d), 14(e), or 14(g) of the
Security Instruments relating to the delivery of books and records,
statements, schedules, and reports."
2. Section 9(b) of the Note is hereby amended to delete the word "or"
immediately preceding paragraph (5) thereof and to insert a semi-colon in lieu
of the period and the word "or", and add the following paragraph (6) at the end
thereof:
"or (6) Borrower's failure to renew, continue, extend, or maintain all
permits, licenses or other certificates or other approvals required to
legally operate the Mortgaged Property as a Seniors Housing Facility, as
defined in the Security Instruments."
3. All capitalized terms used in this Schedule not specifically defined
herein shall have the meanings set forth in the text of the Note that precedes
this Schedule.
BORROWER'S INITIALS: [illegible]
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BORROWER'S INITIALS: [illegible]
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▇▇▇▇▇▇ ▇▇▇ MULTIFAMILY NOTE - TEXAS FORM 4144 04/03 Page B-1-1
SCHEDULE B-2
MODIFICATIONS TO MULTIFAMILY NOTE
(▇▇▇▇▇▇▇▇ REQUESTED)
The following modifications are made to the text of the Note that precedes
this Schedule:
1. Section 5 is hereby deleted in its entirety and the following is
inserted in lieu thereof:
"5. SECURITY. The indebtedness is secured, among other things, by those
certain Multifamily Deeds of Trust and Mortgages 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."
2. Section 9(b)(l) of the Note is amended by adding the phrase "and during
the continuance of" after the word "after" and before the words "an Event of
Default".
3. The first sentence of Section 10(a)(l) is hereby deleted and the
following sentence is inserted in lieu thereof:
"Borrower may voluntarily prepay all or an allocated portion, based on the
allocation percentages identified on Schedule C attached hereto and
incorporated by reference, of the unpaid principal balance of this Note
only on the last calendar day of a calendar month and only if Borrower (i)
has complied with the release provisions contained in the Security
Instruments with respect to a prepayment of an allocated portion of the
unpaid principal balance of this Note, and (ii) has complied with ail of
the following:"
4. The last sentence of Section 12 is amended by adding the phrase "Except
as otherwise prohibited by law," at the beginning thereof.
5. Section 13 is amended by adding the phrase "Except as expressly set
forth herein or in any Loan Document," at the beginning thereof.
6. Section 17 is hereby deleted in its entirety and the following is
inserted in lieu thereof:
"17. GOVERNING LAW. This Note shall be governed by the law of the State of
Texas."
7. Section 20 of the Note is hereby deleted in its entirety and the
following is inserted in lieu thereof:
"Borrower and Key Principal each agrees that any controversy arising under
or in relation to this Note shall be litigated exclusively in the State of
Texas (the "JURISDICTION"). The state and federal courts and authorities
with jurisdiction in the Jurisdiction shall have exclusive jurisdiction
over all
LEASEHOLD MORTGAGE LOAN MODIFICATIONS TO MULTIFAMILY NOTE FORM 4180 11/01
Page B-2-1
controversies which shall arise under or in relation to this Note.
Borrower and Key Principal each irrevocably consents to service,
jurisdiction, and venue of such courts for any such litigation and waives
any other venue to which it might be entitled by virtue of domicile,
habitual residence or otherwise."
8. All capitalized terms used in this Schedule not specifically defined
herein shall have the meanings set forth in the text of the Note that precedes
this Schedule.
BORROWER'S INITIALS: [illegible]
------------
BORROWER'S INITIALS: [illegible]
------------
LEASEHOLD MORTGAGE LOAN MODIFICATIONS TO MULTIFAMILY NOTE FORM 4180 11/01
Page B-2-2
SCHEDULE C
PRINCIPAL ALLOCATION
As of the date of the Note, the obligations evidenced by the Note are
secured by Security Instruments encumbering 24 separate Mortgaged Properties.
For purposes of determining the principal amount with respect to a particular
Mortgaged Property, Lender has allocated the Loan based on the following
percentages:
Mortgaged Property Allocated Percentage
------------------ --------------------
1. Addison House 5%
2. Bliss House 4%
3. Cottonwood House 5%
4. ▇▇▇▇ House 3%
5. ▇▇▇▇▇▇ House 7%
6. Goldfinch House 7%
7. Chaparelle House 4%
8. Grace House 4%
9. ▇▇▇▇▇▇▇ House 4%
10. ▇▇▇▇▇▇▇▇▇ House 3%
11. Savannah House 4%
12. Cameron House 2%
13. Copper Hills House 7%
14. Azalea House 2%
15. ▇▇▇▇▇▇▇▇ House 4%
16. ▇▇▇▇▇▇ House 3%
17. Hickory House 3%
1s. ▇▇▇▇ House 3%
19. ▇▇▇▇▇ House 4%
20. ▇▇▇▇ House 3%
21. ▇▇▇▇▇▇ 3%
22. Sante Fe 4%
23. Terrebonne House 6%
24. ▇▇▇▇▇▇▇ 6%
100.000%
The allocated principal amount for a particular Mortgaged Property shall
be equal to the unpaid principal balance of the Note multiplied by the allocated
percentage for such Mortgaged Property
BORROWER'S INITIALS: [illegible]
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BORROWER'S INITIALS: [illegible]
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Page C-1
