Form 8-K - CURRENT REPORT
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) June 25, 2004
JOHNSTOWN/CONSOLIDATED INCOME PARTNERS
(Exact Name of Registrant as Specified in Its Charter)
California 0-16010 94-3004963
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification Number)
55 Beattie Place
Post Office Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices)
(Registrant's telephone number)
(864) 239-1000
Item 5. Other Events
On June 30, 2004, the Registrant obtained additional financing, in the amount of
$1,830,000, on its investment property, Cedar Brooke Apartments, located in
Independence, Missouri. The principal amount of the second mortgage is
$1,830,000, and after payment of costs and fees associated with obtaining the
additional financing, the Registrant received net proceeds of approximately
$1,752,000. The second mortgage requires monthly payments of interest beginning
on August 1, 2004 until the loan matures July 1, 2007, with interest being equal
to the one month LIBOR rate plus 300 basis points.
In connection with the new financing, the Registrant agreed to certain
modifications on the existing mortgage loan encumbering Cedar Brooke Apartments.
The modification of terms consisted of an interest rate of 7.74%, monthly
payments of approximately $26,000, commencing August 1, 2004 through its
maturity of July 1, 2014, with a balloon payment of approximately $3,141,000 due
at maturity. The previous terms consisted of monthly payments of approximately
$31,000 with a stated interest rate of 7.44% through its maturity of July 1,
2021, at which time the loan was scheduled to be fully amortized.
The Registrant's general partner is currently evaluating the cash requirements
of the Registrant to determine what portion of the net proceeds, if any, would
be available to distribute to the Registrant's partners.
Item 7. Financial Statements and Exhibits
(c) Exhibits
10.41Form of Allonge and Amendment to Multifamily Note dated June 25,
2004, by and among Johnstown/Consolidated Income Partners, a
California limited partnership, GMAC Commercial Mortgage
Corporation, and Federal Home Loan Mortgage Corporation.*
10.42Form of Multifamily Note dated June 25, 2004, by and between
Johnstown/Consolidated Income Partners, a California limited
partnership, and GMAC Commercial Mortgage Bank.*
*Schedules and supplemental materials to the exhibit have been omitted
but will be provided to the Securities and Exchange Commission upon
request.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
JOHNSTOWN/CONSOLIDATED INCOME PARNTERS
By: CONCAP EQUITIES, INC.
General Partner
By: /s/Martha L. Long
Martha L. Long
Senior Vice President
Date: July 12, 2004
Exhibit 10.41
Old Freddie Mac Loan Number: 002738287
New Freddie Mac Loan Number: 002759896
Cedar Brooke Apartments
ALLONGE AND AMENDMENT TO MULTIFAMILY NOTE
(Cedar Brooke Apartments)
ALLONGE AND AMENDMENT dated effective as of June __, 2004 (this
"Allonge"), to the Multifamily Note dated as of June 27, 2001 (the "Note"), in
the original principal amount of Three Million Eight Hundred Seventy-Five
Thousand and 00/100 Dollars ($3,875,000.00), executed by JOHNSTOWN/CONSOLIDATED
INCOME PARTNERS, A CALIFORNIA LIMITED PARTNERSHIP, a California limited
partnership, as "Borrower", to the order of GMAC COMMERCIAL MORTGAGE
CORPORATION, a California corporation ("Original Lender"), and assigned by
Original Lender to and currently held by the FEDERAL HOME LOAN MORTGAGE
CORPORATION as "Lender".
For valuable consideration, the receipt and sufficiency are hereby acknowledged,
Borrower and Lender hereby amend the Note as follows:
1. From and after the effective date of this Allonge, interest will accrue on
the outstanding principal amount of the Note at the annual rate of seven and
seventy-four hundredths percent (7.74%);
2. As of the effective date of this Allonge, the unpaid principal balance of the
Note is $3,600,387.86. The monthly installment of principal and interest payable
by Borrower on July 1, 2004, shall be in the amount of $30,018.42, reflecting
interest at the rate originally provided for in the Note from June 1, 2004 to
the effective date of this Allonge and interest at the rate provided for in
section 1 of this Allonge for the remainder of the month of June 2004. Paragraph
3(b) of the Note is modified to provide that beginning August 1, 2004, and on
the first day of each consecutive and successive month thereafter until the
Maturity Date, Borrower will pay monthly installment of principal and interest
under the Note in the amount of Twenty-Five Thousand Seven Hundred Ninety-Three
and 62/100 Dollars ($25,793.62).
3. The "Maturity Date" provided for in Paragraph 3(c) of the Note is revised to
July 1, 2014, subject to the provisions of new Paragraph 22 of the Note set
forth below.
4. Paragraph 10(b) of the Note is revised by deleting "one hundred eighty (180)
days" and substituting "zero (0) days".
5. Subparagraph 10(c)(1) of the Note is revised to provide that the Yield
Maintenance Period will end on July 1, 2014.
6. For the purposes of computing the Assumed Reinvestment Rate under Paragraph
10 of the Note, the applicable U.S. Treasury Security is revised to the 11.25%
U.S. Treasury Security due February 15, 2015.
7. A new Paragraph 22 is added to the Note as follows:
22. Extension of Maturity Date. So long as the Maturity Date has not
occurred prior to July 1, 2014 (for the purposes of this Paragraph 22, the
"Initial Maturity Date"), the Indebtedness is not paid in full on the
Initial Maturity Date, and no other Event of Default, or event or
circumstances which, with the giving of notice or passage of time, or
both, could constitute an Event of Default, exists on the Initial Maturity
Date, then the date for full payment of the Indebtedness automatically
shall be extended for a period of twelve (12) months (the "Extension
Period") until July 1, 2015, or any earlier date on which the unpaid
principal balance of this Note becomes due and payable by acceleration or
otherwise (the "Extended Maturity Date"). Principal and interest shall be
payable during the Extension Period, in immediately available funds, as
follows:
(a) On the Initial Maturity Date, Borrower must make the regularly
scheduled monthly payment set forth in Paragraph 3(b).
(b) During the Extension Period, interest will accrue on the unpaid
principal balance of this Note at the "Adjustable Interest Rate"
(hereinafter defined). Notwithstanding anything in this Note that may be
to the contrary, during the Extension Period, interest under this Note
shall be computed, due and payable on the basis of a 360-day year and the
actual number of days in the month for which interest is being calculated
(divide the annual interest by 360, and multiply the quotient by the
number of days in the month for which interest is being calculated),
notwithstanding that the amount of any monthly payment of principal and
interest may be calculated on a "30/360" basis. The amount payable as
interest, or allocated to interest, will vary depending upon the number of
days in the month for which interest is being calculated, in addition to
varying as the Adjustable Interest Rate varies.
(c) During the Extension Period, consecutive monthly installments of
principal and interest shall be payable on the first day of each month
beginning on August 1, 2014, and continuing during the Extension Period
until the Extended Maturity Date. The date on which a monthly installment
of principal and interest is due pursuant to this Section 23(c) is
referred to as that installment's "Installment Due Date". The amount of
the monthly installment of principal and interest payable on an
Installment Due Date, and the portion thereof attributable to principal
and the portion thereof attributable to interest, shall be calculated so
as to equal the monthly payment amount which would be payable on the
Installment Due Date, and allocation thereof between principal and
interest, as if the unpaid principal balance of this Note as of the first
day of the calendar month preceding the Installment Due Date, together
with interest thereon at the Adjustable Interest Rate in effect on the
first day of the calendar month preceding the Installment Due Date, were
to be fully amortized (using an actual/360 method of computing interest)
in equal monthly payments paid on the first day of each calendar month
over an assumed amortization period commencing on the first day of the
calendar month preceding the Installment Due Date and ending on the first
day of the 360th full calendar month following the date of this Note.
Alternatively, Lender may calculate the monthly installment amount on a
"30/360" basis but allocate first to interest the amount due using an
actual/360 method of computing interest and the balance to principal.
Lender shall provide Borrower with Notice of the amount of each monthly
installment due hereunder.
(d) Any accrued interest remaining past due for 30 days or more may,
at Lender'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 to "accrued interest" shall refer to
accrued interest which has not become part of the unpaid principal
balance. All unpaid Indebtedness shall be due and payable in full on the
Extended Maturity Date. The unpaid principal balance shall continue to
bear interest after the Extended Maturity Date at the Default Rate set
forth in Paragraph 22(j) until and including the date on which it is paid
in full.
(e) Any regularly scheduled monthly installment payable pursuant to
Paragraph 22(c) that is received by Lender before the Installment Due Date
shall be deemed to have been received on the Installment Due Date solely
for the purpose of calculating interest due.
(f) If Lender at any time determines that it has miscalculated the
Adjustable Interest Rate or the amount of any monthly installment, then
Lender shall give Notice to Borrower of the corrected Adjustable Interest
Rate and corrected installments. If Borrower has paid one or more monthly
installments calculated at the incorrect Adjustable Interest Rate or
calculated incorrectly and (i) if the corrected Adjustable Interest Rate
or corrected installment results in an increase in the applicable monthly
payment(s), Borrower, within 10 calendar days after receipt of the Notice
from Lender, shall pay to Lender any sums that Borrower would have
otherwise been obligated to pay to Lender under this Note had the amount
of the Adjustable Interest Rate or monthly installment not been
miscalculated, or (ii) if the corrected Adjustable Interest Rate or
monthly installment results in an overpayment having been made by
Borrower, then the amount of the overpayment shall be credited to the next
installment(s) of principal and interest due under this Note (or, if an
Event of Default has occurred and is continuing, such overpayment shall be
credited against any amount owing by Borrower to Lender).
(g) In accordance with this Note, interest charged hereunder cannot
exceed the maximum amount of interest allowed by applicable law. The rate
of interest which results in the maximum amount of interest allowed by
applicable law is referred to as the "Maximum Rate". If the Applicable
Interest Rate at any time exceeds the Maximum Rate, resulting in the
charging of interest hereunder to be limited to the Maximum Rate, then any
subsequent reduction in the Applicable Interest Rate shall not reduce the
rate at which interest under this Note accrues until the total amount of
interest accrued hereunder equals the amount of interest which would have
accrued had the Applicable Interest Rate at all times been in effect.
(h) During the Extension Period, Borrower may pay the entire unpaid
Indebtedness on any Business Day designated as the date for such payment
in a written notice from Borrower to Lender given at least 30 days prior
to the date of such payment. No prepayment premium will be payable by
Borrower during the Extension Period.
(i) The following defined terms are added to this Note:
(i) "Adjustable Interest Rate" means the variable per annum
rate at which interest will accrue on the outstanding
principal balance of this Note. The Adjustable Interest Rate
applicable during any Interest Adjustment Period will equal
the Index Rate, truncated at the fifth (5th) decimal place if
necessary, for such Interest Adjustment Period, plus the
Margin.
(ii) "Margin" means two and one-half (2.5) percentage points
(250 basis points).
(iii) "Index Rate" means, for any Interest Adjustment Period,
the Reference Bill(R) Index Rate for such Interest Adjustment
Period. However, if Freddie Mac has not conducted a Reference
Bill auction within the 60-calendar day period prior to the
first day of an Interest Adjustment Period, the Index Rate for
such Interest Adjustment Period will be the LIBOR Index Rate
for such Interest Adjustment Period minus one-tenth of one
percentage point.
(iv) "Interest Adjustment Period" means each successive one
calendar month beginning on the Initial Maturity Date and
continuing until the entire Indebtedness is paid in full.
(v) "LIBOR Index" means the British Bankers Association's
(BBA) one month LIBOR Rate for United States Dollar (may be
displayed as "USD") deposits, as displayed on the LIBOR Index
Page used to establish the LIBOR Index Rate, as more fully set
forth below.
(vi) "LIBOR Index Rate" means, for any Interest Adjustment
Period after the first Interest Adjustment Period, the British
Bankers Association's (BBA) LIBOR Rate for the LIBOR Index, as
of 11:00 a.m. (London time) on the second London Banking Day
preceding the first day of such Interest Adjustment Period, as
such LIBOR Rate is displayed on the LIBOR Index Page. The
LIBOR Index Rate for the first Interest Adjustment Period
means the British Bankers Association's (BBA) LIBOR Rate for
the LIBOR Index, as of 11:00 a.m. (London time) on the second
London Banking Day preceding the first day of the month in
which the first Interest Adjustment Period begins, as such
LIBOR Rate is displayed on the LIBOR Index Page. The "LIBOR
Index Page" is the Bloomberg L.P., page "BBAM", or such other
page for the LIBOR Index as may replace page BBAM on that
service, or at the option of Lender (i) the applicable page
for the LIBOR Index on another service which electronically
transmits or displays BBA LIBOR Rates, or (ii) any publication
of LIBOR rates available from the BBA. In the event the BBA
ceases to set or publish a LIBOR rate/interest settlement rate
for the LIBOR Index, Lender will designate an alternative
index, and such alternative index shall constitute the LIBOR
Index Rate. A "London Banking Day" is any day on which banks
are open for dealing in interbank deposits in London.
(vii) "Reference Bills(R)" means the unsecured general
obligations of Freddie Mac designated by Freddie Mac as
"Reference Bills(R)" and having original duration to maturity
most comparable to the term of the Reference Bill Index, and
issued by Freddie Mac at regularly scheduled auctions. In the
event Freddie Mac shall at any time cease to designate any
unsecured general obligations of Freddie Mac as "Reference
Bills", then at the option of Lender (i) Lender may select
from time to time another unsecured general obligation of
Freddie Mac having original duration to maturity most
comparable to the term of the Reference Bill Index and issued
by Freddie Mac at regularly scheduled auctions, and the term
"Reference Bills" as used in this Note shall mean such other
unsecured general obligations as selected by Lender; or (ii)
for any one or more Interest Adjustment Periods, Lender may
use the applicable LIBOR Index Rate as the Index Rate for such
Interest Adjustment Period(s).
(viii) "Reference Bill Index" means the one-month Reference
Bills. One-month Reference Bills have maturities of
approximately 30 days.
(ix) "Reference Bill Index Rate" means, for any Interest
Adjustment Period after the first Interest Adjustment Period,
the Money Market Yield for the Reference Bills as established
by the Reference Bill auction conducted by Freddie Mac most
recently preceding the first day of such Interest Adjustment
Period, as displayed on the Reference Bill Index Page. The
Reference Bill Index Rate for the first Interest Adjustment
Period means the Money Market Yield for the Reference Bills as
established by the Reference Bill auction conducted by Freddie
Mac most recently preceding the first day of the month in
which the first Interest Adjustment Period begins, as
displayed on the Reference Bill Index Page. The "Reference
Bill Index Page" is the Freddie Mac Debt Securities Web Page
(accessed via the Freddie Mac internet site at
www.freddiemac.com), or at the option of Lender, any
publication of Reference Bills auction results available from
Freddie Mac.
(j) Notwithstanding anything else in this Note to the contrary,
during the Extension Period and thereafter, the Default Rate will equal
the greater of the amount calculated pursuant to Paragraph 8 and four (4)
percentage points above the Adjustable Interest Rate, but in no event more
than the Maximum Rate.
(k) Notwithstanding anything in Paragraph 10 that may be deemed to
be to the contrary, the Yield Maintenance Period expires on the Initial
Maturity Date and any prepayment of principal prior to the Initial
Maturity Date must be accompanied by the applicable prepayment premium.
(l) If the Extension Period becomes effective, during the Extension
Period and thereafter, any references to the "Maturity Date" of the Note
in any other Loan Document shall be deemed to mean the Extended Maturity
Date.
(m) Anything in Section 21 of the Security Instrument to the
contrary notwithstanding, Borrower will not request that Lender consent
to, and Lender will not consent to, a Transfer during the Extension
Period.
8. From and after the effective date of this Allonge: (i) references in the Note
and the other Loan Documents to the "Security Instrument" mean the Security
Instrument dated as of the date of the Note, as amended by the First Amendment
to Security Instrument dated as of the date of this Allonge, and (ii) references
in the Loan Documents to the "Note" mean the Note as amended by this Allonge.
9. The Note remains in full force and effect and, except as amended hereby,
unmodified. This Allonge is not intended as a discharge, substitution or
novation of the indebtedness of the Note. Borrower hereby confirms that it has
no defenses or offsets of any kind against any of the indebtedness due under the
Note as modified and amended by this Allonge.
10. Guarantor has signed this Allonge to confirm that its Guaranty remains in
full force and effect and extends to the Note as amended by this Allonge and to
the Security Instrument as amended. Borrower and Guarantor acknowledge that the
request that Lender accept and execute this Allonge is within the scope of
Paragraph 9(e)(3) of the Note.
11. This Allonge is intended to be executed on multiple counterpart signature
pages. Signature Pages Follow
In Witness Whereof, the undersigned have executed this Allonge and Amendment to
Multifamily Note as of the effective date provided for therein.
BORROWER:
JOHNSTOWN/CONSOLIDATED INCOME PARTNERS, A
CALIFORNIA LIMITED PARTNERSHIP, a
California limited partnership
By: ConCap Equities, Inc., a Delaware
corporation, its general partner
By: /s/Patti K. Fielding
Patti K. Fielding
Executive Vice President
In Witness Whereof, the undersigned has executed this Allonge and Amendment to
Multifamily Note as of the effective date provided for therein.
LENDER:
FEDERAL HOME LOAN MORTGAGE CORPORATION
By: _________________________
Name: _________________________
Title:_________________________
SEEN AND AGREED:
GUARANTOR:
AIMCO PROPERTIES, L.P., a Delaware
limited partnership
By: AIMCO-GP, Inc., a Delaware
corporation, its general partner
By:/s/Patti K. Fielding
Patti K. Fielding
Executive Vice President
Exhibit 10.42
FHLMC Loan No. 002759918
Cedar Brooke Apartments
MULTIFAMILY NOTE
MULTISTATE - ADJUSTABLE RATE
REVISION DATE 3-25-04
US $1,830,000.00 Effective Date: as of June ___, 2004
FOR VALUE RECEIVED, the undersigned (together with such party's or
parties' successors and assigns, "Borrower"), jointly and severally (if more
than one) promises to pay to the order of GMAC COMMERCIAL MORTGAGE BANK, a Utah
industrial bank, the principal sum of One Million Eight Hundred Thirty Thousand
and 00/100 Dollars (US $1,830,000.00), with interest on the unpaid principal
balance as hereinafter provided.
1. Defined Terms.
(a) As used in this Note:
"Adjustable Interest Rate" means the variable annual interest rate
calculated for each Interest Adjustment Period so as to equal the
Index Rate for such Interest Adjustment Period (truncated at the
fifth (5th) decimal place if necessary) plus the Margin. However, in
no event will the Adjustable Interest Rate exceed the Capped
Interest Rate.
"Amortization Period" means a period of -0- full consecutive
calendar months.
"Base Recourse" means a portion of the Indebtedness equal to zero
percent (0%) of the original principal balance of this Note.
"Business Day" means any day other than a Saturday, a Sunday or any
other day on which Lender is not open for business.
"Capped Interest Rate" is not applicable, there is no Capped
Interest Rate for the Loan.
"Default Rate" means a variable annual interest rate equal to four
(4) percentage points above the Adjustable Interest Rate in effect
from time to time. However, at no time will the Default Rate exceed
the Maximum Interest Rate.
"Index Rate" means, for any Interest Adjustment Period, the
Reference Bill(R) Index Rate for such Interest Adjustment Period.
"Installment Due Date" means, for any monthly installment of
interest only or principal and interest, the date on which such
monthly installment is due and payable pursuant to Section 3 of this
Note. The "First Installment Due Date" under this Note is August 1,
2004.
"Interest Adjustment Period" means each successive one (1) calendar
month period until the entire Indebtedness is paid in full, except
that the first Interest Adjustment Period is the period from the
date of this Note through June 30, 2004. Therefore, the second
Interest Adjustment Period shall be the period from July 1, 2004
through July 31, 2004, and so on until the entire Indebtedness is
paid in full.
"Lender" means the holder from time to time of this Note.
"LIBOR Index" means the British Bankers Association's (BBA) one (1)
month LIBOR Rate for United States Dollar deposits, as displayed on
the LIBOR Index Page used to establish the LIBOR Index Rate.
"LIBOR Index Rate" means, for any Interest Adjustment Period after
the first Interest Adjustment Period, the BBA's LIBOR Rate for the
LIBOR Index released by the BBA most recently preceding the first
day of such Interest Adjustment Period, as such LIBOR Rate is
displayed on the LIBOR Index Page. The LIBOR Index Rate for the
first Interest Adjustment Period means the British Bankers
Association's (BBA) LIBOR Rate for the LIBOR Index released by the
BBA most recently preceding the first day of the month in which the
first Interest Adjustment Period begins, as such LIBOR Rate is
displayed on the LIBOR Index Page. "LIBOR Index Page" is the
Bloomberg L.P., page "BBAM", or such other page for the LIBOR Index
as may replace page BBAM on that service, or at the option of Lender
(i) the applicable page for the LIBOR Index on another service which
electronically transmits or displays BBA LIBOR Rates, or (ii) any
publication of LIBOR rates available from the BBA. In the event the
BBA ceases to set or publish a LIBOR rate/interest settlement rate
for the LIBOR Index, Lender will designate an alternative index, and
such alternative index shall constitute the LIBOR Index Rate.
"Loan" means the loan evidenced by this Note.
"Lockout Period" is not applicable, there is no Lockout Period under
this Note.
"Margin" means three (3.00) percentage points (300 basis points).
"Maturity Date" means the earlier of (i) July 1, 2007 (the
"Scheduled Maturity Date"), and (ii) the date on which the unpaid
principal balance of this Note becomes due and payable by
acceleration or otherwise pursuant to the Loan Documents or the
exercise by Lender of any right or remedy under any Loan Document.
"Maximum Interest Rate" means the rate of interest that results in
the maximum amount of interest allowed by applicable law.
"Reference Bills(R)" means the unsecured general obligations of the
Federal Home Loan Mortgage Corporation ("Freddie Mac") designated by
Freddie Mac as "Reference Bills(R)" and having original durations to
maturity most comparable to the term of the Reference Bill Index,
and issued by Freddie Mac at regularly scheduled auctions. In the
event Freddie Mac shall at any time cease to designate any unsecured
general obligations of Freddie Mac as "Reference Bills", then at the
option of Lender (i) Lender may select from time to time another
unsecured general obligation of Freddie Mac having original
durations to maturity most comparable to the term of the Reference
Bill Index and issued by Freddie Mac at regularly scheduled
auctions, and the term "Reference Bills" as used in this Note shall
mean such other unsecured general obligations as selected by Lender;
or (ii) for any one or more Interest Adjustment Periods, Lender may
use the applicable LIBOR Index Rate as the Index Rate for such
Interest Adjustment Period(s).
"Reference Bill Index" means the one month Reference Bills.
One-month reference bills have original durations to maturity of
approximately 30 days.
"Reference Bill Index Rate" means, for any Interest Adjustment
Period after the first Interest Adjustment Period, the Money Market
Yield for the Reference Bills as established by the Reference Bill
auction conducted by Freddie Mac most recently preceding the first
day of such Interest Adjustment Period, as displayed on the
Reference Bill Index Page. The Reference Bill Index Rate for the
first Interest Adjustment Period means the Money Market Yield for
the Reference Bills as established by the Reference Bill auction
conducted by Freddie Mac most recently preceding the first day of
the month in which the first Interest Adjustment Period begins, as
displayed on the Reference Bill Index Page. The "Reference Bill
Index Page" is the Freddie Mac Debt Securities Web Page (accessed
via the Freddie Mac internet site at www.freddiemac.com), or at the
option of Lender, any publication of Reference Bills auction results
available from Freddie Mac. However, if Freddie Mac has not
conducted a Reference Bill auction within the 60-calendar day period
prior to the first day of an Interest Adjustment Period, the
Reference Bill Index Rate for such Interest Adjustment Period will
be the LIBOR Index Rate for such Interest Adjustment Period.
"Remaining Amortization Period" means, at any point in time, the
number of consecutive calendar months equal to the number of months
in the Amortization Period minus the number of scheduled monthly
installments of principal and interest that have elapsed since the
date of this Note.
"Security Instrument" means the multifamily mortgage, deed to secure
debt or deed of trust effective as of the effective date of this
Note, from Borrower to or for the benefit of Lender and securing
this Note.
"Window Period" means the three (3) consecutive calendar month
period prior to the Scheduled Maturity Date.
"Yield Maintenance Period" means the period from and including the
day following the expiration of the Lockout Period (or if there is
no Lockout Period, from and including the date of this Note) until
but not including N/A.
(b) 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 GMAC Commercial Mortgage Corporation, 200 Witmer
Road, P.O. Box 809, Horsham, Pennsylvania 19044, Attn:
Servicing-Account Manager, or such other place as may be
designated by Notice to Borrower from or on behalf of Lender.
3. Payments.
(a) Interest will accrue on the outstanding principal balance of
this Note at the Adjustable Interest Rate, subject to the
provisions of Section 8 of this Note.
(b) Interest under this Note shall be computed, payable and
allocated on the basis of an actual/360 interest calculation
schedule (interest is payable for the actual number of days in
each month, and each month's interest is calculated by
multiplying the unpaid principal amount of this Note as of the
first day of the month for which interest in being calculated
by the applicable Adjustable Interest Rate, dividing the
product by 360, and multiplying the quotient by the number of
days in the month for which interest is being calculated). For
convenience in determining the amount of a monthly installment
of principal and interest under this Note, Lender will use a
30/360 interest calculation payment schedule (each year is
treated as consisting of twelve 30-day months). However, as
provided above, the portion of the monthly installment
actually payable as and allocated to interest will be based
upon an actual/360 interest calculation schedule, and the
amount of each installment attributable to principal and the
amount attributable to interest will vary based upon the
number of days in the month for which such installment is
paid. Each monthly payment of principal and interest will
first be applied to pay in full interest due, and the balance
of the monthly payment paid by Borrower will be credited to
principal.
(c) Unless disbursement of principal is made by Lender to Borrower
on the first day of a calendar month, interest for the period
beginning on the date of disbursement and ending on and
including the last day of such calendar month shall be payable
by Borrower simultaneously with the execution of this Note. If
disbursement of principal is made by Lender to Borrower on the
first day of a calendar month, then no payment will be due
from Borrower at the time of the execution of this Note. The
Installment Due Date for the first monthly installment payment
under Section 3(d) of interest only or principal and interest,
as applicable, will be the First Installment Due Date set
forth in Section 1(a) of this Note. Except as provided in this
Section 3(c) and in Section 10, accrued interest will be
payable in arrears.
(d) Beginning on the First Installment Due Date, and continuing
until and including the monthly installment due on the
Maturity Date, accrued interest only shall be payable by
Borrower in consecutive monthly installments due and payable
on the first day of each calendar month. The amount of the
monthly installment of interest only payable pursuant to this
Section 3(d) on an Installment Due Date shall equal the
product of (i) annual interest on the unpaid principal balance
of this Note as of the first day of the Interest Adjustment
Period immediately preceding the Installment Due Date at the
Adjustable Interest Rate in effect for such Interest
Adjustment Period, divided by 360, multiplied by (ii) the
number of days in such Interest Adjustment Period.
(e) All remaining Indebtedness, including all principal and
interest, shall be due and payable by Borrower on the Maturity
Date.
(f) Lender shall provide Borrower with notice, given in the manner
specified in the Security Instrument, of the amount of each
monthly installment due under this Note. However, if Lender
has not provided Borrower with prior notice of the monthly
payment due on any Installment Due Date, then Borrower shall
pay on that Installment Due Date an amount equal to the
monthly installment payment for which Borrower last received
notice. If Lender at any time determines that Borrower has
paid one or more monthly installments in an incorrect amount
because of the operation of the preceding sentence, or because
Lender has miscalculated the Adjustable Interest Rate or has
otherwise miscalculated the amount of any monthly installment,
then Lender shall give notice to Borrower of such
determination. If such determination discloses that Borrower
has paid less than the full amount due for the period for
which the determination was made, Borrower, within 30 calendar
days after receipt of the notice from Lender, shall pay to
Lender the full amount of the deficiency. If such
determination discloses that Borrower has paid more than the
full amount due for the period for which the determination was
made, then the amount of the overpayment shall be credited to
the next installment(s) of interest only or principal and
interest, as applicable, due under this Note (or, if an Event
of Default has occurred and is continuing, such overpayment
shall be credited against any amount owing by Borrower to
Lender).
(g) All payments under this Note shall be made in immediately
available U.S. funds.
(h) Any regularly scheduled monthly installment of interest only
or principal and interest payable pursuant to this Section 3
that is received by Lender before the date it is due shall be
deemed to have been received on the due date for the purpose
of calculating interest due.
(i) Any accrued interest remaining past due for 30 days or more,
at Lender's discretion, may be added to and become part of the
unpaid principal balance of this Note and any reference to
"accrued interest" shall refer to accrued interest which has
not become part of the unpaid principal balance. Any amount
added to principal pursuant to the Loan Documents shall bear
interest at the applicable rate or rates specified in this
Note and shall be payable with such interest upon demand by
Lender and absent such demand, as provided in this Note for
the payment of principal and interest.
(j) In accordance with Section 14, interest charged under this
Note cannot exceed the Maximum Interest Rate. If the
Adjustable Interest Rate at any time exceeds the Maximum
Interest Rate, resulting in the charging of interest hereunder
to be limited to the Maximum Interest Rate, then any
subsequent reduction in the Adjustable Interest Rate shall not
reduce the rate at which interest under this Note accrues
below the Maximum Interest Rate until the total amount of
interest accrued hereunder equals the amount of interest which
would have accrued had the Adjustable Interest Rate at all
times been in effect.
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 the amount received to amounts
then due and payable in any manner and in any order determined
by Lender, in Lender's discretion. Borrower agrees that
neither Lender'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 by, among other things,
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, any prepayment premium payable under Section 10, 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. For purposes of exercising such option,
Lender shall calculate the prepayment premium as if prepayment
occurred on the date of acceleration. If prepayment occurs
thereafter, lender shall recalculate the prepayment premium as
of the actual prepayment date.
7. Late Charge.
(a) If any monthly installment of interest or principal and
interest or other amount payable under this Note or under the
Security Instrument or any other Loan Document is not received
in full by Lender within five (5) days after the installment
or other amount is due, counting from and including the date
such installment or other 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 installment or other amount due (unless
applicable law requires a lesser amount be charged, in which
event such lesser amount shall be substituted).
(b) Borrower acknowledges that its failure to make timely payments
will cause Lender to incur additional expenses in servicing
and processing the Loan and that it is extremely difficult and
impractical to determine those additional expenses. Borrower
agrees that the late charge payable pursuant to this Section
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
Section 8.
8. Default Rate.
(a) So long as (i) any monthly installment under this Note remains
past due for thirty (30) days or more or (ii) any other Event
of Default has occurred and is continuing, then
notwithstanding anything in Section 3 of this Note to the
contrary, interest under this Note shall accrue on the unpaid
principal balance from the Installment Due Date of the first
such unpaid monthly installment or the occurrence of such
other Event of Default, as applicable, at the Default Rate.
(b) From and after the Maturity Date, the unpaid principal balance
shall continue to bear interest at the Default Rate until and
including the date on which the entire principal balance is
paid in full.
(c) Borrower acknowledges that (i) its failure to make timely
payments will cause Lender to incur additional expenses in
servicing and processing the Loan, (ii) during the time that
any monthly installment under this Note is delinquent for
thirty (30) days or more, Lender 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 (iii) it is extremely difficult and
impractical to determine those additional costs and expenses.
Borrower also acknowledges that, during the time that any
monthly installment under this Note is delinquent for thirty
(30) days or more or any other Event of Default has occurred
and is continuing, Lender's risk of nonpayment of this Note
will be materially increased and Lender is entitled to be
compensated for such increased risk. Borrower 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 Section 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 Lender'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 to 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
other obligations of Borrower.
(b) Borrower shall be personally liable to Lender for the amount
of the Base Recourse, plus any other amounts for which
Borrower has personal liability under this Section 9.
(c) In addition to the Base Recourse, 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 Lender as
a result of the occurrence of any of the following events:
(i) Borrower fails 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. However, Borrower will not be personally liable
for any failure described in this subsection (i) if
Borrower is unable to pay to Lender all Rents and security
deposits as required by the Security Instrument because of
a valid order issued in a bankruptcy, receivership, or
similar judicial proceeding.
(ii) Borrower fails to apply all insurance proceeds and
condemnation proceeds as required by the Security Instrument.
However, Borrower will not be personally liable for any
failure described in this subsection (ii) if Borrower is
unable to apply insurance or condemnation proceeds as required
by the Security Instrument because of a valid order issued in
a bankruptcy, receivership, or similar judicial proceeding.
(iii) Borrower fails to comply with Section 14(g) or (h) of the
Security Instrument relating to the delivery of books and
records, statements, schedules and reports.
(iv) Borrower fails to pay when due in accordance with the terms of
the Security Instrument the amount of any item below marked
"Deferred"; provided however, that if no item is marked
"Deferred", this Section 9(c)(iv) shall be of no force or
effect
[Deferred] Hazard Insurance premiums or other insurance
premiums,
[Collect] Taxes,
[Deferred] water and sewer charges (that could become a lien
on the Mortgaged Property),
[N/A] ground rents,
[Deferred] assessments or other charges (that could become a
lien on the Mortgaged Property)
(d) In addition to the Base Recourse, Borrower shall be personally liable to
Lender for:
(i) the performance of all of Borrower's obligations under Section
18 of the Security Instrument (relating to environmental
matters);
(ii) the costs of any audit under Section 14(g) of the Security
Instrument; and
(iii) any costs and expenses incurred by Lender in connection with
the collection of any amount for which Borrower is personally
liable under this Section 9, including Attorneys' Fees and
Costs and the costs of conducting any independent audit of
Borrower's books and records to determine the amount for which
Borrower has personal liability.
(e) All payments made by Borrower with respect to the Indebtedness
and all amounts received by Lender from the enforcement of its
rights under the Security Instrument and the other Loan
Documents shall be applied first to the portion of the
Indebtedness for which Borrower has no personal liability.
(f) Notwithstanding the Base Recourse, 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:
(i) Borrower's ownership of any property or operation of any
business not permitted by Section 33 of the Security
Instrument;
(ii) 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
(iii) 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
Lender.
(g) To the extent that Borrower has personal liability under this
Section 9, Lender may exercise its rights against Borrower
personally without regard to whether Lender 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. To the
fullest extent permitted by applicable law, in any action to
enforce Borrower's personal liability under this Section 9,
Borrower waives any right to set off the value of the
Mortgaged Property against such personal liability.
10. Voluntary and Involuntary Prepayments.
(a) Any receipt by Lender of principal due under this Note prior
to the Scheduled Maturity Date, other than principal required
to be paid in monthly installments pursuant to Section 3,
constitutes a prepayment of principal under this Note. Without
limiting the foregoing, any application by Lender, prior to
the Scheduled Maturity Date, of any proceeds of collateral or
other security to the repayment of any portion of the unpaid
principal balance of this Note constitutes a prepayment under
this Note.
(b) Borrower may not voluntarily prepay any portion of the
principal balance of this Note during the Lockout Period, if a
Lockout Period is applicable to this Note. However, if any
portion of the principal balance of this Note is prepaid
during the Lockout Period by reason of the application by
Lender of any proceeds of collateral or other security to any
portion of the unpaid principal balance of this Note or
following a determination that the prohibition on voluntary
prepayments during the Lockout Period is in contravention of
applicable law, then Borrower must also pay to Lender upon
demand by Lender, a prepayment premium equal to five percent
(5.0%) of the amount of principal being prepaid.
(c) Following the end of the Lockout Period, 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 Notice from Borrower to Lender given at least
30 days prior to the date of such prepayment. Unless otherwise
expressly provided in the Loan Documents, Borrower may not
voluntarily prepay less than all of the unpaid principal
balance of this Note.
(d) Borrower acknowledges that Lender has agreed that principal
may be prepaid other than on the last calendar day of a month
only because, for the purposes of 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 the month in which the
prepayment occurs.
(e) In order to voluntarily prepay all or any part of the
principal of this Note, Borrower must also pay to Lender,
together with the amount of principal being prepaid, (i) all
accrued and unpaid interest due under this Note, plus (ii) all
other sums due to Lender at the time of such prepayment, plus
(ii) any prepayment premium calculated pursuant to Section
10(f).
(f) Except as provided in Section 10(g), a prepayment premium
shall be due and payable by Borrower in connection with any
prepayment of principal under this Note during the Yield
Maintenance Period. The prepayment premium shall be 1.0% of
the amount of principal being prepaid.
(g) Notwithstanding any other provision of this Section 10, no
prepayment premium shall be payable with respect to (i) any
prepayment made during the Window Period, or (ii) any
prepayment occurring as a result of the application of any
insurance proceeds or condemnation award under the Security
Instrument, or (iii) any prepayment of the entire principal
balance of this Note that occurs on or after the [N/A]
Installment Due Date under this Note with the proceeds of a
fixed interest rate or fixed-to-float interest rate mortgage
loan that is the subject of a binding commitment for purchase
between the Freddie Mac and a Freddie Mac-approved Program
Plus(R) Seller/Servicer.
(h) Unless Lender agrees otherwise in writing, a 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.
(i) Borrower recognizes that any prepayment of any of the unpaid
principal balance of this Note, whether voluntary or
involuntary or resulting from an Event of Default by Borrower,
will result in Lender's incurring loss, including reinvestment
loss, additional expense and frustration or impairment of
Lender's ability to meet its commitments to third parties.
Borrower agrees to pay to Lender 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. Borrower 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. Borrower further
acknowledges that any lockout and the prepayment premium
provisions of this Note are a material part of the
consideration for the Loan, and 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 lockout and
prepayment premium provisions.
11. Costs and Expenses. To the fullest extent allowed by
applicable law, Borrower shall pay all expenses and costs,
including Attorneys' Fees and Costs incurred by Lender 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 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 Lender of remedies so as
to preclude the exercise of any other right or remedy
available to Lender.
13. Waivers. Borrower and all endorsers and guarantors of this
Note and all other third party obligors waive 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.
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. 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 Borrower 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 this 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 this Note.
15. Commercial Purpose. Borrower represents that Borrower is
incurring the Indebtedness solely for the purpose of carrying
on a business or commercial enterprise, and not for personal,
family, household, or agricultural 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
Property Jurisdiction.
18. Captions. The captions of the Sections of this Note are for
convenience only and shall be disregarded in construing this
Note.
19. Notices; Written Modifications.
(a) All Notices, demands and other communications required or
permitted to be given pursuant to this Note shall be given in
accordance with Section 31 of the Security Instrument.
(b) 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 that requires Lender's consent, any or
some or all of the Modifications to Multifamily Note set forth
in Exhibit A to this Note may be modified or rendered void by
Lender at Lender's option, by Notice to Borrower and the
transferee, as a condition of Lender's consent.
20. Consent to Jurisdiction and Venue. Borrower agrees that any
controversy arising under or in relation to this Note may be
litigated in the Property Jurisdiction. The state and federal
courts and authorities with jurisdiction in the Property
Jurisdiction shall have jurisdiction over all controversies
that 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. However, nothing in this Note is
intended to limit any right that Lender may have to bring any
suit, action or proceeding relating to matters arising under
this Note in any court of any other jurisdiction.
21. WAIVER OF TRIAL BY JURY. BORROWER 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 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.
22. State-Specific Provisions. N/A
ATTACHED EXHIBIT. The Exhibit noted below, if marked with an "X" in
the space provided, is attached to this Note:
-----
X Exhibit A Modifications to Multifamily Note
-----
IN WITNESS WHEREOF, and in consideration of the Lender's agreement to lend
Borrower the principal amount set forth above, Borrower 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.
JOHNSTOWN/CONSOLIDATED INCOME PARTNERS, A
CALIFORNIA LIMITED PARTNERSHIP, a
California limited partnership
By: ConCap Equities, Inc., a Delaware
corporation, its general partner
By: /s/Patti K. Fielding
Patti K. Fielding
Executive Vice President
94-3004963
Borrower's Social Security/Employer ID
Number
PAY TO THE ORDER OF FEDERAL HOME LOAN
MORTGAGE CORPORATION, WITHOUT RECOURSE.
GMAC COMMERCIAL MORTGAGE BANK, a
Utah industrial bank
By:________________________
Name:
Title:
FHLMC Loan No. 002759918
EXHIBIT A
MODIFICATIONS TO MULTIFAMILY NOTE
The following modifications are made to the text of the Note that precedes this
Exhibit:
1. Paragraph 9(d) is modified to read as follows:
"(f) In addition to the Base Recourse, Borrower shall be personally
liable to Lender for:
(i) the performance of all of Borrower's obligations under
Section 18 of the Security Instrument (relating to
environmental matters);
(ii) the costs of any audit under Section 14(d) of the
Security Instrument;
(iii) repayment of any advance made by Lender under Section 12
of the Security Instrument for the purpose of procuring
insurance required by Section 19 of the Security
Instrument; and
(iv) 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 Borrower's books and records to determine the
amount for which Borrower has personal liability."
2. The Defined Term "Yield Maintenance Period" is not applicable; there is no
Yield Maintenance Period under this Note. Notwithstanding any other
provision of this Note, no prepayment premium shall be payable with
respect to any prepayment of any portion of the principal balance of this
Note.
3. AIMCO STANDARD (Revised for Adjustable Rate)
A. Paragraph 8(a) of the Note is hereby deleted and replaced with the
following:
Notwithstanding any other provision in this Note, so long as (a) any
monthly installment under this Note remains past due for more than
thirty (30) days 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 (1) the maximum interest rate which may be collected from
Borrower under applicable law or (2) the greater of (i) three
percent (3%) above the Adjustable Interest Rate or (ii) four percent
(4.0%) above the then-prevailing Prime Rate. As used herein, the
term "Prime Rate" shall mean the rate of interest announced by The
Wall Street Journal from time to time as the "Prime Rate".
B. Paragraph 19(b) is modified by deleting: ";
provided, however, that in the event of a Transfer
under the terms of the Security Instrument that
requires Lender's consent, any or some or all of the
Modifications to Multifamily Note set forth in
Exhibit A to this Note may be modified or rendered
void by Lender at Lender's option by Notice of
Borrower and the transferee, as a condition of
Lender's consent" in the last sentence of the
Paragraph; and by adding the following new sentence:
"The Modifications to Multifamily Note set forth in this
Exhibit A shall be null and void unless title to the Mortgaged
Property is vested in an entity whose Controlling Interest(s) are
directly or indirectly held by AIMCO REIT or AIMCO OP. The
capitalized terms used in this paragraph are defined in the Security
Instrument."