Loan No. 55-9506016
MORTGAGE NOTE
$3,300,000.00 July 14, 1995
FOR VALUE RECEIVED, BEDFORD GREEN FUND XXI, L.P., a Texas
limited partnership having its principal office at 13760 Noel Road, Suite 700,
Dallas, Texas 75240 ("Maker") promises to pay to the order of FLEET REAL ESTATE
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CAPITAL, INC., a Rhode Island corporation, or its assigns ("Payee") having its
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principal office at 4275 Executive Square, Suite 200, La Jolla, California
92037, the Principal Amount (as defined below), together with interest from the
date hereof at the Interest Rate (as defined below). Interest accruing hereunder
shall be calculated on the basis of a 360-day year of twelve 30-day months.
WHEN USED HEREIN, the following capitalized terms shall have
the following meanings:
"Commencement Date" shall be September 1, 1995.
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"Closing Date" shall be July 19, 1995.
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"Default Rate" shall be the Interest Rate plus five percent
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(5%) per annum.
"Interest Rate" shall be eight and forty-eight one hundredths
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percent (8.48%) per annum.
"Lockout Period" shall be the period from July 19, 1995
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through August 1, 1999.
"Maturity Date" shall be July 14, 2002.
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"Monthly Amount" shall be the sum of Twenty-Five Thousand
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Three Hundred Twenty-Seven and 38/100 Dollars ($25,327.38).
"Payment Date" shall be the first business day of each month
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commencing on the first business day of the second full month after the closing
date and continuing to and including the Maturity Date.
"Principal Amount" shall be Three Million Three Hundred
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Thousand and No/100 United States Dollars.
The Principal Amount and interest thereon shall be due and
payable in lawful money of the United States as follows:
Loan No. 55-9506016
(a) On the date hereof, all accrued and unpaid
interest on the unpaid balance through the end of the month in
which the Closing Date occurs shall be due and payable.
Thereafter, commencing on the Commencement Date, eighty-three
(83) equal monthly installments of principal and interest at
the Monthly Amount each shall be due and payable. Each
installment of principal and interest shall be applied first
to interest and the remainder thereof to reduction of
principal. Each monthly installment shall be due on each
Payment Date. In addition, all amounts advanced by Payee
pursuant to applicable provisions of the Security Documents
(as hereinafter defined), together with any interest at the
Default Rate or other charges as therein provided, shall be
immediately due and payable hereunder. In the event any such
advance is not so repaid by Maker, Payee may, at its option,
first apply any payments received hereunder to repay said
advances together with any interest thereon or other charges
as provided in the Security Documents, and the balance, if
any, shall be applied in payment of any installment then due.
The entire remaining unpaid balance of principal of this Note,
all interest accrued thereon and all other sums payable
hereunder or under the Security Documents shall be due and
payable in full on the Maturity Date.
(b) Amounts due on this Note shall be payable,
without any counterclaim, setoff or deduction whatsoever, at
the office of Payee or its agent or designee at the address
set forth in Exhibit 1 or at such other place as Payee or its
agent or designee may from time to time designate in writing.
(c) This Note is secured by an Open-End Mortgage,
Deed of Trust, Security Agreement and Assignment of Rents and
Leases of even date herewith (the "Mortgage") from Maker to
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Payee and by an Assignment of Rents and Leases of even date
herewith (the "Assignment") from Maker to Payee. The Mortgage,
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the Assignment and any other instrument given at any time to
secure this Note are hereinafter collectively called the
"Security Documents."
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(d) This Note may not be prepaid prior to the end of
the Lockout Period, except as set forth herein. Any prepayment
of this Note, in whole or in part, prior to the end of the
Lockout Period, except as permitted herein, shall constitute
an "Event of Default" under the Mortgage. Maker has the right
to prepay the principal of this Note in full or in part on any
Payment Date after the end of the Lockout Period, upon sixty
days' prior written notice and payment, together with the
portion of the principal to be prepaid, of a prepayment
premium in an amount calculated as specified in Appendix 1.
The calculation of the prepayment premium shall be made by
Payee and shall, absent manifest error, be conclusive. In the
event this Note is prepaid from the proceeds of insurance or
condemnation awards in accordance with Sections 10, 11 and 12
of the Mortgage either prior to or after the end of the
Lockout Period, a prepayment premium shall be payable
calculated as specified in Appendix 1. Notwithstanding the
foregoing, this Note may be prepaid without a prepayment
premium during the one hundred eighty (180) day period prior
Loan No. 55-9506016
to the Maturity Date. Upon acceleration of this Note in
accordance with its terms and the terms of the Security
Documents, Maker agrees to pay the prepayment premium
described above in the amount that would be due if a voluntary
payment were made on the date of such acceleration. A tender
of payment of the amount necessary to pay and satisfy the
entire unpaid principal balance of this Note or any portion
thereof at any time after an Event of Default under the
Mortgage or an acceleration by Payee of the indebtedness
evidenced hereby, whether such payment is tendered
voluntarily, during or after foreclosure of the Mortgage, or
pursuant to realization upon other security, shall constitute
a purposeful evasion of the prepayment terms of this Note,
shall be deemed to be a voluntary prepayment hereof, and Maker
shall be required to pay the prepayment premium as described
above. Partial prepayments of principal shall not change the
Payment Dates or amounts of subsequent monthly installments,
unless Payee shall otherwise agree in writing. Notwithstanding
the foregoing, nothing in this paragraph (d) shall vary or
negate the provisions of Section 18(c) of the Mortgage.
(e) If Maker defaults in the payment of any
installment of principal and interest on the date on which it
shall fall due or in the performance of any of the agreements,
conditions, covenants, provisions or stipulations contained in
this Note or in the Security Documents, and if such default
shall continue beyond any grace period provided for in the
Mortgage so as to constitute an Event of Default thereunder,
then Payee, at its option and without further notice to Maker,
may declare immediately due and payable the entire unpaid
principal balance of this Note, together with interest thereon
at an annual rate after the date of such default equal to the
Default Rate, together with all sums due by Maker under the
Security Documents, anything herein or in the Security
Documents to the contrary notwithstanding. The foregoing
provision shall not be construed as a waiver by Payee of its
right to pursue any other remedies available to it under the
Mortgage, this Note or any other Security Document, nor shall
it be construed to limit in any way the application of the
Default Rate. Any payment hereunder may be enforced and
recovered in whole or in part at such time by one or more of
the remedies provided to Payee in this Note or in the Security
Documents. In the event that: (i) this Note or any Security
Document is placed in the hands of an attorney for collection
or enforcement or is collected or enforced through any legal
proceeding; (ii) an attorney is retained to represent Payee in
any bankruptcy, reorganization, receivership, or other
proceedings affecting creditors' rights and involving a claim
under this Note or any Security Document; (iii) an attorney is
retained to protect or enforce the lien of the Mortgage or any
Security Document; or (iv) an attorney is retained to
represent Payee in any other proceedings whatsoever in
connection with this Note, the Mortgage, any of the Security
Documents or any portion of the Mortgaged Property (as defined
in the Mortgage), then Maker shall pay to Payee all reasonable
attorney's fees, costs and expenses incurred in connection
Loan No. 55-9506016
therewith, including costs of appeal, together with interest
on any judgment obtained by Payee at the Default Rate.
(f) If Maker defaults in the payment of any monthly
installment on the Payment Date, and such default is not cured
within five days thereafter, then Maker shall pay to Payee a
late payment charge in an amount equal to six percent (6%) of
the amount of the installment not paid as aforesaid. An
additional late charge equal to six percent (6%) of the
monthly payment due will be charged for each successive month
the payment remains outstanding. Said late charge payments, if
payable, shall be secured by the Mortgage and the other
Security Documents, shall be payable without notice or demand
by Payee, and are independent of and have no effect upon the
rights of Payee under paragraph (e) above.
(g) Maker and all endorsers, sureties and guarantors
hereby jointly and severally waive all applicable exemption
rights, valuation and appraisement, presentment for payment,
demand, notice of demand, notice of nonpayment or dishonor,
protest and notice of protest of this Note, and all other
notices in connection with the delivery, acceptance,
performance, default or enforcement of the payment of this
Note. Maker and all endorsers, sureties and guarantors consent
to any and all extensions of time, renewals, waivers or
modifications that may be granted by Payee with respect to the
payment or other provisions of this Note and to the release of
the collateral or any part thereof, with or without
substitution, and agree that additional makers, endorsers,
guarantors or sureties may become parties hereto without
notice to them or affecting their liability hereunder.
(h) Payee shall not be deemed, by any act of omission
or commission, to have waived any of its rights or remedies
hereunder unless such waiver is in writing and signed by
Payee, and then only to the extent specifically set forth in
writing. A waiver of one event shall not be construed as
continuing or as a bar to or waiver of any right or remedy to
a subsequent event.
(i) This Note shall be governed by and construed in
accordance with the laws of the State in which the Mortgaged
Property is located (the "State").
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(j) The parties hereto intend and believe that each
provision in this Note comports with all applicable law.
However, if any provision in this Note is found by a court of
law to be in violation of any applicable law, and if such
court should declare such provision of this Note to be
unlawful, void or unenforceable as written, then it is the
intent of all parties hereto that such provision shall be
given full force and effect to the fullest possible extent
that is legal, valid and enforceable, that the remainder of
this Note shall be construed as if such unlawful, void or
unenforceable provision were not contained therein, and that
the rights, obligations and interest of Maker and the holder
Loan No. 55-9506016
hereof under the remainder of this Note shall continue in full
force and effect; provided, however, that if any provision of
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this Note which is found to be in violation of any applicable
law concerns the imposition of interest hereunder, the rights,
obligations and interests of Maker and Payee with respect to
the imposition of interest hereunder shall be governed and
controlled by the provisions of the following paragraph.
(k) It being the intention of Payee and Maker to
comply with the laws of the State with regard to the rate of
interest charged hereunder, it is agreed that, notwithstanding
any provision to the contrary in this Note, the Mortgage, or
any of the other Security Documents, no such provision,
including without limitation any provision of this Note
providing for the payment of interest or other charges, shall
require the payment or permit the collection of any amount
("Excess Interest") in excess of the maximum amount of
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interest permitted by law to be charged for the use or
detention, or the forbearance in the collection, of all or any
portion of the indebtedness evidenced by this Note. If any
Excess Interest is provided for, or is adjudicated to be
provided for, in this Note, the Mortgage, or any of the other
Security Documents, then in such event:
(i) the provisions of this paragraph shall
govern;
(ii) Maker shall not be obligated to pay
any Excess Interest;
(iii) any Excess Interest that Payee may
have received hereunder shall, at the option of
Payee, be (x) applied as a credit against the unpaid
principal balance then due under this Note, accrued
and unpaid interest thereon not to exceed the maximum
amount permitted by law, or both, (y) refunded to the
payor thereof or (z) any combination of the
foregoing;
(iv) the applicable interest rate or rates
provided for herein shall be automatically subject to
reduction to the maximum lawful rate allowed to be
contracted for in writing under the applicable usury
laws of the aforesaid State, and this Note, the
Mortgage and the other Security Documents shall be
deemed to have been, and shall be, reformed and
modified to reflect such reduction in such interest
rate or rates; and
(v) Maker shall not have any action or
remedy against Payee for any damages whatsoever or
any defense to enforcement of this Note, Mortgage or
any other Security Document arising out of the
payment or collection of any Excess Interest.
(l) Upon any endorsement, assignment, or other
transfer of this Note by Payee or by operation of law, the
term "Payee," as used herein, shall mean such endorsee,
assignee, or other transferee or successor to Payee then
becoming the holder of this Note. This Note shall inure to the
Loan No. 55-9506016
benefit of Payee and its successors and assigns and shall be
binding upon the undersigned and its successors and assigns.
The term "Maker" as used herein shall include the respective
successors and assigns, legal and personal representatives,
executors, administrators, devisees, legatees and heirs of
Maker.
(m) Any notice, demand or other communication which
any party may desire or may be required to give to any other
party shall be in writing and shall be given as provided in
the Mortgage.
(n) To the extent that Maker makes a payment or Payee
receives any payment or proceeds for Maker's benefit, which
are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee,
debtor in possession, receiver, custodian or any other party
under any bankruptcy law, common law or equitable cause, then,
to such extent, the obligations of Maker hereunder intended to
be satisfied shall be revived and continue as if such payment
or proceeds had not been received by Payee.
(o) Maker shall execute and acknowledge (or cause to
be executed and acknowledged) and deliver to Payee all
documents, and take all actions, reasonably required by Payee
from time to time to confirm the rights created or now or
hereafter intended to be created under this Note and the
Security Documents, to protect and further the validity,
priority and enforceability of this Note and the Security
Documents, to subject to the Security Documents any property
of Maker intended by the terms of any one or more of the
Security Documents to be encumbered by the Security Documents,
or otherwise carry out the purposes of the Security Documents
and the transactions contemplated thereunder; provided,
however, that no such further actions, assurances and
confirmations shall increase Maker's obligations under this
Note.
(p) No modification, amendment, extension, discharge,
termination or waiver (a "Modification") of any provision of
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this Note, or any one or more of the other Security Documents,
nor consent to any departure by Maker therefrom, shall in any
event be effective unless the same shall be in a writing
signed by the party against whom enforcement is sought, and
then such waiver or consent shall be effective only in the
specific instance, and for the purpose, for which given.
Except as otherwise expressly provided herein, no notice to,
or demand on, Maker shall entitle Maker to any other or future
notice or demand in the same, similar or other circumstances.
Payee does not hereby agree to, nor does Payee hereby commit
itself to, enter into any Modification.
(q) Maker hereby expressly and unconditionally
waives, in connection with any suit, action or proceeding
brought by Payee on this Note, any and every right it may have
to (a) a trial by jury, (b) interpose any counterclaim therein
(other than a counterclaim which can only be asserted in the
suit, action or proceeding brought by Payee on this Note and
Loan No. 55-9506016
cannot be maintained in a separate action) and (c) have the
same consolidated with any other or separate suit, action or
proceeding.
(r) Notwithstanding any provision to the contrary in
the Mortgage or this Note, Payee shall not have any recourse
to any asset of Maker or its partners other than the Mortgaged
Property in order to satisfy the indebtedness for payment of
the principal and interest evidenced by this Note, and Payee's
sole recourse for satisfaction of the payment of principal and
interest evidenced by this Note shall be to exercise its
rights against the Mortgaged Property encumbered by the
Mortgage and the other collateral securing this Note. The
foregoing sentence shall not be deemed or construed to be a
release of the indebtedness evidenced by this Note or in any
way impair, limit or otherwise affect the lien of the Mortgage
or any such other instrument securing repayment of this Note
or prevent Payee from naming Maker, its partners, or their
successors or assigns as a defendant to any action to enforce
any remedy for default or prevent Payee from exercising any
assignments of rents and leases or obtaining the appointment
of a receiver so long as there is no personal or deficiency
money judgment sought or entered against Maker, its partners,
or their successors or assigns for payment of principal and
interest evidenced by this Note. Notwithstanding the foregoing
provisions of this paragraph, it is expressly understood and
agreed that the aforesaid limitation of liability shall no way
affect or apply to Maker's or its partners' continued personal
liability for the payment to Payee of:
(i) any loss or damage occurring by reason of all or
any part of the Mortgaged Property being encumbered
by a voluntary lien (other than the Mortgage) granted
by Maker;
(ii) any Rents (as defined in the Mortgage), issues,
profits and/or income collected by Maker in excess of
normal and verifiable operating expenses from the
Mortgaged Property after default by Maker hereunder,
under the Mortgage or under any other instrument
securing or referring to this Note;
(iii) unrefunded security deposits made by tenants
of the Mortgaged Property;
(iv) payment of Taxes, as defined in Section 5 of the
Mortgage, and insurance premiums, payment of which is
required to be made by Maker under the Mortgage;
(v) Rents, security deposits with respect to leases
of the Mortgaged Property, insurance proceeds,
condemnation awards and any other payments or
consideration which Maker receives and to which Payee
Loan No. 55-9506016
is entitled pursuant to the terms of the Mortgage or
of any other Security Document;
(vi) damage to the Mortgaged Property from waste
committed or permitted by Maker;
(vii) loss or damage occurring by reason of the
failure of Maker to comply with any
of the provisions of Section 35 of the Mortgage;
(viii) any loss or claim incurred by or asserted
against Payee as a result of fraud or
misrepresentation by Maker or any of the partners
thereof with respect to any certification,
representation or warranty made by Maker or such
other persons to Payee herein or in any of the
Security Documents;
(ix) all indebtedness and obligations arising under
or pursuant to that certain Environmental Indemnity
dated of even date herewith executed by Maker, the
general partner of Maker and McNeil Real Estate Fund
XXI, L.P. for the benefit of Payee; and
(x) reasonable attorney's fees incurred by Payee in
connection with suit filed on account of any of the
foregoing clauses (i) through (ix).
IN WITNESS WHEREOF, Maker has caused this Note to be executed
and delivered as of the day and year first above written.
BEDFORD GREEN FUND XXI, L.P., a Texas limited partnership
By: Bedford Green Fund XXI Corp., a Delaware
corporation, General Partner
By:
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Name:
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Title:
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Loan No. 55-9506016
APPENDIX 1
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Calculation of Prepayment Premium
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The prepayment premium shall be equal to the greater of (A)
one percent (1%) of the portion of the principal amount of this Note being
repaid or (B) the product of (i) a fraction whose numerator is an amount equal
to the portion of the principal balance of this Note being prepaid and whose
denominator is the entire outstanding principal balance of this Note on the date
of such prepayment (after subtracting the amount of any scheduled principal
payment due on such Payment Date), multiplied by (ii) an amount equal to the
remainder obtained by subtracting (x) an amount equal to the entire outstanding
principal balance of this Note as of the date of such prepayment (after
subtracting the amount of any scheduled principal payment due on such Payment
Date) from (y) the present value as of the date of such prepayment of the
remaining scheduled payments of principal and interest on this Note (including
any final installment of principal payable on the Maturity Date) determined by
discounting such payments at the Discount Rate (as hereinafter defined).
For purposes of this Note:
(x) "Discount Rate" shall mean the rate which, when compounded
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monthly, is equivalent to the Treasury Rate (defined below);
and
(y) "Treasury Rate" shall mean the yield calculated by the linear
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interpolation of the yield, as reported in Federal Reserve
Statistical Release H.15-Selected Interest Rates under the
heading "U.S. government securities/Treasury constant
maturities" for the week ending prior to the date of the
relevant prepayment of this Note, of U.S. Treasury constant
maturities with a maturity date (one longer and one shorter)
most nearly approximating the Maturity Date of this Note. In
the event Release H.15 is no longer published, the Payee shall
select a comparable publication to determine the Treasury
Rate.
Loan No. 55-9506016
EXHIBIT 1
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Amounts due on this note shall be payable to Fleet Real Estate
Capital, Inc. at the following address:
Fleet Real Estate Capital, Inc.
4275 Executive Square
Suite 200
La Jolla, CA 92037
Loan No.: 55-9506016