LOAN TERMS TABLE
Note Date: February 27, 1998
Borrower: Wellsford Sonterra LLC
Original Principal Amount: $16,400,000.00 Loan No.: 50750
Note Rate: 6.870% Servicing No.: 880802067
Monthly Payment Amount: $107,681.54 Borrower's TIN: 86-
0902924
Amortization Commencement Date: April 1, 1998 Maturity Date: March 1,
2008
Lockout Period: Beginning on the date of this Note and ending on February
28, 2002
Yield Maintenance Period: The period from March 1, 2002 to August 31, 2007
Specified U.S. Treasury Security: 6.125% U.S. Treasury Security due
August, 2007)
PROMISSORY NOTE
FOR VALUE RECEIVED, the borrower described in the Loan Terms Table set
forth above (the "Borrower") promises to pay to the order of NATIONSBANK,
N.A., a national banking association, its successors and assigns (the
"Lender"), the Original Principal Amount (as outstanding from time to time,
the "Principal Amount") under the terms and conditions of this promissory
note (the "Note") and in accordance with the loan agreement of even date
herewith by and between the Borrower and the Lender (the "Loan Agreement").
This Note is secured by a deed of trust, mortgage or deed to secure debt of
even date on certain property of the Borrower (the "Security Instrument")
and other agreements by and between the Borrower and the Lender. The Loan
Terms Table is a part of this Note and all terms used in this Note which
are defined in the Loan Terms Table shall have the meaning set forth
therein. Except as expressly provided otherwise in this Note, the defined
terms in the Loan Documents (as defined in the Loan Agreement) are used
herein with the same meaning. All of the terms, definitions, conditions
and covenants of the Loan Documents are expressly made a part of this Note
by reference in the same manner and with the same effect as if set forth
herein at length. Any holder of this Note is entitled to the benefits of
and remedies provided in the Loan Documents. Any Event of Default under
any of the Loan Documents is an Event of Default under the terms of this
Note.
1. Interest. The outstanding Principal Amount of the loan evidenced
by this Note (the "Loan") shall bear interest at a fixed rate per annum
equal to the Note Rate. Interest shall be computed based on the daily rate
produced assuming a 360 day year, multiplied by the actual number of days
elapsed. Except as otherwise set forth in this Note, interest shall be
paid in arrears.
2. Principal and Interest Payments. The Principal Amount and
interest thereon shall be payable at the Lender's offices in Charlotte,
North Carolina, or at such other place as the Lender may designate in
writing. An initial payment is due on the date hereof for prepaid interest
through and including the last day of the month in which this Note is
executed. Thereafter, except as may be adjusted in accordance with the
immediately following sentence, payment shall be made in consecutive
monthly installments of principal and interest in an amount equal to the
Monthly Payment Amount on the first day of each month beginning on the
Amortization Commencement Date (each a "Scheduled Payment Date"), until the
entire indebtedness evidenced hereby is fully paid, except that any
remaining indebtedness, if not sooner paid, shall be due and payable on the
Maturity Date. Following any partial prepayment occurring solely as a
result of the application of insurance proceeds or condemnation awards
pursuant to the terms of the Loan Agreement, the Lender may, in its sole
discretion, adjust the Monthly Payment Amount to give effect to any such
partial prepayment, provided, however, that in no event will any such
adjustment result in any such installment becoming due and payable on any
date after the Maturity Date.
3. Late Charges. In the event any payment of interest or principal
is not received prior to the 10th day after the same is due (or such
greater period, if any, required by applicable law), the Borrower will pay
to the Lender a late charge of four percent (4%) of the amount of the
overdue payment. This provision for late charges shall not be deemed to
extend the time for payment or be a "grace period" or "cure period" that
gives the Borrower a right to cure a Default Condition. Imposition of late
charges is not contingent upon the giving of any notice or lapse of any
cure period provided for in the Loan Documents.
4. Prepayment. Except as otherwise expressly permitted by this
Section 4, no voluntary prepayments, whether in whole or in part, of the
outstanding Principal Amount or any other amount at any time due and owing
under this Note can be made by the Borrower or any other Person.
(a) Lockout Period. The Borrower has no right to make any
voluntary prepayment, whether in whole or in part, of the outstanding
Principal Amount or any other amount under this Note at any time
during the Lockout Period. Notwithstanding the foregoing, if either
(i) the Lender, in its sole discretion, accepts a full or partial
voluntary prepayment during the Lockout Period or (ii) there is an
involuntary prepayment during the Lockout Period, then, in either
case, the Borrower shall, in addition to any portion of the
outstanding Principal Amount prepaid (together with all interest
accrued and unpaid thereon), pay to the Lender a prepayment premium in
an amount calculated in accordance with Section 4(b) hereof.
(b) During the Yield Maintenance Period. During the Yield
Maintenance Period and upon giving the Lender at least 60 days (but
not more than 90 days) prior written notice, the Borrower may
voluntarily prepay this Note in whole (but not in part) on a Scheduled
Payment Date. Any such voluntary prepayment shall be made by paying
to the Lender the sum of (i) the entire outstanding Principal Amount,
(ii) all accrued interest and any other sums due the Lender at the
time of such prepayment and (iii) a prepayment premium in an amount
equal to the greater of:
(A) 1% of the Principal Amount being prepaid, or
(B) the product obtained by multiplying:
(1) the Principal Amount being prepaid, times
(2) the difference obtained by subtracting (I) the
Yield Rate from (II) the Note Rate, times
(3) the present value factor calculated using the
following formula:
1-(1+r)-n
r
r = Yield Rate
n = the number of years and any fraction thereof,
remaining between the date the prepayment is
made and the Maturity Date of this Note
As used herein, "Yield Rate" means the yield rate for the
Specified U.S. Treasury Security, as reported in The Wall Street
Journal on the fifth Business Day preceding the Prepayment Calculation
Date. If the Yield Rate is not published for the Specified U.S.
Treasury Security, then the "Yield Rate" shall mean the yield rate for
the nearest equivalent U.S. Treasury Security (as selected at the
Lender's sole discretion) as reported in The Wall Street Journal on
the fifth Business Day preceding the Prepayment Calculation Date. If
the publication of such Yield Rate in The Wall Street Journal is
discontinued, the Lender shall determine such Yield Rate from another
source selected by the Lender in the Lender's sole discretion. The
"Prepayment Calculation Date" shall mean, as applicable, the date on
which (i) notice of prepayment is given to the Lender, in the case of
a voluntary prepayment of the entire outstanding Principal Amount of
this Note, (ii) the Lender applies any partial prepayment to the
reduction of the outstanding Principal Amount hereof, in the case of a
voluntary partial prepayment which is accepted by the Lender, (iii)
the Lender accelerates the Loan, in the case of a prepayment resulting
from acceleration, or (iv) the Lender applies funds held under any
Reserve Account, in the case of a prepayment resulting from such an
application (other than in connection with acceleration of the Loan).
(c) After the Yield Maintenance Period. After the expiration of
the Yield Maintenance Period and upon giving the Lender at least 60
days (but not more than 90 days) prior written notice, the Borrower
may voluntarily prepay (without penalty) the Note in whole (but not in
part) on a Scheduled Payment Date.
(d) Limitation on Partial Prepayments. In no event shall the
Lender have any obligation to accept a partial prepayment.
(e) Prepayment Premium Due Whether Voluntary or Involuntary
Prepayment. The Borrower shall pay the applicable prepayment premium
due under this Section 4 regardless of whether the prepayment is
voluntary or involuntary (in connection with the Lender's acceleration
of the outstanding Principal Amount of this Note or otherwise) or
whether the Security Instrument is satisfied or released by
foreclosure (whether by power of sale or judicial proceeding), deed in
lieu of foreclosure or by any other means.
(f) Insurance and Condemnation Proceeds; Excess Interest.
Notwithstanding any other provision herein to the contrary, the
Borrower shall not be required to pay any prepayment premium in
connection with any prepayment occurring solely as a result of (i) the
application of insurance proceeds or condemnation awards pursuant to
the terms of the Loan Documents, or (ii) the application of any
interest in excess of the maximum rate permitted by applicable law to
the reduction of the Principal Amount in accordance with Section 13 of
this Note.
(g) Defeasance
(i) Notwithstanding any provisions of this Section 4 to the
contrary, at any time after the date which (I) is two (2) years
after the "startup day," within the meaning of Section 860G(a)(9)
of the Internal Revenue Code of 1986, as amended from time to
time or any successor statute (the "Code"), of a "real estate
mortgage investment conduit," within the meaning of Section 860D
of the Code, that holds this Note or (II) three (3) years after
the date of final disbursement of Loan proceeds, whichever shall
first occur, and provided no Event of Default has occurred
hereunder or under any of the Loan Documents which is not cured
within any applicable grace period or cure period, the Borrower
may cause the release of the Premises from the lien of the
Security Instrument and the other Loan Documents upon the
satisfaction of the following conditions:
(A) not less than 60 (but not more than 90) days prior
written notice shall be given to the Lender specifying a
date on which the Defeasance Collateral (as hereinafter
defined) is to be delivered (the "Release Date"), such date
being on a Scheduled Payment Date;
(B) all accrued and unpaid interest and all other sums
due under this Note and under the other Loan Documents up to
the Release Date, including, without limitation, all fees,
costs and expenses incurred by the Lender and its agents in
connection with such release (including, without limitation,
the review of the materials described in subsection
4(g)(i)(C) below and any related documentation), shall be
paid in full on or prior to the Release Date; and
(C) the Borrower shall deliver to the Lender on or
prior to the Release Date:
(1) a pledge and security agreement, in form and
substance satisfactory to the Lender in its sole
discretion, creating a first priority security interest
in favor of the Lender in the Defeasance Collateral, as
defined herein (the "Defeasance Security Agreement"),
which shall provide, among other things, that any
excess amounts received by the Lender from the
Defeasance Collateral over the amounts payable by the
Borrower hereunder shall be refunded to the Borrower
promptly after each Scheduled Payment Date;
(2) direct, non-callable obligations of the
United States of America that provide for payments
prior and as close as possible to (but in no event
later than) all successive Scheduled Payment Dates
occurring after the Release Date, with each such
payment being equal to or greater than the amount of
the corresponding Monthly Payment Amount required to be
paid under this Note (including all amounts due on the
Maturity Date) for the balance of the term hereof (the
"Defeasance Collateral"), each of which shall be duly
endorsed by the holder thereof as directed by the
Lender or accompanied by a written instrument of
transfer in form and substance wholly satisfactory to
the Lender in its sole discretion (including, without
limitation, such certificates, documents and
instruments as may be required by the depository
institution holding such securities or the issuer
thereof, as the case may be, to effectuate book-entry
transfers and pledges through the book-entry facilities
of such institution) in order to perfect upon the
delivery of the Defeasance Security Agreement the first
priority security interest therein in favor of the
Lender in conformity with all applicable state and
federal laws governing granting of such security
interests;
(3) a certificate of the Borrower certifying that
all of the requirements set forth in this subsection
4(g)(i) have been satisfied;
(4) one or more opinions of counsel for the
Borrower in form and substance and delivered by counsel
satisfactory to the Lender in its sole discretion
stating, among other things, that (i) the Lender has a
perfected first priority security interest in the
Defeasance Collateral and that the Defeasance Security
Agreement is enforceable against the Borrower in
accordance with its terms, (ii) in the event of a
bankruptcy proceeding or similar occurrence with
respect to the Borrower, none of the Defeasance
Collateral nor any proceeds thereof will be property of
the Borrower's estate under Section 341 of the U.S.
Bankruptcy Code or any similar statute, and (iii) the
release of the lien of the Security Instrument and the
pledge of Defeasance Collateral will not have an
adverse effect upon any real estate mortgage investment
conduit that then holds this Note; and
(5) such other certificates, documents and
instruments as the Lender may in its sole discretion
require.
(ii) Upon compliance with the requirements of subsection
4(g)(i), the Premises shall be released from the lien of the
Security Instrument and the other Loan Documents, and the
Defeasance Collateral shall constitute collateral which shall
secure this Note and all other obligations under the Loan
Documents. The Lender will, at the Borrower's expense, execute
and deliver any agreements reasonably requested by the Borrower
to release the lien of the Security Instrument and the other Loan
Documents from the Premises.
(iii) Upon the release of the Premises in accordance
with this Section 4(g), the Borrower shall (at the Lender's sole
discretion) assign all its obligations and rights under this
Note, together with the pledged Defeasance Collateral, to a
successor entity designated by the Borrower and approved by the
Lender in its sole discretion. Such successor entity shall
execute an assignment and assumption agreement in form and
substance satisfactory to the Lender in its sole discretion
pursuant to which such successor entity shall assume the
Borrower's obligations under this Note and the Defeasance
Security Agreement. As conditions to such assignment and
assumption, the Borrower shall (A) deliver to the Lender one or
more opinions of counsel in form and substance and delivered by
counsel satisfactory to the Lender in its sole discretion
stating, among other things, that such assignment and assumption
agreement is enforceable against the Borrower and such successor
entity in accordance with its terms and that this Note, the
Defeasance Security Agreement and the other Loan Documents, as so
assigned and assumed, are enforceable against such successor
entity in accordance with their respective terms, and (B) pay all
fees, costs and expenses incurred by the Lender or its agents in
connection with such assignment and assumption (including,
without limitation, the review of the proposed transferee and the
preparation of the assignment and assumption agreement and
related certificates, documents and instruments). Upon such
assignment and assumption, the Borrower shall be relieved of its
obligations hereunder, under the other Loan Documents and under
the Defeasance Security Agreement.
5. Certain Provisions Regarding Payments, Prepayments and
Remittances.
(a) Payments. Except to the extent that specific provisions are
set forth in this Note or any other Loan Document with respect to
application of payments, all payments received by the holder hereof
shall be applied, to the extent thereof, to the indebtedness secured
by the Security Instrument in such manner and order as the Lender may
elect in its sole discretion, any instructions from the Borrower or
anyone else to the contrary notwithstanding. All payments made as
scheduled on this Note shall be applied, to the extent thereof, to
accrued but unpaid interest, late charges, accrued fees, the unpaid
Principal Amount, and any other sums due and unpaid to the Lender in
connection with the Loan, in such manner and order as the Lender may
elect in its sole discretion.
(b) Prepayments. All involuntary prepayments on this Note shall
be applied, to the extent thereof, to accrued but unpaid interest on
the amount prepaid, to the remaining Principal Amount, and any other
sums due and unpaid to the Lender in connection with the Loan, in such
manner and order as the Lender may elect in its sole discretion,
including but not limited to application to principal installments in
inverse order of maturity.
(c) Remittances. Remittances in payment of any part of the
indebtedness other than in the required amount in immediately
available U.S. funds shall not, regardless of any receipt or credit
issued therefor, constitute payment until the required amount is
actually received by the holder hereof in immediately available U.S.
funds and shall be made and accepted subject to the condition that any
check or draft may be handled for collection in accordance with the
practices of the collecting bank or banks.
6. Acceleration. If the full outstanding Principal Amount of this
Note, together with all interest due thereon and any other amounts due in
respect of this Note are not paid on or before the Maturity Date or are
accelerated under the terms of this Note or the other Loan Documents, the
then outstanding Principal Amount, all accrued but unpaid interest thereon
and any other amounts due in respect of this Note shall bear interest at
the Note Rate plus four percent (4%) per annum until such Principal Amount
and interest have been paid in full. Further, in the event of such
acceleration, the Loan, and all other indebtedness of the Borrower to the
Lender arising out of or in connection with the Loan shall become
immediately due and payable, without presentment, demand, protest, dishonor
or notice of any kind, all of which are hereby waived by the Borrower.
7. Non-Recourse Loan.
(a) Subject to the provisions of Section 8 and notwithstanding
any other provision in this Note or the other Loan Documents, the
personal liability of the Borrower to pay the Principal Amount and
interest thereon and any other sums under this Note or the other Loan
Documents shall be limited to (i) the Premises, (ii) the Intangible
Personalty, (iii) all Rents and Profits distributed (except to the
extent that the Borrower did not have the legal right, because of a
bankruptcy, receivership or similar judicial proceeding, to direct the
disbursement of such sums), and not applied, first, to the payment of
reasonable Operating Expenses as such Operating Expenses become due
and payable, and then, to the payment of the Principal Amount and
interest then due and payable under this Note and any other sums due
under the other Loan Documents (including but not limited to deposits,
escrows and/or reserves); provided, however, that there shall be no
personal liability incurred for Rents and Profits distributed in any
particular fiscal year to the extent that all Operating Expenses and
principal and interest due under this Note and other sums due under
the other Loan Documents (including but not limited to deposits,
escrows and/or reserves) are paid in full in that fiscal year, and
(iv) all other collateral or security for the Loan.
(b) Except as provided above and in Section 8, the Lender shall
not seek (i) any judgment for a deficiency against the Borrower or any
of the Borrower's heirs, legal representatives, successors or assigns,
in any action to enforce any right or remedy under the Security
Instrument, or (ii) any judgment on this Note except as may be
necessary in any action brought under the Security Instrument to
enforce the lien against the Premises, the Intangible Personalty, the
Rents and Profits or any other collateral or security for the Loan, or
to exercise any remedies under any of the other Loan Documents.
8. Exceptions to Non-Recourse Liability.
(a) If, without obtaining the Lender's prior written consent,
there shall occur any violation of any of the Recourse Covenants (as
defined in the Loan Agreement), and if such violation shall continue
for thirty (30) days after written notice thereof from the Lender to
the Borrower, then Section 7 hereof shall not apply from and after the
date which is thirty (30) days after such written notice and the
Borrower shall be personally liable on a joint and several basis for
full recourse liability under this Note and the other Loan Documents.
(b) Notwithstanding Section 7 hereof, the Borrower shall be
personally liable in the amount of any loss, damage or cost (including
but not limited to reasonable attorney's fees) resulting from (i)
fraud or intentional misrepresentation by the Borrower or any agent,
contractor or employee of the Borrower, in connection with obtaining
the Loan, or in complying with any of the Borrower's obligations under
the Loan Documents, (ii) sale proceeds, insurance proceeds,
condemnation awards, security deposits from tenants or other sums or
payments received by or on behalf of the Borrower in its capacity as
owner of the Premises and not applied in accordance with the
provisions of the Loan Documents, (iii) all Rents and Profits
distributed and not applied, first, to the payment of reasonable
Operating Expenses as such Operating Expenses become due and payable,
and then, to the payment of the Principal Amount and interest then due
and payable under this Note and any other sums due under the other
Loan Documents (including but not limited to deposits, escrows and/or
reserves); provided, however, that there shall be no personal
liability incurred for Rents and Profits distributed in any particular
fiscal year to the extent that all Operating Expenses and principal
and interest due under this Note and other sums due under the other
Loan Documents (including but not limited to deposits, escrows and/or
reserves) are paid in full in that fiscal year, (iv) the Borrower's
failure following any Event of Default to deliver to the Lender on
demand all Rents and Profits, security deposits, books and records
relating to the Premises, (v) any damage to the Premises caused by the
willful, wanton or tortious act or omission of the Borrower, (vi) the
Borrower's failure to procure and maintain the insurance policies
required by the Loan Agreement, (vii) the Lender's incurrence and
obligation to pay attorney's fees, costs, and expenses in any
bankruptcy, receivership or similar case filed by or against the
Borrower, (viii) any transfer tax, recordation tax or other similar
tax or assessment, if any, in connection with the transactions
contemplated by the Loan Documents, or (ix) any violation of or
failure to comply with the Environmental Covenants (as defined in the
Loan Agreement), including without limitation, the indemnification
obligations set forth therein, except to the extent any such violation
or failure to comply is recovered or recoverable under any
environmental insurance policy furnished by the Borrower to the Lender
in connection with the Loan. Notwithstanding the foregoing, the
Borrower shall not be personally liable under clauses (ii), (iii) or
(iv) of this subsection 8(b) to the extent that the Borrower did not
have the legal right, because of a bankruptcy, receivership or similar
judicial proceeding, to direct the disbursement of the sums described
in such clauses.
9. No Waiver or Impairment. No provision of Section 7 or Section 8
shall (a) affect any guaranty or similar agreement executed in connection
with the debt evidenced by this Note, (b) release or reduce the debt
evidenced by this Note, (c) impair the right of the Lender to enforce the
Environmental Covenants pursuant to the provisions of the Loan Agreement,
(d) impair the lien of the Security Instrument, or (e) constitute a waiver,
forfeiture, abrogation or limitation of or on any right accorded by any law
establishing a debtor-in-relief proceeding (including, but not limited to,
Title 11, U.S. Code) which right provides for the assertion in such debtor-
in-relief proceeding of a deficiency arising by reason of the insufficiency
of collateral notwithstanding an agreement of the holder thereof not to
assert such a deficiency.
10. Expenses. In the event this Note is not paid when due at any
stated or accelerated maturity, the Borrower will pay, in addition to the
Principal Amount and interest hereunder, all costs of collection, including
reasonable attorney's fees.
11. Taxpayer Identification Number. This Note provides for the
Borrower's federal taxpayer identification number to be inserted on the
first page of this Note. If such number is not available at the time of
execution of this Note or is not inserted by the Borrower, the Borrower
hereby authorizes and directs the Lender to fill in such number on the
first page of this Note when the Borrower provides to Lender, advises the
Lender of, or the Lender otherwise obtains, such number.
12. Notice. Any notice to the Lender provided for in this Note shall
be given in the manner provided in the Loan Agreement.
13. Governing Law and Jurisdiction. This Note and the other Loan
Documents and all matters relating thereto shall be governed by and
construed and interpreted in accordance with the laws of the State where
the Premises is located. The Borrower hereby submits to the jurisdiction
of the state and federal courts located in the State where the Premises is
located and agree that the Lender may, at its sole discretion, enforce its
rights under the Loan Documents in such courts.
14. Maximum Rate of Interest. This Note is subject to the express
condition that at no time shall the Borrower be obligated or required to
pay interest on the Principal Amount at a rate which could subject the
Lender to either civil or criminal liability as a result of being in excess
of the maximum interest rate which the Borrower is permitted by applicable
law to contract or agree to pay. If by the terms of this Note, the
Borrower is at any time required or obligated to pay interest on the
Principal Amount at a rate in excess of such maximum rate, the rate of
interest under this Note shall be deemed to be immediately reduced to such
maximum rate and all previous payments in excess of the maximum rate shall
be deemed to have been payments in reduction of the Principal Amount and
not on account of the interest due hereunder.
15. No Third Party Beneficiary. The Borrower acknowledges and agrees
that (i) any arrangement for interim advancement of funds that originally
is made by the Lender named in this Note to any investor in the secondary
mortgage market is made pursuant to a contractual obligation of such Lender
to that investor that is independent of, and separate and distinct from,
the obligation of the Borrower for the full and prompt payment of the
indebtedness evidenced by this Note, (ii) the Borrower shall not be deemed
to be a third party beneficiary of such arrangement for interim advancement
of funds, and (iii) no such interim advancement arrangement shall
constitute any person or entity making such payment as a guarantor or
surety of the Borrower's obligations, notwithstanding the fact that the
obligations under any such interim advancement arrangement may be
calculated with reference to amounts payable under this Note or the other
Loan Documents.
16. Assignment. The holder of this Note may, from time to time,
sell, assign or participate or offer to sell, assign or participate the
Loan, or interests therein, to one or more Persons (including, without
limitation, assignees or participants) and is hereby authorized to
disseminate any information it has pertaining to the Loan, including,
without limitation, any security for this Note and credit information on
the Borrower and any of its principals, to any such Person, and to the
extent, if any, specified in any such sale, assignment or participation,
such Person shall have the rights and benefits with respect to this Note
and the other Loan Documents as such Person would have if such Person were
the Lender hereunder.
17. General Provisions. A determination that any provision of this
Note is unenforceable or invalid shall not affect the enforceability or
validity of any other provision and the determination that the application
of any provision of this Note to any Person or circumstance is illegal or
unenforceable shall not affect the enforceability or validity of such
provision as it may apply to other Persons or circumstances. The Borrower
warrants and represents to the Lender and all other holders of this Note
that the Loan is and will be for business or commercial purposes and not
primarily for personal, family, or household use. The terms, provisions,
covenants and conditions hereof shall be binding upon the Borrower and the
heirs, devisees, representatives, successors and assigns of the Borrower.
Captions and headings in this Note are for convenience only and shall be
disregarded in construing it.
18. WRITTEN AGREEMENT.
(a) THE RIGHTS AND OBLIGATIONS OF THE BORROWER AND THE LENDER
SHALL BE DETERMINED SOLELY FROM THIS WRITTEN NOTE AND THE OTHER LOAN
DOCUMENTS, AND ANY PRIOR ORAL OR WRITTEN AGREEMENTS BETWEEN THE LENDER
AND THE BORROWER CONCERNING THE SUBJECT MATTER HEREOF AND OF THE OTHER
LOAN DOCUMENTS ARE SUPERSEDED BY AND MERGED INTO THIS NOTE AND THE
OTHER LOAN DOCUMENTS.
(b) THIS NOTE AND THE OTHER LOAN DOCUMENTS MAY NOT BE VARIED BY
ANY ORAL AGREEMENTS OR DISCUSSIONS THAT OCCUR BEFORE,
CONTEMPORANEOUSLY WITH, OR SUBSEQUENT TO THE EXECUTION OF THIS NOTE OR
THE LOAN DOCUMENTS.
(c) THIS WRITTEN NOTE AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENTS BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF
THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
19. WAIVER OF JURY TRIAL. THE LENDER AND THE BORROWER HEREBY WAIVE,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT
MATTER OF THIS NOTE. THIS WAIVER IS KNOWINGLY, INTENTIONALLY, AND
VOLUNTARILY MADE BY THE LENDER AND THE BORROWER, AND THE LENDER AND THE
BORROWER ACKNOWLEDGE THAT NO PERSON ACTING ON BEHALF OF ANOTHER PARTY TO
THIS NOTE HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF
TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. THE LENDER
AND THE BORROWER FURTHER ACKNOWLEDGE THAT THEY HAVE BEEN REPRESENTED (OR
HAVE HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS NOTE AND
IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF
THEIR OWN FREE WILL, AND THAT THEY HAVE HAD THE OPPORTUNITY TO DISCUSS THIS
WAIVER WITH COUNSEL.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed under seal as of the day and year first above written.
BORROWER:
WELLSFORD SONTERRA LLC, an Arizona
limited liability company
By: Wellsford/Sonterra Manager, LLC, an
Arizona limited liability company, its
sole Manager
By: Wellsford Real Properties, Inc., a
Maryland corporation,
its sole Member
By:/s/ David M. Strong
--------------------------------
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Name: David M. Strong
Title: Vice President