EXHIBIT 10(S)
MORTGAGE NOTE
New York, New York
$24,200,000 As of June 1, 2000
FOR VALUE RECEIVED, COLUMBIA WESTMONT ASSOCIATES, L.P., a New York limited
partnership, having an address c/o Michaels Development Company, 1 East Stow
Road, PO Box 994, Marlton, NJ 08053-0994 (hereinafter called "Maker"), promises
to pay to the order of NEW YORK CITY HOUSING DEVELOPMENT CORPORATION, a
corporate governmental agency constituting a public benefit corporation, having
an office at 110 William Street, New York, New York 10038, or its successors or
assigns (hereinafter called "Payee"), at said office, or at such place as may be
designated from time to time in writing by Payee, the principal sum of
$24,200,000 in lawful money of the United States of America (the "Note Amount"),
or so much thereof as may be advanced pursuant to the Financing Agreement (as
hereinafter defined), with interest thereon calculated in the manner hereinafter
set forth, as follows:
(i) Payments in reduction of the Principal Balance and payments of
interest on the Principal Balance, calculated at the Interest Rate, shall
be payable on each and every date on which principal and interest are
payable on the Bonds;
(ii) The Interest Rate shall in no event exceed the maximum rate of
interest (if any) set forth in the Resolution; and
(iii) The entire Principal Balance, together with all interest
accrued and unpaid thereon, calculated in the manner hereinafter set
forth, and all other sums due under this Note shall be due and payable on
the Maturity Date, unless the same shall be accelerated, reamortized or
deferred by Payee in accordance with the provisions of the Resolution, the
Reimbursement Agreement or the Other Security Documents.
1. The following terms as used in this Note shall have the following
meanings:
(i) The term "Assignment" shall mean that certain Assignment and
Intercreditor Agreement dated as of the date hereof among Payee, Freddie
Mac, Trustee and Maker, as the same may be hereafter amended, modified,
supplemented or replaced from time to time.
(ii) The term "Bonds" shall mean collectively the Multi-Family
Rental Housing Revenue Bonds (Westmont Apartments), 2000 Series A issued
pursuant to the Resolution, together with any additional bonds issued
under the Resolution.
(iii) The term "Debt" shall mean all principal, interest, additional
interest and other sums of any nature whatsoever which may or shall become
due to Payee in accordance with the provisions of this Note, the Mortgage,
the Financing Agreement or the Other Security Documents.
(iv) The term "Financing Agreement" shall mean a certain Financing
Agreement dated as of June 7, 2000 between Payee and Maker, as the same
may be hereafter amended, modified, supplemented or replaced from time to
time.
(v) The term "Freddie Mac" shall mean Federal Home Loan Mortgage
Corporation, as the Initial Credit Facility Provider under the Resolution.
(vi) The term "Interest Payment Date" shall have the meaning given
to such term in the Resolution.
(vii) The term "Interest Rate" shall mean the rate of interest
payable on the Bonds pursuant to the terms of the Resolution and as set
forth in the Bonds.
(viii) The term "Loan" shall mean the loan in the principal sum of
the Note Amount to be made by Payee to Maker in accordance with the
provisions of the Financing Agreement, which loan shall be evidenced by
this Note and secured by the Mortgage and the Other Security Documents.
(ix) The term "Maturity Date" shall mean July 1, 2030.
(x) The term "Mortgage" shall mean a certain Multifamily Mortgage,
Assignment of Rents and Security Agreement dated the date hereof in the
principal sum of the Note Amount given by Maker to Payee, encumbering the
fee estate of Maker in certain premises as more particularly described in
the Mortgage, and intended to be duly recorded in the Office of the City
Register, New York County, as the same may hereafter be amended, modified,
supplemented, severed, assigned, substituted or restated from time to
time.
(xi) The term "Other Security Documents" shall mean all and any of
the documents other than this Note, the Mortgage or the Financing
Agreement, now or hereafter executed by Maker or others, and by or in
favor of Payee or Freddie Mac, which wholly or partially secure or
guarantee payment of this Note, or which otherwise pertain to the Loan.
(xii) The term "Principal Balance" shall mean the outstanding
principal balance of this Note from time to time.
(xiii) The term "Reimbursement Agreement" shall mean a certain
Reimbursement and Security Agreement dated as of June 1, 2000 between
Maker and
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Freddie Mac, as the same may be hereafter amended, modified, supplemented
or replaced from time to time.
(xiv) The term "Resolution" shall mean that certain Multi-Family
Rental Housing Revenue Bonds (Westmont Apartments) Bond Resolution adopted
May 16, 2000 by Payee, as amended or supplemented from time to time.
(xv) The term "Trustee" shall mean United States Trust Company of
New York or any successor or substitute bond trustee appointed in
compliance with the Resolution.
2. This Note evidences the loan by Payee to Maker in the aggregate
principal amount of $24,200,000 made with the proceeds of the Bonds.
3. Notwithstanding any other provision contained herein or in the
Financing Agreement, the Resolution or the Bonds, Maker agrees to pay, on or
before each Interest Payment Date for the Bonds, or any other date on which any
payment of principal or interest is required to be made pursuant to the
Resolution, in immediately available funds, a sum sufficient to enable Trustee
to pay the amounts of principal, interest and premium, if any, on the Bonds
payable on such date (whether at maturity, upon redemption or acceleration, or
otherwise), as provided in the Resolution.
4. Trustee has been designated to serve in the capacity of bond trustee
under the Resolution, pursuant to which Payee resolved to issue and sell the
Bonds. Freddie Mac has agreed to issue its credit enhancement agreement to
provide for the timely payment of principal and interest on the Loan and the
Purchase Price of the Bonds. This Note has been assigned to Freddie Mac and
Trustee, as their interests may appear, pursuant to the Assignment, which has
been made to secure payment of (1) principal, interest and premium, if any, on
the Bonds and (2) the obligations of Maker to Freddie Mac pursuant to the
Reimbursement Agreement. Pursuant to the Assignment, all payments hereunder
shall be made directly to Freddie Mac or its servicer, so long as the interest
of Freddie Mac under the Assignment continues, and, thereafter, directly to a
successor servicer (if any).
5. Maker shall have the right to prepay the Principal Balance in whole, or
in part, as provided in the Financing Agreement.
6. It is hereby expressly agreed that the entire Debt shall become
immediately due and payable at the option of Payee on the happening of any Event
of Default (as defined in the Mortgage or any of the Other Security Documents)
or event by which, under the terms of this Note, the Mortgage, the Financing
Agreement, the Reimbursement Agreement or the Other Security Documents, the Debt
may or shall become due and payable, and that all of the terms, covenants and
provisions contained in the Mortgage, the Financing Agreement, the Reimbursement
Agreement and the Other Security Documents are hereby made part of this Note to
the same extent and with the same force and effect as if they were fully set
forth herein.
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7. If any installment of principal, interest, additional interest or other
sum payable under this Note or the Mortgage is not paid within five (5) Business
Days (as defined in the Resolution) after the date on which it is due, Maker
shall pay to Payee upon demand an amount equal to 4% of such unpaid installment,
as a late payment charge.
8. In addition to any late payment charge which may be due under this
Note, if the entire Debt is declared by Payee immediately due and payable
pursuant to the provisions of this Note, the Mortgage, the Financing Agreement
or the Other Security Documents, or if the Debt is not paid in full on the
Maturity Date, Maker shall thereafter pay interest on the Principal Balance from
the date of such declaration or the Maturity Date, as the case may be, until the
date the Principal Balance is paid in full at the rate per annum equal to the
Default Rate (as defined in the Reimbursement Agreement).
9. Maker hereby waives presentment and demand for payment, notice of
dishonor, protest and notice of protest of this Note. If any payment under this
Note is not made when due, Maker agrees to pay all costs of collection when
incurred, including reasonable attorneys' fees (which costs shall be added to
the amount due under this Note and shall be receivable therewith). Maker agrees
to perform and comply with each of the terms, covenants and provisions contained
in this Note, the Mortgage, the Financing Agreement, the Reimbursement Agreement
and the Other Security Documents on the part of Maker to be observed or
performed. No release of any security for the payment of this Note or extension
of time for payment of this Note, or any installment hereof, and no alteration,
amendment or waiver of any provision of this Note, the Mortgage, the Financing
Agreement, the Reimbursement Agreement or the Other Security Documents made by
agreement between Payee and any other person or party shall release, discharge,
modify, change or affect the liability of Maker under this Note, the Mortgage,
the Financing Agreement, the Reimbursement Agreement or the Other Security
Documents.
10. This Note is subject to the express condition that at no time shall
Maker be obligated or required to pay interest on the Principal Balance at a
rate which could subject Payee to either civil or criminal liability as a result
of being in excess of the maximum rate which Maker is permitted by law to
contract or agree to pay. If by the terms of this Note Maker is at any time
required or obligated to pay interest on the Principal Balance 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 interest payable
hereunder shall be computed at such maximum rate and the portion of all prior
interest payments in excess of such maximum rate shall be applied as follows:
(i) to the extent that optional prepayments of all or part of the Bonds are
permitted pursuant to Article IX of the Financing Agreement, such excess
payments shall be applied in reduction of the Principal Balance and (ii) to the
extent that optional prepayments are not permitted pursuant to Article IX of the
Financing Agreement, such excess payments shall be held by Payee until optional
prepayments are permitted and shall, at such time, be deemed to have been
payments in reduction of the Principal Balance.
11. If Maker consists of more than one person or party, the obligations
and liabilities of each such person or party hereunder shall be joint and
several.
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12. This Note is secured by the Mortgage and the Other Security Documents.
13. This Note is and shall be deemed entered into in the State of New York
and shall be governed by and construed in accordance with the laws of the State
of New York, and no defense given or allowed by the laws of any state or country
shall be interposed in any action or proceeding hereon unless such defense is
either given or allowed by the laws of the State of New York. Maker acknowledges
and agrees that this Note is intended to be, and is, an instrument for the
payment of money only, as such phrase is used in ss.3213 of the Civil Practice
Law and Rules of the State of New York, and Maker has been fully advised by its
counsel of Payee's rights and remedies pursuant to said ss.3213.
14. This Note may only be modified, amended, changed or terminated by an
agreement in writing signed by Payee and Maker. No waiver of any term, covenant
or provision of this Note shall be effective unless given in writing by Payee
and if so given by Payee shall only be effective in the specific instance in
which given.
15. Maker acknowledges that this Note and Maker's obligations under this
Note are and shall at all times continue to be absolute and unconditional in all
respects, and shall at all times be valid and enforceable irrespective of any
other agreements or circumstances of any nature whatsoever which might otherwise
constitute a defense to this Note and the obligations of Maker under this Note
or the obligations of any other person or party relating to this Note or the
obligations of Maker hereunder or otherwise with respect to the Loan. Maker
absolutely, unconditionally and irrevocably waives any and all right to assert
any defense (other than payment in full of the Debt), setoff, counterclaim or
crossclaim of any nature whatsoever with respect to this Note or the obligations
of Maker under this Note or the obligations of any other person or party
relating to this Note or the obligations of Maker hereunder or otherwise with
respect to the Loan in any action or proceeding brought by Payee to collect the
Debt, or any portion thereof, or to enforce, foreclose and realize upon the
liens and security interests created by the Mortgage and the Other Security
Documents; provided, however, that the foregoing shall not be deemed a waiver of
Maker's right to assert any compulsory counterclaim maintained in a court of the
United States, or of the State of New York, if such counterclaim is compelled
under local law or rule of procedure, nor shall the foregoing be deemed a waiver
of Maker's right to assert any claim which would constitute a defense, setoff,
counterclaim or crossclaim of any nature whatsoever against Payee in any
separate action or proceeding. Maker acknowledges that no oral or other
agreements, understandings, representations or warranties exist with respect to
this Note or with respect to the obligations of Maker under this Note, except
those specifically set forth in this Note.
16. No delay on the part of Payee in exercising any right or remedy under
this Note, the Mortgage, the Financing Agreement, the Reimbursement Agreement or
the Other Security Documents or failure to exercise the same shall operate as a
waiver in whole or in part of any such right or remedy. No notice to or demand
on Maker shall be deemed to be a waiver of the obligation of Maker or of the
right of Payee to take further action without further
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notice or demand as provided in this Note, the Mortgage, the Financing Agreement
and the Other Security Documents.
17. Maker agrees to submit to personal jurisdiction in the State of New
York in any action or proceeding arising out of this Note and, in furtherance of
such agreement, Maker hereby agrees and consents that without limiting other
methods of obtaining jurisdiction, personal jurisdiction over Maker in any such
action or proceeding may be obtained within or without the jurisdiction of any
court located in New York and that any process or notice of motion or other
application to any such court in connection with any such action or proceeding
may be served upon Maker by registered or certified mail to or by personal
service at the last known address of Maker, whether such address be within or
without the jurisdiction of any such court.
18. Maker (and the undersigned representative of Maker, if any) represents
that Maker has full power, authority and legal right to execute and deliver this
Note and that the debt hereunder constitutes a valid and binding obligation of
Maker.
19. MAKER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, AND PAYEE BY ITS
ACCEPTANCE OF THIS NOTE IRREVOCABLY AND UNCONDITIONALLY WAIVES, ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN CONNECTION
WITH, OUT OF OR OTHERWISE RELATING TO THE LOAN, THIS NOTE, THE MORTGAGE, THE
FINANCING AGREEMENT OR THE OTHER SECURITY DOCUMENTS.
20. Whenever used, the singular number shall include the plural, the
plural the singular, and the words "Payee" and "Maker" shall include their
respective successors and assigns, provided, however, that Maker shall in no
event or under any circumstance have the right without obtaining the prior
written consent of Payee to assign or transfer its obligations under this Note,
the Mortgage, the Financing Agreement or the Other Security Documents, in whole
or in part, to any other person, party or entity.
21. The exculpation provisions set forth in Section 4.5 of the Financing
Agreement are hereby incorporated in this Note by reference all with the same
force and effect as if set forth at length in this Note.
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IN WITNESS WHEREOF, Maker has duly executed this Note the day and year
first above written.
COLUMBIA WESTMONT ASSOCIATES, L.P., a
New York limited partnership
By: MJL Westmont, L.L.C., managing
general partner
By: /s/ Michael J. Levitt
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Name: Michael J. Levitt
Title: Managing Member
[Signature page to Issuer Mortgage Note]
Pay without recourse to the order of Federal Home Loan Mortgage
Corporation, and to the order of United States Trust Company of New York, in its
capacity as Trustee under the Resolution, as their interests may appear.
NEW YORK CITY HOUSING
DEVELOPMENT CORPORATION, a
corporate governmental agency constituting
a public benefit corporation
By: /s/ Mathew H. Summy
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Mathew H. Summy
Senior Vice President