Multistate



Exhibit
10.49

 

Freddie Mac Loan Number
534379273

 

MULTIFAMILY NOTE

                                              
MULTISTATE – FIXED TO FLOAT

(REVISION DATE 2-15-2008) 

 

 

	
US
$3,900,000.00
	
Effective Date: as of November 4, 2009



 

 

           
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 KEYCORP REAL ESTATE CAPITAL MARKETS,
INC., an Ohio corporation, the principal sum of Three Million Nine Hundred
Thousand and No/100ths Dollars (US $3,900,000.00), 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.  

                       


"Amortization
Period" means a period of 360 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 or the national banking associations are not open for business.

 

"Default
Rate" means (i) during the Fixed Rate Period, an annual interest rate equal
to four (4) percentage points above the Fixed Interest Rate; and (ii) during the
Extension Period, 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.

 

"Extended
Maturity Date" means, if the Extension Period becomes effective pursuant to
this Note, the earlier of (i) July 1, 2014, 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 thereunder.  

 

"Extension
Period" means the twelve (12) consecutive calendar months period commencing
on the Scheduled Initial Maturity Date.

 

"Fixed
Interest Rate" means the annual interest rate of five and fifty-six
hundredths percent (5.56%). 

 

"Fixed
Rate Period" means the period beginning on the date of this Note
and continuing through June 30, 2013. 

 

"Index
Rate" means, for any Interest Adjustment Period, the Reference Billâ  Index Rate for such Interest
Adjustment Period.  

                       


"Initial
Maturity Date" means the earlier of (i) July 1, 2013 (the
"Scheduled Initial 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 thereunder. 

 

"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 January 1, 2010. 

                       


"Interest
Adjustment Period" means each successive one calendar month
period during the Extension Period and 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
Page.               


 

"Loan"
means the loan evidenced by this Note.

 

                       
"Margin" means two and one-half (2.5) percentage points (250 basis
points).

 

"Maturity
Date" means the Extended Maturity Date unless pursuant to Section 3(e) of
this Note the Extension Period does not or cannot become effective, in which
case the Maturity Date means the Initial Maturity Date. 

 

"Maximum
Interest Rate" means the rate of interest that results in the maximum amount
of interest allowed by applicable law. 

 

"Prepayment
Premium Period" means the period during which, if a prepayment of principal
occurs, a prepayment premium will be payable by Borrower to Lender.  The
Prepayment Premium Period is the period from and including the date of this Note
until but not including the first day of the Window Period.  For this Note,
the Prepayment Premium Period equals the Yield Maintenance Period.

 

"Reference
Billsâ" means the unsecured
general obligations of the Federal Home Loan Mortgage Corporation ("Freddie
Mac") designated by Freddie Mac as "Reference BillsâSecurities" 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 Securities", 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.

 

                       
"Treasury Security" means the 3.125% U.S. Treasury Security due September
30, 2013.

 

"Window
Period" means the Extension Period.

 

"Yield
Maintenance Period" means the period from and including the date of this
Note until but not including the Scheduled Initial Maturity Date.

 

           
(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 KeyBank
Real Estate Capital, P.O. Box 145404, Cincinnati, Ohio 45250, or such other
place as may be designated by Notice to Borrower from or on behalf of
Lender.

 

           
3.         Payments.  

 

           
(a)        During the Fixed Rate Period,
interest will accrue on the outstanding principal balance of this Note at the
Fixed Interest Rate, subject to the provisions of Section 8 of this Note. During the Extension Period, 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)        During the Fixed Rate Period,
interest under this Note shall be computed, payable and allocated on the basis
of a 360-day year consisting of twelve 30-day months.  During the Extension
Period, 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 is 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 Initial Maturity Date, principal and accrued interest 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
principal and interest payable pursuant to this Section 3(d) on an Installment
Due Date shall be Twenty-Two Thousand Two Hundred Ninety and 81/100ths Dollars
($22,290.81).

 

(e)       
Except as otherwise provided in this Section 3(e), all remaining Indebtedness,
including all principal and interest, shall be due and payable by Borrower on
the Initial Maturity Date.  However, so long as (i) the Initial Maturity
Date has not occurred prior to the Scheduled Initial Maturity Date, and (ii) no
Event of Default or event or circumstance which, with the giving of notice or
passage of time or both, could constitute an Event of Default exists on the
Scheduled Initial Maturity Date, then the Extension Period automatically will
become effective and the date for full payment of the Indebtedness automatically
shall be extended until the Extended Maturity Date. 
If the Extension Period becomes effective, monthly installments of principal and
interest or interest only will be payable during the Extension Period as
provided in Section 3(f).  Anything in Section 21 of the Security
Instrument to the contrary notwithstanding, during the Extension Period,
Borrower will not request that Lender consent to, and Lender will not consent
to, a Transfer that, absent such consent, would constitute an Event of
Default.

 

           
(f)         If the Extension Period
becomes effective, beginning on August 1, 2013, and continuing until and
including the monthly installment due on the Extended Maturity Date, principal
and accrued interest 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 principal and interest payable pursuant to
this Section 3(f) on an Installment Due Date shall be calculated so as to equal
the monthly payment amount which would be payable on the Installment Due Date as
if the unpaid principal balance of this Note as of the first day of the Interest
Adjustment Period immediately preceding the Installment Due Date was to be fully
amortized, together with interest thereon at the Adjustable Interest Rate in
effect for such Interest Adjustment Period, in equal consecutive monthly
payments paid on the first day of each calendar month over the Remaining
Amortization Period.

           
            

           
(g)        During the Extension Period,
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).

 

           
(h)        All payments under this Note shall
be made in immediately available U.S. funds.

           


           
(i)         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.

 

           
(j)         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.    

 

           
(k)        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 (i) during the Fixed Rate Period, within ten (10) days after the
installment or other amount is due, or (ii) during the Extension Period, 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,

[Deferred]       
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 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 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 voluntarily prepay
all of the unpaid principal balance of this Note on an
Installment Due Date so long as Borrower
designates the date for such prepayment in a Notice from Borrower
to Lender given at least 30 days prior to the date of such prepayment. 
If an Installment Due Date (as defined in Section
1(a)) falls on a day which is not a Business Day, then with
respect to payments made under this Section 10 only, the term "Installment Due
Date" shall mean the Business Day immediately preceding the scheduled
Installment Due Date.

 

           
(c)        Notwithstanding subsection (b)
above, Borrower may voluntarily prepay all of the unpaid principal balance of
this Note on a Business Day other than an
Installment Due Date if Borrower provides Lender with the Notice
set forth in subsection (b) and meets the other requirements set forth in this
subsection.  Borrower acknowledges that Lender has agreed that Borrower may
prepay principal on a Business Day other than an Installment Due Date only
because Lender shall deem any prepayment received by Lender on any day other
than an Installment Due Date to have been received on the Installment Due Date
immediately following such prepayment and Borrower shall be responsible for all
interest that would have been due if the prepayment had actually been made on
the Installment Due Date immediately following such prepayment.

 

           
(d)        Unless otherwise expressly
provided in the Loan Documents, Borrower may not voluntarily prepay less than
all of the unpaid principal balance of this Note.  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 (iii) any prepayment
premium calculated pursuant to Section 10(e).

 

           
(e)        Except as provided in Section
10(f), a prepayment premium shall be due and payable by Borrower in connection
with any prepayment of principal under this Note during the Prepayment Premium Period.  The prepayment premium shall
be whichever is the greater of subsections (A) and (B) below:

 

                       
(A)       1.0% of the amount of principal being
prepaid; or 

 

                       
(B)       the product obtained by multiplying:

 

                                   
(1)        the amount of principal being
prepaid or accelerated, 

                                               
by

                                   
(2)        the excess (if any) of the Monthly
Note Rate over the Assumed Reinvestment Rate, 

                                               
by

                                   
(3)        the Present Value Factor.

 

                       
For purposes of subsection (B), the following definitions shall apply:

 

                       
Monthly Note Rate: one-twelfth (1/12) of the Fixed Interest Rate, expressed
as a decimal calculated to five digits.

 

                       
Prepayment Date:  in the case of a voluntary prepayment, the date on
which the prepayment is made; in the case of the application by Lender of
collateral or security to a portion of the principal balance, the date of such
application.

 

                       
Assumed Reinvestment Rate:  one-twelfth (1/12) of the yield rate, as of
the close of the trading session which is 5 Business Days before the Prepayment
Date, on the Treasury Security, as reported in The Wall Street Journal,
expressed as a decimal calculated to five digits.  In the event that no
yield is published on the applicable date for the Treasury Security, Lender, in
its discretion, shall select the non-callable Treasury Security maturing in the
same year as the Treasury Security with the lowest yield published in The
Wall Street Journal as of the applicable date.  If the publication of
such yield rates in The Wall Street Journal is discontinued for any
reason, Lender shall select a security with a comparable rate and term to the
Treasury Security.  The selection of an alternate security pursuant to this
Section shall be made in Lender’s discretion.

 

                       
Present Value Factor:  the factor that discounts to present value the
costs resulting to Lender from the difference in interest rates during the
months remaining in the Yield Maintenance Period, using the Assumed Reinvestment
Rate as the discount rate, with monthly compounding, expressed numerically as
follows:

 

[1-{1/(1+ARR)}n]/ARR 

 

                       
n = the number of months remaining in Yield Maintenance Period; provided,
however, if a prepayment occurs on an Installment Due Date, then the number of
months remaining in the Yield Maintenance Period shall be calculated
beginning with the month in which such prepayment occurs and if such prepayment
occurs on a Business Day other than an Installment Due Date, then the number of
months remaining in the Yield Maintenance Period shall be calculated beginning
with the month immediately following the date of such prepayment.

                       


                                   
ARR = Assumed Reinvestment Rate

           


           
(f)         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.

 

           
(g)        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. 

 

           
(h)        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 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

 

 

 

 

[DOCUMENT EXECUTION
OCCURS ON THE FOLLOWING PAGE]




 

           
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.  Borrower intends that this
Note shall be deemed to be signed and delivered as a sealed instrument.

 

                                               
BORROWER:

 

PEAK AT VININGS, LLC

a
Delaware limited liability company

 

By:      
CENTURY PROPERTIES FUND XIX, LP

           
a Delaware limited partnership

           
its sole member

 

           
By:       FOX PARTNERS II

                       
a California general partnership

                       
its general partner

 

                       
By:       FOX CAPITAL MANAGEMENT 

                                   
CORPORATION

                                   
a California corporation

                                   
its managing general partner

 

 

                                   
By:       /s/Patti K. Fielding

                                               
Patti K. Fielding

                                               
Executive Vice President and

                                               
Treasurer

 

                                                                       
Borrower's Employer ID Number: 27-0756671




EXHIBIT A 

 

MODIFICATIONS TO MULTIFAMILY NOTE

 

The
following modifications are made to the text of the Multifamily Note that
precedes this Exhibit:

 

1.  
Intentionally Deleted.

 

2.     
Intentionally Deleted.

 

3.  
The second sentence of Section 9(c)(i) is deleted and replaced with the
following:

 

           
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 (a) because of a valid
order issued in a bankruptcy, receivership, or similar judicial proceeding, or
(b) if such funds have been applied by Borrower as required or permitted by the
Security Instrument prior to the occurrence of an Event of Default.

 

4.  
Section 19(b) of this Note is modified by deleting: “provided, however, 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” in the last sentence of the Section; 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 Section are defined in the Security
Instrument.



5.     
Section 20 of this Note is deleted and replaced with the
following:

 

20.      
Consent to Jurisdiction and Venue.  Borrower agrees that any
controversy arising under or in relation to this Note shall be litigated
exclusively in the jurisdiction in which the Land is located (the "Property
Jurisdiction").  The state and federal courts and authorities with
jurisdiction in the Property Jurisdiction shall have exclusive jurisdiction over
all controversies which shall arise under or in relation to this Note. 
Borrower 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.

 

6.      The
definition of "Index Rate" is deleted and replaced with the
following:

      

"Index Rate"means, for any Interest
Adjustment Period, the Libor Index Rate for such Interest Adjustment
Period.

 

7.      The
definition of "Margin" is deleted and replaced with the
following:

 

"Margin" means three and one-half (3.5)
percentage points (350 basis points).

 

8.      The
definitions of "Reference Bills", "Reference Bills Index" and
"Reference Bills Index Rate" are deleted in their entirety.