Exhibit 10.29


 


MULTIFAMILY
NOTE


 


	
  US
  $51,300,000.00

  	
  October 28,
  2009

  



 


FOR VALUE RECEIVED, the undersigned (“Borrower”)
jointly and severally (if more than one) promises to pay to the order of RED
MORTGAGE CAPITAL, INC., an Ohio corporation, the principal sum of Fifty-One
Million Three Hundred Thousand and 00/100 Dollars (US $51,300,000.00),
with interest accruing at the Interest Rate on the unpaid principal balance
from the Disbursement Date until fully paid.


 


1.                                      Defined Terms. 
In addition to defined terms found elsewhere in this Note, as used in
this Note, the following definitions shall apply:


 


Amortization Period: 
Zero (0) months.


 


Business Day:   Any day other than a Saturday, Sunday or any
other day on which Lender is not open for business.


 


Debt Service Amounts: 
Amounts payable under this Note, the Security Instrument or any other
Loan Document.


 


Default Rate: 
A rate equal to the lesser of 4 percentage points above the Interest
Rate or the maximum interest rate which may be collected from Borrower under
applicable law.


 


Disbursement Date:  The date of
disbursement of Loan proceeds hereunder.


 


First Payment Date:   The first day of December, 2009.


 


Indebtedness:  The principal of, interest on, or
any other amounts due at any time under, this Note, the Security Instrument or
any other Loan Document, including prepayment premiums, late charges, default
interest, and advances to protect the security of the Security Instrument under
Section 12 of the Security Instrument.


 


Interest Rate: 
The annual rate of four and 720/1000ths percent (4.720%).


 


Lender:  The holder of this Note.


 


Loan:  The loan evidenced by this Note.


 


Loan Term: 
84 months.


 


Maturity Date:   The first day of November, 2016, or any
earlier date on which the unpaid principal balance of this Note becomes due and
payable by acceleration or otherwise.


 


Property Jurisdiction: 
The jurisdiction in which the Land is located.


 


Security Instrument:  A Multifamily Deed of Trust, Assignment of Rents,
Security Agreement and Fixture Filing (California) dated as of the date of this
Note.


 


1

















 


Yield Maintenance Period Term: 
78 months.


 


Yield Maintenance Period End Date: 
The last day of April, 2016.


 


Event of Default,
Key Principal, and 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 Two Miranova Place,
12th Floor, Columbus, Ohio 43215, or such other
place as may be designated by written notice to Borrower from or on behalf of
Lender.


 


3.                                      Payment of Principal and
Interest.  Principal and interest shall be paid as
follows:


 


(a)                                  Short Month Interest. 
If disbursement of principal is made by Lender to Borrower on any day
other than the first day of the month, interest for the period beginning on the
Disbursement Date and ending on and including the last day of the month in
which such disbursement is made shall be payable simultaneously with the
execution of this Note.


 


(b)                                 Interest Computation. 
Interest under this Note shall be computed on the basis of (check one
only):


 


o                                    30/360.  A
360-day year consisting of twelve 30-day months.


 


x                                  Actual/360.  A
360-day year.  The amount of each monthly
payment made by Borrower pursuant to Paragraph 3(c) below will be based on
the actual number of calendar days during such month and shall be calculated by
multiplying the unpaid principal balance of this Note by the per annum interest
rate, dividing the product by 360 and multiplying the quotient by the actual
number of days elapsed during the month. 
Borrower understands that the amount of interest for each month will
vary depending on the actual number of calendar days during such month.


 


(c)                                  Monthly Installments (check one only):


 


o                                    30/360. 
If interest accrues based on a 30/360 interest computation, then
consecutive monthly installments of interest only, each in the amount of
                                                                                                       
Dollars (US $                                    ),
shall be payable on the First Payment Date and on the first day of every month
thereafter, until the entire unpaid principal balance evidenced by this Note is
fully paid.  The entire principal balance
and accrued but unpaid interest shall be due and payable on the Maturity Date.  The unpaid principal balance shall continue
to bear interest after the Maturity Date at the Default Rate set forth in this
Note until and including the date on which it is paid in full.


 


x                                  Actual/360. 
If interest accrues based on an Actual/360 interest computation, the
amount of Two Hundred One Thousand Seven Hundred Eighty and 00/100 Dollars (US
$201,780.00) shall be payable on the First Payment Date and thereafter consecutive
monthly installments of interest only, shall be payable as follows:


 


2

















 


(1)                                  One Hundred Eighty-Eight Thousand Three
Hundred Twenty-Eight and 00/100 Dollars (US $188,328.00), shall be payable on
the first day of each month during the term hereof which follows a 28-day
month;


 


(2)                                  One Hundred Ninety-Five Thousand
Fifty-Four and 00/100 Dollars (US $195,054.00), shall be payable on the first
day of each month during the term hereof which follows a 29-day month,


 


(3)                                  Two Hundred One Thousand Seven Hundred
Eighty and 00/100 Dollars (US $201,780.00), shall be payable on the first day
of each month during the term hereof which follows a 30-day month, or


 


(4)                                  Two Hundred Eight Thousand Five Hundred
Six and 00/100 Dollars (US $208,506.00), shall be payable on the first day of
each month during the term hereof which follows a 31-day month,


 


until the entire unpaid principal balance evidenced by this Note is
fully paid.  The entire principal balance
and accrued but unpaid interest shall be due and payable on the Maturity Date.  The unpaid principal balance shall continue
to bear interest after the Maturity Date at the Default Rate set forth in this
Note until and including the date on which it is paid in full.


 


(d)           Payments Before Due Date.  Any regularly scheduled monthly installment
of interest that is received by Lender before the date it is due shall be
deemed to have been received on the due date solely for the purpose of
calculating interest due.


 


(e)           Accrued Interest.  Any accrued interest remaining past due for
30 days or more shall be added to and become part of the unpaid principal
balance and shall bear interest at the rate or rates specified in this Note.  Any reference herein 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.


 


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
that payment 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.  If Lender accepts a guaranty
of only a portion of the Indebtedness, Borrower hereby waives its right under
California Civil Code Section 2822(a) to designate the portion of the
Indebtedness which shall be satisfied by any guarantor’s partial payment.


 


5.             Security.  The Indebtedness is secured, among other things, by
the Security Instrument, and
reference is made to the Security Instrument for other rights of Lender
concerning the collateral for the Indebtedness.


 


6.             Acceleration.  If an Event of Default has occurred
and is continuing, the entire unpaid principal balance, any accrued interest,
the prepayment premium payable under Paragraph 10, if any, and all other
amounts payable under this Note and any other Loan Document shall at once
become due and 


 


3

















 


payable,
at the option of Lender, without any prior notice to Borrower.  Lender may exercise this option to accelerate
regardless of any prior forbearance.


 


7.             Late
Charge.  If any monthly installment due
hereunder is not received by Lender on or before the 10th day of each month or
if any other amount payable under this Note or under the Security Instrument or
any other Loan Document is not received by Lender within 10 days after the date
such amount is due, counting from and including the date such amount is due,
Borrower shall pay to Lender, immediately and without demand by Lender, a late
charge equal to 5 percent of such monthly installment or other amount due.  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 Paragraph 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
Paragraph 8.


 


8.             Default
Rate.  So long as any monthly installment or
any other payment due under this Note remains past due for 30 days or more,
interest under this Note shall accrue on the unpaid principal balance from the
earlier of the due date of the first unpaid monthly installment or other
payment due, as applicable, at the Default Rate.  If the unpaid principal balance and all
accrued interest are not paid in full on the Maturity Date, the unpaid
principal balance and all accrued interest shall bear interest from the
Maturity Date at the Default Rate. 
Borrower also acknowledges that its failure to make timely payments will
cause Lender to incur additional expenses in servicing and processing the Loan,
that, during the time that any monthly installment or payment under this Note
is delinquent for more than 30 days, 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 that it is extremely difficult and
impractical to determine those additional costs and expenses.  Borrower also acknowledges that, during the
time that any monthly installment or other payment due under this Note is
delinquent for more than 30 days, 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 Paragraph 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 (as
such term is defined in the Security Instrument) and 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 obligations of Borrower.


 


(b)           Borrower shall be
personally liable to Lender for the repayment of a portion of the Indebtedness
equal to any loss or damage suffered by Lender as a result of:


 


4

















 


(1)           failure
of Borrower 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;


 


(2)           failure
of Borrower to apply all insurance proceeds and condemnation proceeds as
required by the Security Instrument;


 


(3)           failure
of Borrower to comply with Section 14(d) or (e) of the Security
Instrument relating to the delivery of books and records, statements, schedules
and reports;


 


(4)           fraud
or written material misrepresentation by Borrower, Key Principal 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;


 


(5)           failure
to apply Rents, first, to the payment of reasonable operating expenses (other
than Property management fees that are not currently payable pursuant to the
terms of an Assignment of Management Agreement or any other agreement with
Lender executed in connection with the Loan) and then to Debt Service Amounts, except that
Borrower will not be personally liable (i) to the extent that Borrower
lacks the legal right to direct the disbursement of such sums because of a
bankruptcy, receivership or similar judicial proceeding, or (ii) with
respect to Rents that are distributed in any calendar year if Borrower has paid
all operating expenses and Debt Service Amounts for that calendar year; or


 


(6)           failure
by Borrower to comply with the provisions of Section 17(a) of the
Security Instrument.


 


(c)                                  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:


 


(1)           Borrower’s
acquisition of any property or operation of any business not permitted by Section 33
of the Security Instrument;


 


(2)           a
Transfer that is an Event of Default under Section 21 of the Security
Instrument; or


 


(3)           the
occurrence of a Bankruptcy Event (but only if the Bankruptcy Event occurs with
the consent, encouragement or active participation of Borrower, Key Principal
or any Borrower Affiliate).


 


(d)                                 To the extent that
Borrower has personal liability under this Paragraph 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. If Borrower is a married person, then Borrower agrees that
Lender may look to all of Borrower’s community property and separate property
to satisfy Borrower’s recourse obligations under this Paragraph 9.  For purposes of this Paragraph 9, the term “Mortgaged
Property” shall not include any funds that (1) have been applied by
Borrower as required or permitted by the Security Instrument prior to the
occurrence of an Event of Default, or (2) Borrower was unable to apply as
required or permitted by the Security Instrument because of a bankruptcy,
receivership, or similar judicial proceeding.


 


5

















 


10.                               Voluntary and Involuntary
Prepayments.


 


(a)                                  A prepayment premium shall be payable in
connection with any prepayment made under this Note as provided below:


 


(1)                                  Borrower may voluntarily prepay all (but
not less than all) of the unpaid principal balance of this Note only on the
last calendar day of a calendar month (the “Last Day of the Month”) and only if
Borrower has complied with all of the following:


 


(i)                                     Borrower must give Lender at least 30
days (if given via U.S. Postal Service) or 20 days (if given via facsimile,
email or overnight courier), but not more than 60 days, prior written notice of
Borrower’s intention to make a prepayment (the “Prepayment Notice”).  The Prepayment Notice shall be given in
writing (via facsimile, email, U.S. Postal Service or overnight courier) and
addressed to Lender.  The Prepayment
Notice shall include, at a minimum, the Business Day upon which Borrower
intends to make the prepayment (the “Intended Prepayment Date”).


 


(ii)                                  Borrower acknowledges that the Lender is
not required to accept any voluntary prepayment of this Note on any day other
than the Last Day of the Month even if Borrower has given a Prepayment Notice
with an Intended Prepayment Date other than the Last Day of the Month or if the
Last Day of the Month is not a Business Day. 
Therefore, even if Lender accepts a voluntary prepayment on any day
other than the Last Day of the Month, for all purposes (including the accrual
of interest and the calculation of the prepayment premium), any prepayment
received by Lender on any day other than the Last Day of the Month shall be
deemed to have been received by Lender on the Last Day of the Month and any
prepayment calculation will include interest to and including the Last Day of
the Month in which such prepayment occurs. 
If the Last Day of the Month is not a Business Day, then the Borrower
must make the payment on the Business Day immediately preceding the Last Day of
the Month.


 


(iii)                               Any prepayment shall be made by paying (A) the
amount of principal being prepaid, (B) all accrued interest (calculated to
the Last Day of the Month), (C) all other sums due Lender at the time of such
prepayment, and (D) the prepayment premium calculated pursuant to
Schedule A.


 


(iv)                              If, for any reason, Borrower fails to
prepay this Note (A) within five (5) Business Days after the Intended
Prepayment Date or (B) if the prepayment occurs in a month other than the
month stated in the original Prepayment Notice, then Lender shall have the
right, but not the obligation, to recalculate the prepayment premium based upon
the date that Borrower actually prepays this Note and to make such calculation
as described in Schedule A attached hereto. 
For purposes of such recalculation, such new prepayment date shall be
deemed the “Intended Prepayment Date.”


 


6

















 


(2)           Upon
Lender’s exercise of any right of acceleration under this Note, Borrower shall
pay to Lender, in addition to the entire unpaid principal balance of this Note
outstanding at the time of the acceleration, (i) all accrued interest and
all other sums due Lender under this Note and the other Loan Documents, and (ii) the
prepayment premium calculated pursuant to Schedule A.


 


(3)           Any
application by Lender of any collateral or other security to the repayment of
any portion of the unpaid principal balance of this Note prior to the Maturity
Date and in the absence of acceleration shall be deemed to be a partial
prepayment by Borrower, requiring the payment to Lender by Borrower of a
prepayment premium.


 


(b)                                 Notwithstanding the provisions of
Paragraph 10(a), no prepayment premium shall be payable (1) with respect
to any prepayment occurring as a result of the application of any insurance
proceeds or condemnation award under the Security Instrument, or (2) as
provided in subparagraph (c) of Schedule A.


 


(c)                                  Schedule A is hereby incorporated by
reference into this Note.


 


(d)                                 Any required prepayment of less than the
entire 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, unless Lender agrees otherwise in writing.


 


(e)                                  Borrower recognizes that any prepayment
of the unpaid principal balance of this Note, whether voluntary or involuntary
or resulting from a 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 on
Schedule A represents a reasonable estimate of the damages Lender will incur
because of a prepayment.


 


(f)                                    Borrower further acknowledges that the
prepayment premium provisions of this Note are a material part of the
consideration for the loan evidenced by this Note, and acknowledges 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 prepayment premium provisions.


 


11.                               Costs and Expenses.  Borrower shall pay on demand all
expenses and costs, including fees and out-of-pocket expenses of attorneys and
expert witnesses and costs of investigation, 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 


 


7

















 


election by Lender
of remedies so as to preclude the exercise of any other right or remedy
available to Lender.


 


13.          Waivers.  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 are waived by Borrower, Key Principal, and all
endorsers and guarantors of this Note and all other third party obligors.


 


14.          Loan
Charges.  Borrower
agrees to pay an effective rate of interest equal to the sum of the Interest
Rate provided for in this Note and any additional rate of interest resulting
from any other charges of interest or in the nature of interest paid or to be
paid in connection with the loan evidenced by this Note and any other fees or
amounts to be paid by Borrower pursuant to any of the other Loan
Documents.  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 permitted to be charged under applicable
law.  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 the
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 the Note.


 


15.          Commercial
Purpose.  Borrower represents that the
Indebtedness is being incurred by Borrower solely for the purpose of carrying
on a business or commercial enterprise, and not for personal, family or
household 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
jurisdiction in which the Land is located.


 


18.          Captions.  The
captions of the paragraphs of this Note are for convenience only and shall be
disregarded in construing this Note.


 


19.          Notices. 
All notices, demands and other communications required or permitted to
be given by Lender to Borrower pursuant to this Note shall be given in
accordance with Section 31 of the Security Instrument.


 


20.          Consent
to Jurisdiction and Venue.   Borrower and Key Principal each agrees
that any controversy arising under or in relation to this Note shall be litigated
exclusively in 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
and Key Principal each irrevocably consents to service, jurisdiction, and venue
of such courts 


 


8

















 


for any such
litigation and waives any other venue to which it might be entitled by virtue
of domicile, habitual residence or otherwise.


 


21.          WAIVER
OF TRIAL BY JURY.  BORROWER, KEY
PRINCIPAL 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, KEY PRINCIPAL 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.


 


ATTACHED SCHEDULES.  The following Schedules are attached to this
Note:


 


	
   

  	
  x

  	
  Schedule A

  	
  Prepayment Premium (required)

  



 


9
















 


IN
WITNESS WHEREOF, Borrower has signed and delivered this Note or has
caused this Note to be signed and delivered by its duly authorized
representative.


 


 


	
   

  	
  BORROWER

  
	
   

  	
   

  
	
   

  	
  BEHRINGER HARVARD NOHO, LLC,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President

  



 


 


Fannie Mae Commitment Number: 
860574


 


1

















 


	
   

  	
  PAY
  TO THE ORDER OF FANNIE MAE, without recourse.

  
	
   

  	
   

  
	
   

  	
  RED
  MORTGAGE CAPITAL, INC.,

  
	
   

  	
  an
  Ohio corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  R. Barth Kallmerten

  
	
   

  	
   

  	
  Name:  R. Barth Kallmerten

  
	
   

  	
   

  	
  Title:  Senior
  Managing Director

  



 


 


Fannie
Mae Commitment Number:  860574


 


1





















 


SCHEDULE A


 


PREPAYMENT PREMIUM


 


Any prepayment premium payable under Paragraph 10 of this Note shall be
computed as follows:


 


(a)                                  If the
prepayment is made at any time after the date of this Note and before the Yield
Maintenance Period End Date, the prepayment premium shall be the greater of:


 


(i)                                     1% of the
amount of principal being prepaid; or


 


(ii)                                  The product
obtained by multiplying:


 


(A)                              the amount of
principal being prepaid,


 


by


 


(B)                                the difference
obtained by subtracting from the Interest Rate on this Note the Yield Rate (as
defined below), on the twenty-fifth Business Day preceding (x) the
Intended Prepayment Date, or (y) the date Lender accelerates the Loan or
otherwise accepts a prepayment pursuant to Paragraph 10(a)(3) of this
Note,


 


by


 


(C)                                the present
value factor calculated using the following formula:


 


	
   

  	
  1 - (1 + r)-n/12

  	
   

  
	
   

  	
  r

  	
   

  



 


[r =          Yield
Rate.


 


n =                               the number of
months remaining between (1) either of the following: (x) in the case
of a voluntary prepayment, the Last Day of the Month during which the
prepayment is made, or (y) in any other case, the date on which Lender
accelerates the unpaid principal balance of this Note and (2) the Yield
Maintenance Period End Date.


 


A-1

















 


For purposes of this clause (ii), the “Yield Rate” means the yield calculated by interpolating the
yields for the immediately shorter and longer term U.S. “Treasury constant
maturities” (as reported in the Federal Reserve Statistical Release H.15
Selected Interest Rates (the “Fed Release”)
under the heading “U.S. government securities”) closest to the remaining term
of the Yield Maintenance Period Term, as follows (rounded to three decimal
places):


 





 


a =                               the yield for
the longer U.S. Treasury constant maturity


b =                               the yield for
the shorter U.S. Treasury constant maturity


x =                                the term of the
longer U.S. Treasury constant maturity


y =                                the term of the
shorter U.S. Treasury constant maturity


z =                                 “n” (as defined
in the present value factor calculation above) divided by 12.


 


Notwithstanding any provision to the
contrary, if “z” equals a term reported under
the U.S. “Treasury constant maturities” subheading in the Fed Release, the
yield for such term shall be used, and interpolation shall not be
necessary.  If publication of the Fed
Release is discontinued by the Federal Reserve Board, Lender shall determine
the Yield Rate from another source selected by Lender.  Any determination of the Yield Rate by Lender
will be binding absent manifest error.]


 


(b)                                 If the
prepayment is made on or after the Yield Maintenance Period End Date but before
the last calendar day of the 4th month prior to the month in which the Maturity
Date occurs, the prepayment premium shall be 1% of the amount of principal
being prepaid.


 


(c)                                  Notwithstanding
the provisions of Paragraph 10(a) of this Note, no prepayment premium
shall be payable with respect to any prepayment made on or after the last
calendar day of the 4th month prior to the month in which the Maturity Date
occurs.


 


	
   

  	
   

  	
  GJR

  	
   

  
	
   

  	
  Borrower’s
  Initials

  



 


A-2