Loan Number 16-0000958


 


AMENDED AND RESTATED NOTE


 


	$37,600,000.00	 
	 	 
	Dated:   December 17, 2012	At: Chicago, Illinois


 


A.           This
Amended and Restated Note (this “Note”), is made as of December 17, 2012, by the undersigned, MDA CITY
APARTMENTS, LLC, a Delaware limited liability company ("Borrower"), to the order of MONY LIFE INSURANCE COMPANY,
a New York corporation (“Holder”).


 


B.           This
Note amends, restates and supersedes, in its entirety, but does not terminate the obligations under, that certain Note dated September
13, 2006 in the original principal sum of Thirty Eight Million and 00/100 Dollars ($38,000,000.00) as amended (the “Original
Note”) payable to the order of Holder. Neither the execution of this Note by Borrower, nor the replacement of the Original
Note by Holder, shall be deemed or construed as a novation of the obligations of Borrower evidenced by the Original Note, all of
which shall be and remain in full force and effect, as amended and restated hereby.


 


FOR VALUE RECEIVED,
Borrower promises to pay to the order of Holder, at its office at 1290 Avenue of the Americas, New York, New York 10104, or at
such other place as the Holder may from time to time designate in writing, the principal sum of Thirty Seven Million Six Hundred
Thousand and 00/100 Dollars ($37,600,000.00), with interest thereon from the date or dates of disbursement of the aforesaid principal
sum at the rate of five and 35/100ths percent (5.35%) per annum, to be paid in lawful money of the United States of America as
follows:


 


In one hundred nineteen
(119) successive monthly installments payable on the tenth (10th) day of each calendar month commencing on the tenth
(10th) day of the second month following the date hereof, the first thirty-six (36) installments to consist of interest only on
the outstanding principal sum, and the next eighty-three (83) installments thereof to be in the amount of ($209,963.55) each and
applied first to interest on the unpaid principal sum and the balance to be applied to the principal sum, with interest to be calculated
on the basis of a 360 day year with 12 months of 30 days each, and the balance to be applied to the principal sum. The amount of
the entire outstanding principal balance and accrued interest thereon shall be payable on January 1, 2023. Borrower acknowledges
that there will be a substantial principal payment due upon maturity and that Holder shall have no obligation, expressed or implied,
to refinance the same. Interest from the date of disbursement hereof to the first day of the next month shall be paid together
with the first regular installment of interest hereunder, to the extent not collected at closing.


 



    	 



    	 



    

 


Borrower shall have
no right to prepay, in whole or in part, the principal sum hereof, except Borrower shall have the right to prepay in whole (but
not in part) the principal sum hereof on any date for the payment of interest hereunder during the third loan year (as hereinafter
defined) and thereafter, provided that, (a) there shall exist no Event of Default under the provisions of the Mortgage) (b) the
Holder hereof shall have received at least thirty (30) business days prior written notice of prepayment and (c) the prepayment
shall be accompanied by a fee (the “Prepayment Fee”) (which Borrower agrees is a fair and reasonable method
to compensate Holder for its loss of the benefits of this loan transaction) equal to the greater of (1) one percent (1%) of the
amount being prepaid or (2) an amount computed as follows: (i) the product of the outstanding principal loan balance (or the amount
being prepaid if the loan is not prepaid in full) on the prepayment date (designated as “P” in the formula below) and
the amount by which 5.41% exceeds the Base Rate (the yield rate as of the prepayment date for a United States of
America treasury obligation having a maturity date substantially contemporaneous with the loan maturity date, designated as “b”
in the formula below) shall be divided by two to determine the semi-annual excess of earned interest at the interest rate payable
pursuant to this Note over the Base Rate and (ii) the semi-annual excess of earned interest shall be discounted to its present
value determined with reference to the number of semi-annual periods then remaining in the loan term (the number of months then
remaining in the loan term divided by six and rounded up to the nearest whole number (designated as “n” in the example
below) and one-half the Base Rate (to account for the fact the payments are made semi-annually). The formula for computing the
prepayment fee is:


 


	 	 	 	 	1-      1     	 
	 	fee =	(5.41% - b) x P	X	    (1 + b/2)n	 
	 	 	2	 	     b/2	 


 


For purposes of establishing the Base Rate,
there shall be utilized the yield to maturity on appropriate (as determined solely by the Holder hereof) U.S. Treasury obligations,
either U.S. Treasury Notes or Bills, having maturity dates closest to the maturity date of this Note, as quoted in the Wall
Street Journal, or if not so quoted, in some other reputable publication selected by the Holder hereof, on the fifth (5th)
business day prior to the date of prepayment. The Prepayment Fee shall be calculated by Holder and shall be binding on Borrower
absent manifest error. Notwithstanding the foregoing, Borrower may prepay, without premium or charge, the whole (but not a part)
of the principal sum hereof, on any business day during the final ninety (90) days of the term hereof, provided that the Holder
hereof shall have received at least ten (10) business days prior written notice of such prepayment. Furthermore, if Holder elects
under Sections 2.13 or 2.14 of the Mortgage to apply proceeds from a casualty or condemnation to reduce the indebtedness secured
by the Mortgage, no premium or charge shall apply to such prepayment.


 


Borrower agrees that
the Prepayment Fee set forth herein, including the amount and method of calculation, fairly and reasonably compensates Holder for
its loss of the benefits of this loan transaction and is consistent with generally accepted lending practices in the State of Illinois.
If such Prepayment Fee is determined to be unreasonable or otherwise unenforceable by a court of competent jurisdiction, then Borrower
agrees to pay a reduced Prepayment Fee equal to the maximum amount permitted under applicable law.


 


The term “loan
year” is defined as any period of one year commencing on the date for the payment of the first installment hereunder
or on any anniversary of such date.


 



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If the maturity of
this Note is accelerated as a result of an Event of Default under the provisions of the Mortgage, the Holder will be damaged because
of its loss of the benefits of this loan transaction. Holder and Borrower acknowledge that different methods could be used to calculate
Holder’s damages, but to avoid any dispute, Borrower agrees to pay as fair and reasonable compensation to Holder an acceleration
fee in an amount equal to the greater of (1) three percent (3%) of the outstanding principal amount due hereunder or (2) the Prepayment
Fee (regardless of whether or not prepayment is then permitted); provided, however, if such acceleration occurs prior to the third
loan year, the Prepayment Fee shall be multiplied by one hundred twenty five percent (125%) (with the Prepayment Fee computed using
the formula applicable during the third loan year).


 


The whole of the principal
sum and interest shall become due and payable at the option of the Holder hereof upon the occurrence of an Event of Default under
the provisions of the Mortgage (all of the terms and provisions of such Mortgage being hereby incorporated herein
by reference), together with (to the extent permitted under applicable law) costs of collection and attorneys’ fees incurred
by the Holder hereof in collecting or enforcing payment thereof, including all costs associated with the default, any workout negotiations,
foreclosure and bankruptcy, whether or not suit is filed. The whole of the principal sum and, to the extent permitted by law, any
accrued interest shall bear interest from and after maturity, whether or not resulting from acceleration, at a rate of ten and
35/100ths percent (10.35%) per annum (the “Default Interest Rate”).


 


If any payment of principal,
interest and any escrow payments required by the Loan Documents, other than the payment due at maturity or upon acceleration of
this Note, shall not be made as the same becomes due and payable, such delinquent payment shall bear a late charge for each month
or fraction thereof during which such delinquency exists until the date the Default Interest Rate is assessed on the entire principal
sum, equal to the lesser of four percent (4%) of the delinquent payment or the maximum amount which shall be permitted by applicable
law. Borrower acknowledges that such late charge is fair liquidated compensation to the Holder for the time and expense of dealing
with delinquent payments. If such payment shall not be made for ten (10) days after the same becomes due and payable, in addition
to the late charge provided for above, interest shall be payable on the whole of the principal sum at the Default Interest Rate
for the subsequent duration of such default, whether or not there has been an acceleration of the maturity of this Note.


 


In the event any one
or more of the provisions contained in this Note and/or any of the other Loan Documents shall for any reason be held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision
of this Note or any of the other Loan Documents, but this Note and the other Loan Documents shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein or therein.


 



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The Holder and Borrower
intend to comply at all times with applicable usury laws. In no event, whether by reason of demand for payment, prepayment, acceleration
of the maturity hereof or otherwise, shall the interest contracted for, charged or received by the Holder hereof hereunder or otherwise
exceed the maximum amount permissible under applicable law. If from any circumstance whatsoever interest would otherwise be payable
to the Holder hereof in excess of the maximum lawful amount, the interest payable to the Holder hereof shall be reduced automatically
to the maximum amount permitted by applicable law. If the Holder hereof shall ever receive anything of value deemed interest under
applicable law which would apart from this provision be in excess of the maximum lawful amount, an amount equal to any amount which
would have been excessive interest shall be applied to the reduction of the principal amount owing hereunder in the inverse order
of its maturity and not to the payment of interest, or if such amount which would have been excessive interest exceeds the unpaid
balance of principal hereunder, such excess shall be refunded to Borrower. All interest paid or agreed to be paid to the Holder
hereof shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full stated
term (including any renewal or extension) of such indebtedness so that the amount of interest on account of such indebtedness does
not exceed the maximum permitted by applicable law. The provisions of this paragraph shall control all existing and future agreements
between Borrower and the Holder hereof.


 


Any failure by the
Holder hereof to insist upon the strict performance of any of the terms and provisions of this Note or of any of the other Loan
Documents shall not be deemed to be a waiver of any of the terms and provisions hereof, and the Holder hereof, notwithstanding
any such failure, shall have the right thereafter to insist upon the strict performance by Borrower of any and all of the terms
and provisions of this Note and the other Loan Documents.


 


As to this Note and
any of the other Loan Documents, Borrower and endorsers severally waive all applicable exemption rights, whether under the state
Constitution, Homestead laws or otherwise, and also severally waive valuation and appraisement, presentment, protest and demand,
notice of protest, demand and dishonor and nonpayment of this Note, and expressly agree that the maturity of this Note, or any
payment hereunder, may be extended from time to time without in any way affecting the liability of Borrower or said endorsers.


 


Should this Note be
signed by more than one maker, the singular shall include the plural and all the obligations herein contained shall be the joint
and several obligations of each signer hereof.


 


This Note is secured
by that certain Amended and Restated Mortgage, Security Agreement and Fixture Filing of even date herewith (as such mortgage may
hereafter be, amended, restated and replaced, from time to time, the “Mortgage") upon certain real estate
located in Cook County, State of Illinois, and this Note is to be construed according to the laws of said State and applicable
federal laws. This Note, Mortgage and any other instrument securing this Note or otherwise delivered in connection with
the loan evidenced by this Note are collectively referred to as the “Loan Documents”.


 


Notwithstanding anything
contained herein or in the other Loan Documents, in any action or proceeding brought on this Note or the other Loan Documents,
no personal liability shall be claimed or asserted against Borrower, or against any of its general partners, limited partners,
members, shareholders or officers; provided, however, that nothing in the provisions of this paragraph shall be deemed to limit
or impair the enforcement against the premises (the “Premises”) described in the Mortgage, or any other property
which may from time to time be given as security for the performance of Borrower’s obligations hereunder or under the other
Loan Documents, of the Holder’s rights, remedies and recourse under any of such provisions of the Loan Documents with respect
to such Premises or other property, nor the enforcement of or liability of maker or any other party under any guaranty, indemnity,
certification, undertaking or other Loan Document unless and except as recourse against Borrower is expressly limited therein and,
provided further that nothing herein shall limit or impair in any manner the Holder’s rights, remedies or recourse against
Borrower and any other party in respect of, and Borrower shall be personally liable for, any damage, loss, claim, expense or liability
(including, without limitation, attorneys’ fees), arising from, under or out of any of the following:


 



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(a)          the
commission of fraud or any material misrepresentation (including a materially incorrect certification) made by Borrower or its
affiliates in connection with the application for or closing of the loan evidenced hereby;


 


(b)          misappropriation
or misapplication of funds associated with the Premises by Borrower or its affiliates, or failure to apply funds in accordance
with the provisions of the Loan Documents, including, but not limited to, (i) lease security deposits and prepaid rents, (ii) casualty
insurance proceeds and condemnation awards, (iii) judgments, settlements or bankruptcy claims for unpaid rent or lease termination
and (iv) gross revenues from the Premises not applied to payment of the expenses of the Premises, real estate taxes, debt service
and other expenditures required by the Loan Documents, (but without any obligation to reinvest in the Premises funds properly distributed
to Borrower or its partners or members );


 


(c)          loss
in connection with the Premises not reimbursed by insurance resulting from (i) failure to have in effect insurance policies required
by Lender pursuant to the Loan Documents, (ii) the deductible provisions of any required policy or (iii) the successful assertion
of any defense or offset by an insurer under any required policy;


 


(d)          intentional
physical waste in connection with the Premises;


 


(e)          removal
from the Premises without equivalent replacement of any personal property owned or leased by Borrower or its affiliates in violation
of any of the Loan Documents;


 


(f)          forfeiture
of the Premises or any part thereof or interest therein under any applicable law; and


 


(g)          payment
by the Holder hereof of any recording, transfer, gains or any other transaction specific taxes, fees or charges assessed in connection
with making or foreclosing the loan evidenced hereby, bankruptcy proceedings affecting such loan or the delivery of a deed in lieu
of foreclosure or equivalent, and Holder’s attorneys’ fees incurred in connection with the enforcement of Holder’s
rights, remedies or recourse under the Loan Documents after default, including but not limited to foreclosure, bankruptcy or deed
in lieu of foreclosure or equivalent.


 



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BORROWER, AND HOLDER
BY ITS ACCEPTANCE HEREOF, EACH HEREBY AGREE THAT IN CONNECTION WITH ANY LITIGATION, ACTION, CLAIM, SUIT OR PROCEEDING, AT LAW OR
IN EQUITY, ARISING OUT OF, PERTAINING TO OR IN ANY WAY ASSOCIATED WITH THIS NOTE, THE MORTGAGE OR DEED OF TRUST, THE OTHER LOAN
DOCUMENTS, THE RELATIONSHIP OF THE PARTIES HERETO AS LENDER AND BORROWER, THE PREMISES OR THE ACTIONS OF THE PARTIES HERETO IN
CONNECTION WITH ANY OF THE FOREGOING, THE PARTIES (i) WAIVE ABSOLUTELY, IRREVOCABLY AND UNCONDITIONALLY TRIAL BY JURY AND THE RIGHT
TO CLAIM OR RECEIVE CONSEQUENTIAL (THAT IS, SPECIAL OR INDIRECT) OR PUNITIVE DAMAGES, (ii) AGREE THE SUBSTANTIVE LAW OF THE STATE
OF ILLINOIS SHALL GOVERN AND (iii) AGREE SUCH WILL BE LITIGATED IN THE STATE OR FEDERAL COURTS LOCATED IN THE STATE OF ILLINOIS
AND CONSENT AND SUBMIT TO THE JURISDICTION OF SUCH COURTS, AGREE TO INSTITUTE ANY SUCH LITIGATION IN SUCH COURTS, CONSENT TO
SERVICE OF PROCESS BY MAIL AND WAIVE ANY RIGHT EACH MAY HAVE TO TRANSFER OR CHANGE THE VENUE OF ANY LITIGATION BROUGHT IN SUCH
COURTS ARISING OUT OF THE MATTERS DESCRIBED ABOVE.


 


[Signature Page Follows]


 



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IN WITNESS WHEREOF,
the undersigned has caused this Amended and Restated Note to be signed as of the date first above written.


 


	 	MDA CITY APARTMENTS, LLC,
	 	a Delaware limited liability company
	 	 
	 	By:	MDA Associates of Illinois, LLC, an Illinois limited liability company, its co-manager
	 	 	 	 
	 	 	By:	Holtzman Interests No. 17, LLC, a Michigan limited liability company, its manager
	 	 	 	 
	 	 	 	By:	 /s/ Jonathan Holtzman
	 	 	 	Name: Jonathan Holtzman
	 	 	 	Title:  Manager