DO NOT UPDATE FOOTER            RESTATED AND CONSOLIDATED PROMISSORY NOTE

 

 

$______________                  ___________, ____________

_____________, ____

 

            FOR VALUE RECEIVED ___________________________________________ _________________________________________________, a _______________________, as maker, having its principal place of business at _________________________________ _________________________________ ("Borrower"), hereby unconditionally promises to pay to the order of ____________________________, a ___________________________, as payee, having an address at __________________________________________________ ("Lender"), or at such other place as the holder hereof may from time to time designate in writing, the principal sum of  _________________________________________________________________________ __________________________ Dollars, in lawful money of the United States of America with interest thereon to be computed from the date of this Note at the Applicable Interest Rate (defined below) in accordance with the terms of this Note.

 

                        This Note evidences the new and additional indebtedness of $___________ recited in the Security Instrument (as defined below) as being secured thereby and also the existing indebtedness of $___________ remaining unpaid on, and heretofore evidenced by, the bond(s), note(s), or obligations secured by that/those certain mortgage(s) contemporaneously assigned to/held by Lender; it being the intention of this Note that it shall constitute both a renewal, extension and modification of the terms of payment of such existing indebtedness and also an expression of the terms of payment of such new and additional indebtedness and shall restate the terms of such bonds, notes or obligations in their entirety.

 

1.1.1       Article  Payment Terms

 

            Borrower agrees to pay sums under this Note in installments as follows:

 

1.1.1.1.1.1                   a payment of interest only on ___________________, _____;

 

1.1.1.1.1.1                   a constant payment of $_____________ on _________________, ____ and on the _____________ day of each calendar month thereafter up to and including ____________, ____ (each, a "Payment Date"); each of the payments to be applied as follows: (i) first, to the payment of interest computed at the Applicable Interest Rate; and (ii) the balance toward the reduction of the principal sum; and

 

            (c)       the balance of the principal sum and all interest thereon on ________________, ____ (the "Maturity Date").

 

1.1.1       Article   Interest

 

            The interest rate on this Note is ________________ percent (__%) per annum (the "Applicable Interest Rate").  Interest on the principal sum of this Note shall be calculated on the basis of   [365/365 or 365/360].

 

1.1.1       Article   Default and Acceleration

 

            If any payment required in this Note is not paid (a) on or prior to the _____ (__th) day after a Payment Date, (b) on the Maturity Date or (c) on the happening of any other default, after the expiration of any applicable notice and grace periods, herein or under the terms of the Security Instrument (defined below) or any of the Other Security Documents (as defined in the Security Instrument) (collectively, an "Event of Default"), at the option of Lender (i) the whole of the principal sum of this Note, (ii) interest, default interest, late charges and other sums, as provided in this Note, the Security Instrument or the Other Security Documents, (iii) all other monies agreed or provided to be paid by Borrower in this Note, the Security Instrument or the Other Security Documents, (iv) all sums advanced pursuant to the Security Instrument to protect and preserve the Property (defined below) and the lien and the security interest created thereby, and (v) all sums advanced and costs and expenses incurred by Lender in connection with the Debt (defined below) or any part thereof, any renewal, extension, or change of or substitution for the Debt or any part thereof, or the acquisition or perfection of the security therefor, whether made or incurred at the request of Borrower or Lender (all the sums referred to in (i) through (v) above shall collectively be referred to as the "Debt") shall without notice become immediately due and payable.

 

1.1.1       Article   Default Interest

 

            Borrower agrees that upon the occurrence of an Event of Default, Lender shall be entitled to receive and Borrower shall pay interest on the entire unpaid principal sum at a per annum rate equal to the lesser of (a) ____ percent (__%) plus the Applicable Interest Rate and (b) the maximum interest rate which Borrower may by law pay (the "Default Rate").  The Default Rate shall be computed from the occurrence of the Event of Default until the earlier of the date upon which the Event of Default is cured or the date upon which the Debt is paid in full.  Interest calculated at the Default Rate shall be added to the Debt, and shall be deemed secured by the Security Instrument.  This clause, however, shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of the occurrence of any Event of Default.

 

1.1.1       Article   Late Charge

 

            If any monthly installment payable under this Note is not paid on or prior to the ____ (__th) day after the applicable Payment Date, Borrower shall pay to Lender upon demand an amount equal to the lesser of ___ percent (__%) of such unpaid sum or the maximum amount permitted by applicable law to defray the expenses incurred by Lender in handling and processing the delinquent payment and to compensate Lender for the loss of the use of the delinquent payment and this amount shall be secured by the Security Instrument and the Other Security Documents.

 

1.1.1       Article   Prepayment

 

            (a)       The principal balance of this Note may not be prepaid in whole or in part prior to the ______ Loan Year (defined below).  During the _____ Loan Year or any time thereafter, the principal balance of this Note may be prepaid in whole, but not in part, upon not less than sixty (60) days prior written notice to Lender specifying the date on which prepayment is to be made (the "Prepayment Date") which date must be a Payment Date and upon payment of:

 

            (i)        all accrued interest to and including the Prepayment Date;

 

            (ii)       all other sums due under this Note, the Security Instrument and all Other Security Documents; and

 

            (iii)      the Prepayment Consideration (defined below).

 

Notwithstanding anything to the contrary herein, provided no Event of Default exists under this Note, the Security Instrument or the Other Security Documents, in the event of any prepayment which occurs during the three (3) months prior to the Maturity Date, no Prepayment Consideration shall be due in connection therewith, but Borrower shall be required to pay all other sums due hereunder.

 

            (b)       The Prepayment Consideration shall equal an amount equal to

 

 

 

 

 

 

Lender shall notify Borrower of the amount and the basis of determination of the required prepayment consideration.

 

            (c)       "Loan Year" as used in this Note shall mean each 365 or 366, if applicable, day period after the first day of the first calendar month after the date of this Note (or the date of this Note if it is dated the first day of a calendar month).

 

            (d)       If any notice of prepayment is given under this Article 6, the principal balance of this Note and the other sums required under this prepayment section shall be due and payable on the Prepayment Date.  Lender shall not be obligated to accept any prepayment of the principal balance of this Note unless it is accompanied by all sums due in connection therewith.  Notwithstanding anything contained in this Article 6 to the contrary, provided no Event of Default exists, no Prepayment Consideration shall be due in connection with a complete or partial prepayment resulting from the application of insurance proceeds or condemnation awards pursuant to Sections 3.3 and 3.6 of the Security Instrument or changes in tax and debt credit pursuant to Section 7.3(a) or (b) of the Security Instrument, but Borrower shall be required to pay all other sums due hereunder.

 

            (e)       If a Default Prepayment (defined below) occurs, Borrower shall pay to Lender the entire Debt, including, without limitation, the following amounts:

 

            (i)  if the Default Prepayment occurs prior to the time when prepayment of the principal balance of this Note is permitted, an amount equal to the sum of (A) the present value of the interest payments which would have accrued on the principal balance of this Note (outstanding as of the date of such Default Prepayment) at the Applicable Interest Rate from the date of such Default Prepayment to the first date prepayment is permitted pursuant to this Note discounted at a rate equal to the Treasury Rate (defined below), except that such Treasury Rate shall be based on the U.S. Treasury constant maturity most nearly approximating the date upon which prepayment is first permitted pursuant to this Note, and (B) the Prepayment Consideration calculated as of the first date prepayment is permitted pursuant to this Note; and

 

            (ii)  if the Default Prepayment occurs at a time when prepayment of the principal balance of this Note is permitted, the Prepayment Consideration.

 

            (f)        The term "Treasury Rate" means  the yield calculated by the linear interpolation of the yields, as reported in Federal Reserve Statistical Release H.15-Selected Interest Rates under the heading U.S. government securities/Treasury constant maturities for the week ending prior to the Prepayment Date, of U.S. Treasury constant maturities with maturity dates (one longer and one shorter) most nearly approximating the Maturity Date.  (In the event Release H.15 is no longer published, Lender shall select a comparable publication to determine the Treasury Rate.)  [The "Discount Rate" is the rate which, when compounded monthly, is equivalent to the Treasury Rate when compounded semi-annually.]

 

For purposes of this Note, the term "Default Prepayment" shall mean a prepayment of the principal amount of this Note made after the occurrence of any Event of Default or an acceleration of the Maturity Date under any circumstances, including, without limitation, a prepayment occurring in connection with reinstatement of the Security Instrument provided by statute under foreclosure proceedings or exercise of a power of sale, any statutory right of redemption exercised by Borrower or any other party having a statutory right to redeem or prevent foreclosure, any sale in foreclosure or under exercise of a power of sale or otherwise.

 

1.1.1       Article   Security

 

            This Note is secured by that certain Mortgage and Security Agreement, and Consolidation, Modification and Restatement Agreement dated the date hereof in the principal sum of $_____________ given by Borrower to (or for the benefit of) Lender covering the ___________ estate of Borrower in certain premises located in _______________ County, State (Commonwealth) of ______________, and other property, as more particularly described therein (collectively, the "Property") and intended to be duly recorded in said County (the "Security Instrument"), and by the Other Security Documents.

 

1.1.1       Article   Loan Charges

 

            This Note, the Security Instrument and the Other Security Documents are subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance due hereunder at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of the maximum interest rate which Borrower is permitted by applicable law to contract or agree to pay.  If by the terms of this Note, the Security Instrument and the Other Security Documents, Borrower is at any time required or obligated to pay interest on the principal balance due hereunder at a rate in excess of such maximum rate, the Applicable Interest Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to such maximum rate and all previous payments in excess of the maximum rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder.  All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the Debt, shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of this Note until payment in full so that the rate or amount of interest on account of the Debt does not exceed the maximum lawful rate of interest from time to time in effect and applicable to the Debt for so long as the Debt is outstanding.

 

1.1.1       Article   Waivers

 

            Borrower and all others who may become liable for the payment of all or any part of the Debt do hereby severally waive presentment and demand for payment, notice of dishonor, protest and notice of protest and non-payment and all other notices of any kind, except for notices expressly provided for in this Note, the Security Instrument or the Other Security Documents.  No release of any security for the Debt or extension of time for payment of this Note or any installment hereof, and no alteration, amendment or waiver of any provision of this Note, the Security Instrument or the Other Security Documents made by agreement between Lender or any other person or party shall release, modify, amend, waive, extend, change, discharge, terminate or affect the liability of Borrower, and any other person or entity who may become liable for the payment of all or any part of the Debt, under this Note, the Security Instrument or the Other Security Documents.  No notice to or demand on Borrower shall be deemed to be a waiver of the obligation of Borrower or of the right of Lender to take further action without further notice or demand as provided for in this Note, the Security Instrument or the Other Security Documents.  If Borrower is a partnership, corporation or limited liability company, the agreements contained herein shall remain in full force and effect, notwithstanding any changes in the individuals or entities comprising the Borrower, and the term "Borrower," as used herein, shall include any alternate or successor entity, but any predecessor entity, and its partners or members, as the case may be, shall not thereby be released from any liability.  (Nothing in the foregoing sentence shall be construed as a consent to, or a waiver of, any prohibition or restriction on transfers of interests in Borrower which may be set forth in the Security Instrument or any Other Security Document.)

 

1.1.1       Article   Waiver of Trial By Jury

 

            BORROWER AND LENDER, BY ACCEPTANCE OF THIS NOTE, HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE LOAN EVIDENCED BY THIS NOTE, THE APPLICATION FOR THE LOAN EVIDENCED BY THIS NOTE, THIS NOTE, THE SECURITY INSTRUMENT OR THE OTHER SECURITY DOCUMENTS OR ANY ACTS OR OMISSIONS OF LENDER OR BORROWER.

 

1.1.1       Article   Exculpation

 

            (a)       Notwithstanding anything to the contrary contained in this Note, the Security Instrument or the Other Security Documents (but subject to the provisions of subsections (b), (c) and (d) of this Article 11), Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in this Note, the Security Instrument or the Other Security Documents by any action or proceeding wherein a money judgment establishing any personal liability shall be sought against Borrower or the "Exculpated Parties" (as defined in subsection (e) below), except that Lender may bring a foreclosure action, action for specific performance or other appropriate action or proceeding to enable Lender to collect the sums due under this Note by enforcing its rights and remedies to realize upon the Security Instrument or Other Security Documents, and the interest in the Property, the Rents (as defined in the Security Instrument) and any other collateral given to Lender to secure this Note; provided, however, subject to the provisions of subsections (b), (c) and (d) of this Article 11, that any judgment in any such action or proceeding shall be enforceable against the Property, the Rents and in any other collateral given to Lender to secure this Note.  Lender, by accepting this Note, the Security Instrument and the Other Security Documents, agrees that it shall not, except as otherwise provided in this Article 11, sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties, in any such action or proceeding, under or by reason of or in connection with this Note, the Security Instrument or the Other Security Documents.  The provisions of this Article 11 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Note, the Security Instrument or the Other Security Documents; (ii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial fore­closure and sale under the Security Instrument; (iii) affect the validity or enforceability of any indemnity, (including the Environmental Indemnity (as defined in the Security Instrument)), guaranty, master lease or similar instrument made in connection with this Note, the Security Instrument, or the Other Security Documents; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the Assignment of Leases and Rents executed in connection herewith; (vi) impair the right of Lender to enforce the provisions of Section 13.2 of the Security Instrument; or (vii) impair the right of Lender to obtain a deficiency judgment or other judgment on this Note against Borrower if necessary to obtain any insurance proceeds or condemnation awards to which Lender would otherwise be entitled under this Security Instrument; provided however, Lender shall only enforce such judgment to the extent of the insurance proceeds and/or condemnation awards.

 

            (b)       Notwithstanding the provisions of subsection (a) of this Article 11 to the contrary, Borrower shall be personally liable to Lender for the Losses (as defined in the Security Instrument) Lender incurs due to: (i) fraud or intentional misrepresentation by Borrower or any of the Exculpated Parties in connection with the Loan evidenced by this Note; (ii) Borrower's misapplication or misappropriation of Rents received by Borrower after the occurrence of and during the continuance of an Event of Default; (iii) Borrower's misapplication or misappropriation of tenant security deposits or Rents collected in advance; (iv) the misapplication or the misappropriation of insurance proceeds or condemnation awards; (v) Personal Property (as defined in the Security Instrument) taken from the Property by or on behalf of Borrower or any of the Exculpated Parties and not replaced with Personal Property of the same utility and of the same or greater value; (vi) any act of arson by Borrower or any of the Exculpated Parties; or (vii) any payments made by Borrower after the occurrence of and during the continuance of an Event of Default to any Exculpated Party in violation of the terms of this Note, the Security Instrument or the Other Security Documents.

 

            (c)       Notwithstanding the provisions of subsection (a) of this Article 11 to the contrary, the agreement of Lender not to pursue recourse liability as set forth in subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect in the event of Borrower's default under Article 8 of the Security Instrument or if the Property or any part thereof shall become an asset in (i) a voluntary bankruptcy or insolvency proceeding, or (ii) an involuntary bankruptcy or insolvency proceeding (other than one filed by Lender) which is not dismissed within ninety (90) days of filing.

 

            (d)       Nothing herein shall be deemed to be a waiver of any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provision of the U.S. Bankruptcy Code to file a claim for the full amount of the indebtedness secured by the Security Instrument or to require that all collateral shall continue to secure all of the indebtedness owing to Lender in accordance with this Note, the Security Instrument and the Other Security Documents.

 

            (e)       For purposes of this Article 11, “Exculpated Parties” shall mean any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent or affiliate of Borrower or any person owning, directly or indirectly, any legal or beneficial interest in Borrower, or any successors or assigns of any of the foregoing.

           

1.1.1       Article   Authority

 

            Borrower (and the undersigned representative of Borrower, if any) represents that Borrower has full power, authority and legal right to execute and deliver this Note, the Security Instrument and the Other Security Documents and that this Note, the Security Instrument and the Other Security Documents constitute valid and binding obligations of Borrower.

 

1.1.1       Article   Governing Law

 

            This Note shall be governed, construed, applied and enforced in accordance with the laws of the State of ________________________.

 

1.1.1       Article   Notices

 

            All notices required or permitted hereunder shall be given as provided in the Security Instrument.

 

1.1.1       Article   Incorporation By Reference

 

            All of the terms, covenants and conditions contained in the Security Instrument and the Other Security Documents are hereby made part of this Note to the same extent and with the same force as if they were fully set forth herein.

1.1.1       Article   Miscellaneous

 

            (a)       Wherever pursuant to this Note it is provided that Borrower pay any costs and expenses, such costs and expenses shall include, but not be limited to, reasonable legal fees and disbursements of Lender, whether with respect to retained firms, the reimbursement for the expenses of in-house staff, or otherwise.  Borrower shall pay to Lender on demand any and all expenses, including legal expenses and reasonable attorneys' fees, incurred or paid by Lender in enforcing this Note, whether or not any legal proceeding is commenced hereunder, together with interest thereon at the Default Rate from the date paid or incurred by Lender until such expenses are paid by Borrower.

 

            (b)       This Note may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Borrower or Lender, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.

 

            (c)       If Borrower consists of more than one person or party, the obligations and liabilities of each person or party shall be joint and several.

 

            (d)       Whenever used, the singular number shall include the plural, the plural number shall include the singular, and the words "Lender" and "Borrower" shall include their respective successors, assigns, heirs, executors and administrators.

 

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            IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and year first above written.

 

 

                                                                                               

                                                                                    (Borrower)