Exhibit 10.1
DEED OF TRUST NOTE
$41,841,021.29 December 23, 1997
For value received, FPR HOLDINGS LIMITED PARTNERSHIP, a Delaware
limited partnership, having its principal place of business at c/x Xxxxxxxxx &
Xxxxx Inc., Artery Plaza, 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx
00000 (hereinafter referred to as "MAKER"), promises to pay to the order of
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC, a Delaware limited liability
company ("LENDER" and also sometimes "PAYEE"), having its principal office at 00
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such place as the holder hereof
may from time to time designate in writing, the principal sum of Forty-One
Million Eight Hundred Forty-One Thousand Twenty-One Dollars and Twenty-Nine/100
Dollars ($41,841,021.29), in lawful money of the United States of America, with
interest thereon to be computed on the unpaid principal balance from time to
time outstanding at the Applicable Interest Rate (as hereinafter defined), and
to be paid in installments as follows:
A. A payment of interest only on the date hereof for the period from the
date hereof through and including January 10, 1998;
B. A constant payment of $285,741.77 (such amount hereinafter the
"MONTHLY PAYMENT AMOUNT"), on the eleventh day of February, 1998 and
on the eleventh day of each calendar month thereafter up to and
including the eleventh day of December, 2027 (each a "PAYMENT DATE");
each of such payments to be applied (a) to the payment of interest
computed at the Initial Term Interest Rate (as hereinafter defined);
and (b) the balance applied toward the reduction of the principal
sum;
and the balance of said principal sum together with all accrued and unpaid
interest thereon shall be due and payable on the eleventh day of January, 2028
(the "MATURITY DATE"). Interest on the principal sum of this Note shall be
calculated on the basis of the actual number of days elapsed and a
three-hundred-sixty (360) day year. The constant payment required hereunder is
based on an amortization schedule of three-hundred-sixty (360) months. For
purposes of making payments hereunder, but not for purposes of calculating
interest accrual periods if the eleventh (11th) day of a given month is not a
Business Day (as hereinafter defined), then the Payment Date for such month
shall be the next succeeding Business Day. All amounts due under this Note shall
be payable without setoff, counterclaim or any other deduction whatsoever.
1. As used in this Note:
(a) The term "ANNUAL BUDGET" shall mean an annual budget submitted
by Maker to Payee in accordance With the terms of paragraph 8(b) herein.
(b) The term "ANTICIPATED REPAYMENT DATE" shall mean January 11,
2008.
(c) The term "APPLICABLE INTEREST RATE" shall mean from (a) the
date of this Note through but not including the Anticipated Repayment Date, the
Initial Term Interest Rate, and (b) from and after the Anticipated Repayment
Date through and including the date this Note is paid in full, the Extended Term
Rate.
(d) The term "APPROVED ANNUAL BUDGET" shall mean each Annual
Budget approved by Payee in accordance with terms herein.
(e) The term "ASSIGNMENT OF LEASES" shall mean that certain
Assignment of Leases and Rents of even date herewith executed by Maker in favor
of Xxxxx.
(f) The term "BUSINESS DAY" shall mean a day other than (i) a
Saturday or Sunday, or (ii) any day on which commercial banks in New York City
are not open for general banking business.
(g) The term "CAPITAL EXPENDITURES" shall mean for any period, the
amount expended for items capitalized under generally accepted accounting
principles including expenditures for building improvements or major repairs,
leasing commissions and tenant improvements.
(h) The term "CASH EXPENSES" shall mean for any period, the
operating expenses for the Trust Property (as defined in the Deed of Trust) as
set forth in an Approved Annual Budget to the extent that such expenses are
actually incurred by Maker minus payments into the Tax and Insurance Impound
Fund (as defined in the Deed of Trust) and the Replacement Escrow Fund (as
defined in the Deed of Trust).
(i) The term "CASH MANAGEMENT AGREEMENT" shall mean that certain
Cash Management Agreement of even date herewith between Maker, Payee and
Manager.
(i) The term "DEBT" shall mean, collectively, the whole of the
principal sum of this Note, together with all interest accrued and unpaid
thereon and all other sums due under the Loan Documents
(j) The term "DEED OF TRUST" shall mean that certain Deed of
Trust, Assignment of Leases and Rents and Security Agreement of even date
herewith in the amount of this Note given by Maker for the use and benefit of
Payee covering the fee estate of Maker in certain premises as more particularly
described therein.
(k) The term "DEFAULT RATE" shall mean a rate per annum equal to
the lesser of (a)the maximum rate permitted by applicable law, or (b) five
percent (5%) above the Applicable Interest Rate.
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(l) The term "DEFEASANCE OPTION" shall mean the right and option
of Maker to release the Trust Property from the lien of the Deed of Trust in
accordance with the provision set forth in Paragraph 57 of the Deed of Trust.
(m) The term "EXTENDED TERM RATE" shall mean a rate per annum
equal to the greater of (i) the Initial Term Interest Rate plus five (5)
percentage points or (ii) the Treasury Rate plus five (5) percentage points,
provided in the event of a rated Securitization (as defined in the Deed of
Trust), the "EXTENDED TERM RATE" shall mean a rate per annum equal to the
greater of (i) the Initial Term Interest Rate plus two (2) percentage points or
(ii) the Treasury Rate plus two (2) percentage points.
(n) The term "EXCESS CASH FLOW" shall mean, for any period, the
sum (determined in accordance with generally accepted accounting principles,
consistently applied) of (a) net operating income (calculated as all income
derived from the operation of the Trust Property after payment of taxes and
expenses), pins (b) depreciation and amortization (to the extent deducted in
determining net operating income) for such period, plus (c) disbursements from
the Tax and Insurance Impound Fund, the Replacement Escrow Fund, the Leasing
Escrow Fund or any other escrows or reserves approved by Payee or provided for
under the Loan Documents, but only to the extent disbursed by Maker and not
applied to the payment of, or reimbursement for, taxes, insurance and other
amounts for which such reserves were set aside, minus (d) actual payments of the
regularly scheduled principal and interest payments (calculated at the
Applicable Interest Rate, or at the Default Rate, if applicable) due and payable
in accordance with this Note during an applicable period, minus (e) actual
capital improvement expenditures in excess of payments from the Replacement
Escrow Fund, the Leasing Escrow Fund and funding of reserves for working capital
and extraordinary expenses as approved by Lender in its sole discretion, and
minus (f) payments into the Replacement Escrow Fund, the Tax and Insurance
Impound Fund, the Leasing Escrow Fund and other reserves required under the Loan
Documents.
(o) The term "EXTRAORDINARY EXPENSE" shall mean an extraordinary
operating expense or capital expense not set forth in the Approved Annual Budget
or allotted for in the Replacement Escrow Fund.
(p) The term "INITIAL TERM INTEREST RATE" shall mean a rate of
Seven and Two Hundred Sixty-One One-Thousandths percent (7.261%) per annum.
(q) The term "LOAN" shall mean that certain loan made by Xxxxx to
Maker contemporaneously herewith.
(r) The term "LOAN DOCUMENTS" shall mean collectively this Note,
the Deed of Trust, the Assignment of Leases and any and all other documents
securing, evidencing, or guaranteeing all or any portion of the Loan or
otherwise executed and/or delivered in connection with this Note and the Loan.
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(s) The term "NET CAPITAL EXPENDITURES" shall mean for any period
the amount by which Capital Expenditures during such period exceeds
reimbursements for such items during such period from any fund established
pursuant to the Loan Documents.
(t) The term "TREASURY RATE" shall mean, as of the Anticipated
Repayment Date, the yield, calculated by linear interpolation (rounded to the
nearest one-thousandth of one percent (i.e., 0.001%)) of the yields of
noncallable United States Treasury obligations with terms (one longer and one
shorter) most nearly approximating the period from the Anticipated Repayment
Date to the Maturity Date, as determined by Payee on the basis of Federal
Reserve Statistical Release H.15-Selected Interest Rates under the heading U.S.
Governmental Security/Treasury Constant Maturities, or other recognized source
of financial market information selected by Payee.
2. This Note is evidence of the Loan and of the obligation of the
Maker to repay the Loan in accordance with the terms hereof. This Note is
secured inter alia by (a) the Deed of Trust, (b) an Assignment of Leases, and
(c) the other Loan Documents.
3. If any sum payable under this Note is not paid on or before
the date on which it is due, Maker shall pay to Payee upon demand an amount
equal to the lesser of three percent (3 %) of such unpaid sum or the maximum
amount permitted by applicable law in order, to defray a portion of the expenses
incurred by Payee in handling and processing such delinquent payment and to
compensate Payee for the loss of the use of such delinquent payment. If the day
when any payment required under this Note is due is not a Business Day, then
payment shall be due on the first Business Day thereafter.
4. The Debt or any portion thereof, shall without notice become
immediately due and payable at the option of Payee if any payment required in
this Note is not paid on or before the date on which it is due or upon the
happening of any other Event of Default (as defined in the Deed of Trust). In
the event that it should become necessary to employ counsel to collect or
enforce the Debt or to protect or foreclose the security therefor, Maker also
shall pay on demand all costs of collection incurred by Xxxxx, including
attorneys' fees and costs reasonably incurred for the services Of counsel
whether or not suit be brought.
5. Maker does hereby agree that upon the occurrence of an Event
of Default (including upon the failure of Maker to pay the Debt in full on the
Maturity Date), Payee shall be entitled to receive and Maker shall pay interest
on the entire unpaid principal sum and any other amounts due at the Default
Rate.
6. Maker hereby agrees that upon the occurrence of an Event of
Default Maker shall pay to Payee on the eleventh day of each month while such
Event of Default continues, an aggregate amount equal to the Excess Cash Flow
for the period from the eleventh day of the prior month through and including
the tenth day of the month in question, such Excess Cash Flow to be applied by
Payee to the payment of the Debt in such order as Payee shall determine in its
sole discretion, including, without limitation, alternating applications thereof
between interest and principal. Interest at the Default Rate and Excess
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Cash Flow shall both be computed from the occurrence of the Event of Default
until the actual receipt and collection of the Debt. Interest at the Default
Rate shall be added to the Debt and shall be secured by the Deed Of Trust. This
paragraph, 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 Payee by reason of the occurrence of any Event of Default;
the acceptance of any payment of Excess Cash Flow shall not be deemed to cure or
constitute a waiver of any Event of Default; and Payee retains its rights under
this Note to accelerate and to continue to demand payment of the Debt upon the
happening of any Event of Default despite any payment of Excess Cash Flow.
7. This Note may not be prepaid prior to the Anticipated
Repayment Date; provided, however, Maker shall have the right and option to
release the Trust Property from the lien of the Deed of Trust in accordance with
the terms and provisions of the Defeasance Option. Notwithstanding the foregoing
sentence, on any Payment Date occurring in the ninety (90) days preceding the
Anticipated Repayment Date, Maker shall have the privilege to prepay (i) the
entire outstanding principal balance of this Note together with all other
amounts due to Lender under this Note, the Deed of Trust and any of the other
Loan Documents or (ii) any portion of the outstanding principal balance of this
Note without payment of the Yield Maintenance Premium (as defined in the Deed of
Trust) or any other premium or penalty. In addition, on the Anticipated
Repayment Date or on any Payment Date thereafter, the Maker may, at its option
and upon thirty (30) days prior written notice from Maker to Payee, prepay in
whole or in part, in $1,000,000.00 increments only, the outstanding principal
balance of this Note and any other amounts outstanding without payment of the
Yield Maintenance Premium or any other premium or penalty. If prior to the
Anticipated Repayment Date and following the occurrence of any Event of Default,
Maker shall tender payment of an amount sufficient to satisfy the Debt at any
time prior to a sale of the Trust Property, either through foreclosure or the
exercise of the other remedies available to Payee under the Deed of Trust, such
tender by Maker shall be deemed to be voluntary and Maker shall pay, in addition
to the Debt, the Yield Maintenance Premium, if any, that would be required under
the Defeasance Option.
8. (a) Prior to and after the expiration of any Sweep Period
(as defined in the Cash Management Agreement) Payee shall apply all sums
received from Maker in the following listed order of priority:
(i) First, payments to the Tax and Insurance Impound Fund (as
defined in the Deed 'of Trust) in accordance with the terms
and conditions of the Deed of Trust;
(ii) Second, the payment of the Monthly Payment Amount;
(iii) Third, payments to the Replacement Escrow Fund (as defined in
the Deed of Trust) and the Leasing Escrow Fund (as defined in
the Deed of Trust), each in accordance with the terms and
conditions of the Deed of Trust; and
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(iv) Fourth, payments of any other amounts due under the Loan
Documents.
(b) For each fiscal year commencing with the fiscal year in which
the Anticipated Repayment Date occurs, the Maker shall submit to the Payee for
the Payee's written approval an Annual Budget not later than sixty (60) days
prior to the commencement of such fiscal year, in form satisfactory to Payee
setting forth in reasonable detail budgeted monthly operating income and monthly
operating capital and other expenses for the Trust Property. Each Annual Budget
shall contain, among other things, limitations on management fees, third party
service fees, and other expenses as the Maker may reasonably determine. Payee
shall have the right to approve such Annual Budget which approval shall not be
unreasonably withheld, and in the event that Payee objects to the proposed
Annual Budget submitted by Maker, Payee shall advise Maker of such objections
within fifteen (15) days after receipt thereof (and deliver to Maker a
reasonably detailed description of such objections) and Maker shall within three
(3) days after receipt of notice of any such objections revise such Annual
Budget and resubmit the same to Payee. Payee shall advise Maker of any
objections to such revised Annual Budget within ten (10) days after receipt
thereof (and deliver to Maker a reasonably detailed description of such
objections) and Maker shall revise the same in accordance with the process
described in this subparagraph until the Payee approves an Annual Budget,
provided, however, that if Payee shall not advise Maker of its objections to any
proposed Annual Budget within the applicable time period set forth in this
paragraph, then such proposed Annual Budget shall be deemed approved by Payee.
Until such time that Payee approves a proposed Annual Budget, the most recently
Approved Annual Budget shall apply; provided that, such Approved Annual Budget
shall be adjusted to reflect actual increases in real estate taxes, insurance
premiums and utilities expenses.
9. In the event that the Maker does not pay the Debt in full
prior to the Anticipated Repayment Date, the provisions of paragraph 8(b) as set
forth above shall remain in full force and effect, and the following
subparagraphs also shall apply:
(a) From and after the Anticipated Repayment Date, interest shall
accrue on the unpaid principal balance from time to time outstanding on this
Note at the Extended Term Rate. Interest accrued at the Extended Term Rate and
not paid pursuant to this paragraph 9 shall be deferred and added to the Debt
and shall earn interest at the Extended Term Rate to the extent permitted by
applicable law (such accrued interest is hereinafter defined as "ACCRUED
INTEREST"). All of the Debt, including any Accrued Interest, shall be due and
payable on the Maturity Date.
(b) Maker shall, on the Anticipated Repayment Date and the
eleventh day of each calendar month thereafter up to and including the Maturity
Date, pay to Payee all Rents received on or after the Anticipated Repayment Date
and not theretofore paid to Payee hereunder, which amounts shall be applied in
the listed order of priority:
(i) First, payments to the Tax and Insurance Impound Fund in
accordance with the terms and conditions of the Deed of Trust;
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(ii) Second, the payment of the Monthly Payment Amount to be
applied first to the payment of interest computed at the
Initial Term Interest Rate with the remainder applied to the
reduction of the outstanding principal balance of this Note;
(iii) Third, payments to the Replacement Escrow Fund and Leasing
Escrow Fund, each in accordance with the terms and conditions
of the Deed of Trust;
(iv) Fourth, payments for monthly Cash Expenses, less management
fees payable to affiliates of Maker, pursuant to the terms and
conditions of the related Approved Annual Budget;
(v) Fifth, payment for monthly Net Capital Expenditures, pursuant
to the terms and conditions of the related Approved Annual
Budget;
(vi) Sixth, payment for Extraordinary Expenses approved by Xxxxx,
if any;
(vii) Seventh, payments to the Payee to be applied against the
outstanding principal due under this Note until such principal
amount is paid in full;
(viii) Eighth, payments to the Payee for Accrued Interest;
(ix) Ninth, payments to the Payee of any other amounts due under
the Loan Documents; and
(x) Lastly, payment to the Maker of any excess amounts.
(c) In the event that the Maker must incur an Extraordinary
Expense, then the Maker shall promptly deliver to Payee a reasonably detailed
explanation of such proposed Extraordinary Expense for the Payee's approval.
(d) Nothing in this paragraph 9 shall limit, reduce or otherwise
affect Maker's obligations to make payments of the Monthly Payment Amount,
payments to the Tax and Insurance Impound Fund, the Replacement Escrow Fund or
any other escrows or reserves due hereunder and under the other Loan Documents,
whether or not Rents are available to make such payments.
10. It is expressly stipulated and agreed to be the intent of
Maker and Payee at all times to comply with applicable state law or applicable
United States federal law (to the extent that it permits Payee to contract for,
charge, take, reserve, or receive a greater amount of interest than under state
law) and that this paragraph (and the similar paragraph contained in the Deed of
Trust)' shall control every other covenant and agreement in this Note and the
other Loan Documents. If the applicable law (state or federal) is ever
judicially interpreted so as to render usurious any amount called for under
this Note or under any of the other Loan Documents, or contracted for, charged,
taken, reserved, or received with respect to the Debt,
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or if Xxxxx's exercise of the option to accelerate the Maturity Date, or if any
prepayment or the exercise of any Defeasance Option by Maker results in Maker
having paid any interest in excess of that permitted by applicable law, then
it is Xxxxx's express intent that all excess amounts theretofore collected by
Payee shall be credited on the principal balance of this Note and all other Debt
and the provisions of this Note and the other Loan Documents immediately be
deemed reformed and the amounts thereafter collectible hereunder and thereunder
reduced, without the necessity of the execution of any new documents, so as to
comply with the applicable law, but so as to permit the recovery of the fullest
amount otherwise called for hereunder or thereunder. All sums paid or agreed to
be paid to Payee 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 the Debt until payment in full so that
the rate or amount of interest on account of the Debt does not exceed the
maximum lawful rate from time to time in effect and applicable to the Debt for
so long as the Debt is outstanding. Notwithstanding anything to the contrary
contained herein or in any of the other Loan Documents, it is not the intention
of Payee to accelerate the maturity of any interest that has not accrued at the
time of such acceleration or to collect unearned interest at the time of such
acceleration.
11. 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 Maker or Payee, 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. Whenever used, the singular number
shall include the plural, the plural the singular, and the words "PAYEE" and
"MAKER" shall include their respective successors, assigns, heirs, executors and
administrators. If Maker consists of more than one person or party, the
obligations and liabilities of each such person or party shall be joint and
several.
12. Maker 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, notice of protest, notice of nonpayment,
notice of intent to accelerate the maturity hereof and of acceleration. No
release of any security for the Debt or any person liable for payment of the
Debt, no extension of time for payment of this Note or any installment hereof,
and no alteration, amendment or waiver of any provision of the Loan Documents
made by agreement between Payee and any other person or party shall release,
modify, amend, waive, extend, change, discharge, terminate or affect the
liability of Maker, and any other person or party who may become liable under
the Loan Documents for the payment of all or any part. of the Debt.
13. Subject to the qualifications below, Payee shall not enforce
the liability and obligation of Maker or its constituent members, partners,
shareholders, directors, employees or agents to perform and observe the
obligations contained in this Note, the Deed of Trust or the other Loan
Documents by any legal, equitable or other action or proceeding wherein a
judgment shall be sought against Maker or its constituent members, partners,
shareholders, directors, employees or agents, except that Payee may bring a
foreclosure action, an action for specific performance or any other appropriate
action or proceeding to
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enable Payee to enforce and realize upon its interest under this Note, the Deed
of Trust and the other Loan Documents, or in the Trust Property, the Rents, or
any other collateral given to Payee pursuant to the Loan Documents; provided,
however, that, except as specifically provided herein, any judgment in any such
action or proceeding shall be enforceable against Maker only to the extent of
Maker's interest in the Trust Property, in the Rents and in any other collateral
given to Payee, and Payee, by accepting this Note, the Deed of Trust and the
other Loan Documents, agrees that it shall not sue for, seek or demand any
deficiency judgment against Maker in any such action or proceeding under or by
reason of or under or in connection with this Note, the Deed of Trust or the
other Loan Documents. The provisions of this paragraph shall not, however, (a)
constitute a waiver, release or impairment of any obligation evidenced or
secured by any of the Loan Documents; (b) impair the right of Payee to name
Maker as a party defendant in any action or suit for foreclosure and sale under
the Deed of Trust; (c) affect the validity or enforceability of or any guaranty
made in connection with the Loan or any of the rights and remedies of the Payee
thereunder; (d) impair the right of Payee to obtain the appointment of a
receiver; (e) impair the enforcement of the Assignment of Leases; or (f)
constitute a waiver of the right of Payee to enforce the liability and
obligation of Maker, by money judgment or otherwise, to the extent of any loss,
damage, cost, expense, liability, claim or other obligation incurred by Xxxxx
(including attorneys' fees and costs reasonably incurred) arising out of or in
connection with the following:
(i) fraud or intentional misrepresentation by Maker or any
guarantor in connection with the Loan;
(ii) the gross negligence or willful misconduct of Maker;
(iii) physical waste of the Trust Property;
(iv) the breach of any representation, warranty, covenant or
indemnification provision in that certain Environmental and
Hazardous Substance Indemnification Agreement of even date
herewith given by Maker to Payee or in the Deed of Trust
concerning environmental laws, hazardous substances or
asbestos;
(v) the removal or disposal of any portion of the Trust Property
after an Event of Default;
(vi) the misapplication or conversion by Maker of (A) any insurance
proceeds paid by reason of any loss, damage or destruction to
the Trust Property, (B) any awards or other amounts received
in connection with the condemnation of all or a portion of the
Trust Property, (C) any Rents following an Event of Default,
or (D) any Rents paid more than one month in advance;
(vii) failure to pay charges for labor or materials or taxes or
other charges that can create liens on any portion of the
Trust Property; and
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(viii) any security deposits collected with respect to the Trust
Property which are not delivered to Payee upon a foreclosure
of the Trust Property or other action in lieu thereof, except
to the extent any such security deposits were applied in
accordance with the terms and conditions of any of the Leases
(as defined in the Deed of Trust) prior to the occurrence of
the Event of Default that gave rise to such sale or
foreclosure or action in lieu thereof.
Notwithstanding anything to the contrary in this Note or any of the Loan
Documents, (A) Payee shall not be deemed to have waived any right which Payee
may have under Section 506(a), 506(b), 1111(b) or any other provisions of the
U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by
the Deed of Trust or to require that all collateral shall continue to secure all
of the Debt owing to Payee in accordance with the Loan Documents, and (B) the
Debt shall be fully recourse to Maker in the event that: (i) the first full
monthly payment of principal and interest under this Note is not paid when due;
(ii) Maker fails to maintain its status as a single purpose entity, as required
by, and in accordance with the terms and provisions of, the Deed of Trust; (iii)
Maker fails to obtain Xxxxx's prior written consent to any subordinate financing
or other voluntary lien encumbering the Trust Property; (iv) Maker fails to
obtain Xxxxx's prior written consent to any assignment, transfer, or conveyance
of the Trust Property or any interest therein as required by the Deed of Trust;
(v) a receiver, liquidator or trustee of Maker or of any guarantor shall be
appointed or if Maker or any guarantor shall be adjudicated a bankrupt or
insolvent, or if any petition for bankruptcy, reorganization or arrangement
pursuant to federal bankruptcy, reorganization or arrangement pursuant to
federal bankruptcy law, or any similar federal or stare law, and any of such
events shall be filed by, consented to, or acquiesced in by, Maker or any
guarantor or if any proceeding for the dissolution or liquidation of Maker or of
any guarantor shall be instituted; or (vi) Maker, any Guarantor or any of their
respective affiliates or agents hinders, delays or interferes with the exercise
by Payee of any of its rights or remedies under the Loan Documents after the
occurrence and continuance of an Event of Default.
14. Maker (and the undersigned representative of Maker, if any)
represents that Maker has full power, authority and legal right to execute,
deliver and perform its obligations pursuant to this Note, the Deed of Trust and
the other Loan Documents and that this Note, the Deed of Trust and the other
Loan Documents constitute valid and binding obligations of Maker.
15. All notices or other communications required or permitted to
be given pursuant hereto shall be given in the manner specified in the Deed of
Trust directed to the parties at their respective addresses as provided therein.
16. TO THE EXTENT PERMITTED BY APPLICABLE LAW, MAKER XXXXXX
AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND
WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT
SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM,
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COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF
RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY MAKER, AND IS
INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH
RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. XXXXX IS HEREBY AUTHORIZED TO
FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS
WAIVER BY MAKER.
17. This Note shall be governed by and construed in accordance
with the laws of the State of New York and the applicable laws of the United
States of America.
18. If any Deed of Trust applies to property located within the
State of Maryland the following additional provision shall apply:
Maker represents and warrants that this Note evidences an
indebtedness which is being incurred by Maker for the sole
purpose of acquiring or carrying on a business or commercial
enterprise and/or that Maker is a business or commercial
entity. Maker further represents and warrants that all of the
proceeds received by Maker in connection with this Note shall
be used for commercial purposes and Maker stipulates that the
loan evidenced by this Note shall be construed for all
purposes as a commercial loan and that it is made for other
than personal, family or household purposes.
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Make has duly executed this Note the day and year first above
written.
MAKER:
FPR HOLDINGS LIMITED PARTNERSHIP,
a Delaware limited partnership
By: FPR-GP HOLDINGS, Inc.,
a Delaware corporation,
General Partner
By:
------------------------------------
Name:
Title:
Pay to the order of _________________,
without recourse.
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC,
a Delaware limited liability company
By: ________________________________
Name:
Title:
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