NOTE FORM AND VARIATIONS
TABLE OF CONTENTS
NOTE FORM 4
NOTE
4
1 Promise To Pay
4
2 Interest Rate
4
2.1 Definitions
. 4
2.2 Variable Rate Provisions
5
[a] Inability To Determine Federal Funds Rate
5
[b] Lender's Right To Use Reference Rate
6
[c] Effective Date Of Change Of Rate
6
3 Prepayment
6
4 Note Secured By Mortgaged Property
6
5 Interest Rate Limitations
7
6 Acceleration Of Indebtedness
7
7 Late Charge
7
8 Default Rate
8
9 Borrower's Power And Authority
8
10 Joint And Several
8
11 "Lender" And "Borrower"
8
12 Headings Have No Legal Effect
9
13 Borrower's Obligations Absolute And Unconditional
9
14 Borrower's Waiver Of Defenses And Setoffs
9
15 Borrower's Waiver Of Conditions Precedent
10
16 Borrower's Consent To Extensions, Releases, And Loan
Modifications 10
17 Determinations By Lender
10
18 Interest On Interest
10
19 Entire Agreement
11
20 No Oral Changes 11
21 Applicable Law
11
22 Borrower's Consent To Jurisdiction And Venue
11
23 No Trial By Jury
12
LENDER'S OPTIONAL PROVISIONS FOR NOTE 15
1 Principal Payments
15
1.1 Constant Payment Of Principal
15
[a] LIBOR Loans
15
[b] Other Loans
15
1.2 Equal Payments Of Principal And Interest
15
2 Interest Payment Schedule
16
2.1 LIBOR
16
2.2 Variable Rate
16
2.3 Fixed Rate
16
2.4 Interest In Advance
16
3 Fixed Interest Rate
17
4 Lender's Prime or Base Rate
17
5 Objective Prime Rate
17
6 Treasury Rate
18
7 LIBOR Rate
19
[1] APPLICABLE INTEREST RATE
22
[2] INTEREST AFTER STUB DATE
23
[3] DETERMINATION BY LENDER OF NOTE LIBOR
23
[4] SELECTION BY BORROWER OF TWO NOTE LIBORS
24
[5] UNAVAILABILITY OF LIBOR
24
[6] CHANGE IN LAWS, REGULATIONS, ETC.
25
8 Place of Determination of LIBOR
28
9 Construction Loan
28
10 Future Advances or Revolving Credit Loan
28
11 Interest Reserve
29
12 Guarantor as Mortgagor
30
13 Move Indemnities And Other Promises To Mortgage To Promote
Negotiability 30
14 Prepayment Fee And Other Requirements
31
15 Consolidation
31
16 Wraparound Note
32
17 New York Option
32
18 Miscellaneous Provisions
32
23.1 Time Of Essence
33
23.3 Right of Waiver by Lender
33
18.2 Notice
33
18.3 Specified Maximum Interest Rate
33
18.4 Escalator Clause
33
18.5 Interest Averaging Provision
34
18.6 Electronic Note Clause
34
BORROWER'S ALTERNATIVE PROVISIONS FOR NOTE 37
1 Limitation on "Loan Documents"
37
2 Borrower's Right To Prepay
37
2.1 Variable Rate
37
2.2 LIBOR
38
3 Borrower's Option To Convert LIBOR To a Variable Rate
41
4 Borrower's Right to Select Rate
42
5 Exculpation
42
6 Interest Accrues Only To The Extent Loan Advanced
43
NOTE FORM
NOTE1
${{{19/AMOUNT OF LOAN}}}
{{{28/DATE OF ORIGINAL LOAN CLOSING}}}
{{{29/COUNTY OF ORIGINAL LOAN CLOSING}}}, {{{30/STATE OF ORIGINAL LOAN CLOSING}}}
Promise To Pay
FOR VALUE RECEIVED, {{{31/BORROWER}}}, {{{40/TYPE OF
BORROWER}}}, having an address at {{{32/ADDRESS OF BORROWER}}}
(the "Borrower
"), promises to pay to {{{1/LENDER}}}, having an
address at {{{2/ADDRESS OF LENDER (FOR NOTICES)}}} (the "Lender
"), or order, the principal sum of {{{19/AMOUNT OF
LOAN}}} (${{{19/AMOUNT OF
LOAN}}}) DOLLARS (the "Original
Principal Amount "). The Original Principal Amount shall be
payable in lawful money of the United States of America as
follows: {{{26/PRINCIPAL REPAYMENT SCHEDULE}}}. The final
payment of the then unpaid balance of the Original Principal
Amount shall be paid by the Borrower to the Lender on
{{{25/MATURITY DATE}}} (the "Maturity Date
"). The Borrower
shall also pay to the Lender interest, on the unpaid balance of
this Note, at the rate and in the manner set forth in this Note.
Interest shall be computed from the date of this Note until the
entire unpaid balance of this Note has been paid in full to the
Lender. Interest shall be paid as follows: {{{24/INTEREST
PAYMENT SCHEDULE}}}. However, all interest which has accrued
(computed at the rate set forth in this Note), and is unpaid (as
of the Maturity Date), plus all other sums which have accrued
pursuant to this Note, and are unpaid (as of the Maturity Date),
if any, shall be due and payable on the Maturity Date. All
payments, pursuant to this Note, by the Borrower to the Lender,
shall be made at {{{3/ADDRESS OF LENDER (FOR PAYMENTS)}}}, or at
such other place, or in such other manner, as may be designated in writing by the holder of this Note.
Interest Rate
1See Chapter 3 of the main text of this book for guidance on the
drafting and negotiating of notes. This Chapter may discuss variations of the following form which are not included in such form and which are applicable to your particular transaction.
2.1 Definitions . The following underlined terms in
quotation marks shall have the following meanings whenever such terms are capitalized in this Note:
[a] "Alternate Base Rate
" means a rate per annum
equal to the sum of 1) {{{70.2.3.1/SPREAD OVER FEDERAL
FUNDS RATE}}}% per annum, plus 2) the Federal Funds Rate from time to time.
[b] "Business Day
" means any day on which the Lender
is open for business (as determined by the Lender) with
members of the public at the principal place of business of the Lender in the United States.
[c] "Federal Funds Rate
" means, for each day on which
any indebtedness evidenced by this Note (the
"Indebtedness
") is outstanding, a rate per annum equal to
the weighted average of the rates on overnight Federal
Funds transactions with members of the Federal Reserve
System arranged by Federal Funds brokers, as published for
each such day (or if any such day is not a Business Day,
for the next immediately preceding Business Day) by the
Federal Reserve Bank of New York. If the weighted average
of such rates is not so published for any such day which is
a Business Day, then the "Federal Funds Rate" for such day
is the average (as determined by the Lender) of the
quotations for any such day on such transactions received
by the Lender from three Federal Funds brokers of recognized standing selected by the Lender.
[d] "Loan Documents
" shall mean each document
(whether executed on, before, or after the date of this
Note) which contains any provision wholly or partially
evidencing, securing or guaranteeing the payment of this
Note, or the performance of any other obligation which is
enforceable by the Lender against the Borrower or the
interest of the Borrower in any of the collateral for the Indebtedness.
[e] "Principal Balance
" means the outstanding
principal balance of this Note from time to time.
[f] "Reference Rate
" means such rate of interest per
annum as is publicly announced by the Lender at its
principal office from time to time as its Reference Rate.
Any change in the Reference Rate shall be effective on the
date such change is announced by the Lender. The Reference
Rate is not intended to be the lowest rate of interest charged by the Lender.
[g] "Term " means the period from the date of this
Note until the Maturity Date.
[h] "Variable Rate
" means a rate per annum equal to
the sum of 1) {{{70.2.2.1/SPREAD OVER PRIME RATE}}}% per
annum plus 2) the greater, on a daily basis, of (a) the
Reference Rate, or (b) the Alternate Base Rate. 2.2Variable Rate Provisions
[a] Inability To Determine Federal Funds Rate . If
for any reason the Lender shall have determined (which
determination shall be conclusive and binding on the
Borrower) that the Lender is unable to determine the
Federal Funds Rate for any reason, including, without
limitation, the inability or failure of the Lender to
obtain sufficient bids for the purposes of determining the
Federal Funds Rate in accordance with the provisions of
this Note, then the Variable Rate shall be determined on
the basis of the Reference Rate (plus {{{70.2.2.1/SPREAD
OVER PRIME RATE}}}% per annum) until the circumstances giving rise to such inability no longer exist.
[b] Lender's Right To Use Reference Rate
.
Notwithstanding anything to the contrary contained in this
Note, the Lender shall have the right, in its sole and
absolute discretion, to calculate interest on the balance
of this Note from time to time during the term (to the
extent such balance bears interest at the Variable Rate) at
a rate per annum based upon the Reference Rate notwithstanding the fact that a rate per annum based upon
the Alternate Base Rate may, at such time, in fact be
higher. No such election by the Lender shall in any event
constitute a waiver of the Lender's right at any time
thereafter, and without prior notice to the Borrower, to
charge interest on the balance of this Note during the Term
(to the extent such balance bears interest at the Variable
Rate) strictly in accordance with the provisions of this Note.
[c] Effective Date Of Change Of Rate
. Any change in
the Variable Rate as a result of a change in the Reference
Rate or the Federal Funds Rate shall be effective on the
effective date of any such change in the Reference Rate or
the Federal Funds Rate, as the case may be. The Variable
Rate, and the components of the Variable Rate, shall be
calculated for the actual number of days elapsed on the
basis of a 360-day year. Each determination of the
Variable Rate shall be made by the Lender and shall be
conclusive and binding upon the Borrower unless and to the
extent the Borrower shall provide clear and convincing
proof to the Lender of a material error by the Lender in such determination.Prepayment
This Note may not be prepaid in whole or in part. If any
Event of Default (defined below) shall occur and the Maturity
Date shall be accelerated, then a tender of payment by the
Borrower (or by anyone on behalf of the Borrower) of the amount
necessary to satisfy all sums due under this Note made at any
time prior to both 1) the sale of the "Mortgaged Property"
(defined below) pursuant to a judgment of foreclosure, and 2)
the expiration of any period of redemption, shall constitute an
evasion of the prohibition on prepayment provided in this Note,
and shall be deemed to be a voluntary prepayment under this Note
in violation of the provisions of this Note. Any payment in
excess of the lesser of 1) $100,000, or 2) 1% of the unpaid
balance of the Loan, and which is in complete satisfaction of
the Indebtedness, whether made on the Maturity Date, any
accelerated maturity date or otherwise, shall be made by wire transfer of immediately available federal funds.
Note Secured By Mortgaged Property
This Note is secured by the Loan Documents, and the
collateral mortgaged, pledged or assigned pursuant to the Loan
Documents (collectively called the "Mortgaged Property
"). All
sums which shall or may become due and payable by the Borrower
in accordance with this Note shall be and shall be evidenced by
this Note, shall be secured by the Loan Documents, and shall
constitute part of the Indebtedness. All obligations of the
Borrower to the Lender under this Note are secured by the
Mortgage which: 1) is dated the date of this Note, 2) secures
the principal sum of ${{{19/AMOUNT OF LOAN}}}, 3) is given by the Borrower to the Lender, and 4)
covers (among other things) the interest of the Borrower in
certain property located at {{{53/ADDRESS OF REAL ESTATE}}} (the "Mortgage
"). In enforcing its rights under the Loan Documents,
the Lender shall have the right to enforce its remedies with
respect to any of the Loan Documents, or any combination
thereof, and either simultaneously or in such order as the Lender shall deem to be in its best interest. Interest Rate Limitations
At no time shall the Borrower be obligated or be required
to pay interest on the Indebtedness at a rate which is in excess
of the maximum interest rate permitted by applicable law, or
which could subject the Lender to liability as a result of being
in excess of the maximum rate which the Borrower is permitted by
law to contract or agree to pay. If by the terms of this Note
the Borrower is at any time required or obligated to pay
interest on the Indebtedness at a rate in excess of such maximum
rate, then 1) the rate of interest under this Note shall be
deemed to be immediately reduced to such maximum rate, 2)
interest payable under this Note shall be computed at such
maximum rate, and 3) any prior interest payments made, pursuant
to this Note, in excess of such maximum rate shall be applied,
and shall be deemed to have been payments made, in reduction of the Principal Balance of this Note. Acceleration Of Indebtedness
It is hereby expressly agreed that the entire Indebtedness
shall become immediately due and payable:
[a] if any portion of the Indebtedness is not paid
within ten (10) days of the due date for such portion or if
the Indebtedness is not paid in full on the Maturity Date, or
[b] at the option of the Lender, on the happening of
any other default (and the expiration of any applicable
grace period for such default) under any of the Loan
Documents or any other event by which, under the terms of
any of the Loan Documents, the Indebtedness may or shall
become due and payable (each such default or event being called an "Event of Default
").
Late Charge
If all or any portion of the Indebtedness, whether of
principal, interest, additional interest or other sum (if any)
payable under this Note, is not paid within ten (10) days after
the date on which it is due, then the Borrower shall pay to the
Lender, on demand by the Lender, an amount equal to {{{77.1/LATE
CHARGE %}}}% of each such amount or sum, which is not paid
within such ten (10) day period, as a late payment charge. The
Borrower agrees that such late charge is to compensate the
Lender for costs incurred in connection with the administration
of such default, and does not constitute a penalty. The
Borrower further acknowledges that such late charge is a
reasonable amount in light of the anticipated harm caused by the
default, the difficulties of proof of loss, and the inconvenience and difficulty of otherwise obtaining an adequate remedy.
Default Rate
In addition to any late payment charge which may be due
under this Note, if the Principal Balance is declared to be due
and payable by the Lender pursuant to the provisions of any Loan
Document, or if the Indebtedness is not paid in full on the
Maturity Date, then the Borrower shall pay interest on the
unpaid balance of this Note, from the date of such acceleration
of the Maturity Date (or the Maturity Date, if the Principal
Balance has not been previously accelerated), until the date on
which the Indebtedness has been paid in full (whether before or
after judgment), at a rate per annum (calculated for the actual
number of days elapsed on the basis of a 360-day year) equal to
the greater, on a daily basis, of (a) {{{78.1/FIXED DEFAULT
RATE}}}% per annum, or (b) the sum of I) {{{78.2/SPREAD OVER
PRE-DEFAULT RATE}}}% per annum plus II) the interest rate which
would be applicable under this Note if there was no default (the
rate which is the greater of a) or b) being called the "Default
Rate ") provided, however, that such interest rate shall in no
event exceed the maximum interest rate which the Borrower may by law pay.
Borrower's Power And Authority
The Borrower, and each undersigned representative of the
Borrower, represents and warrants and covenants that the
Borrower has full power, authority and legal right to execute
and deliver this Note and that the obligations of the Borrower
under this Note constitute valid and binding obligations of the Borrower.
Joint And Several
If the Borrower consists of more than one party, then the
obligations and liabilities of each such party under this Note shall be joint and several.
"Lender" And "Borrower"
Whenever used in this Note, the singular number shall
include the plural, and the plural shall include the singular.
The words "Lender
" and "Borrower " shall include, respectively,
the successors and assigns of the Lender and the heirs,
executors, administrators, legal representatives, successors and
assigns of the Borrower, provided, however, that the Borrower
shall in no event or under any circumstance have the right,
without obtaining the prior written consent of the Lender, to
assign or transfer the Borrower's obligations under any of the
Loan Documents, in whole or in part, to any other person, party
or entity. If the Borrower is a partnership, the provisions of
this Note shall remain in force and applicable, notwithstanding
any changes in any individual or entity constituting such
partnership. "Borrower
," as used in this Note, shall include
each alternate or successor partnership to the Borrower, but
neither any predecessor partnership to the Borrower, nor its
partners, shall 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 such partnership which may be set forth in any Loan Document.1 Headings Have No Legal Effect
The headings and captions of this Note are for convenience
of reference only, and have no legal effect, and are not to be
construed as defining or limiting, in any way, the scope or intent of the provisions of this Note.
Borrower's Obligations Absolute And Unconditional
The Borrower represents, warrants, and covenants that this
Note and the Borrower's obligations under this Note are and
shall at all times continue to be absolute and unconditional in
all respects, and shall at all times be valid and enforceable
irrespective of any other agreements or circumstances of any
nature whatsoever which might otherwise constitute a defense to:
1) this Note and the obligations of the Borrower under this
Note, or 2) the obligations of any other person or party
relating to this Note, or 3) otherwise with respect to the Indebtedness.
2 Borrower's Waiver Of Defenses And Setoffs
The Borrower absolutely, unconditionally and irrevocably
waives any and all right to assert each credit, defense, setoff,
right of recoupment,counterclaim or crossclaim of any nature
whatsoever with respect to: 1) the Indebtedness or any of the
Loan Documents or the obligations of the Borrower under any of
the Loan Documents, or 2) the obligations of any other person or
entity relating to any of the Loan Documents or to the
obligations of the Borrower under any of the Loan Documents or
otherwise with respect to the Indebtedness, in any action or
proceeding brought by the Lender to collect the Indebtedness, or
any portion of the Indebtedness, or to enforce, foreclose and
realize upon the liens and security interests of the Lender in
any Mortgaged Property. However, the Borrower's waiver in the
preceding sentence shall not be deemed a waiver of the
Borrower's right to assert any compulsory counterclaim maintained in a court of the United States, or of the State of
{{{56/STATE IN WHICH REAL ESTATE IS LOCATED}}} if such
counterclaim is compelled under local law or rule of procedure,
nor shall such waiver by the Borrower be deemed a waiver of the
Borrower's right to assert, in any separate action or
proceeding, any claim which would constitute a defense, setoff,
counterclaim or crossclaim of any nature whatsoever against the Lender. Borrower's Waiver Of Conditions Precedent
The Borrower waives presentment, demand for payment, notice
of dishonor, protest, notice of protest, and any or all notices
or demands in connection with the delivery, acceptance, performance, default or enforcement of this Note.
Borrower's Consent To Extensions, Releases, And Loan
Modifications
The Borrower consents to each delay, extension of time,
renewal, release of any party to any Loan Document, and release
of any available security for the Indebtedness (or any part
thereof), to any party to any of the Loan Documents, or to the
actual holder of any of the Loan Documents, and any and all
waivers or modifications that may be granted or consented to by
the Lender with regard to the time of payment or with respect to
any other provisions of any Loan Document. The Borrower agrees
that no such action, delay or failure to act on the part of the
Lender shall be construed as a waiver by the Lender of, or
otherwise affect, in whole or in part, its right to avail itself
of any remedy under the Loan Documents. No notice to or demand
on the Borrower shall be deemed to be a waiver of the obligation
of the Borrower or of the right of the Lender to take further
action without further notice or demand as provided in any Loan Document.
3 Determinations By Lender
Notwithstanding anything in this Note to the contrary,
whenever this Note provides that any matter shall be "determined
by the Lender," or shall be to the "satisfaction of the Lender,"
then the determination by the Lender shall be binding on the
Borrower unless and to the extent that the Borrower provides
substantive clear and convincing proof that the factual basis
for such determination was erroneous. If and to the extent the
Lender is required by law to reasonably determine any matter,
then the Lender shall not have any liability if its
determination is in fact unreasonable, except that the Borrower
may seek a declaratory judgment that the Lender's determination
is in fact unreasonable, in which event the Lender shall be
bound by a final judgment in such declaratory judgment action.
Also, the Lender may, in its sole and absolute discretion, waive any provision of this Note.
4 Interest On Interest
Notwithstanding anything to the contrary in this Note, if
applicable laws prohibit the charging of interest on interest
(or any other sum) which may accrue pursuant to this Note, then,
to such extent, interest shall not be deemed to accrue on
interest (or such other sum) which may accrue pursuant to this
Note; provided, however, that, in any event, interest shall
continue to accrue pursuant to this Note with respect to the unpaid Principal Balance of this Note.
5 Entire Agreement
The Borrower acknowledges that no oral or other agreements,
conditions, promises, understandings, representations or
warranties exist with respect to this Note or with respect to
the obligations of the Borrower under this Note, except those
specifically set forth in the Loan Documents. The Loan
Documents set forth the entire agreement and understanding of
the Lender and the Borrower with respect to the Indebtedness and
the rights and obligations of the Lender and the Borrower relating to the Indebtedness and the collateral securing it.
No Oral Changes
This Note may not be modified, amended, changed or
terminated orally, except by an agreement in writing signed by
the Borrower and the Lender. No waiver of any term, covenant or
provision of this Note shall be effective unless such waiver is
given in writing by the Lender and, in such case, shall only be effective in the specific instance in which given.
Applicable Law
This Note is and shall be deemed entered into in the State
of {{{87/STATE WHOSE LAW GOVERNS}}} 2
and shall be governed by and
construed in accordance with the laws of such state, without
regard to principles of conflicts of laws. No defense given or
allowed by the laws of any state or country shall be interposed
in any action or proceeding on or with respect to this Note
unless such defense is either given or allowed by the laws of the State of {{{87/STATE WHOSE LAW GOVERNS}}}.
Borrower's Consent To Jurisdiction And Venue
The Borrower agrees to submit to personal jurisdiction in
the State of {{{87/STATE WHOSE LAW GOVERNS}}} in any action or
proceeding arising out of this Note. In furtherance of such
2 Some lenders may require that the law applicable to the Note be different from the
law of the state where the Mortgaged Property is located. See § 3.02[9] supra of the
main text of this book.
agreement, the Borrower hereby agrees and consents that, without
limiting other methods of obtaining jurisdiction, personal
jurisdiction over the Borrower in any such action or proceeding
may be obtained within or without the jurisdiction of any court
located in {{{87/STATE WHOSE LAW GOVERNS}}}. Any process or
notice of motion or other application to any such court, in
connection with any such action or proceeding, may be served
upon the Borrower by registered or certified mail to, or by
personal service at, the last known address of the Borrower,
whether such address be within or without the jurisdiction of
any such court. The Borrower hereby agrees that the venue of
any litigation arising in connection with the indebtedness, or
in respect of any of the obligations of the Borrower under this
Note, may, to the extent permitted by law, be in {{{88/COUNTY FOR VENUE}}}.
No Trial By Jury
THE BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES,
AND THE LENDER, BY ITS ACCEPTANCE OF THIS NOTE, IRREVOCABLY AND
UNCONDITIONALLY WAIVES, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LITIGATION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH
ANY LOAN DOCUMENT OR ANY OBLIGATION RELATED THERETO.IN WITNESS WHEREOF, the Borrower has duly executed this
Note the day and year first above written.
WITNESS/ATTEST: {{{31/BORROWER}}}
_____________________
Individual Acknowledgement3
State Of {{{30/STATE OF ORIGINAL LOAN CLOSING}}} )
ss.:
County Of {{{29/COUNTY OF ORIGINAL LOAN CLOSING}}} )
On {{{28/DATE OF ORIGINAL LOAN CLOSING}}}, before me personally came {{{31/BORROWER}}}, to me known and known to me to be the
individual described in and who executed the foregoing
instrument and acknowledged to me that {{{31/BORROWER}}} executed the same. _______________________
Notary Public Corporate Acknowledgement
State Of {{{30/STATE OF ORIGINAL LOAN CLOSING}}} )
ss.:
County Of {{{29/COUNTY OF ORIGINAL LOAN CLOSING}}} )
On {{{28/DATE OF ORIGINAL LOAN CLOSING}}}, before me personally came {{{35/BORROWER'S REPRESENTATIVE}}}, to me known, who, being by
me duly sworn, did depose and say that {{{35/BORROWER'S
REPRESENTATIVE}}} resides at {{{37/ADDRESS OF BORROWER'S
REPRESENTATIVE}}}; that {{{35/BORROWER'S REPRESENTATIVE}}} is
{{{36/TITLE OF BORROWER'S REPRESENTATIVE}}} of {{{31/BORROWER}}}, the corporation described in and which
executed the above instrument; and that {{{35/BORROWER'S
REPRESENTATIVE}}} signed the above instrument by authority of the Board of Directors of said corporation.
3 The following forms of acknowledgment are accepted for use in New
York. Most states have adopted the Uniform Acknowledgment Act, the Uniform Acknowledgments Act, the Uniform Recognition of Acknowledgments Act, or the Uniform Law on Notarial Acts, so the forms of acknowledgment generally have become standardized.
____________________________ Notary Public
General Partnership Acknowledgement
State Of {{{30/STATE OF ORIGINAL LOAN CLOSING}}} )ss.:
County Of {{{29/COUNTY OF ORIGINAL LOAN CLOSING}}} )
On {{{28/DATE OF ORIGINAL LOAN CLOSING}}}, before me personally came {{{35/BORROWER'S REPRESENTATIVE}}}, to me known and known to me
to be a partner of {{{31/BORROWER}}}, {{{40/TYPE OF BORROWER}}},
and known to me to be the individual described in and who
executed the foregoing instrument as a partner of
{{{31/BORROWER}}}, and acknowledged before me that {{{31/BORROWER}}} executed such instrument as a partner in such
partnership for the uses and purposes in said instrument set forth.
________________________________________Notary Public
LENDER'S OPTIONAL PROVISIONS FOR NOTE
6 Principal Payments
One of the following options in this Section should be
chosen, and one of the following indented subparagraphs in this Section
should be inserted at the end of the second sentence of
Section
of the Note (replacing the code {{{26/PRINCIPAL
REPAYMENT SCHEDULE}}}).
1.1 Constant Payment Of Principal
The following language is appropriate for those loans
involving a constant payment of principal by the Borrower to the Lender on a periodic basis (e.g., monthly):
[a] LIBOR Loans
The following language provides for constant payments of
principal for loans with interest at LIBOR:
The Original Principal Amount shall be payable in
( ) monthly principal payments of
$
(each such monthly principal
payment being called a "Monthly Installment
"). A
Monthly Installment shall be payable on each Re-Set Date during the term of this Note. [b]Other Loans
The following language provides for constant payments of
principal for loans with other types of interest rates:
The Original Principal Amount shall be payable in
( ) equal monthly principal payments of
$
(each such monthly principal
payment being called a "Monthly Installment
"). A
Monthly Installment shall be payable 1) commencing on
the first day of the calendar month immediately
following the calendar month in which the date of this
Note falls, and 2) on the first day of each succeeding
calendar month thereafter until the unpaid balance of this Note has been paid in full.
1.2Equal Payments Of Principal And Interest
The following indented language is appropriate for those
loans involving a constant payment (which is applied first to
interest and other charges and then to principal) by the
Borrower to the Lender on a periodic basis (e.g., monthly). If
the following indented language is used, then the sixth sentence
of Section of the Note (beginning "Interest shall be paid . .
.") should be deleted.
The Borrower shall pay to the Lender a monthly
payment of $
(each such
payment being called a "Monthly Installment
") 1)
commencing on the first day of the calendar month
immediately following the calendar month in which the
date of this Note falls, and 2) on the first day of
each succeeding calendar month thereafter until the
unpaid balance of this Note has been paid in full.
Each such Monthly Installment shall be applied first
to accrued and unpaid interest and other charges which
may accrue under this Note, and then to the unpaid principal balance of this Note.
7 Interest Payment Schedule
One of the following options should be chosen and then
substituted for the following code which appears in Section
of
the Note: {{{24/INTEREST PAYMENT SCHEDULE}}}.
2.1LIBOR
Interest shall be paid on each Re-Set Date until the unpaid balance of this Note has been paid in full.
2.2Variable Rate
Interest shall be at the Variable Rate, calculated, as
provided in this Note, on the basis of a 360-day year,
provided that interest shall be payable on the basis
of the actual number of days elapsed. Interest shall
be paid on the first day of the calendar month
immediately following the date of this Note, and on
the first day of each following month thereafter, until the unpaid balance of this Note is paid in full.
2.3Fixed Rate
The following optional language is required only if there
is a fixed periodic principal payment, or if there is a balloon.
If a periodic payment of principal and interest is made (as in
the case of the typical home mortgage loan), then see the option in Section
above of this Lender's Optional Provisions For Note .
Interest shall be at the Fixed Rate, calculated, as
provided in this Note, on the basis of a 360-day year,
provided that interest shall be payable on the basis
of the actual number of days elapsed. Interest shall
be paid on the first day of the calendar month
immediately following the date of this Note, and on
the first day of each following month thereafter, until the unpaid balance of this Note is paid in full.
2.4Interest In Advance
If interest is paid in advance for the month in which the
closing occurs, then add the following provision at the end of Section 1
of the Note:
Interest on the unpaid balance of this Note, from the date
of this Note through the end of the calendar month in which
such date occurs, shall be paid by the Borrower to the Lender on the date of this Note.
8 Fixed Interest Rate
If the interest rate on the Note is a fixed rate, then the
following changes should be made to Section 2
of the Note.
3.1 The definitions of "Alternate Base Rate," "Business
Day," "Federal Funds Rate," "Reference Rate," and "Variable Rate" can be deleted from Section
of the Note.
3.2 The following section should be substituted for
Section
of the Note:
2.2 Fixed Rate Provisions
The interest rate on the unpaid balance of this Note
shall be {{{70.1/FIXED INTEREST RATE}}}% per annum (the
"Fixed Rate
"), from the date of this Note until the unpaid
balance of this Note has been paid in full, subject to Section
("Default Rate ") of this Note and the provisions
of this Note relating to the Default Rate.
1. Lender's Prime or Base Rate
The above Note uses the Lender's "Reference Rate" as the
variable interest rate. A "Reference Rate" or "Base Rate" is a
description for the Lender's own interest rate in lieu of the
more common term known as the "Prime Rate." If the Lender calls
its variable interest rate the "Prime Rate," then borrowers may
claim that the rate actually charged by the Lender as its "Prime
Rate" is higher than its true "prime" rate. The basis for the
borrowers' argument is that the rate typically charged to the
Lender's most creditworthy (i.e., "prime") borrowers, which is
generally the Lender's lowest rate, in fact is typically lower
than the published "Prime Rate." See § 3.02[2][a][i] of the main text of this book supra.
If the Lender wants to call the variable interest rate the
"Base Rate" or the "Prime Rate", then the term "Reference Rate"
in the Note should be replaced (using the "search & replace"
feature of your word processor) with "Base Rate" or "Prime Rate," as applicable. 9 Objective Prime Rate
If the parties want to use an "objective" definition of the
"Prime Rate," then the following can be substituted for the
definition of the "Reference Rate" in Section
of the Note.
Also, the term "Reference Rate" should be replaced by "Note
Prime Rate" by means of the "search and replace" function of your word processor. The "Note Prime Rate
" shall mean the annual rate of
interest published by The Wall Street Journal from time to
time as the Prime Rate (such rate is currently published in
the column "Money Rates" as the "base rate on corporate
loans posted by at least 75% of the nation's 30 largest
banks"). If a range of rates is published as the Prime
Rate by The Wall Street Journal, then the "Note Prime
Rate," for the purposes of this Note, shall be the highest
rate in such range. Each change in the Prime Rate as
published by The Wall Street Journal shall be effective,
for the purposes of this Note, to change the Note Prime
Rate as of the date that such change is published in The
Wall Street Journal. If at any time The Wall Street
Journal ceases or fails to publish such Prime Rate, then
the Note Prime Rate for such period shall be the prime
commercial lending rate publicly announced at such other
major New York City 4
bank as the Lender may, in its sole
discretion, select.
10 Treasury Rate
6.1 The term "Reference Rate" in the Note should be
replaced (using the "search & replace" feature of your word
processor) with "Treasury Rate". Also, substitute the following definition in Section
of the Note for the term "Variable Rate":
"Variable Rate
" means a rate per annum, rounded up to
the nearest one-eighth of one percent, equal to the sum of
1) {{{70.2.2.3/SPREAD OVER TREASURY RATE}}}% per annum plus 2) the Treasury Rate.
4 The lender can choose another major lending center if it wishes.
6.2 Add the following definition to Section of the Note:
"Treasury Rate
" means the average yield on publicly
traded United States Treasury securities, adjusted to a
constant maturity of {{{70.2.1.3.1/TREASURY RATE PERIOD}}},
as made available by the Federal Reserve Board (in
Statistical Release H.15(519), the Federal Reserve Bulletin, or such other publication as may be designated by
the Lender) based on the most recent publication prior to
the Determination Date, as defined below, or if such
publication is not published during the seven day period
prior to the Determination Date, then, at the election of
the Lender, either (i) a similar rate as published in a
similar publication reasonably selected by the Lender or
(ii) the rate publicly offered by the United States
Treasury on its obligations having a maturity date of
{{{70.2.1.3.1/TREASURY RATE PERIOD}}} as such rate is
published in the Wall Street Journal
(or if the Wall Street
Journal no longer publishes such rate, then as reasonably
determined by the Lender). The Treasury Rate shall be
determined by the Lender on or as of
________________________ if it is a Business Day (or if
_________________ is not a Business Day, then on or as of
the first Business Day immediately prior thereto) (such
date on or as of which such rate is determined is called the "Determination Date
").
11 LIBOR Rate
The following changes should be made if the Note will bear
interest at the London Interbank Offered Rate ("LIBOR"):
7.1 Add the following paragraphs to Section
("Definitions") of the Note, and then redesignate, in alphabetical order, the succeeding paragraphs in such Section:
[h] "Note LIBOR
" applicable to a particular
Interest Period means a rate per annum equal to the
sum of: 1) {{{70.2.2.2/SPREAD OVER ADJUSTED LIBOR}}}%
per annum, plus 2) the Adjusted LIBOR applicable to such Interest Period.
[i] "Adjusted LIBOR
" applicable to a particular
Interest Period means a rate per annum equal to the
product arrived at by multiplying the LIBOR applicable
to such Interest Period by a fraction (expressed as a
decimal), the numerator of which shall be the number
one, and the denominator of which shall be the number
one, minus the aggregate sum of each reserve
percentage (rounded to the next higher 0.01%, and
expressed as a decimal) from time to time established
by the Board of Governors of the Federal Reserve
System of the United States or any other banking
authority to which the Lender is now or hereafter
subject, including, but not limited to, any reserve on
Eurocurrency Liabilities as defined in Regulation D of
the Board of Governors of the Federal Reserve System
of the United States, at the ratios provided in such
Regulation from time to time. Any portion of the
Principal Balance bearing interest at a Note LIBOR
shall, at the Lender's option, be deemed to constitute
Eurocurrency Liabilities, as defined by such Regulation, for the purposes of this Note. Such
Eurocurrency Liabilities shall be deemed, for the
purposes of this Note, to be subject to such reserve
requirements, without benefit of or credit for
prorations, exceptions or offsets that may be available to the Lender from time to time under such
Regulation and irrespective of whether the Lender actually maintains all or any portion of such reserve.
[j] "LIBOR
" for a given Interest Period means
the rate per annum (rounded to the next higher 0.01%)
for U.S. dollar deposits, with maturities comparable
(as determined by the Lender) to such Interest Period,
which appears (according to the Lender's records) on
AP-DJ Telerate 3750 as of 11:00 a.m., London time, two
(2) London Business Days prior to the commencement of
such Interest Period. The date which is two (2)
London Business Days prior to the commencement of such
Interest Period is called the "LIBOR Determination
Date ." However, if such rate does not appear on AP-DJ
Telerate 3750 on the LIBOR Determination Date for such
Interest Period, then the "LIBOR" applicable to such
Interest Period shall mean the rate per annum, as
determined by the Lender, at which U.S. dollar
deposits (in an amount approximately equal to the
portion of the Principal Balance which bears interest
at a Note LIBOR, during such Interest Period, pursuant
to this Note, and with maturities comparable, as
determined by the Lender, to the last day of such
Interest Period) are offered in immediately available
funds in the London Interbank Market to the London
office of the Lender, by leading banks (as determined
by the Lender) in such market, at 11:00 a.m., London
time, two (2) London Business Days prior to the commencement of such Interest Period.
[k] "AP-DJ Telerate 3750
" means the display
designated as "Page 3750" on the Associated Press-Dow
Jones Telerate Service (or such other page as may
replace Page 3750 on the Associated Press-Dow Jones
Telerate Service as the page containing quotations of
the "London Interbank Offered Rate," or, at the
Lender's option, such other service as may be
designated by the British Bankers' Association as the
information vendor for the purpose of displaying
British Bankers' Association interest settlement rates
for U.S. Dollar deposits). Any LIBOR determined, on
any LIBOR Determination Date, on the basis of the rate
displayed on AP-DJ Telerate 3750 in accordance with
the provisions of this Note shall be subject to
corrections, if any, made in such rate and displayed
by the Associated Press-Dow Jones Telerate Service by
11:59 a.m., London time, on such LIBOR Determination
Date. The records maintained by the Lender of AP-DJ
Telerate 3750 shall be available for inspection by the
Borrower and shall be conclusively binding on the Borrower, absent manifest error.[l] "Interest Period
" means the period of time
during which a particular Note LIBOR will be
applicable to all or a particular portion of the
Principal Balance pursuant to this Note, provided that:
[1] each Interest Period shall begin and shall end on
a Re-Set Date,
[2] each Interest Period shall be either one month, two months, three months or six months,
[3] no Interest Period shall extend beyond the Maturity Date, and
[4] except as provided in: (1) Section 2.3
of this Note with respect to
the last Interest Period during the Term (defined below),
(2) Section 2.3
of this Note with respect to
the unavailability of a Note LIBOR, and
(3) any provision of this Note relating to a
prepayment of all or a portion of the Principal Balance,
the entire portion of the Principal Balance with
respect to which a Note LIBOR will be reset on
the first day of a particular Interest Period
will bear interest at such Note LIBOR for such
Interest Period from and including the first day
of such Interest Period to, but not including, the last day of such Interest Period.
[m] "Re-Set Date
" means the same day of each
month (except as provided below) during the Term, the
first of which Re-Set Dates shall be {{{70.2.5/FIRST
RE-SET DATE}}}. 5
Each subsequent Re-Set Date shall be
the same day in each subsequent calendar month,
provided, however, that if such date in any such
subsequent calendar month during the Term shall not be
a London Business Day, then the Re-Set Date for such
calendar month shall be the next succeeding London
Business Day, unless the next such succeeding London
Business Day would fall in the next calendar month, in
which event the Re-Set Date for such calendar month
shall be the next preceding London Business Day. For
the purposes of this Note the period of time between
any two consecutive Re-Set Dates during the Term shall be deemed to be a period of one month.
[n] "Roll Over Date
" applicable to a particular
Interest Period means the last day of such Interest Period.
[o] "London Business Day
" means any day on
which the Lender is open for business (as determined
by the Lender) with members of the public at the
Lender's principal place of business in the United
States and on which commercial banks in the City of
London, England are open for dealings in U.S. dollar deposits in the London Interbank Market.
7.2 Add the following as a new subsection (which would be
numbered "2.3" in the current Note form) to Section
("Interest
Rate") of the Note:
5 If the Payee needs the flexibility to designate the Re-Set Date after the Note is
signed, then the Payee can substitute the following for this sentence:
"Re-Set Date
" means the same day of each month (except as
provided below), the first of which dates shall occur on a
London Business Day to be designated by the Payee, which
London Business Day shall not be earlier than five (5)
London Business Days or later than fifteen (15) London
Business Days subsequent to the date upon which the Loan is advanced."
However, since this theoretically might make it impossible for
the holder of the note to determine the amount payable solely by
examining the Note itself (see § 3.02[1][b][ii] of the main text
of this book), this optional clause may make the Note non- negotiable.
2.3 LIBOR PROVISIONS
[1] APPLICABLE INTEREST RATE . From and
including the date of this Note, to, but not
including, the first Re-Set Date during the Term, the
unpaid balance of this Note shall bear interest at the
Variable Rate. 6
From and including the first Re-Set
Date to, but not including, the last Re-Set Date, the
entire balance of this Note shall, except as
specifically provided to the contrary in this Note,
bear interest at one or more of the available Note LIBORs, 7
determined as provided in this Note. The
available Note LIBORs shall consist of a one-month
Note LIBOR, a two-month Note LIBOR, a three-month Note
LIBOR and a six-month Note LIBOR determined in accordance with this Note.
[a] The Borrower shall have the right to select from
the available Note LIBOR or Note LIBORs from time to time applicable to the unpaid balance of this Note.
[b] The Borrower shall not have the right to select a
three-month Note LIBOR or a six-month Note LIBOR prior to {{{70.2.6/LIBOR SELECTION DATE}}}.
[c] Each Note LIBOR from time to time so selected by
the Borrower shall take effect, and shall end, on a
Re-Set Date. Except as specifically provided to the
contrary in this Note, the Borrower shall not have the
right to select more than one Note LIBOR to take
effect on any given Re-Set Date or at any other time
during the Term. If the Borrower shall not select a
Note LIBOR by written notice (specifying the Note
LIBOR and the portion of the Principal Balance to
which it is applicable) given to the Lender, in
accordance with the terms of this Note, and received
by the Lender at least four (4) London Business Days
6 Some lenders would add the following language to this sentence, if the Loan may be
advanced after the date of the Note: , provided, however, that if the Loan is advanced on the first Re-Set
Date during the Term, then the provisions of this sentence shall not be
applicable.
7 If the Maker has the option to select only one Note LIBOR during the Term, then the
following changes should be made: 1) the words immediately preceding where this footnote
appears (i.e., "one or more of the available Note LIBORs") should be deleted, and the
phrase "the Note LIBOR" should be substituted for the deleted words, 2) the last sentence
of the paragraph (paragraph [1]) in which this footnote appears, and subparagraphs [a]-
[c] immediately thereafter, should be deleted.
prior to a particular Re-Set Date, then the Note LIBOR for such Re-Set Date shall be a one-month Note LIBOR. [2] INTEREST AFTER STUB DATE
. If the last
Interest Period during the Term shall end on a date
prior to the Maturity Date (the ending date of such
Interest Period being called the "Stub Date
"), then,
if the period from and including the Stub Date to and including the Maturity Date shall be equal to:
[a] less than one month, the entire amount of such
portion of the Principal Balance shall, for the
remainder of the Term, at the election of the Lender,
either bear interest at the Variable Rate or at a one-
month Note LIBOR determined in accordance with the
provisions of this Note, it being agreed that the one-
month Note LIBOR applicable to such period shall be
determined as if it were for an Interest Period of one month, or
[b] more than one month, the outstanding Principal
Balance of this Note shall bear interest at an
available Note LIBOR chosen by the Borrower, in
accordance with this Note, for a period extending from
the Stub Date to the last Re-Set Date to occur prior
to the Maturity Date and thereafter principal shall
bear interest in accordance with Section 2.3[b][1]
of
this Note.
[3] DETERMINATION BY LENDER OF NOTE LIBOR
Except as otherwise specifically provided to the
contrary in Section 2.3[b]
of this Note with respect
to the last Interest Period during the Term, the
Lender shall, as soon as practicable after 9:00 a.m.,
New York City 8
time, two (2) London Business Days prior
to the commencement of a particular Interest Period,
determine the Note LIBOR (or Note LIBORs, if applicable) 9
which will be in effect during such
Interest Period and inform the Borrower of the Note
LIBOR (or Note LIBORs, if applicable) 10
so determined.
Each determination of the Note LIBOR, the Adjusted
LIBOR and the LIBOR applicable to a particular
Interest Period shall be made by the Lender (which
determination shall be conclusive and binding upon the
Borrower unless and to the extent the Borrower shall
provide clear and convincing proof to the Lender of a
8 Some lenders may want to use a different locale.
9 The preceding parenthetical can be deleted if only one Note LIBOR will be
applicable in any given Interest Period.
10 The preceding parenthetical can be deleted if only one Note LIBOR will be
applicable in any given Interest Period.
material error by the Lender in such determination).
Interest at the applicable Note LIBOR from time to
time shall be calculated for the actual number of days elapsed on the basis of a 360-day year.[4] SELECTION BY BORROWER OF TWO NOTE LIBORS
Notwithstanding anything to the contrary in this Note,
the Borrower shall have the option from time to time
during the Term to select up to, but not in excess of,
two (2) Note LIBORs to take effect on any given Re-Set
Date. The Borrower shall make such election by
written notice given to the Lender, and received by
it, at least five (5) London Business Days prior to
the applicable Re-Set Date. In such notice the
Borrower shall specify the two (2) Note LIBORs so
selected by the Borrower and the respective portions
of the Principal Balance of this Note to which such Note LIBORs are to respectively pertain.
[a] The minimum portion of the Principal Balance
to which any such Note LIBOR may be applicable shall
be equal to at least ${{{70.2.7/MINIMUM PORTION OF PRINCIPAL BALANCE}}}.
[b] Each such Note LIBOR so selected by the
Borrower shall be applicable to the portion of the
Principal Balance of this Note to which it pertains
from and including the first day of the applicable
Interest Period to, but not including, the Roll Over Date applicable to such Interest Period, and
[c] The Borrower shall not have the right to
exercise its option pursuant to this sentence as of
any given Re-Set Date if the effect of such exercise
would be to cause more than two (2) different Interest
Periods to be in effect with respect to the Principal
Balance of this Note at any given time during the Term.
[5] UNAVAILABILITY OF LIBOR
In the event, and
on each occasion, that on the day which is two (2)
London Business Days prior to the commencement of a
particular Interest Period, the Lender shall have
determined in good faith (which determination shall be
conclusive and binding upon the Borrower) that U.S.
dollar deposits, in an amount approximately equal to
the portion of the Principal Balance which is to bear
interest at a particular Note LIBOR during such
particular Interest Period in accordance with the
provisions of this Note, are not generally available
at such time in the London Interbank Market, or
reasonable means do not exist for ascertaining a Note
LIBOR for such particular Interest Period, then the
Lender shall so notify the Borrower, and the interest
rate applicable to the portion of the Principal
Balance with respect to which such Note LIBOR was to
pertain shall automatically convert to the Variable
Rate as of the next Roll Over Date, it being agreed
that the Variable Rate shall remain in effect
thereafter with respect to such portion of the
Principal Balance unless and until the Lender shall
have determined in good faith (which determination
shall be conclusive and binding upon the Borrower)
that the aforesaid circumstances no longer exist,
whereupon the interest rate applicable to such portion
of the Principal Balance shall be converted back to a
Note LIBOR determined in the manner hereinabove set
forth in this Note effective as of the first Re-Set
Date which commences ten (10) London Business Days or
more after such good faith determination by the Lender. [6] CHANGE IN LAWS, REGULATIONS, ETC.
If any
change in any law or regulation, or in the
interpretation of any such law or regulation, by any
governmental authority charged with the administration
or interpretation of any such law or regulation (any
such change being called a "Change
") shall make it
unlawful or commercially impracticable or materially
more expensive for the Lender to make or maintain a
Note LIBOR with respect to the Principal Balance or
any portion of the Principal Balance, or to fund the
Principal Balance, or any portion of the Principal
Balance, at a Note LIBOR in the London Interbank
Market, or to perform the Lender's obligations as
contemplated by this Note, then, upon notice by the
Lender to the Borrower, 11
the Principal Balance (or if
only a portion of the Principal Balance is bearing
interest at a Note LIBOR, then only such portion) (the
Principal Balance, or portion of the Principal
Balance, to the extent affected by such Change, being
called the "Affected Portion
") shall, from and after
the date provided below, bear interest at the Variable
Rate. Any notice given by the Lender to the Borrower
pursuant to this paragraph shall either: 1) be
11 This option by the Payee may make the Note non-negotiable. See § 3.02[1][b][ii] of
the main text of this book supra. Alternatively, the Note could provide that,
instead of an option to the Payee, the interest rate could be converted automatically.
effective (unless prohibited by such Change), to the
extent such Change applies to the Affected Portion, on
the next Roll Over Date for such Affected Portion, or
2) if such Change expressly prohibits such effective
date, be effective immediately upon such notice being
given by the Lender to the Borrower. Following such
effective date, the Variable Rate shall thereafter
remain in effect with respect to such Affected Portion
unless and until the Lender shall have determined in
good faith (which determination shall be conclusive
and binding upon the Borrower) that the Change is no
longer in effect, in which case the interest rate
applicable to such Affected Portion shall be converted
to a Note LIBOR determined as set forth in this Note
effective as of the first Re-Set Date which commences
ten (10) London Business Days or more after such
determination by the Lender. If the interest rate
applicable to any portion of the Principal Balance is
converted from a Note LIBOR to the Variable Rate on a
date other than a Roll Over Date in accordance with
the provisions of this paragraph, then the Borrower
shall pay to the Lender on demand an amount equal to
the prepayment premium, if any, which would have been
due pursuant to the provisions of this Note if the
portion of the Principal Balance bearing interest at
such Note LIBOR was prepaid in full on the date of such conversion.
7.3 Add the following to the end of Section 2.3
("Indemnification By Mortgagor") of the Mortgage :
The Mortgagor shall indemnify each Holder against all
loss or expense that such Holder may sustain or incur
as a result of 1) any failure by the Mortgagor to
accept (or be available to accept) all or any portion
of the Loan on the date the Mortgagor requested that
the Loan be advanced, or 2) any failure by the
Mortgagor to draw any advance of the Loan pursuant to
any agreement between the Mortgagor and the Mortgagee,
or 3) any default by the Mortgagor in the payment of
either any portion of the Principal Balance of this
Note bearing interest at a Note LIBOR, or any interest
which has accrued at a Note LIBOR, as and when due and
payable, or 4) any default or event of default under
any of the Loan Documents. The losses and expenses
covered by the indemnification in the preceding
sentence include, but are not limited to, each loss or
expense sustained or incurred by any Holder in
liquidating or reemploying deposits from third parties
acquired to effect or maintain a Note LIBOR with
respect to all or any portion of the Principal Balance
of this Note. The Mortgagee shall provide to the
Mortgagor, following a written request by the Mortgagor,
