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Exhibit
10.15
FIRST MORTGAGE NOTE
ORP THREE L.L.C., a Maryland limited liability company
to
NEW YORK COMMUNITY BANK
Dated: JUNE 30, 2008
Amount: $14,225,000.00
FOX ROTHSCHILD LLP
1301 ATLANTIC AVENUE, SUITE 400
ATLANTIC CITY, NJ 08401
FIRST MORTGAGE NOTE
U.S. $14,225,000.00
Denver, Colorado
(Face Amount)
EFFECTIVE AS OF JUNE 30, 2008
1.
FOR VALUE RECEIVED, ORP THREE L.L.C., a limited
liability company duly organized and existing under and by
virtue of the laws of the State of Maryland, having an address
at 4582 South Ulster Street Parkway, Suite 1100, Denver,
Colorado 80237 (“Maker”) promises to pay to the
order of NEW YORK COMMUNITY BANK, a New York state chartered
banking institution duly organized and validly existing under
and by virtue of the laws of the State of New York, having an
office at One Jericho Plaza, Jericho, New York 11753
(“Payee”), at such offices, or such other place as
the holder hereof may from time to time appoint in writing, or
order, in lawful money of the United States of America, the
principal sum of FOURTEEN MILLION TWO HUNDRED TWENTY-FIVE
THOUSAND DOLLARS ($14,225,000.00) (“Principal”),
together with interest thereon, together with such charges,
payments, expenses, taxes and fees accrued and unpaid or
incurred that are the obligation of Maker to pay under the terms
and conditions of this Note (hereinafter, the
“Indebtedness”).
1.
(a)
The Maker shall pay interest in lawful money of
the United States of America on the unpaid Principal at an
initial interest rate of five and three-quarters percent (5.75%)
per annum, from the Effective Date of this Note to and including
the day immediately prior to the First Change Date, as
hereinafter defined. The interest rate shall be adjusted
on July 1, 2010, being the first day of the first month after
the second (2 nd ) anniversary date of the Effective
Date of this Note (the “First Change Date”) and
every year thereafter on the same date (the “Subsequent
Change Dates”), with amortization to be revised based on
the then remaining amortization period. The interest rate
change shall increase or decrease based upon the “Prime
Rate” as published in the New York Times as of ninety (90)
days prior to the First Change Date and each Subsequent Change
Date, plus two and one-half percent (2.50%) (the “One-Year
ARM Rate”). In the event that more than one prime
rate is listed, the highest rate shall prevail. The Loan
shall have a minimum interest rate of 5.75% and a maximum
interest rate of 16.00%. The Payee shall give the Maker
notice of each new interest rate at least sixty (60) to
seventy-five (75) days prior to the First Change Date and each
of the Subsequent Change Dates.
(b)
Provided that the Maker meets the conditions set
forth hereinbelow, the Maker shall have the option to fix the
interest rate on the First Change Date for the remainder of the
term, to a rate equal to the published weekly average yield for
Five (5) Year United States Treasury Notes having constant
maturities as published in the Federal Reserve statistical
release H.15 (519) as of ninety (90) days prior to the First
Change Date, plus 275 basis points (the “Adjusted Fixed
Rate”). The Loan shall have a minimum interest rate
of 5.75% and a maximum interest rate of 16.00%. The
Payee will notify Maker of the Adjusted Fixed Rate between sixty
(60) and seventy-five (75) days prior to the First Change
Date.
Maker's option to choose the Adjusted Fixed Rate
is contingent upon the Maker's ability to meet the following
conditions: (i) Maker shall not have materially breached
any of the terms and conditions of this Note or the Lien
Instruments, as hereinafter defined, beyond any applicable grace
period, during the first two (2) years of this Note, including
but not limited to the obligations to make timely monthly
payments hereunder; (ii) the Maker must exercise such option by
written notice to Payee delivered at least thirty (30) days
prior to the First Change Date; (iii) the Maker will pay to
Payee (as a fee not to be credited against the outstanding
principal balance) an amount equal to one percent (1.00%) of the
outstanding principal balance as of the date of the exercise of
the option; and (iv) the Maker agrees that the prepayment
penalty schedule for the remaining five (5) years of the loan
term shall be as set forth herein.
(c)
The Maker shall pay interest on the unpaid
Principal from the Effective Date of this Note until the
Indebtedness due hereunder or under the Lien Instruments, as
hereinafter defined, has been paid in full. The interest
paid by the Maker shall be calculated on the basis of a 360-day
year and thirty (30) day months.
2.
The words Maker and Payee include all makers and
all payees, respectively, under this Note, their
representatives, successors and assigns. The Payee and any
other holder of this Note may transfer this Note. The word
Payee includes the original Payee and anyone who takes this Note
by transfer.
3.
(a)
On the date of this Note, Maker shall pay
interest from the date of this Note until the last day of this
month, inclusive, in the amount of TWO THOUSAND TWO HUNDRED
SEVENTY-TWO DOLLARS AND FIVE CENTS ($2,272.05).
(b)
Thereafter, commencing on August 1, 2008, being
the first day of the second full calendar month after the date
hereof, and continuing through and including June 30, 2010 (the
“Interest Only Termination Date”), unless the due
date is accelerated, the Maker shall pay the interest only by
making constant monthly payments in the amount of SIXTY-EIGHT
THOUSAND ONE HUNDRED SIXTY-ONE DOLLARS AND FORTY-SIX CENTS
($68,161.46) (the “Initial Monthly Payments”) and
the same amount on the first day of each and every month through
and including the interest only payment due on July 1, 2010.
(c)
Thereafter, commencing on the First Change Date
and continuing thereafter until Maturity, when all of the
Principal and interest and any other charges are due, the Maker
shall pay the Principal and interest by making constant monthly
payments on the first day of each and every month, which
constant monthly payments shall be based upon the applicable
rate of interest to be determined pursuant to paragraph 1(a) or
1(b) of this Note. The monthly payments of Principal and
interest will change on the first day of the month after the
First Change Date and each Subsequent Change Date to reflect the
new interest rate and constant rate of principal payment.
Each monthly payment shall be used first to pay
all accrued interest on the unpaid Principal, together with any
and all sums, amounts, fees, charges and expenses accrued and
unpaid or incurred, and the balance, if any, shall be applied in
reduction of outstanding Principal.
This Note shall mature and be due and payable in
full, together with all accrued but unpaid interest and any and
all other charges due hereunder or pursuant to the Lien
Instruments, as hereinafter defined, on the earlier of the
following dates: (i) July 1, 2015; or (ii) at acceleration after
default. The earlier of said dates is referred to herein
as “Maturity” or the “Maturity
Date”.
(b)
In addition to the monthly payments of Principal
and interest required pursuant to subparagraph 3(a) above, and
in order to more fully protect the security of the Mortgage (as
hereinafter defined), the Maker further agrees that upon the
occurrence and continuance of an Event of Default hereunder or
under any of the Loan Documents (as hereinafer defined), Payee
reserves the right to require that Maker immediately begin to
pay to the Payee, on each monthly installment date, a sum equal
to one-twelfth (1/12th) of the amount, as estimated from time to
time by the Payee, of the annual real estate taxes and
assessments (the “Taxes or Impositions”) to become
due as charges on or with respect to the Premises (as
hereinafter defined) during the twelve (12) calendar months
following the date of the first monthly installment due
hereunder and during the twelve (12) calendar months following
each anniversary of such date; and one twelfth (1/12th) of the
amount of the annual insurance premiums for hazard, general
liability, boiler and rent loss coverages (including flood
insurance premiums, if applicable) and for any additional
coverage included by the Maker in the policy provided by Maker
pursuant to the terms of the Mortgage (as hereinafter defined)
(the “Insurance Charges”, and together with the
Taxes or Impositions, collectively referred to hereinafter as
the “Carrying Charges”), which payment shall be
known for the purposes hereof as the monthly payment to cover
the Carrying Charges of the Premises, so that no later than one
(1) month prior to the respective due dates for each of such
Carrying Charges there shall be in the hands of the Payee
amounts sufficient to pay such Carrying Charges in full.
Although each such monthly payment is to be in a lump sum,
each component thereof may be held separately by the Payee,
without interest, for, and applied only to, the particular item
for which it was paid over by the Maker, unless the Payee in its
sole discretion elects otherwise, or applicable law requires
otherwise. The Payee may require the Maker to pay other
impositions affecting the Premises in a lump sum if the Payee
shall deem it necessary to protect its interest.
In the event that Payee imposes upon Maker the
requirement to pay the Carrying Charges as set forth above, then
if, at any time prior to the due date of any particular item of
such Carrying Charges the Payee calculates that there will not
be in its hands one (1) month prior to such due date a sum
sufficient for the payment of such item in full, the Maker upon
demand shall pay the amount of any such deficiency to the Payee
and upon failure of the Maker to pay such deficiency within ten
(10) days of demand therefor, the unpaid balance of the
Principal hereof, shall, at the option of the Payee, become
immediately due and payable, notwithstanding that sums for the
payment of other items of such Carrying Charges not yet due and
payable may be in the hands of the Payee.
In the event that Payee imposes upon Maker the
requirement to pay the Carrying Charges as set forth above, then
any excess or unneeded funds paid hereunder may be refunded to
the Maker at the sole discretion of the Payee, so long as all
payments are current, and there is no Event of Default (as
defined in the Deed of Trust) under this Note or any of the Loan
Documents (as hereinafter defined), and provided, further, that
there are no judgments or liens or income or other tax liens
against the Maker or the Premises.
If there shall be an Event of Default hereunder
resulting in a judicial sale of the Premises, or if the Payee
acquires the Premises in any other way after an Event of
Default, the Payee shall have the right to apply any balance
then remaining in any said fund to cover such Carrying Charges
against the balance of the Indebtedness then unpaid, or to the
payment of any or all of such Carrying Charges without
obligation to account therefor to the Maker. Any funds
deposited by the Maker pursuant to this Paragraph 3(b) will be
deemed to have been pledged as additional security for the
Indebtedness evidenced by this Note.
4.
(a)
During the first two (2) years of the term of
this Note, Maker may prepay the Indebtedness in whole or in part
without penalty upon thirty (30) days advance written notice to
the Payee.
(b)
Upon the expiration of the second (2
nd ) year of this Note, in the event that the
interest rate is adjusted to the One-Year ARM Rate in accordance
with the provisions of paragraph 1(a) hereinabove, then Maker
may prepay the Indebtedness in whole upon thirty (30) days
advance written notice to the Payee at any time during the
remaining term of this Note without any prepayment premium.
(c)
Upon the expiration of the second (2
nd ) year of this Note, in the event that the
interest rate is adjusted to the Adjusted Fixed Rate in
accordance with the provisions of paragraph 1(b) hereinabove,
then Maker may prepay the Indebtedness in whole upon thirty (30)
days advance written notice to the Payee provided that
additionally there shall be paid as a premium for the privilege
of so prepaying, an amount equal to the following:
(i)
Five percent (5%) of the outstanding Principal
if prepayment occurs during the third (3 rd ) year of
this Note;
(ii)
Four percent (4%) of the outstanding Principal
if prepayment occurs during the fourth (4 th ) year
of this Note;
(iii)
Three percent (3%) of the outstanding Principal
if prepayment occurs during the fifth (5 th ) year of
this Note;
(iv)
Two percent (2%) of the outstanding Principal if
prepayment occurs during the sixth (6 th ) year of
this Note; and
(v)
One percent (1%) of the outstanding Principal if
prepayment occurs during the seventh (7 th ) year of
this Note.
(d)
For the purpose of calculating the prepayment
premium as provided in this paragraph, the first (1st) year of
this Note shall commence on the date of this Note and shall
expire at 11:59 P.M. on the day prior to the first (1st)
anniversary of the first (1st) day of the month after the month
in which this Note is dated, unless this Note is dated the first
(1st) day of the month, in which event the first (1st) year of
this Note shall expire at 11:59 P.M. on the day prior to the
first (1st) anniversary of the date of this Note. Each
year of this Note thereafter in succession shall commence on the
expiration of the first (1st) year of this Note and on the
annual anniversary of the day following the date of expiration
of the first (1st) year of this Note, respectively; and the use
of the term “month” shall refer to and mean a
regular calendar month. The above prepayment premium shall
also be due and payable in the event of an acceleration of
payment of the principal balance of this Note after an Event of
Default pursuant to the terms of this Note or the Mortgage.
(e)
Notwithstanding the foregoing provisions of this
paragraph 4, no prepayment premium shall apply to any
involuntary prepayment of the Indebtedness made as a result of
the application of condemnation or insurance proceeds.
5.
If Payee does not receive any regular monthly
payment of interest by the fifteenth (15th) calendar day of such
month, Maker will pay a late charge at the rate of four
(4¢) cents for each dollar ($1.00) of the total monthly
payments so overdue for the administrative cost and expense of
handling such late payment. Said late charge shall be
immediately due and payable without demand by the Payee.
6.
As security for the payment of this Note, Maker
has executed and delivered to Payee a certain First Mortgage and
Security Agreement (the “Mortgage”), Assignment of
Leases and Rents, and UCC Form 1 financing statements and other
documents and instruments, all dated even date herewith and
sometimes collectively referred to and known as the “Lien
Instruments”. The Lien Instruments are made by Maker
to and for the benefit of Payee and encumber the real property,
together with the buildings and improvements erected thereon,
owned by the Maker and known as Raven Hill, located at 13000
Harriet Avenue South in the City of Burnsville, bearing Parcel
ID #02-63100-010-01 on the Tax Map of the City of Burnsville,
County of Dakota, State of Minnesota, all as more fully
described in the Mortgage as Schedule A, and the personalty
attached thereto and the rents and profits derived therefrom
(the “Premises”). This Note and the Lien
Instruments are given in consideration of a loan by Payee to
Maker in the amount of the Principal.
7.
The Maker shall remain liable for the payment of
this Note in accordance with the terms hereof, including
interest, notwithstanding any extension or extensions of time of
payment, or any indulgence of any kind or nature that Payee may
grant or permit to any subsequent owner of the encumbered
Premises,
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