Exhibit 10 CCC
MULTIFAMILY
NOTE
|
US $1,500,000
|
as of March 31, 2009
|
FOR VALUE RECEIVED , the
undersigned (" Borrower ") jointly and severally (if more
than one) promises to pay to the order of KeyCorp Real Estate Capital Markets,
Inc. , an
Ohio corporation, the principal sum of One Million Five Hundred
Thousand and No/100ths Dollars (US $1,500,000), with interest
accruing at the Interest Rate on the unpaid principal balance from
the Disbursement Date until fully paid.
1. Defined
Terms. In addition
to defined terms found elsewhere in this Note, as used in this
Note, the following definitions shall apply:
Amortization Period
: 360 months.
Business Day
: Any day other than a
Saturday, Sunday or any other day on which Lender is not open for
business.
Debt Service Amounts
: Amounts payable under this
Note, the Security Instrument or any other Loan
Document.
Default Rate
: A rate equal to the lesser
of 4 percentage points above the Interest Rate or the maximum
interest rate which may be collected from Borrower under applicable
law.
Disbursement Date:
The date of disbursement of
Loan proceeds hereunder.
First Payment Date
: The first day of May 1,
2009.
Indebtedness
: The principal of,
interest on, or any other amounts due at any time under, this Note,
the Security Instrument or any other Loan Document, including
prepayment premiums, late charges, default interest, and advances
to protect the security of the Security Instrument under Section 12
of the Security Instrument.
Interest Rate
: The annual rate of five and
two-thirds percent (5.67%).
Lender : The holder of this
Note.
Loan : The loan evidenced by this
Note.
Loan Term : 82 months.
Maturity Date
: The first day of February 1,
2016, or any earlier date on which the unpaid principal balance of
this Note becomes due and payable by acceleration or
otherwise.
Property Jurisdiction
: The jurisdiction in which
the Land is located.
Security Instrument
: A Multifamily Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing dated as
of the date of this Note.
Yield Maintenance Period Term or
Prepayment Premium Period Term : 76 months.
Yield Maintenance Period End Date
or Prepayment Premium Period End Date : The last day of July,
2015.
Event of Default, Key Principal and
other capitalized terms used but not defined in this Note shall
have the meanings given to such terms in the Security
Instrument.
2. Address for
Payment. All
payments due under this Note shall be payable at KeyBank Real
Estate Capital, P.O. Box 145404, Cincinnati, Ohio 45250, or such
other place as may be designated by written notice to Borrower from
or on behalf of Lender.
3. Payment of
Principal and Interest. Principal and interest shall be paid as
follows:
(a) Short Month
Interest. If disbursement of principal is made by Lender
to Borrower on any day other than the first day of the month,
interest for the period beginning on the Disbursement Date and
ending on and including the last day of the month in which such
disbursement is made shall be payable simultaneously with the
execution of this Note.
(b) Interest
Computation. Interest under this Note shall be computed
on the basis of (check one only):
30/360. A 360-day year consisting of twelve 30-day
months.
Actual/360. A 360-day year. The amount of each monthly
payment made by Borrower
pursuant to Paragraph 3(c) below that is allocated to interest will
be based on the actual number of calendar days during such month
and shall be calculated by multiplying the unpaid principal balance
of this Note by the per annum Interest Rate, dividing the product
by 360 and multiplying the quotient by the actual number of days
elapsed during the month. Borrower understands that the
amount allocated to interest for each month will vary depending on
the actual number of calendar days during such
month.
(c) Monthly
Installments. Consecutive monthly installments of
principal and interest, each in the amount of Eight Thousand Six
Hundred Seventy-Seven and 51/100ths Dollars (US $8,677.51), shall
be payable on the First Payment Date and on the first day of every
month thereafter, until the entire unpaid principal balance
evidenced by this Note is fully paid. Any remaining principal
and interest shall be due and payable on the Maturity Date.
The unpaid principal balance shall continue to bear interest after
the Maturity Date at the Default Rate set forth in this Note until
and including the date on which it is paid in full.
(d)
Payments Before Due Date. Any regularly scheduled
monthly installment of principal and interest that is received by
Lender before the date it is due shall be deemed to have been
received on the due date solely for the purpose of calculating
interest due.
(e) Accrued
Interest. Any accrued interest remaining past due for 30
days or more shall be added to and become part of the unpaid
principal balance and shall bear interest at the rate or rates
specified in this Note. Any reference herein to "accrued
interest" shall refer to accrued interest which has not become part
of the unpaid principal balance. Any amount added to
principal pursuant to the Loan Documents shall bear interest at the
applicable rate or rates specified in this Note and shall be
payable with such interest upon demand by Lender and absent such
demand, as provided in this Note for the payment of principal and
interest.
4. Application of
Payments. If at any
time Lender receives, from Borrower or otherwise, any amount
applicable to the Indebtedness which is less than all amounts due
and payable at such time, Lender may apply that payment to amounts
then due and payable in any manner and in any order determined by
Lender, in Lender's discretion. Borrower agrees that neither
Lender's acceptance of a payment from Borrower in an amount that is
less than all amounts then due and payable nor Lender's application
of such payment shall constitute or be deemed to constitute either
a waiver of the unpaid amounts or an accord and
satisfaction.
5.
Security. The
Indebtedness is secured, among other things, by the Security
Instrument, and reference is made to the Security Instrument for
other rights of Lender concerning the collateral for the
Indebtedness.
6.
Acceleration. If an
Event of Default has occurred and is continuing, the entire unpaid
principal balance, any accrued interest, the prepayment premium
payable under Paragraph 10, if any, and all other amounts payable
under this Note and any other Loan Document shall at once become
due and payable, at the option of Lender, without any prior notice
to Borrower. Lender may exercise this option to accelerate
regardless of any prior forbearance.
7. Late
Charge. If any
monthly installment due hereunder is not received by Lender on or
before the 10th day of each month or if any other amount payable
under this Note or under the Security Instrument or any other Loan
Document is not received by Lender within 10 days after the date
such amount is due, counting from and including the date such
amount is due, Borrower shall pay to Lender, immediately and
without demand by Lender, a late charge equal to 5 percent of such
monthly installment or other amount due. Borrower
acknowledges that its failure to make timely payments will cause
Lender to incur additional expenses in servicing and processing the
Loan and that it is extremely difficult and impractical to
determine those additional expenses. Borrower agrees that the
late charge payable pursuant to this Paragraph represents a fair
and reasonable estimate, taking into account all circumstances
existing on the date of this Note, of the additional expenses
Lender will incur by reason of such late payment. The late
charge is payable in addition to, and not in lieu of, any interest
payable at the Default Rate pursuant to Paragraph 8.
8. Default
Rate. So long as
any monthly installment or any other payment due under this Note
remains past due for 30 days or more, interest under this Note
shall accrue on the unpaid principal balance from the earlier of
the due date of the first unpaid monthly installment or other
payment due, as applicable, at the Default Rate. If the
unpaid principal balance and all accrued interest are not paid in
full on the Maturity Date, the unpaid principal balance and all
accrued interest shall bear interest from the Maturity Date at the
Default Rate. Borrower also acknowledges that its failure to
make timely payments will cause Lender to incur additional expenses
in servicing and processing the Loan, that, during the time that
any monthly installment or payment under this Note is delinquent
for more than 30 days, Lender will incur additional costs and
expenses arising from its loss of the use of the money due and from
the adverse impact on Lender's ability to meet its other
obligations and to take advantage of other investment
opportunities, and that it is extremely difficult and impractical
to determine those additional costs and expenses. Borrower
also acknowledges that, during the time that any monthly
installment or other payment due under this Note is delinquent for
more than 30 days, Lender's risk of nonpayment of this Note will be
materially increased and Lender is entitled to be compensated for
such increased risk. Borrower agrees that the increase in the
rate of interest payable under this Note to the Default Rate
represents a fair and reasonable estimate, taking into account all
circumstances existing on the date of this Note, of the additional
costs and expenses Lender will incur by reason of the Borrower's
delinquent payment and the additional compensation Lender is
entitled to receive for the increased risks of nonpayment
associated with a delinquent loan.
9. Limits on
Personal Liability.
(a) Except as otherwise
provided in this Paragraph 9, Borrower shall have no personal
liability under this Note, the Security Instrument or any other
Loan Document for the repayment of the Indebtedness or for the
performance of any other obligations of Borrower under the Loan
Documents, and Lender's only recourse for the satisfaction of the
Indebtedness and the performance of such obligations shall be
Lender's exercise of its rights and remedies with respect to the
Mortgaged Property (as such term is defined in the Security
Instrument) and any other collateral held by Lender as security for
the Indebtedness. This limitation on Borrower's liability shall not
limit or impair Lender's enforcement of its rights against any
guarantor of the Indebtedness or any guarantor of any obligations
of Borrower.
(b) Borrower shall be
personally liable to Lender for the repayment of a portion of the
Indebtedness equal to any loss or damage suffered by Lender as a
result of:
(1)
failure of Borrower to pay to Lender upon demand after an Event of
Default, all Rents to which Lender is entitled under Section 3(a)
of the Security Instrument and the amount of all security deposits
collected by Borrower from tenants then in residence;
(2)
failure of Borrower to apply all insurance proceeds and
condemnation proceeds as required by the Security
Instrument;
(3)
failure of Borrower to comply with Section 14(d) or (e) of the
Security Instrument relating to the delivery of books and records,
statements, schedules and reports;
(4)
fraud or written material misrepresentation by Borrower, Key
Principal or any officer, director, partner, member or employee of
Bor
