EXHIBIT 10.7
LA-Z BOY GLENDALE
LOAN NO. 50-2853609
PROMISSORY NOTE
$4,553,000.00 October 25, 2005
FOR VALUE RECEIVED, the undersigned, COLE LZ GLENDALE AZ, LLC, a Delaware
limited liability company ("Maker"), having an address at 2555 East Camelback
Road, Suite 400, Phoenix, Arizona 85016, promises to pay to the order of
WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association ("Payee"),
at the office of Payee at Commercial Real Estate Services, 8739 Research Drive
URP - 4, NC 1075, Charlotte, North Carolina 28262, or at such other place as
Payee may designate to Maker in writing from time to time, the principal sum of
FOUR MILLION FIVE HUNDRED FIFTY-THREE THOUSAND AND NO/100 DOLLARS
($4,553,000.00), together with interest on so much thereof as is from time to
time outstanding and unpaid, from the date of the advance of the principal
evidenced hereby and as allocated to Fixed Rate Tranche A and Floating Rate
Tranche B (as each term is hereinafter defined) for each such tranche, at the
Note Rate (as hereinafter defined), together with all other amounts due
hereunder or under the other Loan Documents (as defined herein), in lawful money
of the United States of America, which shall at the time of payment be legal
tender in payment of all debts and dues, public and private.
ARTICLE I -- TERMS AND CONDITIONS
1.1 Definitions. The following terms, as used in this Note, shall have the
following meanings, which meanings shall be applicable equally to the singular
and the plural of the terms defined:
(a) "Business Day" shall mean a day of the year on which banks are
not required or authorized to close in Charlotte, North Carolina.
(b) "Determination Date" shall mean a date on which the LIBOR-Based
Rate shall be selected as the applicable interest rate in respect of Floating
Rate Tranche B, which date shall be the day that is two (2) London Business Days
prior to the commencement of an Interest Period or, with respect to the first
Interest Period, the date the Loan shall be advanced by Payee.
(c) "Extended Maturity Date" shall mean November 11, 2030.
(d) "Fixed Rate Tranche A" shall mean Three Million Four Hundred
Fifteen Thousand and No/100 Dollars ($3,415,000.00) of the aggregate amount of
the Loan which shall bear interest as set forth in Section 1.3 hereof.
(e) "Floating Rate Tranche B" shall mean One Million One Hundred
Thirty-Eight Thousand and No/100 Dollars ($1,138,000.00) of the aggregate amount
of the Loan which shall bear interest at the LIBOR-Based Rate (as hereinafter
defined).
(f) "Interest Period" shall mean initially, the period commencing on
the date hereof and ending on and including the day of the tenth (10th) day of
the calendar month
following the date of this Note, unless principal is advanced on the tenth
(10th) of a month, in which case the first Interest Period shall consist only
such tenth (10th) day. Each Interest Period thereafter shall commence on the
eleventh (11th) day of each calendar month during the term of this Note and
shall end on and include the tenth (10th) day of the next occurring calendar
month. Interest shall accrue from the date on which funds are advanced hereunder
(regardless of the time of day) through and including the day on which funds are
credited pursuant to Section 1.4 hereof.
(g) "LIBOR-Based Rate" shall mean (i) for the first Interest Period,
an interest rate per annum equal to ______________________________ percent
(______%) and (ii) for each succeeding Interest Period until Floating Rate
Tranche B is satisfied, an interest rate per annum equal at all times to two
hundred (200) basis points above the one-month LIBOR, in each case as determined
by Payee prior to the commencement of each Interest Period.
(h) "LIBOR" shall mean with respect to each day during each Interest
Period, the rate for U.S. dollar deposits of that many months maturity as
reported on Telerate page 3750 as of 11:00 a.m., London time, on the second
London Business Day before the relevant Interest Period begins (or if not so
reported, then as determined by Payee from another recognized source or
interbank quotation), rounded up to the nearest one-eighth of one percent
(1/8%).
(i) "Loan" shall mean that certain loan made by Payee to Maker in
respect of the Property which is evidenced by this Note and secured by, among
other things, the Security Instrument and all other Loan Documents.
(j) "Loan Documents" shall mean the Security Instrument, this Note
and all other documents now or hereafter evidencing, securing, guarantying,
modifying or otherwise relating to the indebtedness evidenced hereby.
(k) "London Business Day" shall mean a day of the year on which
dealings in United States dollars are carried on in the London interbank market
and banks are not required or authorized to close in London or in New York, New
York.
(l) "Maturity Date" shall mean November 11, 2010.
(m) "Monthly Payment Amount" shall mean the sum of (A) from and
including the First Payment Date through the Maturity Date, an amount equal to
the interest payable under this Note on the portion allocated as Fixed Rate
Tranche A at the Fixed Interest Rate in the amounts for each such Payment Date
set forth on Annex 1 attached hereto and incorporated herein by this reference
or as provided by Payee to Maker in connection with the initial Fixed Interest
Rate Interest Period, plus (B) through and until Floating Rate Tranche B is
satisfied, an amount equal to the interest payable under this Note on the
portion allocated as Floating Rate Tranche B at the LIBOR-Based Rate pursuant to
the provisions of Section 1.2 hereof. Annex 1 is for reference purposes only and
any payment incorrectly referenced thereon or omitted therefrom shall not limit
or reduce Maker's obligations for actual amounts due under this Note in
accordance with its payment terms, and Maker agrees that Payee may substitute a
replacement Annex 1 in the event the attached does not accurately reflect
Maker's scheduled payment obligations.
(n) "Optional Prepayment Date" shall mean November 11, 2010.
(o) "Optional Prepayment Determination Date" shall mean September
11, 2010.
(p) "Security Instrument" shall mean that certain mortgage, deed of
trust or deed to secure debt and security agreement from Maker for the benefit
of Payee, dated of even date herewith, covering property located in Maricopa
County, Arizona.
Each of the capitalized terms not otherwise defined in this Note shall
have the respective meaning ascribed to it in the Security Instrument of even
date herewith from Maker to Payee.
1.2 LIBOR-Based Rate; Pay-Down Date. (a) From the date of the advance of
the principal evidenced hereby through the Pay-Down Date (as hereinafter
defined) for Floating Rate Tranche B, Floating Rate Tranche B shall bear
interest at the LIBOR-Based Rate. The LIBOR-Based Rate shall remain in effect,
subject to the provisions hereof, from and including the first day of the
Interest Period to and excluding the last day of the Interest Period for which
it is determined.
(b) If requested by Payee, Maker shall immediately confirm the
LIBOR-Based Rate and the duration of the applicable Interest Period by
acknowledging receipt of a written confirmation of the LIBOR-Based Rate and
Interest Period delivered by Payee to Maker. Only one Interest Period may be in
effect at any given time.
(c) Without limiting the effect of any other provision of this Note,
Maker shall pay to Payee on the last day of each and every Interest Period, so
long as and to the extent that Payee (or its source of funds) may directly or
indirectly be required to maintain reserves against "Eurocurrency liabilities"
under Federal Reserve Regulation D (as at any time amended), additional interest
(as determined by Payee and disclosed to Maker) for each such Interest Period at
an interest rate per annum equal, at all times during such Interest Period for
the principal balance of Floating Rate Tranche B, to the excess of (i) the rate
obtained by dividing LIBOR for such Interest Period by a percentage equal to
100% minus the reserve percentage applicable during such Interest Period under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or if more than one such percentage is so applicable, minus the
daily average of such percentages for those days in such Interest Period during
which any such percentage shall be so applicable) for determining the maximum
reserve requirement (including, without limitation, any marginal reserve
requirement) for Payee (or its source of funds) in respect of liabilities or
assets consisting of or including "Eurocurrency liabilities" under Federal
Reserve Regulation D (as at any time amended) having a term equal to such
Interest Period over (ii) LIBOR for such Interest Period. Terms used in
Regulation D shall have the same meanings when used herein. Each such
determination made by Payee and each such notification by Payee to Maker under
this subparagraph of the amount of additional interest payable hereunder shall
be conclusive as to the matters set forth therein.
(d) In addition to the payment of interest and fees as aforesaid,
Maker shall, from time to time, upon demand by Payee pay to Payee amounts as
shall be sufficient to compensate Payee for (i) any loss, cost, fee, breakage or
other expense incurred or sustained directly or indirectly by reason of the
liquidation or reemployment of deposits or other funds acquired by Payee to fund
or maintain Floating Rate Tranche B during any Interest Period as a
result of any prepayment of Floating Rate Tranche B or any portion thereof or
any attempt by Maker to rescind the selection of the LIBOR-Based Rate as the
applicable interest rate for Floating Rate Tranche B and (ii) any increased
costs incurred by Payee, by reason of:
(x) taxes (or the withholding of amounts for taxes) of any nature
whatsoever, including, without limitation, income, excise and interest
equalization taxes (other than United States or state income taxes) as
well as all levies, imports, duties, or fees whether now in existence or
as the result of a change in, or promulgation of, any treaty, statute or
regulation or interpretation thereof, or any directive, guideline or
otherwise, by a central bank or fiscal authority or any other entity
(whether or not having the force of law) or a change in the basis of, or
time of payment of, such taxes and other amounts resulting therefrom;
(y) any reserve or special deposit requirements against or with
respect to assets or liabilities or deposits outstanding under LIBOR
(including, without limitation, those imposed under the Monetary Control
Act of 1978) currently required by, or resulting from a change in, or the
promulgation of, such requirements by treaty, statute, regulation,
interpretation thereof, or any directive, guidelines, or otherwise by a
central bank or fiscal authority (whether or not having the force of law);
and
(z) any other costs resulting from compliance with treaties,
statutes, regulations, interpretations or any directives or guidelines or
otherwise, promulgated by or of a central bank or fiscal authority or
other entity with similar authority (whether or not having the force of
law).
A certificate as to the amount of any such costs prepared by Payee, signed by an
authorized officer of Payee and submitted to Maker shall be conclusive as to the
matters therein set forth.
(e) The selection at any time of an interest rate based upon LIBOR shall
be expressly conditioned upon the existence of an adequate and fair means of
determining LIBOR and the absence of any legal prohibition against the charging
of interest based on LIBOR.
(f) On or prior to January 25, 2006 (the "Pay-Down Date"), Maker shall
fully prepay the principal balance of this Note allocated as Floating Rate
Tranche B. Floating Rate Tranche B shall not be deemed to have been paid and/or
satisfied in full until all such additional costs, in addition to the principal
balance thereof and all interest thereon and all other sums due and payable
under the Loan Documents in regards to Floating Rate Tranche B, shall have been
paid.
1.3 Note Rate; Computation of Interest. The term "Note Rate" as used in
this Note shall mean (a) for Fixed Rate Tranche A, from the date of this Note
through but not including the Optional Prepayment Date, a rate per annum equal
to ____________________ percent (____%) (the "Fixed Interest Rate"), (b) for
Floating Rate Tranche B, from the date of this Note through the Pay-Down Date
and satisfaction of Floating Rate Tranche B, a rate per annum equal to the
LIBOR-Based Rate, and (c) from the Optional Prepayment Date through and
including the date this Note is paid in full, a rate per annum equal to the
greater of (i) the Fixed Interest Rate plus two (2%) percent or (ii) the
Treasury Constant Maturity Yield Index (as hereinafter defined) plus two (2%)
percent ((i) or (ii), as applicable, the "Revised Interest Rate"). Interest
shall be
computed hereunder based on a 360-day year and based on the actual number of
days elapsed for any period in which interest is being calculated. For purposes
of this Section 1.3, the term "Treasury Constant Maturity Yield Index" shall
mean the average yield for "This Week" as reported by the Federal Reserve Board
in Federal Statistical Release H.15 (519) published during the second full week
preceding the Optional Prepayment Date for instruments having a maturity
coterminous with the remaining term of this Note. If there is no Treasury
Constant Maturity Yield Index for instruments having a maturity coterminous with
the remaining term of this Note, then the index shall be equal to the weighted
average yield to maturity of the Treasury Constant Maturity Yield Indices with
maturities next longer and shorter than such remaining average life to maturity,
calculated by averaging (and rounding upward to the nearest whole multiple of
1/100 of 1% per annum, if the average is not such a multiple) the yields of the
relevant Treasury Constant Maturity Yield Indices (rounded, if necessary, to the
nearest 1/100 of 1% with any figure of 1/200 of 1% or above rounded upward). If
such Release is not available or no longer published, Payee may refer to another
recognized source of financial market information.
1.4 Payment of Principal and Interest. Payments in federal funds
immediately available at the place designated for payment received by Payee
prior to 2:00 p.m. local time on a day on which Payee is open for business at
said place of payment shall be credited prior to close of business, while other
payments, at the option of Payee, may not be credited until immediately
available to Payee in federal funds at the place designated for payment prior to
2:00 p.m. local time on a day on which Payee is open for business. Interest only
shall be payable in consecutive monthly installments of the Monthly Payment
Amount, beginning on December 11, 2005 (the "First Payment Date"), and
continuing on the eleventh (11th) day of each and every calendar month
thereafter (each, a "Payment Date"). On the Maturity Date or the Optional
Prepayment Date, the entire outstanding principal balance hereof, together with
all accrued but unpaid interest thereon, shall be due and payable in full
provided, however, that in the event that such amounts are not paid on such
date, the Maturity Date shall be extended to the Extended Maturity Date. In
computing the number of days during which interest accrues, the day on which
funds are initially advanced shall be included regardless of the time of day
such advance is made, and the day on which funds are repaid shall be included
unless repayment is credited prior to close of business. Payments in federal
funds immediately available in the place designated for payment received by
Payee prior to 2:00 p.m. local time on a Business Day at said place of payment
shall be credited prior to close of business, while other payments, at the
option of Payee, may not be credited until immediately available to Payee in
federal funds in the place designated for payment prior to 2:00 p.m. local time
at said place of payment on a Business Day.
1.5 Application of Payments. So long as no Event of Default (as
hereinafter defined) exists hereunder or under any other Loan Document, each
such monthly installment shall be applied, prior to the Optional Prepayment
Date, first, to any amounts hereafter advanced by Payee hereunder or under any
other Loan Document, second, to any late fees and other amounts payable to
Payee, third, to the payment of accrued interest and last to reduction of
principal, and from and after the Optional Prepayment Date, as provided in
Section 2.2 of this Note.
1.6 Payment of "Short Interest". If the advance of the principal amount
evidenced by this Note is made on a date on or after the first (1st) day of a
calendar month and prior to the eleventh (11th) day of a calendar month, Maker
shall pay to Payee contemporaneously with the
execution hereof interest at the Note Rate for a period from the date hereof
through and including the tenth (10th) day of this calendar month. If the
advance of the principal amount evidenced by this Note is made on a date after
the eleventh (11th) day of a calendar month and prior to or on the last day of a
calendar month, Maker shall pay to Payee contemporaneously with the execution
hereof interest at the Note Rate for a period from the date hereof through and
including the tenth (10th) day of the immediately succeeding calendar month.
1.7 Prepayment; Defeasance.
(a) This Note may not be prepaid, in whole or in part (except as otherwise
specifically provided herein), at any time prior to the Optional Prepayment
Date. In the event that Maker wishes to have the Security Property (as
hereinafter defined) released from the lien of the Security Instrument prior to
the Optional Prepayment Date, Maker's sole option shall be a Defeasance (as
hereinafter defined) upon satisfaction of the terms and conditions set forth in
Section 1.7(d) hereof. This Note may be prepaid in whole but not in part without
premium or penalty on any of the three (3) Payment Dates occurring immediately
prior to the Maturity Date provided (i) written notice of such prepayment is
received by Payee not more than ninety (90) days and not less than thirty (30)
days prior to the date of such prepayment, and (ii) such prepayment is
accompanied by all interest accrued hereunder through and including the date of
such prepayment and all other sums due hereunder or under the other Loan
Documents. If, upon any such permitted prepayment on any of the three (3)
Payment Dates occurring immediately prior to the Maturity Date, the aforesaid
prior written notice has not been timely received by Payee, there shall be due a
prepayment fee equal to, an amount equal to the lesser of (i) thirty (30) days'
interest computed at the Note Rate on the outstanding principal balance of this
Note so prepaid and (ii) interest computed at the Note Rate on the outstanding
principal balance of this Note so prepaid that would have been payable for the
period from, and including, the date of prepayment through the Maturity Date of
this Note as though such prepayment had not occurred.
(b) If, prior to the fourth (4th) anniversary of the First Payment Date
(the "Lock-out Expiration Date"), the indebtedness evidenced by this Note shall
have been declared due and payable by Payee pursuant to Article III hereof or
the provisions of any other Loan Document due to a default by Maker, then, in
addition to the indebtedness evidenced by this Note being immediately due and
payable, there shall also then be immediately due and payable a sum equal to the
interest which would have accrued on the principal balance of this Note at the
Note Rate from the date of such acceleration to the Lock-out Expiration Date,
together with a prepayment fee in an amount equal to the Yield Maintenance
Premium (as hereinafter defined) based on the entire indebtedness on the date of
such acceleration. If such acceleration is on or following the Lock-out
Expiration Date, the Yield Maintenance Premium shall also then be immediately
due and payable as though Maker were prepaying the entire indebtedness on the
date of such acceleration. In addition to the amounts described in the two
preceding sentences, in the event of any such acceleration or tender of payment
of such indebtedness occurs or is made on or prior to the first (1st)
anniversary of the date of this Note, there shall also then be immediately due
and payable an additional prepayment fee of three percent (3%) of the principal
balance of this Note. The term "Yield Maintenance Premium" shall mean an amount
equal to the greater of (A) two percent (2.0%) of the principal amount being
prepaid, and (B) the present value of a series of
payments each equal to the Payment Differential (as hereinafter defined) and
payable on each Payment Date over the remaining original term of this Note and
on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter
defined) for the number of months remaining as of the date of such prepayment to
each such Payment Date and the Maturity Date. The term "Payment Differential"
shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield,
divided by (ii) twelve (12) and multiplied by (iii) the principal sum
outstanding under this Note after application of the constant monthly payment
due under this Note on the date of such prepayment, provided that the Payment
Differential shall in no event be less than zero. The term "Reinvestment Yield"
shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury
issue (primary issue) with a maturity date closest to the Maturity Date, or (ii)
the yield on the U.S. Treasury issue (primary issue) with a term equal to the
remaining average life of the indebtedness evidenced by this Note, with each
such yield being based on the bid price for such issue as published in the Wall
Street Journal on the date that is fourteen (14) days prior to the date of such
prepayment set forth in the notice of prepayment (or, if such bid price is not
published on that date, the next preceding date on which such bid price is so
published) and converted to a monthly compounded nominal yield. In the event
that any prepayment fee is due hereunder, Payee shall deliver to Maker a
statement setting forth the amount and determination of the prepayment fee, and,
provided that Payee shall have in good faith applied the formula described
above, Maker shall not have the right to challenge the calculation or the method
of calculation set forth in any such statement in the absence of manifest error,
which calculation may be made by Payee on any day during the fifteen (15) day
period preceding the date of such prepayment. Payee shall not be obligated or
required to have actually reinvested the prepaid principal balance at the
Reinvestment Yield or otherwise as a condition to receiving the prepayment fee.
(c) Partial prepayments of this Note shall not be permitted,
except for (i) partial prepayments resulting from Payee's election to apply
insurance or condemnation proceeds to reduce the outstanding principal balance
of this Note as provided in the Security Instrument, in which event no
prepayment fee or premium shall be due unless, at the time of either Payee's
receipt of such proceeds or the application of such proceeds to the outstanding
principal balance of this Note, an Event of Default shall have occurred, which
Event of Default is unrelated to the applicable casualty or condemnation, in
which event the applicable prepayment fee or premium shall be due and payable
based upon the amount of the prepayment or (ii) any partial prepayment required
on or prior to the Pay-Down Date pursuant to Section 1.2(f) above, in which
event no prepayment fee or premium shall be due. No notice of prepayment shall
be required under the circumstances specified in subclause (i) of the preceding
sentence. No principal amount repaid may be reborrowed. Any such partial
prepayments of principal under subclause (i) above shall be applied to the
unpaid principal balance evidenced hereby but such application shall not reduce
the amount of the fixed monthly installments required to be paid pursuant to
Section 1.4 above. Except as otherwise expressly provided herein, the prepayment
fees provided above shall be due, to the extent permitted by applicable law,
under any and all circumstances where all or any portion of this Note is paid
prior to the Maturity Date, whether such prepayment is voluntary or involuntary,
including, without limitation, if such prepayment results from Payee's exercise
of its rights upon Maker's default and acceleration of the Maturity Date of this
Note (irrespective of whether foreclosure proceedings have been commenced), and
shall be in addition to any other sums due hereunder or under any of the other
Loan Documents. No tender of a prepayment of this Note
with respect to which a prepayment fee is due shall be effective unless such
prepayment is accompanied by the applicable prepayment fee.
(d) (i) On any Payment Date on or after the later to occur of (x) the
Lock-out Expiration Date, and (y) the day immediately following the date
which is two (2) years after the "startup day," within the meaning of
Section 860G(a)(9) of the Internal Revenue Code of 1986, as amended from
time to time or any successor statute (the "Code"), of a "real estate
mortgage investment conduit," within the meaning of Section 860D of the
Code, that holds this Note, and provided no Event of Default has occurred
hereunder or under any of the other Loan Documents, at Maker's option,
Payee shall cause the release of the Security Property from the lien of
the Security Instrument and the other Loan Documents (a "Defeasance") upon
the satisfaction of the following conditions:
(A) Maker shall give not more than ninety (90) days' or less
than sixty (60) days' prior written notice to Payee specifying the
date Maker intends for the Defeasance to be consummated (the "Release
Date"), which date shall be a Payment Date.
(B) All accrued and unpaid interest and all other sums due
under this Note and under the other Loan Documents up to and including
the Release Date shall be paid in full on or prior to the Release
Date.
(C) Maker shall deliver to Payee on or prior to the Release
Date:
(1) a sum of money in immediately available funds (the
"Defeasance Deposit"), equal to the outstanding principal balance
of this Note plus an amount, if any, which together with the
outstanding principal balance of this Note, shall be sufficient to
enable Payee to purchase, through means and sources customarily
employed and available to Payee, for the account of Maker, direct,
non-callable obligations of the United States of America that
provide for payments prior, but as close as possible, to all
successive monthly Payment Dates occurring after the Release Date
and to the Maturity Date, with each such payment being equal to or
greater than the amount of the corresponding installment of
principal and/or interest required to be paid under this Note
(including, but not limited to, all amounts due on the Maturity
Date) for the balance of the term hereof (the "Defeasance
Collateral"), each of which shall be duly endorsed by the holder
thereof as directed by Payee or accompanied by a written
instrument of transfer in form and substance satisfactory to Payee
in its sole discretion (including, without limitation, such
instruments as may be required by the depository institution
holding such securities or the issuer thereof, as the case may be,
to effectuate book-entry transfers and pledges through the
book-entry facilities of such institution) in order to perfect
upon the delivery of the Defeasance Security Agreement (as
hereinafter defined) the first priority security interest in the
Defeasance Collateral in
favor of Payee in conformity with all applicable state and federal
laws governing granting of such security interests;
(2) a pledge and security agreement, in form and substance
satisfactory to a prudent lender, creating a first priority
security interest in favor of Payee in the Defeasance Collateral
(the "Defeasance Security Agreement"), which shall provide, among
other things, that any excess received by Payee from the
Defeasance Collateral over the amounts payable by Maker hereunder
shall be refunded to Maker promptly after each monthly Payment
Date;
(3) a certificate of Maker certifying that all of the
requirements set forth in this Section 1.7(d)(i) have been
satisfied;
(4) one or more opinions of counsel for Maker in form and
substance and delivered by counsel which would be satisfactory to
a prudent lender stating, among other things, that (i) Payee has a
perfected first priority security interest in the Defeasance
Collateral and that the Defeasance Security Agreement is
enforceable against Maker in accordance with its terms, (ii) in
the event of a bankruptcy proceeding or similar occurrence with
respect to Maker, none of the Defeasance Collateral nor any
proceeds thereof will be property of Maker's estate under Section
541 of the U.S. Bankruptcy Code or any similar statute and the
grant of security interest therein to Payee shall not constitute
an avoidable preference under Section 547 of the U.S. Bankruptcy
Code or applicable state law, (iii) the release of the lien of the
Security Instrument and the pledge of Defeasance Collateral will
not directly or indirectly result in or cause any REMIC Trust that
then holds this Note to fail to maintain its status as a REMIC
Trust and (iv) the defeasance will not cause any REMIC Trust to be
an "investment company" under the Investment Company Act of 1940;
(5) evidence in writing from the applicable rating agencies to
the effect that the collateral substitution will not result in a
downgrading, withdrawal or qualification of the respective ratings
in effect immediately prior to such defeasance event for any
securities issued in connection with the securitization which are
then outstanding;
(6) a certificate in form and scope acceptable to Payee in its
sole discretion from an acceptable accountant certifying that the
Defeasance Collateral will generate amounts sufficient to make all
payments of principal and interest due under this Note (including
the scheduled outstanding principal balance of the Loan due on the
Maturity Date);
(7) Maker and any guarantor or indemnitor of Maker's
obligations under the Loan Documents for which Maker has personal
liability executes and delivers to Payee such documents and
agreements as Payee shall reasonably require to evidence and
effectuate the ratification of such personal liability and
guaranty or indemnity, respectively;
(8) such other certificates, documents or instruments as Payee
may reasonably require;
(9) payment of all fees, costs, expenses and charges incurred
by Payee in connection with the Defeasance of the Security
Property and the purchase of the Defeasance Collateral, including,
without limitation, all legal fees and costs and expenses incurred
by Payee or its agents in connection with release of the Security
Property, review of the proposed Defeasance Collateral and
preparation of the Defeasance Security Agreement and related
documentation, any revenue, documentary, stamp, intangible or
other taxes, charges or fees due in connection with transfer of
the Note, assumption of the Note, or substitution of collateral
for the Security Property shall be paid on or before the Release
Date. Without limiting Maker's obligations with respect thereto,
Payee shall be entitled to deduct all such fees, costs, expenses
and charges from the Defeasance Deposit to the extent of any
portion of the Defeasance Deposit which exceeds the amount
necessary to purchase the Defeasance Collateral; and
(10) in the event the Amendment (as defined in Section 4.35 of
the Security Instrument) has been executed, evidence satisfactory
to Payee that following the Defeasance of this Loan, the minimum
debt service coverage ratio for each of the Additional Loans (as
defined in Section 4.35 of the Security Instrument) shall be 1.75
to 1.00 and the maximum loan to value percentage for each of the
Additional Loans shall be 65%.
(D) In connection with the Defeasance Deposit, Maker hereby
authorizes and directs Payee using the means and sources customarily
employed and available to Payee to use the Defeasance Deposit to
purchase for the account of Maker the Defeasance Collateral.
Furthermore, the Defeasance Collateral shall be arranged such that
payments received from such Defeasance Collateral shall be paid
directly to Payee to be applied on account of the indebtedness of this
Note. Any part of the Defeasance Deposit in excess of the amount
necessary to purchase the Defeasance Collateral and to pay the other
and related costs Maker is obligated to pay under this Section 1.7
shall be refunded to Maker.
(ii) Upon compliance with the requirements of Section 1.7(d)(i), the
Security Property shall be released from the lien of the Security
Instrument and the other Loan Documents, and the Defeasance Collateral
shall constitute collateral which shall secure this Note and all other
obligations under the Loan Documents. Payee will, at Maker's expense,
execute and deliver any agreements reasonably requested by Maker to
release the lien of the Security Instrument from the Security Property.
(iii) Upon the release of the Security Property in accordance with
this Section 1.7(d), Maker shall assign all its obligations and rights
under this Note, together with the pledged Defeasance Collateral, to a
newly created successor entity which complies with the terms of Section
1.33 of the Security Instrument designated by Maker and approved by Payee
in its sole discretion. Such successor entity shall execute an assumption
agreement in form and substance satisfactory to Payee in its sole
discretion pursuant to which it shall assume Maker's obligations under
this Note and the Defeasance Security Agreement. As conditions to such
assignment and assumption, Maker shall (x) deliver to Payee an opinion of
counsel in form and substance and delivered by counsel satisfactory to a
prudent lender stating, among other things, that such assumption agreement
is enforceable against Maker and such successor entity in accordance with
its terms and that this Note and the Defeasance Security Agreement, as so
assumed, are enforceable against such successor entity in accordance with
their respective terms, and (y) pay all costs and expenses (including, but
not limited to, legal fees) incurred by Payee or its agents in connection
with such assignment and assumption (including, without limitation, the
review of the proposed transferee and the preparation of the assumption
agreement and related documentation). Upon such assumption, Maker shall be
relieved of its obligations hereunder, under the other Loan Documents
other than as specified in Section 1.7(d)(i)(C)(7) above and under the
Defeasance Security Agreement.
1.8 Security. The indebtedness evidenced by this Note and the obligations
created hereby are secured by, among other things, the Security Instrument. All
of the terms and provisions of the Loan Documents are incorporated herein by
reference. Some of the Loan Documents are to be filed for record on or about the
date hereof in the appropriate public records.
ARTICLE II -- OPTIONAL PREPAYMENT DATE PROVISIONS
2.1 Optional Prepayment Determination Date. The following subsections
shall apply from and after the Optional Prepayment Determination Date:
(a) [Reserved].
(b) For the calendar year in which the Optional Prepayment Determination
Date occurs and for each calendar year thereafter, Maker shall submit to Payee
for Payee's written approval an annual budget (an "Annual Budget") not later
than (i) the Optional Prepayment Determination Date for the calendar year in
which the Optional Prepayment Determination occurs and (ii) sixty (60) days
prior to the commencement of each calendar year thereafter, in form satisfactory
to Payee setting forth in reasonable detail budgeted monthly operating income
and monthly operating capital and other expenses for the Mortgaged Property.
Each Annual Budget shall contain, among other things, limitations on management
fees, third party service fees and other expenses as Maker may reasonably
determine. Payee shall have the right to approve such Annual Budget 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 subsection until 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 subsection, then such proposed Annual Budget shall be deemed
approved by Payee. Each such Annual Budget approved by Payee in accordance with
terms hereof shall hereinafter be referred to as an "Approved Annual Budget."
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.
(c) In the event that Maker must incur an extraordinary operating expense
or capital expense not set forth in the Annual Budget (an "Extraordinary
Expense"), then Maker shall promptly deliver to Payee a reasonably detailed
explanation of such proposed Extraordinary Expense for Payee's approval.
(d) For the purposes of this Note, "Cash Expenses" shall mean, for any
period, the operating expenses for the operation and maintenance of the
Mortgaged Property as set forth in an Approved Annual Budget to the extent that
such expenses are actually incurred by Maker excluding payments into the Impound
Account and expenses for which Maker shall be reimbursed from, or which shall be
paid for out of, any such account or reserve.
(e) Notwithstanding the other provisions of this Section 2.1, in the event
that, prior to the Optional Prepayment Determination Date, Maker delivers to
Payee either (i) a written commitment (the "Commitment") for the refinancing of
the loan evidenced by this Note from a Qualified Institutional Lender (as
hereinafter defined), which reasonably provides for the consummation of such
refinance prior to the Optional Prepayment Date or (ii) other evidence in form
and substance satisfactory to Payee in its sole determination of Maker's ability
to refinance the loan evidenced by this Note prior to the Optional Prepayment
Date, then, solely in either such event, the terms of Section 2.1(a), (b), (c)
and (d) of this Note shall be inoperative, provided, however, that upon (x) the
failure of such refinance to be consummated in accordance with the terms of the
Commitment or such other evidence, as applicable, (y) the termination of the
Commitment for any reason or (z) any adverse change in circumstances with
respect to Maker or any principals of Maker, the Mortgaged Property, the
proposed lender or otherwise, as determined by Payee in its sole determination,
which, in Payee's reasonable judgment, significantly decreases the likelihood of
such refinance being consummated prior to the Optional Prepayment Date, the
terms of Section 2.1(a), (b), (c) and (d) of this Note shall immediately become
operative and Maker shall immediately comply with any of the terms thereof
which, except for the operation of this subsection (e), Maker would theretofore
have been obligated to comply. "Qualified Institutional Lender" shall mean a
financial institution or other lender with a long term credit rating which is
not less than investment grade. The determination of whether the conditions set
forth in clause (i) or (ii) above, shall be made and notice of such
determination shall be delivered to Maker, within ten (10) business days
following Payee's receipt of the items set forth in such clauses.
2.2 Failure to Prepay On or Before Optional Prepayment Date. In the event
that Maker does not prepay the entire principal balance of this Note and any
other amounts outstanding under this Note or any of the other Loan Documents on
or prior to the Optional Prepayment Date,
the provisions of Section 2.1(b), (c) and (d) as set forth above shall remain in
full force and effect, and the following subsections also shall apply:
(a) From and after the Optional Prepayment Date, interest shall accrue on
the unpaid principal balance from time to time outstanding under this Note at
the Revised Interest Rate. Interest accrued at the Revised Interest Rate and not
paid pursuant to this Section 2.2 shall be deferred and added to the principal
balance of this Note and shall earn interest at the Revised Interest Rate to the
extent permitted by applicable law (such accrued interest is hereinafter
referred to as "Accrued Interest"). All of the unpaid principal balance of this
Note, including, without limitation, any Accrued Interest, shall be due and
payable on the Extended Maturity Date.
(b) Maker shall be obligated to pay, and Payee shall collect from the Rent
Account (as defined in the Security Instrument) to the extent of funds on
deposit in such account, on the Optional Prepayment Date and on the eleventh
(11th) day of each calendar month thereafter to and including the Extended
Maturity Date the following payments from Rents (as defined in the Security
Instrument) received on or before such day in the listed order of priority:
(i) First, the payment of the Monthly Payment Amount with interest
computed at the Fixed Interest Rate;
(ii) Second, payments to the Impound Account (as defined in the
Security Instrument) in accordance with the terms and conditions of the
Security Instrument;
(iii) [Reserved];
(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 Extraordinary Expenses approved by Payee, if
any;
(vi) Sixth, payments to Payee of the balance of the funds then on
deposit in the Rent Account to be applied to (x) any other amounts due
under the Loan Documents, (y) Accrued Interest and (z) the reduction of
the outstanding principal balance of this Note until such principal
balance is paid in full in whatever proportion and priority as Payee may
determine.
(c) Nothing in this Article II shall limit, reduce or otherwise affect
Maker's obligations to make payments of the Monthly Payment Amount (including
interest on the Note as provided in Section 1.3 hereof) payments to the Impound
Account and payments of other amounts due hereunder and under the other Loan
Documents, whether or not Rents (as defined in the Security Instrument) are
available to make such payments.
ARTICLE III -- DEFAULT
3.1 Events of Default. It is hereby expressly agreed that should any
default occur in the
payment of principal or interest as stipulated above and such payment is not
made on the date such payment is due, or should any other default not cured
within any applicable grace or notice period occur under any other Loan
Document, then an event of default (an "Event of Default") shall exist
hereunder, and in such event the indebtedness evidenced hereby, including all
sums advanced or accrued hereunder or under any other Loan Document, and all
unpaid interest accrued thereon, shall, at the option of Payee and without
notice to Maker, at once become due and payable and may be collected forthwith,
whether or not there has been a prior demand for payment and regardless of the
stipulated date of maturity.
3.2 Late Charges. In the event that any payment is not received by Payee
on the date when due, then, in addition to any default interest payments due
hereunder, Maker shall also pay to Payee a late charge in an amount equal to
five percent (5%) of the amount of such overdue payment.
3.3 Default Interest Rate. So long as any Event of Default exists
hereunder, regardless of whether or not there has been an acceleration of the
indebtedness evidenced hereby, and at all times after maturity of the
indebtedness evidenced hereby (whether by acceleration or otherwise), interest
shall accrue on the outstanding principal balance of this Note, from the date
due until the date credited, at a rate per annum equal to four percent (4%) in
excess of the Note Rate, or, if such increased rate of interest may not be
collected under applicable law, then at the maximum rate of interest, if any,
which may be collected from Maker under applicable law (the "Default Interest
Rate"), and such default interest shall be immediately due and payable.
3.4 Maker's Agreements. Maker acknowledges that it would be
extremely difficult or impracticable to determine Payee's actual damages
resulting from any late payment or default, and such late charges and default
interest are reasonable estimates of those damages and do not constitute a
penalty. The remedies of Payee in this Note or in the Loan Documents, or at law
or in equity, shall be cumulative and concurrent, and may be pursued singly,
successively or together, in Payee's discretion.
3.5 Maker to Pay Costs. In the event that this Note, or any part hereof,
is collected by or through an attorney-at-law, Maker agrees to pay all costs of
collection, including, but not limited to, reasonable attorneys' fees.
3.6 Exculpation. Notwithstanding anything in this Note or the Loan
Documents to the contrary, but subject to the qualifications hereinbelow set
forth, Payee agrees that:
(a) Maker shall be liable upon the indebtedness evidenced hereby and for
the other obligations arising under the Loan Documents to the full extent (but
only to the extent) of the security therefor, the same being all properties
(whether real or personal), rights, estates and interests now or at any time
hereafter securing the payment of this Note and/or the other obligations of
Maker under the Loan Documents (collectively, the "Security Property");
(b) if a default occurs in the timely and proper payment of all or any
part of such indebtedness evidenced hereby or in the timely and proper
performance of the other obligations of Maker under the Loan Documents, any
judicial proceedings brought by Payee against Maker shall
be limited to the preservation, enforcement and foreclosure, or any thereof, of
the liens, security titles, estates, assignments, rights and security interests
now or at any time hereafter securing the payment of this Note and/or the other
obligations of Maker under the Loan Documents, and no attachment, execution or
other writ of process shall be sought, issued or levied upon any assets,
properties or funds of Maker other than the Security Property, except with
respect to the liability described below in this section; and
(c) in the event of a foreclosure of such liens, security titles,
estates, assignments, rights or security interests securing the payment of this
Note and/or the other obligations of Maker under the Loan Documents, no judgment
for any deficiency upon the indebtedness evidenced hereby shall be sought or
obtained by Payee against Maker, except with respect to the liability described
below in this section; provided, however, that, notwithstanding the foregoing
provisions of this section, Maker shall be fully and personally liable and
subject to legal action (i) for proceeds paid under any insurance policies (or
paid as a result of any other claim or cause of action against any person or
entity) by reason of damage, loss or destruction to all or any portion of the
Security Property, to the full extent of such proceeds not previously delivered
to Payee, but which, under the terms of the Loan Documents, should have been
delivered to Payee, (ii) for proceeds or awards resulting from the condemnation
or other taking in lieu of condemnation of all or any portion of the Security
Property, to the full extent of such proceeds or awards not previously delivered
to Payee, but which, under the terms of the Loan Documents, should have been
delivered to Payee, (iii) for all tenant security deposits or other refundable
deposits paid to or held by Maker or any other person or entity in connection
with leases of all or any portion of the Security Property which are not applied
in accordance with the terms of the applicable lease or other agreement, (iv)
for rent and other payments received from tenants under leases of all or any
portion of the Security Property paid more than one (1) month in advance, (v)
for rents, issues, profits and revenues of all or any portion of the Security
Property received or applicable to a period after the occurrence of any Event of
Default hereunder or under the Loan Documents, which are not either applied to
the ordinary and necessary expenses of owning and operating the Security
Property or paid to Payee, (vi) for waste committed on the Security Property,
damage to the Security Property as a result of the intentional misconduct or
gross negligence of Maker or any of its principals, officers, general partners
or members, any guarantor, any indemnitor, or any agent or employee of any such
person, or any removal of all or any portion of the Security Property in
violation of the terms of the Loan Documents, to the full extent of the losses
or damages incurred by Payee on account of such occurrence, (vii) for failure to
pay any valid taxes, assessments, mechanic's liens, materialmen's liens or other
liens which could create liens on any portion of the Security Property which
would be superior to the lien or security title of the Security Instrument or
the other Loan Documents, to the full extent of the amount claimed by any such
lien claimant except, with respect to any such taxes or assessments, to the
extent that funds have been deposited with Payee pursuant to the terms of the
Security Instrument specifically for the applicable taxes or assessments and not
applied by Payee to pay such taxes and assessments, (viii) for all obligations
and indemnities of Maker under the Loan Documents relating to hazardous or toxic
substances or radon or compliance with environmental laws and regulations to the
full extent of any losses or damages (including, but not limited to, those
resulting from diminution in value of any Security Property) incurred by Payee
as a result of the existence of such hazardous or toxic substances or radon or
failure to comply with environmental laws or regulations, and (ix) for fraud,
material misrepresentation or failure to disclose a material fact by Maker or
any of its principals, officers, general partners or members, any
guarantor, any indemnitor or any agent, employee or other person authorized or
apparently authorized to make statements, representations or disclosures on
behalf of Maker, any principal, officer, general partner or member of Maker, any
guarantor or any indemnitor, to the full extent of any losses, damages and
expenses of Payee on account thereof.
References herein to particular sections of the Loan Documents shall be
deemed references to such sections as affected by other provisions of the Loan
Documents relating thereto. Nothing contained in this section shall (1) be
deemed to be a release or impairment of the indebtedness evidenced by this Note
or the other obligations of Maker under the Loan Documents or the lien of the
Loan Documents upon the Security Property, or (2) preclude Payee from
foreclosing the Loan Documents in case of any default or from enforcing any of
the other rights of Payee except as stated in this section, or (3) limit or
impair in any way whatsoever (A) any Indemnity and Guaranty Agreements (the
"Indemnity Agreements") or (B) the Environmental Indemnity Agreement (the
"Environmental Indemnity Agreement"), executed and delivered in connection with
the indebtedness evidenced by this Note or release, relieve, reduce, waive or
impair in any way whatsoever, any obligation of any party to the Indemnity
Agreements or the Environmental Indemnity Agreement.
Notwithstanding the foregoing, the agreement of Payee not to pursue
recourse liability as set forth in subsection (c) above SHALL BECOME NULL AND
VOID and shall be of no further force and effect (i) in the event of a default
by Maker or Indemnitor (as defined in the Security Instrument) of any of the
covenants set forth in Section 1.13 or Section 1.33 of the Security Instrument,
or (ii) if the Security Property or any part thereof shall become an asset in
(A) a voluntary bankruptcy or insolvency proceeding of Maker, or (B) an
involuntary bankruptcy or insolvency proceeding of Maker which is not dismissed
within sixty (60) days of filing.
Notwithstanding anything to the contrary in this Note, the Security
Instrument or any of the other Loan Documents, 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 indebtedness evidenced hereby or secured by the Security
Instrument or any of the other Loan Documents or to require that all collateral
shall continue to secure all of the indebtedness owing to Payee in accordance
with this Note, the Security Instrument and the other Loan Documents.
ARTICLE IV -- GENERAL CONDITIONS
4.1 No Waiver; Amendment. No failure to accelerate the indebtedness
evidenced hereby by reason of default hereunder, acceptance of a partial or past
due payment, or indulgences granted from time to time shall be construed (i) as
a novation of this Note or as a reinstatement of the indebtedness evidenced
hereby or as a waiver of such right of acceleration or of the right of Payee
thereafter to insist upon strict compliance with the terms of this Note, or (ii)
to prevent the exercise of such right of acceleration or any other right granted
hereunder or by any applicable laws; and Maker hereby expressly waives the
benefit of any statute or rule of law or equity now provided, or which may
hereafter be provided, which would produce a result contrary to or in conflict
with the foregoing. No extension of the time for the payment of this Note or any
installment due hereunder made by agreement with any person now or hereafter
liable for the payment of this Note shall operate to release, discharge, modify,
change or affect the original liability of Maker under this
Note, either in whole or in part, unless Payee agrees otherwise in writing. This
Note may not be changed orally, but only by an agreement in writing signed by
the party against whom enforcement of any waiver, change, modification or
discharge is sought.
4.2 Waivers. Presentment for payment, demand, protest and notice of
demand, protest and nonpayment and all other notices are hereby waived by Maker.
Maker hereby further waives and renounces, to the fullest extent permitted by
law, all rights to the benefits of any moratorium, reinstatement, marshaling,
forbearance, valuation, stay, extension, redemption, appraisement, exemption and
homestead now or hereafter provided by the Constitution and laws of the United
States of America and of each state thereof, both as to itself and in and to all
of its property, real and personal, against the enforcement and collection of
the obligations evidenced by this Note or the other Loan Documents.
4.3 Limit of Validity. The provisions of this Note and of all agreements
between Maker and Payee, whether now existing or hereafter arising and whether
written or oral, including, but not limited to, the Loan Documents, are hereby
expressly limited so that in no contingency or event whatsoever, whether by
reason of demand or acceleration of the maturity of this Note or otherwise,
shall the amount contracted for, charged, taken, reserved, paid or agreed to be
paid ("Interest") to Payee for the use, forbearance or detention of the money
loaned under this Note exceed the maximum amount permissible under applicable
law. If, from any circumstance whatsoever, performance or fulfillment of any
provision hereof or of any agreement between Maker and Payee shall, at the time
performance or fulfillment of such provision shall be due, exceed the limit for
Interest prescribed by law or otherwise transcend the limit of validity
prescribed by applicable law, then, ipso facto, the obligation to be performed
or fulfilled shall be reduced to such limit, and if, from any circumstance
whatsoever, Payee shall ever receive anything of value deemed Interest by
applicable law in excess of the maximum lawful amount, an amount equal to any
excessive Interest shall be applied to the reduction of the principal balance
owing under this Note in the inverse order of its maturity (whether or not then
due), in which event no prepayment fee or premium shall be due, or, at the
option of Payee, be paid over to Maker, and not to the payment of Interest. All
Interest (including any amounts or payments judicially or otherwise under the
law deemed to be Interest) contracted for, charged, taken, reserved, paid or
agreed to be paid to Payee shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full term of this Note,
including any extensions and renewals hereof until payment in full of the
principal balance of this Note so that the Interest thereon for such full term
will not exceed at any time the maximum amount permitted by applicable law. To
the extent United States federal law permits a greater amount of interest than
is permitted under the law of the State in which the Security Property is
located, Payee will rely on United States federal law for the purpose of
determining the maximum amount permitted by applicable law. Additionally, to the
extent permitted by applicable law now or hereafter in effect, Payee may, at its
option and from time to time, implement any other method of computing the
maximum lawful rate under the law of the State in which the Security Property is
located or under other applicable law by giving notice, if required, to Maker as
provided by applicable law now or hereafter in effect. This Section 4.3 will
control all agreements between Maker and Payee.
4.4 Use of Funds. Maker hereby warrants, represents and covenants that no
funds disbursed hereunder shall be used for personal, family or household
purposes.
4.5 Unconditional Payment. Maker is and shall be obligated to pay
principal, interest and any and all other amounts which become payable hereunder
or under the other Loan Documents absolutely and unconditionally and without any
abatement, postponement, diminution or deduction and without any reduction for
counterclaim or setoff. In the event that at any time any payment received by
Payee hereunder shall be deemed by a court of competent jurisdiction to have
been a voidable preference or fraudulent conveyance under any bankruptcy,
insolvency or other debtor relief law, then the obligation to make such payment
shall survive any cancellation or satisfaction of this Note or return thereof to
Maker and shall not be discharged or satisfied with any prior payment thereof or
cancellation of this Note, but shall remain a valid and binding obligation
enforceable in accordance with the terms and provisions hereof, and such payment
shall be immediately due and payable upon demand.
4.6 GOVERNING LAW. THIS NOTE SHALL BE INTERPRETED, CONSTRUED AND ENFORCED
ACCORDING TO THE LAWS OF THE STATE IN WHICH THE SECURITY PROPERTY IS LOCATED.
4.7 WAIVER OF JURY TRIAL. MAKER, TO THE FULL EXTENT PERMITTED BY LAW,
HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF
COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES THE RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY
RELATING TO THE DEBT EVIDENCED BY THIS NOTE OR ANY CONDUCT, ACT OR OMISSION OF
PAYEE OR MAKER, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, PARTNERS,
MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH
PAYEE OR MAKER, IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT,
TORT OR OTHERWISE.
4.8 Secondary Market. Payee may sell, transfer and deliver the Loan
Documents to one or more investors in the secondary mortgage market. In
connection with such sale, Payee may retain or assign responsibility for
servicing the loan evidenced by this Note or may delegate some or all of such
responsibility and/or obligations to a servicer, including, but not limited to,
any subservicer or master servicer, on behalf of the investors. All references
to Payee herein shall refer to and include, without limitation, any such
servicer, to the extent applicable.
4.9 Dissemination of Information. If Payee determines at any time to sell,
transfer or assign this Note, the Security Instrument and the other Loan
Documents, and any or all servicing rights with respect thereto, or to grant
participations therein (the "Participations") or issue mortgage pass-through
certificates or other securities evidencing a beneficial interest in a rated or
unrated public offering or private placement (the "Securities"), Payee may
forward to each purchaser, transferee, assignee, servicer, participant,
investor, or their respective successors in such Participations and/or
Securities (collectively, the "Investor") or any Rating Agency rating such
Securities, each prospective Investor and each of the foregoing's respective
counsel, all documents and information which Payee now has or may hereafter
acquire relating to the debt evidenced by this Note and to Maker, any guarantor,
any indemnitor and the Security Property,
which shall have been furnished by Maker, any guarantor or any indemnitor as
Payee determines necessary or desirable.
ARTICLE V -- MISCELLANEOUS PROVISIONS
5.1 Miscellaneous. The terms and provisions hereof shall be binding upon
and inure to the benefit of Maker and Payee and their respective heirs,
executors, legal representatives, successors, successors-in-title and assigns,
whether by voluntary action of the parties or by operation of law. As used
herein, the terms "Maker" and "Payee" shall be deemed to include their
respective heirs, executors, legal representatives, successors,
successors-in-title and assigns, whether by voluntary action of the parties or
by operation of law. If Maker consists of more than one person or entity, each
shall be jointly and severally liable to perform the obligations of Maker under
this Note. All personal pronouns used herein, whether used in the masculine,
feminine or neuter gender, shall include all other genders; the singular shall
include the plural and vice versa. Titles of articles and sections are for
convenience only and in no way define, limit, amplify or describe the scope or
intent of any provisions hereof. Time is of the essence with respect to all
provisions of this Note. This Note and the other Loan Documents contain the
entire agreements between the parties hereto relating to the subject matter
hereof and thereof and all prior agreements relative hereto and thereto which
are not contained herein or therein are terminated.
5.2 Maker's Tax Identification Number is 20-1676647.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Maker has executed this Note as of the date first
written above.
MAKER:
COLE LZ GLENDALE AZ, LLC,
a Delaware limited liability company
By: Cole REIT Advisors II, LLC,
a Delaware limited liability company,
its manager
By: /S/ John M. Pons
-----------------------------------
John M. Pons, Senior Vice President
Schedule A
AUTO DRAFT INFORMATION
If you would like to sign up for our automatic payment drafting service, fill
out and return the enclosed authorization form along with a voided check and
mail to the address listed below. Please continue to send your monthly payments
until you receive written confirmation that the auto-draft service has begun.
You will receive written notification confirming your auto-draft setup and first
auto-draft date within 7 business days of the 15th of the month submitted.
NOTE: REQUESTS MUST BE RECEIVED BY THE 15TH TO BE SET UP FOR THE FOLLOWING
MONTH.
WACHOVIA SECURITIES
Attention: Customer Service Department
8739 Research Drive - URP4
Charlotte, NC 28288-1075
WACHOVIA
SECURITIES
AUTO DRAFT FORM
I hereby request and authorize Wachovia Bank, National Association, doing
business as Wachovia Securities ("Wachovia Securities"), to draft my account
specified below made payable to the order of Wachovia Securities located in
Charlotte, NC, provided there are sufficient funds in said account to pay the
same upon presentation. I agree that your rights in respect to each such draft
shall be the same as if it were a check drawn on Wachovia Securities and signed
personally by me. This authorization is to remain in effect until revoked by me
in writing and until Wachovia Securities actually receives such notice. I agree
that Wachovia Securities shall be fully protected in honoring any such drafts.
LOAN NUMBER NAME OF BORROWING ENTITY
- ------------------------------------ ----------------------------
Wachovia Loan # (9 digits) Borrower Name
BANK'S ROUTING NUMBER FROM CHECK ACCOUNT # TO BE DRAFTED
- ------------------------------------ ----------------------------
Bank Routing Number (9 digits) Bank Account # (from check)
NAME OF BANK TO BE DRAFTED LOCATION OF THE BANK
- ------------------------------------ ----------------------------
Name of Bank City and State
PLEASE INCLUDE A VOIDED CHECK WITH THIS FORM
[VOIDED CHECK]
BORROWER'S SIGNATURE BORROWER'S NAME
- ----------------------------------------------------- ---------------
Authorized Signature (as it appears on bank documents) Print Name
TODAY'S DATE
---------------
Date
DAY OF MONTH PAYMENT WILL DRAFT BORROWER'S FAX NUMBER
- ------------------------------------ ----------------------
Draft Date (Payment due date) Fax #
TERMS AND CONDITIONS
EFFECTIVE DATE OF DRAFT: The draft will occur on the payment due date, unless
otherwise agreed upon by borrower and servicer. The borrower will receive a
confirmation letter to insure auto-draft set-up and to confirm draft date.
REVOCATION OF THIS AUTHORITY: The authority of Wachovia Securities to transfer
funds from the borrowers account will not cease until Wachovia Securities
receives written notification revoking this authorization agreement. Wachovia
Securities must receive this notice at least 15 days prior to the date on which
you wish the arrangement to end.
DISHONOR: Wachovia Securities shall be under no liability whatsoever if a
transfer of funds cannot be made, whether or not such failure is caused by the
act of omission of the borrower. INSUFFICIENT FUNDS: If the automatic withdrawal
is returned due to insufficient funds both Wachovia Securities and the
borrower's financial institution may assess a fee.
ERRORS: The borrower has the right to have the amount of any incorrect deduction
immediately corrected by the borrower's financial institution provided the
borrower sends the appropriate notice to the financial institution.
AMOUNT OF DRAFT: Wachovia Securities will withdraw the amount of the current
monthly receivable. This amount may vary due to escrow analyses, interest rate
changes or reserve requirements as applicable.
ACH ROUTING NUMBER: Please contact the financial institution from which the
money will be drafted for this information.
Wachovia Securities is the trade name under which Wachovia Corporation conducts
its investment banking, capital markets and institutional securities business
through First Union Securities, Inc. ("FUSI"), Member NYSE, NASD, SIPC, and
through other bank and non-bank and broker-dealer subsidiaries of Wachovia
Corporation.