Exhibit 10.40
RITE AID - ENTERPRISE
LOAN NO. 50-2854385
PROMISSORY NOTE
$2,971,000.00 January 26, 2006
FOR VALUE RECEIVED, the undersigned, COLE RA ENTERPRISE AL, 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
TWO MILLION NINE HUNDRED SEVENTY-ONE THOUSAND AND NO/100 DOLLARS
($2,971,000.00), 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 February 11, 2036.
(d) "Fixed Rate Tranche A" shall mean Two Million Forty-Three Thousand
and No/100 Dollars ($2,043,000.00) 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 Nine Hundred Twenty-Eight
Thousand and No/100 Dollars ($928,000.00) 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 six and fifty-three one-hundredths percent
(6.53%) 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 February 11, 2016.
(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 February 11, 2016.
(o) "Optional Prepayment Determination Date" shall mean December 11,
2015.
(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 Coffee
County, Alabama.
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 April 26, 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 five and four-fifths percent (5.80%) (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 March 11, 2006 (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 RA ENTERPRISE AL, 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
LOAN TERMS
Original Principal Amount $2,043,000.00
Note Rate % (Per Annum) 5.800%
Original Amortization Term (Months) 999
Monthly Payment Amount (Excluding IO Period) $9,874.50
Note Date 1/26/2006
First Pay Date 3/11/2006
Original Loan Term (Months) 120
Scheduled Maturity Date 2/11/2016
Interest Accrual Basis During Amortization Periods ACTUAL/360
Interest Only (IO) Periods (Months) 120
Interest Accrual Basis During IO Period ACTUAL/360
COLE RITE AID ENTERPRISE AL 502854385
INTEREST
ACCRUAL COMPONENT OF PRINCIPAL
DAYS IN SCHEDULED SCHEDULED COMPONENT OF ENDING UNPAID
PAY PERIOD PAY DATE PERIOD PAYMENT PAYMENT SCHEDULED PAYMENT PRINCIPAL BALANCE
- ---------- ---------- ------- ------------- ------------- ----------------- -----------------
0 2/11/2006 16 $ 0.00 $ 5,266.40 $ 0.00 $2,043,000.00
1 3/11/2006 28 $ 9,216.20 $ 9,216.20 $ 0.00 $2,043,000.00
2 4/11/2006 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
3 5/11/2006 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
4 6/11/2006 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
5 7/11/2006 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
6 8/11/2006 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
7 9/11/2006 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
8 10/11/2006 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
9 11/11/2006 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
10 12/11/2006 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
11 1/11/2007 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
12 2/11/2007 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
13 3/11/2007 28 $ 9,216.20 $ 9,216.20 $ 0.00 $2,043,000.00
14 4/11/2007 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
15 5/11/2007 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
16 6/11/2007 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
17 7/11/2007 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
18 8/11/2007 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
19 9/11/2007 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
20 10/11/2007 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
21 11/11/2007 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
22 12/11/2007 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
23 1/11/2008 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
24 2/11/2008 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
25 3/11/2008 29 $ 9,545.35 $ 9,545.35 $ 0.00 $2,043,000.00
26 4/11/2008 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
27 5/11/2008 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
28 6/11/2008 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
29 7/11/2008 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
30 8/11/2008 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
31 9/11/2008 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
32 10/11/2008 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
33 11/11/2008 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
34 12/11/2008 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
35 1/11/2009 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
36 2/11/2009 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
37 3/11/2009 28 $ 9,216.20 $ 9,216.20 $ 0.00 $2,043,000.00
38 4/11/2009 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
39 5/11/2009 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
40 6/11/2009 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
41 7/11/2009 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
42 8/11/2009 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
43 9/11/2009 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
44 10/11/2009 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
45 11/11/2009 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
46 12/11/2009 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
47 1/11/2010 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
48 2/11/2010 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
49 3/11/2010 28 $ 9,216.20 $ 9,216.20 $ 0.00 $2,043,000.00
50 4/11/2010 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
51 5/11/2010 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
52 6/11/2010 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
53 7/11/2010 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
54 8/11/2010 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
55 9/11/2010 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
56 10/11/2010 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
57 11/11/2010 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
58 12/11/2010 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
59 1/11/2011 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
60 2/11/2011 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
61 3/11/2011 28 $ 9,216.20 $ 9,216.20 $ 0.00 $2,043,000.00
62 4/11/2011 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
63 5/11/2011 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
64 6/11/2011 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
65 7/11/2011 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
66 8/11/2011 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
67 9/11/2011 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
68 10/11/2011 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
69 11/11/2011 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
70 12/11/2011 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
71 1/11/2012 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
72 2/11/2012 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
73 3/11/2012 29 $ 9,545.35 $ 9,545.35 $ 0.00 $2,043,000.00
74 4/11/2012 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
75 5/11/2012 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
76 6/11/2012 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
77 7/11/2012 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
78 8/11/2012 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
79 9/11/2012 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
80 10/11/2012 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
81 11/11/2012 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
82 12/11/2012 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
83 1/11/2013 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
84 2/11/2013 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
85 3/11/2013 28 $ 9,216.20 $ 9,216.20 $ 0.00 $2,043,000.00
86 4/11/2013 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
87 5/11/2013 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
88 6/11/2013 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
89 7/11/2013 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
90 8/11/2013 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
91 9/11/2013 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
92 10/11/2013 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
93 11/11/2013 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
94 12/11/2013 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
95 1/11/2014 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
96 2/11/2014 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
97 3/11/2014 28 $ 9,216.20 $ 9,216.20 $ 0.00 $2,043,000.00
98 4/11/2014 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
99 5/11/2014 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
100 6/11/2014 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
101 7/11/2014 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
102 8/11/2014 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
103 9/11/2014 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
104 10/11/2014 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
105 11/11/2014 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
106 12/11/2014 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
107 1/11/2015 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
108 2/11/2015 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
109 3/11/2015 28 $ 9,216.20 $ 9,216.20 $ 0.00 $2,043,000.00
110 4/11/2015 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
111 5/11/2015 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
112 6/11/2015 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
113 7/11/2015 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
114 8/11/2015 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
115 9/11/2015 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
116 10/11/2015 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
117 11/11/2015 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
118 12/11/2015 30 $ 9,874.50 $ 9,874.50 $ 0.00 $2,043,000.00
119 1/11/2016 31 $ 10,203.65 $ 10,203.65 $ 0.00 $2,043,000.00
120 2/11/2016 31 $2,053,203.65 $ 10,203.65 $2,043,000.00 $ 0.00
120 3,652 $3,245,055.80 $1,202,055.80 $2,043,000.00
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 LOGO)
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
J.L. Smith Date __________
1000
S.R. Smith
1234 Sample Street
Any Where, USA 12345
PAY TO THE
ORDER OF _________________________________________________ $ ___________________
__________________________________________________________ DOLLARS
Memo ___________________________________________________________________________
: 000000000 : 10000001234567 1000
ROUTING # ACCOUNT #
BORROWER'S SIGNATURE ________________ BORROWER'S NAME ________________________
Authorized Signature (as it Print Name
appears on bank documents)
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.