THIS
NOTE IS A RENEWAL OF THE NOTE DESCRIBED HEREIN ON WHICH DOCUMENTARY
STAMP TAXES AND INTANGIBLE TAXES HAVE BEEN PAID AS REQUIRED BY LAW.
AS DESCRIBED HEREIN, ADDITIONAL STAMPS AND TAXES ARE DUE, WHICH
STAMPS AND TAXES WILL BE AFFIXED TO AND PAID UPON RECORDING OF THAT
CERTAIN CONSOLIDATED, AMENDED AND RESTATED MULTIFAMILY MORTGAGE,
ASSIGNMENT OF RENTS AND SECURITY AGREEMENT OF EVEN DATE
HEREWITH.
CONSOLIDATED,
AMENDED AND RESTATED PROMISSORY NOTE
$4,975,000.00 Birmingham, Alabama March 16, 2009
For value received, SSTI 15
McClure Dr, LLC, a Delaware limited liability company
(“McClure”), and SSTI 1742 Pass Rd, LLC, a
Delaware limited liability company (“Pass”), jointly
and severally (McClure and Pass being hereinafter referred to
jointly and severally as“Borrower”), having its
principal place of business at 111 Corporate Drive, Suite 120,
Ladera Ranch, California 92694, promises to pay to the order of
BB&T Real Estate Funding LLC , a North Carolina limited
liability company, whose address is 524 Lorna Square, Birmingham,
Alabama 35216 (“Lender”), or at such place as the
holder hereof may from time to time designate in writing, the
principal sum of FOUR MILLION NINE HUNDRED SEVENTY-FIVE THOUSAND
AND NO/100 DOLLARS ($4,975,000.00), in lawful money of the United
States of America, with interest thereon to be computed from the
date of this Note at the Applicable Interest Rate (hereinafter
defined), and to be paid in installments as follows:
This Consolidated, Amended and
Restated Promissory Note (“Note”), secured by the
Security Instrument (as defined herein below) is a consolidation of
the outstanding principal balance of (i) an existing promissory
note dated September 25, 2008, in the original principal amount of
$4,000,000.00 (“Original Note”) with an outstanding
principal balance of $4,000,000.00, and (ii) an existing future
advance mortgage note of even date herewith in the original
principal amount of $975,000.00 (“New Note”), secured
by the Security Instrument.
A. Borrower will pay interest on the principal balance
outstanding hereunder from time to time at an annual rate (the
“Applicable Interest Rate”) which from the date of this
Note through and including the last day of the current month shall
be six and one half percent (6.50%) per annum. The Applicable
Interest Rate shall be adjusted on the first day of each month
thereafter (the dates on which such adjustments occur shall be
referred to herein as “Rate Adjustment Dates”) to a
rate equal to the sum of the London Interbank Offered Rate for
deposits of U.S. dollars in the London Interbank eurodollar market
for an interest period of three months (the “Three-Month
LIBOR”) which is in effect on the Business Day prior to the
applicable Rate Adjustment Date as determined by Lender plus 450
basis points (4.50%), provided that the Applicable Interest Rate
shall not be less than 6.50%. All interest under this Note shall be
calculated on the basis of the actual number of days elapsed over a
three hundred sixty (360) day year.
B. Borrower shall pay to Lender on the date hereof the amount of
interest which will accrue at the
Applicable Interest Rate from the date
hereof through and including the last day of the current month.
Thereafter, monthly payments of interest only at the Applicable
Interest Rate shall be due and payable commencing on the first day
of May, 2009, and continuing on the first day of each month
thereafter until and including the first day of April, 2010.
Thereafter, monthly payments of principal and interest based on the
outstanding principal balance, the Applicable Interest Rate and the
then remaining term of a thirty (30) year amortization schedule
commencing as of May 1, 2010 shall be due and payable on the first
day of May, 2010, and continuing on the first day of each month
thereafter until the first day of April, 2011. Thereafter, monthly
payments of principal and interest based on the outstanding
principal balance, the Applicable Interest Rate and the then
remaining term of a twenty-five (25) year amortization schedule
commencing as of May 1, 2011 shall be due and payable on the first
day of May, 2011, and continuing on the first day of each month
thereafter until the first day of April, 2012 (the “Maturity
Date”). The outstanding principal balance, together with all
accrued and unpaid interest and all other sums due hereunder, shall
be due and payable in full on the Maturity Date. Borrower’s
monthly payments will be applied in Lender’s sole discretion
first to late charges, then to any other sums due under this Note
or the other Loan Documents (hereinafter defined), if any, then to
the replenishment of escrows and reserves maintained by Lender
under the Loan Documents, then to accrued but unpaid interest and
then to the principal balance of this Note.
ARTICLE 2: DEFAULT
AND ACCELERATION
The whole of the principal sum of this Note, together with all
interest accrued and unpaid thereon and all other amounts or
obligations owed under this Note, the Security Instrument and the
other Loan Documents (the “Obligations”) shall without
notice become immediately due and payable at the option of Lender
(i) if any monthly payment due hereunder (other than the payment
required at the Maturity Date) is not paid within ten (10) days of
its due date, (ii) if the Obligations is not paid in full on or
before the Maturity Date, or (iii) upon the happening of any other
default, after the expiration of any applicable notice and grace
periods, under the terms of this Note, the Security Instrument or
any of the other Loan Documents (each, an “Event of
Default”). All of the terms, covenants and conditions
contained in the Security Instrument and the other Loan Documents
are hereby made part of this Note to the same extent and with the
same force as if they were fully set forth herein. In the event
that it should become necessary to employ counsel to collect or
enforce the Obligations or to protect or foreclose the security
hereof, Borrower also agrees to pay reasonable attorney's fees for
the services of such counsel whether or not suit be brought.
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ARTICLE 3: DEFAULT INTEREST
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Borrower does hereby agree that upon the occurrence of an Event
of Default, Lender shall be entitled to receive and Borrower shall
pay interest on the entire unpaid principal sum at the rate of the
lesser of (i) 5% above the Applicable Interest Rate, or (ii) the
maximum rate of interest which Borrower may by law pay (the
“Default Rate”). The Default Rate shall be computed
from the occurrence of the Event of Default until such Event of
Default is cured or the date upon which the Obligations are paid in
full, as the case may be. This charge shall be added to the
Obligations, and shall be deemed secured by the Security
Instrument. This clause, however, shall not be construed
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as an agreement or privilege to extend the
date of the payment of the Obligations, nor as a waiver of any
other right or remedy accruing to Lender by reason of the
occurrence of any Event of Default.
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ARTICLE 4: PREPAYMENT; EXIT FEE
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The principal balance of this Note may not be prepaid in whole
or in part prior to April 1, 2010. On April 1, 2010, and at anytime
thereafter, the principal balance of this Note may be prepaid, in
whole but not in part, upon not less than thirty (30) days prior
written notice to Lender specifying the date on which prepayment is
to be made (the “Prepayment Date”) and upon payment of
(a) interest accrued and unpaid on the principal balance of this
Note to and including the Prepayment Date, (b) all other sums then
due under this Note, the Security Instrument and the other Loan
Documents, and (c) the Exit Fee specified hereinbelow.
If following the occurrence of any Event of Default, Borrower
shall tender payment of an amount sufficient to satisfy the
Obligations in whole or in part at any time prior to a sale of the
Property either through foreclosure or the exercise of other
remedies available to Lender under the Loan Documents, such tender
by Borrower shall be deemed to be a voluntary prepayment under this
Note in the amount tendered. If at the time of such tender
prepayment of the principal balance of this Note is not permitted
by this Note, Borrower shall, in addition to the entire
Obligations, also pay to Lender a sum equal to the interest which
would have accrued on the principal balance of this Note at the
Applicable Interest Rate from the date of such tender to the first
day of the period during which prepayment of the principal balance
of this Note would have been permitted, together with an amount
equal to the Exit Fee. If at the time of such tender prepayment of
the principal balance of this Note is