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FUTURE
ADVANCE
PROMISSORY NOTE
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Birmingham, Alabama
March 16, 2009
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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 Nine Hundred Seventy-Five Thousand and No/100
Dollars ($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:
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 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
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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 permitted, Borrower shall, in
addition to the entire Obligations, also pay to Lender the Exit
Fee.
Upon the payment in full of the Obligations, whether at the
Maturity Date or otherwise, Borrower shall pay to BB&T Real
Estate Funding LLC (whether or not it is the Lender hereunder at
such time) a $49,750.00 fee (the “Exit Fee”), provided
that the Exit Fee shall be reduced to $24,875.00 if the payment of
the Obligations is accomplished with financing provided through
Grandbridge Real Estate Capital LLC, BB&T Real Estate Funding
LLC or an affiliate thereof. In no event shall Grandbridge Real
E