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$414,000.00
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January 9, 2009
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For Value Received , the
undersigned AWARE DEVELOPMENT COMPANY, INC., a California
corporation (“ Borrower ”), promises to pay to
the order of SPT REAL ESTATE FINANCE, LLC, a Delaware limited
liability company (“ Lender ”) (the legal holder
from time to time of this Note, including Lender as the initial
holder, hereinafter referred to as “ Lender ”),
at the office of Lender at 8951 Research Drive, Irvine, California
92618, or at such other place or places as Lender from time to time
may designate in writing, the principal sum of Four Hundred
Fourteen Thousand and No/100 Dollars ($414,000.00) or such lesser
amount thereof as shall be outstanding from time to time (the
“ Principal Amount ”), and shall bear interest
at the rate of twenty-eight percent (28.00%) per annum, on the
outstanding principal balance hereunder from time to time, from and
after the date hereof and through the “Maturity Date”
(as defined below), pursuant to and in accordance with the terms
hereof. This Note is made and entered into pursuant to, and is
secured by, that certain Collateral Assignment and Pledge of Note,
Deed of Trust and Loan Documents by and between Borrower and Lender
of even date herewith (the “ Pledge Agreement
”). This Note, the Pledge Agreement and all other documents
securing, evidencing or relating to the Loan may be collectively
referred to herein as the “ Loan Documents
.”
Interest shall
accrue on the outstanding balance hereof from and after the date
hereof, at the rate specified herein, through July 9, 2009
(the “ Maturity Date ”), unless sooner repaid in
full. Borrower shall pay all sums outstanding hereunder, including
all principal and accrued and unpaid interest, on or before the
Maturity Date. Notwithstanding anything to the contrary herein,
interest shall be computed, for any partial month during which
principal is outstanding, on the basis of a 365 day year, for
actual days elapsed while principal is outstanding. Each payment
under this Note shall be credited first against accrued and unpaid
interest, then against other amounts advanced or incurred hereunder
other than principal, and then against principal. Principal and
interest shall be payable in lawful money of the United States of
America.
This Note may not
be prepaid in whole or in part at any time under any circumstances,
except in connection with a payoff of the “Vineyard
Note” (as defined in the Pledge Agreement) in accordance with
the Pledge Agreement.
If any payment of
principal or interest under this Note shall not be made when due, a
late charge of six percent (6%) of the overdue amount shall be
immediately due and payable to Lender for the purpose of defraying
the expenses incident to handling such delinquent payments. Such
late charge represents a reasonable sum considering all of the
circumstances existing on the date of this Note and represents a
fair and reasonable estimate of the costs that will be sustained by
Lender due to the failure of Borrower to make timely payments. The
parties further agree that proof of actual damages would be costly
or inconvenient. Such late charge shall be paid without prejudice
to the right of Lender to collect any other amounts provided to be
paid or to declare a default under this Note or from exercising any
of the other rights and remedies of Lender. In furtherance of the
foregoing, Borrower hereby waives the notice requirements of
Section 2954.5 of the California Civil Code if the same are
applicable to this Note. All such Default Rate interest and late
charges shall be assessed automatically by Lender without notice to
Borrower, and any failure to invoice Borrower therefor shall not be
deemed waiver thereof.
Page 1
Any failure to pay
any amount due hereunder, including payment of all amounts due
hereunder at the Maturity Date, or any failure to comply with any
non-monetary obligation within ten (10) days after notice
thereof, shall constitute an immediate “Event of
Default”. Without limiting the generality of the foregoing,
if an Event of Default occurs, then the Lender may, at its option,
without further notice to or demand upon Borrower, declare
immediately due and payable the entire principal balance hereof
together with all accrued and unpaid interest thereon, plus any
other amounts then owing pursuant to this Note, whereupon the
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