Exhibit 10.7
Walgreen's - Tulsa
PROMISSORY
NOTE
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$2,065,000.00
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June 22, 2009
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FOR VALUE RECEIVED,
the undersigned, COLE WG SOUTH YALE
AVENUE (TULSA) OK, LLC, a Delaware limited liability company
(“Borrower”), with the mailing address of 2555 E.
Camelback Road, Suite 400, Phoenix, AZ 85016, Attention: Legal
Department promises to pay to the order of AVIVA LIFE AND ANNUITY
COMPANY, an Iowa corporation (“Lender”), at its office
located at c/o Aviva Investors North America, Inc., 699 Walnut
Street, Dept. H-15, Des Moines, Iowa 50309, or at such other place
as Lender may designate in writing, the principal sum of TWO
MILLION SIXTY-FIVE THOUSAND AND NO/100 DOLLARS ($2,065,000.00)
together with interest from the date advanced on the balance of the
principal sum remaining from time to time unpaid at the rate of six
and forty-five hundredths percent (6.45%) per annum. Interest shall
be calculated for the actual number of days in any partial month on
the basis of a 360-day year of twelve thirty-day months. Interest
only on the unpaid principal balance from the date advanced through
the end of that calendar month, shall be paid on the first day of
the following month or, at Lender’s option, on the date of
disbursement. This Promissory Note is sometimes hereinafter
referred to as this “Note.”
Payment of interest only shall be
made in twenty-four (24) consecutive monthly installments of Eleven
Thousand Ninety-Nine and 38/100 Dollars ($11,099.38) beginning on
the first day of August, 2009, and on the first day of each month
thereafter until the first day of July, 2011. Payments of principal
and interest shall be made in consecutive monthly installments in
the sum of Thirteen Thousand Eight Hundred Seventy-Eight and 58/100
Dollars ($13,878.58) beginning on the first day of August, 2011 and
on the first day of each month thereafter until the first day of
March, 2013 (“Maturity Date”), on which date the entire
balance of principal and interest then unpaid thereon shall be due
and payable. If a monthly payment is not received by the due date
thereof (subject to the notice and cure rights set forth herein),
it shall constitute an Event of Default (as that term is defined in
the Mortgage). Each payment shall be applied first to interest and
other charges then due and the balance to reduction of the
principal sum.
Unless and until Borrower is
otherwise notified in writing by Lender, all monthly payments due
on account of the indebtedness evidenced by this Note shall be made
by electronic funds transfer debit transactions utilizing the
Automated Clearing House (“ACH”) network of the U.S.
Federal Reserve System and shall be initiated by Lender from
Borrower’s account (as shall have been previously established
by Borrower and approved by Lender) at an ACH member bank (the
“ACH Account”) for settlement on the first day of each
month as provided hereinabove; provided, however, that if the first
day of any such month is a Saturday, Sunday or holiday, then
settlement shall be made on the immediately following day that is
not a Saturday, Sunday or holiday. Borrower hereby authorizes
Lender to electronically initiate the transfer of all monthly
payments required on this Note by ACH transfer of funds from the
ACH member bank
[PROMISSORY NOTE]
Loan No. 18857
designated by Borrower. Borrower
shall, prior to each payment due date, deposit and/or maintain
sufficient funds in the ACH Account to cover all debit transactions
initiated or to be initiated hereunder by or for Lender.
Concurrently with or prior to the
delivery of this Note, Borrower has executed and delivered written
authorization to Lender to effect the foregoing and will from time
to time execute and deliver further authorization to effect payment
through ACH transfer. Borrower has delivered to Lender,
concurrently with or prior to Borrower’s execution and
delivery of this Note, a voided blank check or a pre-printed
deposit form for such ACH Account showing Borrower’s ACH
Account number with the ACH member bank and showing the ACH member
bank routing number.
Notwithstanding the foregoing
regarding the ACH member bank and the ACH network system, any
failure, for any reason, of the ACH network system or any
electronic funds transfer debit transaction to be timely or fully
completed shall not in any manner relieve Borrower from its
obligations to promptly, fully and timely pay and make all payments
or installments provided for under this Note when due, and to
comply with all other of Borrower’s obligations under this
Note or any other documents evidencing or securing the Note; or
relieve Borrower from any of its obligations to pay any late
charges due or payable under the terms of this Note; provided that
if the cause for such failure is that the Lender did not timely
initiate the transfer request, there was a failure of the ACH
network system that was not caused by Borrower, or there was any
failure of the electronic funds transfer debit transaction that was
not caused by Borrower, then Borrower shall not be in default or
subject to late charges unless payment is not made within two (2)
days after notice of nonpayment is given by Lender. Borrower shall
provide Lender with at least ten (10) days prior written notice of
any change in the ACH information provided above and Borrower shall
not change ACH member banks without first obtaining Lender’s
written approval.
BORROWER ACKNOWLEDGES THAT THE
MONTHLY INSTALLMENTS REFERRED TO ABOVE WILL NOT AMORTIZE ALL OF THE
PRINCIPAL SUM OF THE INDEBTEDNESS BY THE MATURITY DATE, RESULTING
IN A “BALLOON PAYMENT” ON SAID DATE OF THE ENTIRE
UNPAID PRINCIPAL BALANCE OF THIS NOTE AND ACCRUED UNPAID
INTEREST.
This Note is given for an actual
loan in the above amount and is the Note referred to in and secured
by a First Mortgage, Security Agreement and Fixture Filing (herein
called the “Mortgage”) for the benefit of Lender dated
as of the date hereof, on certain property described therein
located in Tulsa County, Oklahoma (herein called the
“Mortgaged Premises”). Additionally, Lender required
and this is the note referred to in an Assignment of Leases, Rents
and Income (herein called the “Assignment”) dated as of
the date hereof, assigning to Lender all of the leases, rents and
income, issues and profit from the Mortgaged Premises. Further,
this Note is secured by: (i) a Guaranty of Affiliate Loans dated as
of the same date and executed by Cole WM Albuquerque NM, LLC, a
Delaware limited liability company which is an affiliate of
Borrower (such guaranty herein referred to as the “Affiliate
Guaranty”); and (ii) by the “Affiliate Security
Documents” as defined in the Cross-Collateralization Rider
which is attached to the Mortgage as Exhibit “B”. All
of the agreements, conditions, and covenants contained in
the
[PROMISSORY NOTE]
Loan No. 18857
Mortgage and Assignment that are to
be kept and performed by the Borrower are hereby made a part of
this Note to the same extent and with the same force and effect as
if they were fully set forth herein, and the Borrower covenants and
agrees to keep and perform them, or cause them to be kept and
performed strictly in accordance with their terms. This Note, the
Mortgage, the Assignment, the Affiliate Guaranty, and all other
instruments evidencing or securing the loan evidenced hereby and
the Affiliate Guaranty, excluding the certain Environmental
Indemnification Agreement dated this same date, are sometimes
collectively referred to as the “Loan
Documents.”
Upon the occurrence and during the
continuance of an Event of Default, or after maturity or
accelerated maturity of the principal balance, or if the
obligations evidenced hereby are reduced to a judgment, to the
extent permitted by applicable law, interest shall be payable on
demand on the unpaid principal balance or the judgment, as the case
may be, and accrued interest thereon, from time to time
outstanding, at a rate equal to twelve percent (12%) per annum or,
if less, the highest legal rate permitted under applicable law,
until paid.
In the event that any payment
required to be made pursuant to this Note is not received by the
due date thereof, a late charge of five cents ($.05) for each
dollar ($1.00) so overdue shall become immediately due and payable
as liquidated damages for defraying expenses incident to handling
such delinquent payment and by reason of failure to make prompt
payment, and the same shall be deemed to be evidenced by this Note
and secured by the Mortgage. In the event of the failure of
Borrower to pay any such late charge within five (5) days after
demand, then the unpaid principal balance and accrued interest
shall, at the option of the Lender, become immediately due and
payable without further notice and demand, such notice and demand
being expressly waived, but in such event said late charge shall be
voided and shall not be payable by Borrower nor receivable by
Lender and the rate of interest effective after maturity shall be
applicable.
Time is of the essence hereof and it
is expressly agreed that should default be made in the payment of
any installment of principal or interest when due under this Note
or the Affiliate Notes (defined below) (including any applicable
grace period), or if an Event of Default shall occur and not be
cured within the applicable notice and cure period, then the entire
unpaid principal balance and accrued interest shall, at the option
of Lender, become immediately due and payable, without further
notice and demand, such notice and demand being expressly waived,
anything contained herein or in any instrument now or hereafter
securing this Note to the contrary notwithstanding. Said option
shall continue until all such payment defaults or Event(s) of
Default have been cured and such cure has been accepted by
Lender.
A “Loan Year” shall be a
period of twelve consecutive months, the first of which shall
commence on the date hereof if such date is the first day of the
month, and otherwise on the first day of the month following the
date hereof (and the first Loan Year also shall include the partial
month from the date hereof until such date), and each succeeding
Loan Year shall commence on the anniversary of such
date.
Except as expressly provided for in
this Note, the Borrower may not prepay any portion of the principal
balance. Borrower reserves (provided no Event of Default, as that
term is
[PROMISSORY NOTE]
Loan No. 18857
defined in the Mortgage, exists
beyond any applicable notice and cure period) the privilege to
prepay, in full but not in part, the principal indebtedness
evidenced hereby on the first day of July, 2009, and on any
installment payment date thereafter, upon thirty (30) days prior
written notice to Lender