Exhibit 10.3
Wal-Mart Store
PROMISSORY
NOTE
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$9,935,000.00
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June 22, 2009
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FOR VALUE RECEIVED,
the undersigned, COLE WM
ALBUQUERQUE NM, 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 NINE
MILLION NINE HUNDRED THIRTY-FIVE THOUSAND AND NO/100 DOLLARS
($9,935,000.00) 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
Fifty-Three Thousand Four Hundred and 63/100 Dollars ($53,400.63)
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 Sixty-Six Thousand Seven Hundred
Seventy-One and 76/100 Dollars ($66,771.76) 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 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 Bernalillo County, New Mexico (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 First Mortgage, Security Agreement
and Fixture Filing (“OK Mortgage”) dated as of this
same date and executed by Cole WG South Yale Avenue (Tulsa) OK,
LLC, a Delaware limited liability company; (ii) a First Deed of
Trust, Security Agreement and Fixture Filing dated as of this same
date and executed by Cole WG Fredericksburg VA,
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[PROMISSORY NOTE]
Loan No. 18856
LLC, a Delaware limited liability
company (“VA Deed of Trust”); and (iii) a First Deed of
Trust, Security Agreement and Fixture Filing dated as of this same
date and executed by Cole MT Las Vegas NV, LLC, a Delaware limited
liability company (“NV Deed of Trust”) all of which
entities are affiliates of Borrower ("Affiliates") (the OK
Mortgage, the VA Deed of Trust and the NV Deed of Trust are herein
referred to as the "Affiliate Mortgages"). All of the agreements,
conditions, and covenants contained in the 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 Mortgages, and
all other instruments evidencing or securing the loan evidenced
hereby and the Affiliate Mortgages, 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
(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
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[PROMISSORY NOTE]
Loan No. 18856
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