Exhibit 10.9
Walgreens -
Fredericksburg
PROMISSORY
NOTE
|
$3,865,000.00
|
June 22, 2009
|
FOR VALUE RECEIVED,
the undersigned, COLE WG
FREDERICKSBURG VA, LLC, 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 THREE
MILLION EIGHT HUNDRED SIXTY-FIVE THOUSAND AND NO/100 DOLLARS
($3,865,000.00) 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 Twenty
Thousand Seven Hundred Seventy-Four and 38/100 Dollars ($20,774.38)
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 Twenty-Five Thousand Nine Hundred
Seventy-Six and 13/100 Dollars ($25,976.13) 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 Deed of Trust). 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,
[PROMISSORY NOTE]
Loan No. 18854
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
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 Deed of Trust, Security Agreement and Fixture Filing
(herein called the “Deed of Trust”) for the benefit of
Lender dated as of the date hereof, on certain property described
therein located in Spotsylvania County, Virginia (the
“Mortgaged Premises”). Additionally, Lender required
and this is the note referred to in an Assignment of Leases, Rents
and Income (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 this
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 Deed
of
[PROMISSORY NOTE]
Loan No. 18854
Trust as Exhibit ”B”.
All of the agreements, conditions, and covenants contained in the
Deed of Trust 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 Deed of Trust, 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
seventh (7 th ) calendar day, 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 Deed of Trust. 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.
[PROMISSORY NOTE]
Loan No. 18854
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 defined in the Deed of Trust, 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 and upon payment
of