Back to top

PROMISSORY NOTE SECURED BY DEED OF TRUST

Promissory Note

PROMISSORY NOTE SECURED BY DEED OF TRUST | Document Parties: BARBER LANE ASSOCIATES | WELLS FARGO BANK, NATIONAL ASSOCIATION You are currently viewing:
This Promissory Note involves

BARBER LANE ASSOCIATES | WELLS FARGO BANK, NATIONAL ASSOCIATION

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.
Title: PROMISSORY NOTE SECURED BY DEED OF TRUST
Governing Law: California     Date: 11/7/2007
Industry: Semiconductors     Law Firm: Cooley Godward     Sector: Technology

50 of the Top 250 law firms use our Products every day
 
Exhibit 10.4
PROMISSORY NOTE SECURED BY DEED OF TRUST
Loan No. 31 - 0900266A
$8,000,000.00
     
 
  San Francisco, California
December 21, 2000
1.   PROMISE TO PAY. For value received, the undersigned BARBER LANE ASSOCIATES L. P. , a California limited partnership (‘Borrower”), promise(s) to pay to the order of WELLS FARGO BANK, NATIONAL ASSOCIATION (“Lender”), 1320 Willow Pass Road, Suite 205, Concord, California 94520, or at such other place as may be designated in writing by Lender, the principal sum of EIGHT MILLION AND NO/ 10 0 THS DOLLARS ($8 , 0 0 0 , 0 0 0 . 00) (“Loan”), with interest thereon as specified herein. All sums owing hereunder are payable in lawful money of the United States of America, in immediately available funds, without offset, deduction or counterclaim of any kind.
 
2.   SECURED BY DEED OF TRUST. This Note is secured by, among other things, that Deed of Trust and Absolute Assignment of Rents and Leases and Security Agreement (and Fixture Filing) (“Deed of Trust”) of even date herewith, encumbering certain real property described therein (“Property”).
 
3.   DEFINITIONS. For the purposes of this Note, the following terms shall have the following meanings:
 
    “Business Day” shall mean any day other than a Saturday, Sunday, legal holiday or other day on which commercial banks in California are authorized or required by law to close. All references in this Note to a “day” or a “date” shall be to a calendar day unless specifically referenced as a Business Day.
 
    “Default” shall have the meaning set forth in the Deed of Trust.
 
    “Disbursement Date” shall mean the date upon which the Loan proceeds are funded into escrow in connection with the closing of the Loan.
 
    “Effective Date” shall mean the date the Deed of Trust is recorded in the Office of the County Recorder of the county where the Property is located and Lender authorizes the Loan proceeds to be released to Borrower.
 
    “Loan Documents” shall mean the documents listed in Exhibit B attached hereto and incorporated herein by this reference.
 
    “Maturity Date” shall mean February 1, 2011.
 
4.   INTEREST; PAYMENTS.
  4.1   Definitions. The following terms shall have the meanings indicated:
 
      “Actual/360 Basis” shall mean on the basis of a 360-day year and charged on the basis of actual days elapsed for any whole or partial month in which interest is being calculated.
 
      “30/360 Basis” shall mean on the basis of a 360-day year consisting of 12 months of 30 days each. “Interest Rate” shall mean a fixed annual rate of 7 . 4 5 5 %.
 
  4.2   Interest Accrual. Interest on the outstanding principal balance of this Note shall accrue from the Disbursement Date at an annual rate equal to the Interest Rate calculated on an Actual/360 Basis.
 
  4.3   Payments. Monthly payments hereunder shall commence on the first day of the calendar month following the Disbursement Date and continue on the first day of each calendar month thereafter through the Maturity Date. If the Disbursement Date is a date other than the fast day of a calendar month, the fast monthly payment shall be interest only. Subsequent monthly payments shall be calculated on the basis of an equal-payment 30 year amortization of principal and interest. Notwithstanding that interest on this Note accrues on an Actual./360 Basis,

 


 
the total amount of each such amortized monthly payment of principal and interest shall be determined using a 30/360 Basis. On the Maturity Date, all unpaid principal and accrued but unpaid interest shall be due and owing in full. All interest shall be paid in arrears.
  4.4   Acknowledgments. Borrower acknowledges that interest calculated on an ActuaU360 Basis exceeds interest calculated on a 30/360 Basis and, therefore: (a) a greater portion of each monthly installment of principal and interest will be applied to interest using the Actual/360 Basis than would be the case if interest accrued on a 30/360 Basis; and (b) the unpaid principal balance of this Note on the Maturity Date will be greater using the Actuall360 Basis than would be the case if interest accrued on a 30/360 Basis.
 
  4.5   Application of Payments. In the absence of a specific determination by Lender to the contrary, all payments paid by Borrower to Lender in connection with the obligations of Borrower under this Note and under the other Loan Documents shall 3e applied in the following order of priority: (a) to amounts, other than principal and interest, due to Lender pursuant to this Note or the other Loan Documents; (b) to accrued but unpaid interest on this Note; and (c) to the unpaid principal balance of this Note. Borrower irrevocably waives the right to direct the application of any and all payments at any time hereafter received by Lender from or on behalf of Borrower, and Borrower irrevocably agrees that Lender shall have the continuing exclusive right to apply any and all such payments against the then due and owing obligations of Borrower in such order of priority as Lender may deem advisable.
5.   LATE CHARGE; DEFAULT RATE.
  5.1   Late Charge. If all or any portion of any payment or deposit required hereunder (other than the payment due on the Maturity Date) is not paid or deposited on or before the fourth day following the day on which such payment or deposit is due, Borrower shall pay a late or collection charge, as liquidated damages, equal to 5% of the amount of such unpaid payment or deposit. If all or any portion of the payment due on the Maturity Date is paid more than 4 days after the Maturity Date and on a date other than the first day of a month, Borrower shall pay a late or collection charge, as liquidated damages, equal to the interest which would have accrued on such amount during the period commencing on the date payment of such amount is actually made and ending on the last day of the month in which payment of such amount is actually made. Borrower acknowledges that Lender will incur additional expenses as a result of any late payments or deposits hereunder, which expenses would be impracticable to quantify, and that Borrower’s payments under this Section 5.1 are a reasonable estimate of such expenses.
 
  5.2   Default Rate. Commencing upon a Default and continuing until such Default shall have been cured by Borrower, all sums owing on this Note shall bear interest until paid in full at an annual rate equal to 5% plus the h terest Rate, but not higher than the maximum rate of interest permitted by applicable law (“Default Rate”).
6.   MAXIMUM RATE PERMITTED BY LAW. Neither this Note nor any of the other Loan Documents shall require the payment or permit the collection of any interest or any late payment charge in excess of the maximum rate permitted by law. If any such excess interest or late payment charge is provided for under this Note or any of the other Loan Documents or if this Note or any of the other Loan Documents shall be adjudicated to provide for such excess, neither Borrower nor Borrower’s successors or assigns shall be obligated to pay such excess, and the right to demand the payment of any such excess shall be and hereby is waived, and this provision shall control any other provision of this Note or any of the other Loan Documents. If Lender shall collect amounts which are deemed to constitute interest and which would increase the effective interest rate to a rate in excess of the maximum rate permitted by law, all such amounts deemed to constitute interest in excess of the maximum. legal rate shall, upon such determination, at the option of Lender, be returned to Borrower or credited against the outstanding principal balance of this Note.
7.   ACCELERATION. If (a) Borrower shall fail to pay when due any sums payable under this Note; (b) any other Default shall occur; or (c) any other event or condition shall occur which, under the terms of the Deed of Trust or any other Loan Document, gives rise to a right of acceleration of sums owing under this Note, then Lender, at its sole option, shall have the right to declare all sums owing under this Note immediately duc and payable; provided, however, that if the Deed of Trust or any other Loan Document provides for the automatic acceleration of payment of sums owing under this Note, all sums owing under this Note shall be automatically due and payable in accordance with the terms of the Deed of Trust or such other Loan Document.

 


 
8.   BORROWER’S LIABILITY.
  8.1   Limitation. Except as otherwise provided in this Section 8, Lender’s recovery against Borrower under this Note and the other Loan Documents shall be limited solely to the Property and the “Collateral” (as defined in the Deed of Trust).
 
  8.2   Exceptions. Nothing contained in Section 8.1 or elsewhere in this Note or the other Loan Documents, however, shall limit in any way the personal liability of Borrower owed to Lender for any losses or damages incurred by Lender (including, without limitation, any impairment of Lender’s security for the Loan) with respect to any of the following matters: (a) fraud or willful misrepresentation;; (b) material physical waste of the Property or the Collateral; (c) failure to pay property or other taxes, assessments or charges from available property cash flow (other than amounts paid to Lender for taxes, assessments or charges pursuant to Impounds as defined in Exhibit A and where Lender elects not to apply such funds toward payment of the taxes, assessments or charges owed) which may create liens senior to the lien of the Deed of Trust on all or any portion of the Property; (d) failure to deliver any insurance or condemnation proceeds or awards or any security deposits received by Borrower to Lender or to otherwise apply such sums as required under the terms of the Loan Documents or any other instrument now or hereafter securing this Note; (e) failure to apply any rents, royalties, accounts, revenues, income, issues, profits and other benefits from the Property which are collected or received by Borrower during the period of any Default or after acceleration of the indebtedness and other sums owing under the Loan Documents to the payment of either (i) such indebtedness or other sums or (ii) the normal and necessary operating expenses of the Property; or (f) any breach by Borrower of any covenant in this Note or in the Deed of Trust regarding Hazardous Materials (as defined in the Deed of Tnrst) or any representation or warranty of Borrower regarding Hazardous Materials proving to have been untrue when made.
 
  8.3   No Release or Impairment. Nothing contained in Section 8.1 shall be deemed to release, affect or impair the indebtedness evidenced by this Note or the obligations of Borrower under, or the liens and security interests created by the Loan Documents, or Lender’s rights to enforce its remedies under this Note and the other Loan Documents, including, without limitation, the right to pursue any remedy for injunctive or other equitable relief, or any suit or action in connection with the preservation, erforcement or foreclosure of the liens, mortgages, assignments and security interests which are now or at a.any time hereafter security for the payment and performance of all obligations under this Note or the other Loan Documents.
 
  8.4   Prevail and Control. The provisions of this Section 8 shall prevail and control over any contrary provisions elsewhere in this Note or the other Loan Documents.
9.   NON-TRUSTOR BORROWER. If any Borrower is not also a " Tmstor under the Deed of Trust, such Borrower hereby makes all representations and warranties in favor of Lender contained in Article 5 of the Deed of Trust, all covenants contained in Section 6.15 of the Deed of Trust, and all indemnities of Lender contained in Section 6.19 of the Deed of Trust, jointly and severally with the “Trustor.”
10.   MISCELLANEOUS.
  10.1   Joint and Several Liability. If this Note is executed by more than one person or entity as Borrower, the obligations of each such person or entity shall be joint and several. No person or entity shall be a mere accommodation maker, but each shall be primarily and directly liable hereunder.
 
  10.2   Waiver of Presentment. Except as otherwise provided in any other Loan Document, Borrower hereby waives presentment, demand, notice of dishonor, notice of default or delinquency, notice of intent to accelerate, notice of acceleration, notice of nonpayment, notice of costs, expenses or losses and interest thereon, and notice of interest on interest and late charges.
 
  10.3   Delay In Enforcement. No previous waiver or failure or delay by Lender in acting with respect to the terms of this Note or the Deed of Trust shall constitute a waiver of any breach, default or failure of condition under this Note, the Deed of Trust or the obligations secured thereby. A waiver of any term of this Note, the Deed of Trust or of any of the obligations secured thereby must be made in writing signed by Lender, shall be limited to the express terms of such waiver, and shall not constitute a waiver of any subsequent obligation of Borrower. The acceptance at any time by Lender of any past-due amount shall not be deemed to be a waiver of the right to require prompt payment when due of any other amounts then or thereafter due and payable.

 


 
  10.4   Time of the Essence. Time is of the essence with respect to every provision hereof
 
  10.5   Governing Law. This Note was accepted by Lender in the slate of California and the proceeds of this Note were disbursed from the state of California, which state the parties agree has a substantial relationship to the parties and to the underlying transaction embodied hereby. Accordingly, in all respects, including, without limiting the generality of the foregoing, matters of construction, validity, enforceability and performance, this Note, the Deed of Trust and the other Loan Documents and the obligations arising hereunder and thereunder shall be governed by, and construed in accordance with, the laws of the state of California applicable to contracts made and performed in such state and any applicable law of the United States of America, except that at all times the provisions for the enforcement of Lender’s STATUTORY POWER OF SALE granted under the Deed of Trust securing this Note and the creation, perfection and enforcement of the security interests created pursuant thereto and pursuant to the other Loan Documents shall be governed by and construed according to the law of the state where the Property is located. Except as provided in the immediately preceding sentence, Borrower hereby unconditionally and irrevocably waives, to the fullest extent permitted by law, any claim to assert that the law of any jurisdiction other than California governs the Deed o f Trutt, this Note and the other Loan Documents.
 
  10.6   Consent to Jurisdiction , . Borrower irrevocably submits to the jurisdiction of: (a) any state or federal court sitting in the state of California over any suit, action, or proceeding, brought by Borrower against Lender, arising out of or relating to this Note or the Loan evidenced hereby; (b) any state or federal court sitting in the state where the Property is located or the state in which Borrower s principal place of business is located over any suit, action or proceeding, brought by Lender against Borrower, arising out: of or relating to this Note or the Loan evidenced hereby; and (c) any state court sitting in the county of the state where the Property is located over any suit, action, or proceeding, brought by Lender to exercise its STATUTORY POWER OF SALE under the Deed of Trust or any action brought by the Lender to enforce its rights with respect to the Collateral. Borrower irrevocably waives, to the fullest extent permitted by law, any objection that Borrower may now or hereafter have to the laying of venue of any such suit, action, or proceeding brought in a.ny such court and any claim that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.
 
  10.7   Counterparts. This Note may be executed in any number of counterparts, each of which when executed and delivered shall be deemed an original and all of which taken together shall be deemed to be one and the same Note.
 
  10.8   Heirs, Successors and Assigns. All of the terns, covenants, conditions and indemnities contained in this Note and the other an Documents shall be binding upon the heirs, successors and assigns of Borrower and shall inure to the benefit of the successors and assigns of Lender. The foregoing sentence shall not be construed to permit Borrower to assign the Loan except as otherwise petted in this Note or the other Loan Documents.
 
  10.9   Severability. If any tern of this Note, or the application thereof to any person or circumstances, shall, to any extent, be invalid or unenforceable, the remainder of this Note, or the application of such term to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term of this Note shall be valid and enforceable to the fullest extent permitted by law.
 
  10.10   Consents and Approvals. Wherever Lender’s consent, approval, acceptance or satisfaction is required under any provision of this Note or any of the other Loan Documents, such consent, approval, acceptance or satisfaction shall not be unreasonably withheld, conditioned or delayed by Lender unless such provision expressly so provides.
11.   NOTICES. All notices and other communications that are required or permitted to be given to a party under this Note shall be in writing and shall be sent to such party, either by personal delivery, by overnight delivery service, by certified first class mail, return receipt requested, or by facsimile transmission to the address or facsimile number below. All such notices and communications shall be effective upon receipt of such delivery or facsimile transmission. The addresses and facsimile numbers of the parties shall be:

 


 
     
Borrower:   Lender:
BARBER LANE ASSOCIATES L.P.
  Wells Fargo Bank, N.A.
490 California Ave.
  1320 Willow Pass Road, Suite 205
4th Floor
  Concord, CA 94520
Palo Alto, CA 94301
  Loan No. 31-0900266A
FAX No.: (650) 326-9333
  FAX No.: (925) 691-5947
 
   
With copies to:
   
Cooley Godward LLP
   
One Maritime Plaza 20 th  Floor
   
San Francisco, CA 94111
   
Attn: Paul Churchill, Esq.
   
(415) 951-3699
   
12.   ADDITIONAL TERMS ANI) CONDITIONS. The additional terms and conditions set forth in Exhibit A attached hereto are incorporated herein by this reference.
13.   PREPAYMENT. Borrower acknowledges that any prepayment of this Note will cause Lender to lose its interest rate yield on this Note and will possibly require that Lender reinvest any such prepayment amount in loans of a lesser interest rate yield (including, without limitation, in debt obligations other than first mortgage loans on commercial properties). As a consequence, Borrower agrees as follows, as an integral part of the consideration for Lender’s making the Loan:
  13.1   Voluntary Prepayment. Any voluntary prepayment of this Note: (a) is prohibited except during the last 3 months of the term, (b) is permitted in full only, and not in part.
 
  13.2   Prepayment Charge.
  a.   Basic Charge. Except as provided below, if this Note is prepaid prior to the last 3 months of the term, whether such prepayment is involuntary or upon acceleration of the principal amount of this Note by Lender following a Default, Borrower shall pay to Lender on the prepayment date (in addition to all other sums then due and owing to Lender under the Loan Documents) a prepayment charge equal to the greater of the following two amounts: (a) an amount equal to 1% of the then outstanding principal balance of the Loan; or (b) an amount equal to (i) the amount, if any, by which the sum of the present values as of the prepayment date of all unpaid principal and interest payments required under this Note, calculated by discounting such payments from their respective scheduled payment dates back to the prepayment date at a discount rate equal to the Periodic Treasury Yield (defined below) exceeds the outstanding principal balance of the Loan as of the prepayment date, multiplied by (ii) a fraction whose numerator is the amount of the prepayment and whose denominator is the outstanding principal balance of the Loan as of the prepayment date. For purposes of the foregoing, “Periodic Treasury Yield” means (c) the annual yield to maturity of the actively traded :ion-callable United States Treasury fixed interest rate security (other than any such security which can be surrendered at the option of the holder at face value in payment of federal estate tax or which was issued at a substantial discount) that has a maturity closest to (whether before, on or after) the Maturity Date (or if two or more such securities have maturity dates equally close to the Maturity Date, the average annual yield to maturity of all such securities), as reported in The Wall Street Journal or other authoritative publication or news retrieval service on the fifth Business Day preceding the prepayment date, divided by (d) 12, if scheduled payment dates are monthly, or 4, if scheduled payment dates are quarterly.
 
  b.   Additional Charge. If this Note is prepaid on any day other than the first day of a month, whether such prepayment is involuntary or upon full acceleration of the principal amount of this Note by Lender following a Default, Borrower shall pay to Lender on the prepayment date (in addition to the basic prepayment charge described in Section 13.2a. above and all other sums then due and owing to Lender under this Note and the other Loan Documents) an additional prepayment charge equal to the interest which would otherwise have accrued on the amount prepaid (had such prepayment not occurred during

 


 
the period commencing on the prepayment date and ending on the last day of the month in which the prepayment occurred.
  c.   Exclusion. Notwithstanding the foregoing, no prepayment charge of any kind shall apply in respect to any prepayment resulting from the application of any insurance or condenmation proceeds received by Lender and applied by Lender to the outstanding principal balance of the Loan.
  13.3   Effect of Prepayment. No partial prepayment of this Note shall change the dates or amounts of subsequent monthly installments of principal and interest, unless Lender otherwise agrees in writing.
 
  13.4   Waiver. Borrower waives any right to prepay this Note except under the terms and conditions set forth in this Section and agrees that if this Note is prepaid, Borrower will pay the prepayment charge set forth above. Borrower hereby acknowledges that: (a) the inclusion of this waiver of prepayment rights and agreement to pay the prepayment charge for the right to prepay this Norse was separately negotiated with Lender; (b) the economic value of the various elements of this waiver and agreement was discussed; (c) the consideration given by Borrower for the Loan was adjusted to reflect the specific waiver and agreement negotiated between Borrower and Lender and contained herein; and (d) this waiver is intended to comply with California Civil Code Section 2954.10.
         
  Borrower’s Initials:        HDB             RP           
 
 
14. DEFEASANCE.
  14.1   Defeasance Definitions. The following terms shall have the meanings indicated:
 
      “Allocated Loan Amount” means that portion of the Loan which has been allocated to each Individual Property which is being dcfeased,
 
      “Code” means the Internal Revenue Code of 1986, as amended to date and as further amended from time to time, or any successor statutes thereto, together with applicable regulations issued pursuant thereto in temporary or final form.
 
      “Defeasance” means the Borrower’s substitution of collateral and Lender’s full or partial release of the lien of the Deed of Trust upon satisfaction of all of the terms and conditions of this Section 14.
 
      “Defeasance Collateral” means obligations or securities, not subject to prepayment, call or early redemption, that are direct obligations of, or obligations fully guaranteed as to timely payment by, the United States of America that are backed by the full faith and credit of the United States, together with all revenues and proceeds of such obligations or securities.
 
      “Defeasance Date” means the date upon which the Defeasance is completed.
 
      “Defeasance Security Agreements” shall have the meaning specified in Section 14.3 d.(ii). “Individual Property” means property as described in Exhibit A of the Deed of Trust.
 
      “Lockout Expiration Date” means the later of (a) two years after the Startup Day (defined below) of the REMIC (defined below), if any, that holds this Note on the Defeasance Date, and (b) the 3RD anniversary of the date of this Note.
 
      “Rating Agencies” means Fitch ICBA, Inc., Moody’s Investor Services, Inc., Standard & Poor’s Rating Services and any other nationally-recognized statistical rating organization that, in connection with the securitization of the Loan by a REMIC, maintains a rating on the Defeasance Date of the securities issued by the REMIC.
 
      “REMIC” means a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code.
 
      “Startup Day” means the “startup day” within the meaning of Section 860G(a)(9) of the Code.

 


 
      “Successor Borrower” means an entity designated by Lender whose sole purpose is to own the Defeasance Collateral delivered by Borrower under this Section 14 and assume Borrower’s obligations with respect to the Loan or portion of the Loan affected by the Defeasance, either alone, or together with the Defeasance Collateral for other, previously deceased loans or portions of loans assumed by Successor Borrower which are also held by the REMIC that holds this Note. The Successor Borrower shall, in either case, be restricted from taking actions that could result in its bankruptcy or dissolution
  14.2   Borrower Right to Defease. At any time after the Lockout Expiration Date, Borrower may elect to effect a Defeasance of the entire Loan or one or more partial Defcas.nces of an Individual Property in accordance with the provisions of this Section 14, at Borrower’s sole cost and expense.
 
  14.3   Conditions. Borrower shall only have the right to cause a Defeasance if all of the following conditions have been satisfied:
  a.   Notice. Borrower shall give at least 45 days but rot more than 90 days written notice to Lender specifying the Borrower’s intended Defeasance Date and, for a partial Defeasance, the Individual Property affected. Simultaneously with the delivery cf such notice, Borrower shall deposit with Lender an amount estimated by Lender to be sufficient to reimburse Lender’s reasonable anticipated expenses in connection with the Defeasance, for which Borrower shall be s

SITE SEARCH

AGREEMENTS / CONTRACTS

Document Title:

Entire Document: (optional)

Governing Law:(optional)
 

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Close this window