PROMISSORY NOTE
$5,500,000.00 Denver, Colorado
September 1, 1999
1. Agreement to Pay. FOR VALUE RECEIVED, the undersigned, CAX RIVERSIDE,
L.L.C., a Delaware limited liability company (hereinafter referred to
as the "Borrower"), whose mailing address is 0000 X. Xxxxxx Xxxxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, hereby agrees and promises to pay to
the order of MINNESOTA LIFE INSURANCE COMPANY, a Minnesota corporation,
its endorsees, successors and assigns (hereinafter referred to as the
"Lender"), at its principal office and mailing address at c/o Advantus
Capital Management, Inc., 000 Xxxxxx Xxxxxx Xxxxx, Xx. Xxxx, Xxxxxxxxx
00000-0000, or such other place as the Lender may from time to time
designate, the principal sum of Five Million Five Hundred Thousand and
00/100 Dollars ($5,500,000.00), or so much as may from time to time be
disbursed hereon, together with interest on the unpaid principal
balance at the rates provided for herein, payable in lawful money of
the United States of America which shall be legal tender for public and
private debts at the time of payment.
2. Interest Rate. The outstanding principal balance hereof shall bear
interest at the rate of Six and seven-tenths percent (6.7%) per annum
(hereinafter referred to as the "Regular Rate"). Interest shall be
computed on the basis of a three hundred sixty (360) day year,
consisting of twelve (12) successive thirty (30) day months. Interest
for periods of less than one (1) month shall be computed by multiplying
the monthly interest amount as computed above times a fraction, the
numerator of which is the actual number of days elapsed in said period
and the denominator of which is the actual number of days contained in
the month for which the computation is being made.
3. Late Charge. Any payment of principal, interest and/or tax and
insurance escrows not made by the Borrower within five (5) days of the
due date thereof shall be subject to a late payment charge equal to
four percent (4%) of the delinquent payment amount. The late charge
shall apply individually to all payments past due with no daily
adjustment and shall be used to defray the costs of the Lender incident
to collecting such late payment. This provision shall not be deemed to
excuse a late payment or be deemed a waiver of any other rights the
Lender may have including the right to declare the entire unpaid
principal and interest immediately due and payable.
4. Default Rate. Upon the occurrence of an Event of Default hereunder the
interest rate shall thereafter increase and shall be payable on the
whole of the unpaid principal balance at a rate equal to twelve percent
(12%) per annum (hereinafter referred to as the "Default Rate"), which
Default Rate shall be effective as of the date of the occurrence of
such Event of Default. The above increase in the interest rate upon the
occurrence of an Event of Default shall be applicable whether or not
the Lender has exercised its option to accelerate the maturity of this
Note and declared the entire unpaid principal indebtedness to be due
and payable. The Default Rate shall continue until such Event of
Default is cured, payment in full of all indebtedness evidenced by this
Note, or completion of all foreclosure proceedings and redemption
periods, whichever shall occur first.
5. Monthly Payments. Principal and interest upon this Note shall be paid
as follows:
a. Interest only on the unpaid principal balance at the Regular
Rate shall be due and payable in advance on the date funds are
disbursed hereunder in an amount equal to interest accrued from
and including the date of disbursement hereunder to the last day
of September, 1999.
b. On the first (1st) day of November, 1999, and on the first day
of each month thereafter, principal and interest shall be due
and payable in equal monthly installments of Forty-One Thousand
Six Hundred Fifty-Six and 68/100 Dollars ($41,656.68) until
October 1, 2019 (hereinafter referred to as the "Maturity
Date"), on which date the entire unpaid principal balance
together with all accrued interest, if not sooner paid, shall
become due and payable.
All payments shall be applied first to late charges and Reinvestment
Charge and/or Default Premium, as defined below, if any, second to
interest at the rate then in effect under the terms hereof and third to
principal, provided however, that if any advance made by the Lender as
the result of a default on the part of the Borrower under the terms of
this Note or any instrument securing this Note is not repaid on demand,
any monies received, at the option of the Lender, may first be applied
to repay such advances, plus interest thereon at the Default Rate, and
the balance, if any, shall be applied in accordance with the provisions
hereof.
6. Security. This Note is given to evidence a loan in the above amount and
is the Note referred to in and secured by:
a. A Mortgage and Security Agreement and Fixture Financing
Statement (hereinafter referred to as the "Mortgage") given by
Borrower, as mortgagor, to Lender, as mortgagee, dated of even
date herewith, encumbering the Borrower's interest in the real
property and all improvements, fixtures, equipment and personal
property thereon located in the County of Hillsborough, State of
Florida (hereinafter referred to as the "Premises"); and
b. An Assignment of Leases and Rents (hereinafter referred to as
the "Assignment of Leases") given by Borrower, as assignor, to
Lender, as assignee, dated of even date herewith, assigning to
Lender all of the rents, issues, profits and leases of the
Premises; and
c. Other collateral security documents (hereinafter referred to as
the "Security Documents") given by Borrower to Lender, all dated
of even date herewith.
Reference is hereby made to the Mortgage, the Assignment of Leases and
the Security Documents (which are incorporated herein by reference as
fully and with the same effect as if set forth herein at length) for a
description of the Premises, a statement of the covenants and
agreements, a statement of the rights and remedies and securities
afforded thereby and all other matters contained therein.
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7. Default and Acceleration. The occurrence of an Event of Default, as
defined in the Mortgage, shall constitute an Event of Default hereunder
(hereinafter referred to as an "Event of Default"), and the entire
unpaid principal balance together with accrued interest at the Default
Rate shall become, without notice, immediately due and payable at the
option of the Lender. No delay or omission on the part of the Lender in
exercising any right hereunder shall operate as a waiver of such right
or of any other remedy under this Note. A waiver on any one occasion
shall not be construed as a bar to or waiver of any such right or
remedy on a future occasion.
8. Prepayment Privilege. The indebtedness evidenced hereby may be prepaid
in accordance with the provisions of this Section 8 and not otherwise.
a. For the purposes hereof, the term "Loan Year" shall mean a
period consisting of twelve (12) consecutive months commencing
on the first (1st) day of October or any anniversary thereof,
the first (1st) Loan Year being the Loan Year commencing the
first (1st) day of October, 1999.
b. Prior to the expiration of the fifth (5th) Loan Year no payments
of principal may be made hereon other than the scheduled monthly
installment payments of principal and interest set forth in
Section 5 hereof.
c. After the expiration of the fifth (5th) Loan Year and prior to
the end of the tenth (10th) Loan Year, the Borrower may prepay
this Note in full but not in part, provided such prepayment is
accompanied by a reinvestment charge (hereinafter referred to as
the "Reinvestment Charge"). The Reinvestment Charge with respect
to the period commencing on the first (1st) day of the sixth
(6th) Loan Year and expiring on the last day of the tenth (10th)
Loan Year shall be equal to the excess, if any, of (i) the
aggregate present value as of the date of such prepayment of
each dollar of principal being prepaid and the amount of
interest that would have been payable in respect of such dollar
if such prepayment had not been made, determined by discounting
such amounts at the Reinvestment Rate, defined below, from the
respective dates on which they would have been payable, over
(ii) one hundred percent (100%) of the principal amount of this
Note being prepaid. "Reinvestment Rate" shall mean the yield to
maturity of the U.S. Treasury Note or Bond for the maturity
(rounded to the nearest month) corresponding to the weighted
average life to maturity of the principal being prepaid or paid
(as reported in the Wall Street Journal on the fifth (5th)
business day preceding the date of prepayment).
d. The Borrower may prepay this Note, in full but not in part, at
any time after the tenth (10th) Loan Year provided such
prepayment is accompanied by a Reinvestment Charge in an amount
equal to five percent (5%) of the principal amount prepaid with
respect to prepayments made in the eleventh (11th) and twelfth
(12th) Loan Years, such Reinvestment Charge thereafter declining
one percent (1%) during each Loan Year thereafter until the same
shall be reduced to one percent (1%), where it shall remain
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until ninety (90) days prior to the Maturity Date.
e. The Borrower may prepay this Note in full but not in part, at
par, and without payment of a Reinvestment Charge during the
period commencing ninety (90) days prior to the Maturity Date.
f. At the option of the Lender, this Note is also subject to
mandatory prepayment upon certain events set forth in the
Mortgage including prepayments required by Lender to be made out
of proceeds of insurance or condemnation awards. In each such
instance, the terms of the Mortgage shall govern with respect to
the requirement for the payment of a Reinvestment Charge or
Default Premium.
g. Any prepayment (other than prepayments pursuant to Subsection
8(f) above) shall be made on a regularly scheduled installment
payment date, shall be made only upon thirty (30) days' advance
written notice to the Lender, and all such prepayments shall be
applied to required monthly installment payments of principal in
the inverse order of their scheduled due dates.
h. Any prepayment of all or any portion of the principal balance of
this Note made prior to the end of the fifth (5th) Loan Year,
for whatever reason (other than prepayments pursuant to
Subsection 8(f) above), whether voluntary or involuntary, shall
constitute an Event of Default hereunder, and, in addition to
the other rights and remedies provided for herein and in the
Mortgage, the Assignment of Leases or any other Security
Document, the Borrower shall be obligated to pay to the Lender a
default prepayment premium (hereinafter referred to as the
"Default Premium") in an amount equal to the sum of (i) four
percent (4%) of the amount of principal prepaid and (ii) the
applicable Reinvestment Charge computed in accordance with
Section 8(c) above.
9. Prepayment Upon An Event of Default. Upon the occurrence of an Event of
Default under this Note and following acceleration of maturity hereof
by the Lender, a tender of payment of or entry of judgment for the
amount necessary to satisfy the entire unpaid principal balance
declared due and payable shall be deemed to constitute an attempted
evasion of the aforesaid restrictions on the right of prepayment and
shall be deemed a prepayment hereunder, and such payment or judgment
must, therefore, include the applicable Reinvestment Charge or Default
Premium payable under the terms hereof in connection with any
prepayment.
10. Costs of Collection. The Borrower agrees that if, and as often as, this
Note is placed in the hands of an attorney for collection or to defend
or enforce any of the Lender's rights hereunder or under the Mortgage,
the Assignment of Leases or any other Security Document securing
payment of this Note, the Borrower will pay to the Lender its
attorneys' fees and all court costs (including attorney's fees and
court costs prior to trial, at trial and on appeal, or in any
bankruptcy proceeding) and other expenses incurred in connection
therewith.
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11. Time. Time is of the essence of this Note and each of the provisions
hereof.
12. Governing Law. This Note shall be governed by the laws of the State of
Florida.
13. Interest Limitation. All agreements between the Borrower and the Lender
are hereby expressly limited so that in no contingency or event
whatsoever, whether by reason of acceleration of maturity of the
indebtedness evidenced hereby or otherwise, shall the amount paid or
agreed to be paid to the Lender for the use, forbearance, loaning or
detention of the indebtedness evidenced hereby exceed the maximum
permissible under applicable law. If from any circumstances whatsoever,
fulfillment of any provisions hereof or of the Mortgage, Assignment of
Leases or any other Security Document at any time given shall exceed
the maximum permissible under applicable law, then, the obligation to
be fulfilled shall automatically be reduced to an amount which complies
with applicable law, and if from any circumstances the Lender should
ever receive as interest an amount which would exceed the highest
lawful rate of interest, such amount which would be in excess of such
lawful rate of interest shall be applied to the reduction of the
principal balance evidenced hereby and not to the payment of interest.
This provision shall control every other provision of all agreements
between the Borrower and Lender and shall also be binding upon and
available to any subsequent holder of this Note.
14. Waivers. The Borrower, endorsers, sureties, guarantors and all other
persons liable for all or any part of the principal balance evidenced
by this Note severally waive presentment for payment, protest, notice
of nonpayment and notice of dishonor. Such parties hereby consent,
without affecting their liability, to any extension or alteration of
the time or terms of payment hereof, any renewal, any release of any or
all of the security given for the payment hereof, any acceptance of
additional security of any kind, and any release of, or resort to any
party liable for payment hereof.
15. Disbursement. Funds representing the proceeds of the indebtedness
evidenced hereby which are disbursed by the Lender by mail, wire
transfer or other delivery to the Borrower, to escrows or otherwise for
the benefit of the Borrower shall, for all purposes, be deemed
outstanding hereunder and to have been received by the Borrower as of
the date of such mailing, wire transfer, or delivery and until repaid,
notwithstanding the fact that such funds may not at any time have been
remitted by such escrows to the Borrower or for its benefit.
16. Captions. The captions to the Sections of this Note are for convenience
only and shall not be deemed part of the text of the respective
Sections and shall not vary, by implication or otherwise, any of the
provisions of this Note.
17. Notices. All notices required or permitted to be given hereunder to the
Borrower or the Lender shall be given in the manner and to the place as
provided in the Mortgage for notices to the Mortgagor or the Mortgagee.
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18. Due-on-Sale-and-Encumbrance Provisions. The Mortgage provides for
certain rights on the part of the Lender to call all outstanding
principal and accrued interest on this Note due and payable in full
together with the Reinvestment Charge or Default Premium then in effect
under the terms of this Note in the event that (a) Borrower should
sell, convey, contract to sell or convey, assign or encumber any
property, real or personal, encumbered by the Mortgage, or (b) any
member interests in the Borrower should be sold, conveyed, assigned or
encumbered, without, in each instance, the prior written consent of the
Lender. Reference to the Mortgage must be made for the terms of these
provisions. Such provisions are incorporated herein by this reference.
19. Partial Non-Recourse to the Borrower. Notwithstanding anything to the
contrary contained herein, the Borrower shall have no liability to pay
the outstanding principal balance of this Note or any interest that may
accrue thereon, all such liability being expressly waived by the
Lender, and the Lender's monetary remedies under this Note, the
Mortgage and the Assignment of Leases shall be limited to the
Borrower's interest in the Premises and the improvements, furnishings,
equipment, leases and rents on which the Mortgage and the Assignment of
Leases constitute a lien. Notwithstanding the foregoing, it is
expressly understood and agreed that the aforesaid limitation on
liability shall in no way effect or apply to the continued liability of
the Borrower and Commercial Assets, Inc. for the payment to the Lender
of: (i) any rents, issues, profits or income which have been prepaid
more than thirty (30) days in advance; (ii) any rents, issues, profits
or income collected by the Borrower from the Premises after the
occurrence of an Event of Default under the terms of this Note, the
Mortgage, the Assignment of Leases or any other instrument securing
this Note; (iii) security deposits made by tenants of the Premises;
(iv) payments of all real estate taxes, special assessments and
insurance premiums; (v) insurance proceeds and condemnation awards,
payments and consideration which the Borrower receives and to which the
Lender is entitled pursuant to the terms of this Note, the Mortgage,
the Assignment of Leases or of any other instrument securing this Note;
(vi) loss or damage suffered by the Lender arising from
misrepresentation or fraud in connection with the loan evidenced by
this Note occurring as the result of the actions or inactions of the
Borrower; (vii) loss or damage suffered by the Lender occurring by
reason of the existence of Hazardous Materials or Wastes, as defined in
Article 9 of the Mortgage, associated with the Premises or occurring by
reason of the failure of the Borrower to observe and perform its
covenants and indemnities respecting the release or discharge of such
Hazardous Materials or Wastes as set forth in both Article 9 of the
Mortgage and in the Indemnity Agreement described in Section 2.9 of the
Mortgage; (viii) reasonable attorney's fees incurred by the Lender as
provided for in this Note, the Mortgage, the Assignment of Leases or
any other instrument securing this Note; (ix) damages arising out of
the Borrower's failure to comply with any of the leases on the
Premises; and (x) damages to the Premises from waste committed or
permitted by the Borrower or from a failure by Borrower to maintain the
Premises in the manner required by the terms of this Note, the
Mortgage, the Assignment and all other instruments securing this Note.
Nothing contained herein shall be deemed to release any entity or
person, including the Borrower and Commercial Assets, Inc., from their
obligations under the terms of any separate Indemnity Agreement or
Guaranty executed in connection with the loan evidenced by this Note.
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20. WAIVER OF JURY TRIAL. NEITHER LENDER, BORROWER, ANY GUARANTOR OR OTHER
PERSON OR ENTITY LIABLE FOR THE INDEBTEDNESS EVIDENCED HEREBY, NOR ANY
ASSIGNEE, SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE OF LENDER,
BORROWER, ANY GUARANTOR OR ANY SUCH OTHER PERSON OR ENTITY SHALL SEEK A
JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER
LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF THIS NOTE, THE
MORTGAGE, ANY OTHER OF THE SECURITY DOCUMENTS, ANY RELATED INSTRUMENT
OR AGREEMENT, ANY COLLATERAL FOR THE PAYMENT HEREOF OR THE DEALINGS OR
THE RELATIONSHIP BETWEEN OR AMONG SUCH PERSONS OR ENTITIES, OR ANY OF
THEM. NEITHER LENDER, BORROWER NOR ANY GUARANTOR OR ANY SUCH OTHER
PERSON OR ENTITY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION, IN WHICH A
JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY TRIAL
CANNOT BE OR HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE
BEEN FULLY DISCUSSED BY THE PARTIES HERETO, AND THE PROVISIONS HEREOF
SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH
OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS PARAGRAPH
WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
IN WITNESS WHEREOF, the Borrower has executed this Promissory Note as
of the date and year first above written.
CAX RIVERSIDE, L.L.C.,
a Delaware limited liability company
By: COMMERCIAL ASSETS, INC.,
a Delaware corporation
By: /s/Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx
Its: Chief Financial Officer
Its: Member and Manager
FLORIDA DOCUMENTARY STAMP TAXES REQUIRED TO BE PAID ON ACCOUNT OF THE
INDEBTEDNESS EVIDENCED HEREBY HAVE BEEN PAID AND THE DOCUMENTARY STAMPS SO
PURCHASED HAVE BEEN AFFIXED TO THE MORTGAGE SECURING THIS NOTE.
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