EXHIBIT 10.2
LOAN NO. 6517804
FOLSOM DEED OF TRUST NOTE
$4,910,000.00 August 2, 2002
FOR VALUE RECEIVED, WCRI, LLC, a California limited liability company,
having its principal place of business at 0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0 Xxxxx
000, Xxxxx Xxxx, XX 00000 (hereinafter referred to as "Maker"), promises to pay
to the order of XXXX XXXXXXX LIFE INSURANCE COMPANY ("Xxxx Xxxxxxx"), a
Massachusetts corporation, its successors and assigns, at its principal place of
business at Xxxx Xxxxxxx Tower, T-00, 000 Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (Xxxx Xxxxxxx and each successor or assign being hereinafter
referred to as "Payee"), or at such place as the holder hereof may from time to
time designate in writing, the principal sum of Four Million Nine Hundred Ten
Thousand and 00/100 Dollars ($4,910,000.00) in lawful money of the United States
of America with interest thereon to be computed from the date of disbursement of
the loan proceeds at the Applicable Interest Rate (hereinafter defined).
1. Payment of Principal and Interest. Principal and interest shall be
paid as follows:
a. If the loan proceeds are not disbursed on the first day of a
month, then interest only at the Applicable Interest Rate from
and including the date of disbursement of the loan proceeds to
the first day of the month following such disbursement shall be
due and payable in advance on the date of such disbursement;
b. Principal and interest is to be paid in installments as follows:
$32,567.49 on the 1st day of October, 2002, and on the first day
of each calendar month thereafter up to and including the 1st
day of August 1, 2009; and
c. The outstanding principal balance and all accrued and unpaid
interest thereon and all other sums and fees due under this Note
shall be due and payable on September 1, 2009 (the "Maturity
Date").
Interest on the principal balance of this Note shall be calculated on a
monthly basis using, as the agreed method of calculation, a three hundred sixty
(360) day year consisting of twelve (12) months of thirty (30) days each;
provided, however, that interest for a period of less than a full month shall be
calculated by multiplying the actual number of days elapsed during such partial
month by a daily rate based upon a three hundred sixty-five (365) day year and
the interest rate then due under this Note.
The term "Applicable Interest Rate" as used in this Note shall mean from
the date of disbursement of the loan proceeds through and including the Maturity
Date, a rate of 6.97% per annum.
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WEST COAST REALTY
(FOLSOM)
If at any time Payee receives, from Maker or otherwise, any amount
applicable to the Debt (hereinafter defined) which is less than all amounts due
and payable at such time, Payee may apply that payment to amounts then due and
payable in any manner and in any order determined by Xxxxx, in Xxxxx's sole
discretion. Payee shall, however, be under no obligation to accept any amount
less than all amounts then due and payable. Maker agrees that neither Xxxxx's
acceptance of a payment from Maker in an amount that is less than all amounts
then due and payable nor Payee's application of such payment shall constitute or
be deemed to constitute either a waiver of the unpaid amounts or an accord and
satisfaction. This provision shall control notwithstanding any inconsistent
direction by Maker or any other obligor hereunder.
The whole of the principal sum of this Note, together with all interest
accrued and unpaid thereon and all other sums due under this Note and any of the
other Loan Documents (hereinafter defined) (all such sums hereinafter
collectively referred to as the "Debt") shall without notice become immediately
due and payable at the option of Payee on the happening of an "Event of Default"
as the same is defined in the Folsom Deed of Trust (hereinafter defined). All of
the terms, covenants and conditions contained in the Folsom Deed of Trust and
the other Loan Documents are hereby made part of this Note to the same extent
and with the same force as if they were fully set forth herein.
2. Prepayment. Except as provided below, Maker may not prepay the loan
evidenced by this Note (the "Folsom Loan") in whole or in part.
On or after the end of the third (3rd) Loan Year (as hereinafter
defined), on any scheduled payment date and subject to giving Payee not less
than thirty (30) nor more than ninety (90) days' prior written notice specifying
the scheduled payment date on which prepayment is to be made (the "Prepayment
Date"), Maker may prepay the entire principal amount together with any and all
accrued interest and other sums due under the Loan Documents (as defined in the
Folsom Deed of Trust), and subject to payment of a prepayment premium equal to
1.00% of the principal balance of this Note immediately prior to such
prepayment.
The Folsom Loan will be open to prepayment without premium on any
scheduled payment date during the last ninety (90) days of the term of the
Folsom Loan.
If any notice of prepayment is given, the principal balance of the
Folsom Loan and the other sums required pursuant to this Section 2 shall be due
and payable on the Prepayment Date, unless Maker provides written notice to
Payee that it is revoking said prepayment notice no later than five (5) business
days prior to the Prepayment Date.
Provided no default exists under the Loan Documents, the above premium
shall not be applicable to a prepayment resulting from Xxxxx's election to
require insurance loss proceeds or condemnation awards to be applied to a
payment of principal.
No partial prepayment shall be allowed.
The Loan Year is defined as any twelve month period commencing with the
date on which the first monthly installment is due or any anniversary thereof.
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Maker hereby expressly (a) waives any right it may have under California
Civil Code Section 2954.10 to prepay this Note in whole or in part, without
premium, prior to the end of the third (3rd) Loan Year; and (b) agrees that if a
prepayment of any or all of this Note is made prior to the end of the third
(3rd) Loan Year, Maker shall be obligated to pay, concurrently therewith, the
prepayment amount, if any, that would be required hereunder. By initialing this
provision in the space provided below, Maker hereby declares that Xxxxx's
agreement to make the subject loan at the interest rate and for the term set
forth herein constitutes adequate consideration, given individual weight by the
undersigned, for this waiver and agreement.
/s/ AKM /s/ CPW
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Initials of Xxxxx X. Xxxxxxxx Initials Xxxxxxx X. Xxxxxxx
Notwithstanding the provisions of this Note to the contrary, no
prepayment of the Folsom Loan shall be permitted under this Section 2 (excepting
only a prepayment in connection with the Payee's decision to apply insurance
proceeds or condemnation awards to the Debt in accordance with the provisions of
the Loan Documents and except as otherwise provided in the Folsom Deed of Trust)
unless all of the other Crossed Loans (as defined in the Folsom Deed of Trust)
then remaining subject to the Folsom Deed of Trust are concurrently repaid
pursuant to and in accordance with the applicable provisions of the respective
promissory note evidencing each such Crossed Loan.
3. Acceleration/Default. Maker acknowledges that the Folsom Loan was
made on the basis and assumption that Xxxxx would receive the payments of
principal and interest set forth herein for the full term of this loan.
Therefore, whenever the Maturity Date of the Folsom Loan has been accelerated by
reason of an Event of Default under the Loan Documents, which Event of Default
occurs prior to the time period, if any, in which prepayment is allowed and
prior to the date on which the full amount of the balance of principal and
interest then remaining unpaid shall be due, including an acceleration by reason
of sale, conveyance, further encumbrance or other Event of Default (which
acceleration shall be at Payee's sole option), there shall be due, in addition
to the outstanding principal balance, accrued interest and other sums due under
the Loan Documents, a premium equal to the greater of:
(a) The sum obtained by adding:
(i) the positive amount, if any, equal to (aa) the sum of the
present values of all scheduled payments due under this Note
from the date of said payment to and including the Maturity Date
of this Note, minus (bb) the then outstanding principal balance
of this Note, and
(ii) 5.00% of the then outstanding principal balance of this Note; or
(b) An amount equal to 10.00% of the then outstanding principal balance
of this Note.
All present values shall be calculated as of the date of said payment,
using a discount rate, compounded monthly, equal to the yield rate, converted to
its monthly equivalent,
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of the United States Treasury Security having the closest maturity date to the
Maturity Date of this Note as established in the Wall Street Journal or other
business publication of general circulation five (5) business days before the
date of said payment. In the event that the yield rate on publicly traded United
States Treasury Securities is not obtainable, then the nearest equivalent issue
or index shall be selected, at Payee's reasonable determination, and used to
calculate the prepayment premium.
If an Event of Default occurs on or after the date on which prepayment
is permitted, then in lieu of the above premium, payment of a premium calculated
in the manner set forth in Section 2 hereof shall be required.
A tender of the amount necessary to satisfy the entire indebtedness,
paid at any time following such Event of Default or acceleration, including at a
foreclosure sale or during any subsequent redemption period, if any, shall be
deemed a voluntary prepayment, and, at Payee's option, such payment shall
include a premium as described above.
Maker hereby expressly (a) waives any right it may have under California
Civil Code Section 2954.10 to prepay this Note in whole or in part, without
premium, upon acceleration of the Maturity Date of this Note; and (b) agrees
that if a prepayment of any or all of this Note is made, following any
acceleration of the Maturity Date of this Note by Payee on account of any
transfer or disposition prohibited or restricted herein or by the Folsom Deed of
Trust (as hereinafter defined) or for any other reason, Maker shall be obligated
to pay, concurrently therewith, the prepayment amount, if any, that would be
required hereunder. By initialing this provision in the space provided below,
Maker hereby declares that Xxxxx's agreement to make the subject loan at the
interest rate and for the term set forth herein constitutes adequate
consideration, given individual weight by the undersigned, for this waiver and
agreement.
/s/ AKM /s/ CPW
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Initials of Xxxxx X. Xxxxxxxx Initials Xxxxxxx X. Xxxxxxx
4. Default Rate. Maker does hereby agree that upon the occurrence of an
Event of Default and while any Event of Default exists, including, without
limitation, the failure of Maker to pay the Debt in full on the Maturity Date,
Payee shall be entitled to receive and Maker shall pay interest on the entire
unpaid principal sum, effective from the date of Maker's initial default with
respect to such Event of Default without allowance for any applicable notice
and/or grace period, at a rate (the "Default Rate") equal to seven percent (7%)
above the Applicable Interest Rate, but in no event to exceed the highest rate
permitted under the laws of the jurisdiction where the property secured by the
Folsom Deed of Trust is situated. This charge shall be added to the Debt, and
shall be deemed secured by the Folsom Deed of Trust. This clause, however, shall
not be construed as an agreement or privilege to extend the date of the payment
of the Debt, nor as a waiver of any other right or remedy available to Payee by
reason of the occurrence of any Event of Default.
5. Late Charge. If any monthly principal and interest payment payable
under this Note is not paid in full within five (5) days of the date on which it
is due, Maker shall pay to
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Payee an amount equal to the lesser of five percent (5%) of such unpaid sum or
the maximum amount permitted by applicable law to defray the expenses incurred
by Payee in handling and processing such delinquent payment and to compensate
Payee for the loss of the use of such delinquent payment and such amount shall
be secured by the Loan Documents.
6. Security for Loan. This Note is secured by the Folsom Deed of Trust
and the other Loan Documents. The Folsom Deed of Trust and the other Loan
Documents contain provisions providing for acceleration of the sums secured
thereby in the event of certain transfers of or encumbrances upon the real
estate or interests therein or interests in Maker, which provisions are
incorporated herein by this reference.
7. Compliance with Law. It is expressly stipulated and agreed to be the
intent of Maker and Payee at all times to comply with applicable state law or
applicable United States federal law (to the extent that it permits Payee to
contract for, charge, take, reserve or receive a greater amount of interest than
under state law) and that this paragraph shall control every other covenant and
agreement in this Note and the other Loan Documents. If the applicable law
(state or federal) is ever judicially interpreted so as to render usurious any
amount called for under this Note or any of the other Loan Documents, or
contracted for, charged, taken, reserved or received with respect to the Debt,
or if Payee's exercise of the option to accelerate the Maturity Date, or if any
prepayment by Maker results in Maker's having paid any interest in excess of
that permitted by applicable law, then it is Payee's express intent that all
excess amounts theretofore collected by Xxxxx shall be credited on the principal
balance of this Note and all other Debt and the provisions of this Note, and the
other Loan Documents immediately be deemed reformed and the amounts thereafter
collectible hereunder and thereunder reduced, without the necessity of the
execution of any new documents, so as to comply with the applicable law, but so
as to permit the recovery of the fullest amount otherwise called for hereunder
or thereunder. All sums paid or agreed to be paid to Payee for the use or
forbearance of the Debt shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full stated term of the
Debt until payment in full so that the rate or amount of interest on account of
the Debt does not exceed the maximum lawful rate from time to time in effect and
applicable to the Debt for so long as the Debt is outstanding. Notwithstanding
anything to the contrary contained herein, in the Folsom Deed of Trust or in any
of the other Loan Documents, it is not the intention of Payee to accelerate the
maturity of any interest that has not accrued at the time of such acceleration
or to collect unearned interest at the time of such acceleration.
8. Amendments. This Note may not be modified, amended, waived, extended,
changed, discharged or terminated orally or by any act or failure to act on the
part of Maker or Payee, but only by an agreement in writing signed by the party
against whom enforcement of any modification, amendment, waiver, extension,
change, discharge or termination is sought.
9. Joint and Several Liability. If Maker consists of more than one
person or party, the obligations and liabilities of each such person or party
shall be joint and several.
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10. Construction. Whenever used, the singular number shall include the
plural, the plural the singular, and the words "Payee" and "Maker" shall include
their respective successors, assigns, heirs, executors and administrators.
11. Waivers. Maker and all others who may become liable for the payment
of all or any part of the Debt do hereby severally waive presentment and demand
for payment, notice of dishonor, protest, notice of protest and non-payment and
notice of intent to accelerate the maturity hereof (and of such acceleration).
No release of any security for the Debt or extension of time for payment of this
Note or any installment hereof and no alteration, amendment or waiver of any
provision of this Note, the Folsom Deed of Trust or any other Loan Documents
made by agreement between Payee and any other person or party shall release,
modify, amend, waive, extend, change, discharge, terminate or affect the
liability of Maker and any other who may become liable for the payment of all or
any part of the Debt, under this Note, the Folsom Deed of Trust or any other
Loan Documents.
12. Authority. Maker (and the other undersigned representative of Maker,
if any) represents that Maker has full power, authority and legal right to
execute, deliver and perform its obligations pursuant to this Note, the Folsom
Deed of Trust and the other Loan Documents and that this Note, the Folsom Deed
of Trust and the other Loan Documents constitute valid and binding obligations
of Maker.
13. Time. Time is of the essence of this Note.
14. Replacement Note. In the event of the loss, theft or destruction of
this Note, upon Maker's receipt of a reasonably satisfactory indemnification
agreement executed in favor of Maker by Xxxxx or in the event of the mutilation
of this Note, upon the surrender of the mutilated Note by Xxxxx to Maker, Maker
shall execute and deliver to Payee a new deed of trust note in form and content
identical to this Note in lieu of the lost, stolen, destroyed or mutilated Note.
15. Notice. All notices required to be given pursuant hereto shall be
given in the manner specified in the Folsom Deed of Trust directed to the
parties at their respective addresses as provided therein.
16. Costs and Expenses. Maker shall pay all reasonable expenses and
costs, including fees and out-of-pocket expenses of attorneys and expert
witnesses and costs of investigation, incurred by Xxxxx as a result of any Event
of Default or in connection with efforts to collect any amount due under this
Note or to enforce the provisions of any of the Loan Documents, including those
incurred in post-judgment collection efforts and in any bankruptcy proceeding
(including any action for relief from the automatic stay of any bankruptcy
proceeding) or judicial or non-judicial foreclosure proceeding.
17. Forbearance. Any forbearance by Payee in exercising any right or
remedy under this Note, the Folsom Deed of Trust or any other Loan Document or
otherwise afforded by applicable law shall not be a waiver of or preclude the
exercise of that or any other right or remedy. The acceptance by Payee of any
payment after the due date of such payment or in an
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amount which is less than the required payment shall not be a waiver of Payee's
right to require prompt payment when due of all other payments or to exercise
any right or remedy with respect to any failure to make prompt payment.
Enforcement by Payee of any security for Maker's obligations under this Note
shall not constitute an election by Xxxxx of remedies so as to preclude the
exercise of any other right or remedy available to Payee.
18. Section Headings. The Section headings inserted in this Note have
been included for convenience only and are not intended and shall not be
construed to limit or define in any way the substance of any section contained
herein.
19. Limitation on Liability. Notwithstanding anything to the contrary
contained herein, but subject to the obligations of Paragraph 45 of the Folsom
Deed of Trust, any claim based on or in respect of any liability of Maker under
this Note, the Folsom Deed of Trust or any other Loan Document shall be enforced
only against the Collateral Properties (as such term is defined in the Folsom
Deed of Trust) and any other collateral now or hereafter given to secure this
Note and not against any other assets, properties or funds of Maker; provided,
however, that the liability of Maker for loss, costs or damage arising out of
the matters described in the subsections below (collectively, "Non-Recourse
Carveout Obligations") shall not be limited solely to the Collateral Properties
and other collateral now or hereafter given to secure this Note but shall
include all of the assets, properties and funds of Maker: (i) fraud, material
misrepresentation and waste, (ii) any rents, issues or profits collected more
than one (1) month in advance of their due dates, (iii) any misapplication of
rents, issues or profits, security deposits and any other payments from tenants
or occupants (including, without limitation, lease termination fees), insurance
proceeds, condemnation awards or other sums of a similar nature, (iv) liability
under environmental covenants, conditions and indemnities contained in the Loan
Documents and in any separate environmental indemnity agreements, (v) personalty
or fixtures attached to or used in the operations of any of the Collateral
Properties removed or allowed to be removed by or on behalf of Maker and not
replaced by items of equal or greater value or functionality than the personalty
or fixtures so removed, (vi) failure to pay taxes, assessments or ground rents
prior to delinquency, or to pay charges for labor, materials or other charges
which can create liens on any portion of the Collateral Properties and any sums
expended by Payee in the performance of or compliance with the obligations of
Maker under the Loan Documents, including, without limitation, sums expended to
pay taxes or assessments or hazard insurance premiums or bills for utilities or
other services or products for the benefit of the Collateral Properties, (vii)
the sale, conveyance or transfer of title to the Collateral Properties or
encumbrance of the Collateral Properties, except as specifically provided
pursuant to the terms and conditions set forth in the Loan Documents, (viii)
[Intentionally Deleted], and (ix) attorney's fees, court costs and other
expenses incurred by Xxxxx in connection with enforcement of Maker's personal
liability as set forth herein. Nothing herein shall be deemed (w) to be a waiver
of any right which Payee may have under any bankruptcy law of the United States
or the State of California including, but not limited to, Section 506(a),
506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a
claim for the full amount of the indebtedness secured by the Folsom Deed of
Trust or to require that all collateral securing the indebtedness secured hereby
shall continue to secure all of the indebtedness owing to Payee in accordance
with this Note, the Folsom Deed of Trust and the other Loan Documents; (x) to
impair the validity of the indebtedness secured by the Folsom Deed of Trust; (y)
to impair the right of Payee as mortgagee
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or secured party to commence an action to foreclose any lien or security
interest; or (z) to modify, diminish or discharge the liability of any guarantor
under any guaranty or of any indemnitor under any indemnity agreement.
20. WAIVER OF JURY TRIAL. PAYEE AND MAKER DO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHT TO A TRIAL BY JURY WITH RESPECT
TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS NOTE, THE FOLSOM DEED OF TRUST, ANY OF THE OTHER LOAN DOCUMENTS, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER ORAL OR WRITTEN) OR ANY
ACTION OF EITHER PARTY ARISING OUT OF OR RELATED IN ANY MANNER TO THIS NOTE, THE
LOAN EVIDENCED HEREBY, THE OTHER LOAN DOCUMENTS OR THE PROPERTY ENCUMBERED BY
THE LOAN DOCUMENTS (INCLUDING WITHOUT LIMITATION, ANY ACTION TO RESCIND OR
CANCEL THIS NOTE AND ANY CLAIMS OR DEFENSES ASSERTING THAT THIS NOTE WAS
FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS WAIVER IS A
MATERIAL INDUCEMENT FOR THE DELIVERY AND ACCEPTANCE OF THIS NOTE AND SHALL
SURVIVE THE CLOSING OR ANY TERMINATION OF THIS NOTE OR THE OTHER LOAN DOCUMENTS.
21. Governing Law. This Note shall be governed and construed in
accordance with the laws of the State of California, without regard to
applicable conflict of laws rules, and the applicable laws of the United States
of America.
22. Certain Definitions. Capitalized terms not otherwise defined in this
Note shall have the meanings assigned to them in the Folsom Deed of Trust. As
used in this Note, the following terms shall have the meanings:
(a) Folsom Deed of Trust shall mean that certain Deed of Trust,
Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as
of the date hereof, made by Maker to Commonwealth Land Title Land Title
Insurance Company as trustee for the use and benefit of Payee covering certain
premises located at 000 Xxxx Xxxxxx Xxxx, Xxxxxx, XX 00000, as more particularly
described therein.
23. Counterparts. To facilitate execution, this Note may be executed in
as many counterparts as may be convenient or required. It shall not be necessary
that the signature of, or on behalf of, each party, or that the signature of all
persons required to bind any party, appear on each counterpart. All counterparts
shall collectively constitute a single instrument. It shall not be necessary in
making proof of this Note to produce or account for more than a single
counterpart containing the respective signatures of, or on behalf of, each of
the parties hereto. Any signature page to any counterpart may be detached from
such counterpart without impairing the legal effect of the signatures thereon
and thereafter attached to another counterpart identical thereto except having
attached to it additional signature pages.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
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EXHIBIT 10.2
LOAN NO. 6517804
[SIGNATURE APPEARS ON NEXT PAGE]
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IN WITNESS WHEREOF, Xxxxx has duly executed and delivered this Note
under seal the day and year first above written.
WCRI, LLC
By: WEST COAST REALTY INVESTORS, INC.,
a Delaware corporation, its Manager
By /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
President
By /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Secretary/Treasurer
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