PROMISSORY NOTE (Mortgage Loan)
(Mortgage
Loan)
|
$6,035,000.00
|
Framingham,
Massachusetts
|
|
February
____, 2006
|
FOR
VALUE
RECEIVED,
BAY STATE REALTY HOLDINGS, INC.,
a
Massachusetts corporation ("Borrower"), whose address is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ promises to pay to FORD
MOTOR CREDIT COMPANY,
a
Delaware corporation ("Lender"), or order, at 2nd
Floor
Southboro Place, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such
other place as Lender may designate in writing, the principal sum of SIX MILLION
THIRTY FIVE THOUSAND DOLLARS ($6,035,000.00), together with interest on the
principal balance outstanding from time to time (the "Principal Balance"),
in
accordance with the terms and conditions of this Promissory Note (this
"Note"):
1. Definitions.
Unless
otherwise specifically defined herein, the capitalized terms used herein shall
have meanings set forth in the Mortgage (as defined below). The following terms
shall have the meanings set forth below:
(a) The
term
"Alternative Applicable Interest Rate" means the interest rate of three percent
(3%) per annum over the Applicable Interest Rate.
(b) The
term
"Anniversary Date" means the same month and day as the first Payment Date
occurring in subsequent calendar years.
(c) The
term
"Applicable Interest Rate" means the interest rate of 2.75% per annum above
the
LIBOR Rate in effect from time to time.
(d) The
term
"LIBOR Rate" means a rate calculated on the last day of each calendar month
equal to the arithmetic average of the London Interbank Offered Rates (LIBOR)
(expressed as a percentage per annum and rounded upward, if necessary, to the
next nearest one thousandth of 1%) for deposits in U.S. dollars, for a one-month
period, that are quoted
each Monday for the preceding Friday during that calendar month under the "Money
Rates Column" of the Wall
Street Journal,
or as
published in such other publications as Lender may designate. In the event
such
rate is not quoted on Monday for the previous Friday, the rate quoted on the
first business day of the week for the last business day of the previous week
shall be utilized.
(e) The
term
"Maturity Date" means the Payment Date 5 years after the first Payment Date.
(f) The
term
"Mortgage" means the Mortgage, Assignment of Leases and Rents, Security
Agreement and Fixture Filing dated as of even date with this Note from Borrower
to Lender, covering the real and personal property described therein situated
in
Middlesex County, Massachusetts.
(g) The
term
"Payment Date" shall mean the first day of each month during the term or until
the Loan is paid in full.
2.
Interest.
(a)
Borrower shall pay interest on the Principal Balance at the Applicable Interest
Rate or the Alternative Applicable Interest Rate, as the case may be, as set
forth below. Interest will be calculated on the basis of a 360-day year. For
purposes of computing interest on the Principal Balance, the Applicable Interest
Rate or Alternative Applicable Interest Rate, as the case may be, shall change
on the first day of each month during the term hereof, following any month
in
which there is a change in the LIBOR Rate. The Applicable Interest Rate or
Alternative Applicable Interest Rate, as the case may be, in effect on the
first
day of a month shall be deemed to be in effect throughout such month. Each
payment shall be applied first to interest, and the balance to reduction of
the
Principal Balance and all other amounts due under the Transaction
Documents.
(b) Time
is
of the essence hereof. If the Principal Balance, interest or other sum due
hereunder is not paid within ten (10) days of when due, Borrower shall pay
to
Lender a late charge payment equal to five percent (5%) of the amount of such
installment or the maximum rate permitted by law, whichever is less. Borrower
shall pay interest on the outstanding Principal Balance at the Alternative
Applicable Interest Rate (1) upon the occurrence of an Event of Default under
the Transaction Documents and thereafter until such Event of Default is cured,
or (2) upon the failure by Borrower to pay the final payment in full under
this
Note on the Maturity Date even though Lender does not declare an Event of
Default, or (3) upon the termination by Lessee of its line of credit with Lender
for financing ▇▇▇▇▇▇'s new motor vehicle inventory.
(c) Notwithstanding
any provision of the Transaction Documents, the total liability of Borrower
under this Note for Interest Payments shall not exceed the Legal Rate. In the
event the Interest Payments for any month or other interest payment period
exceed the Legal Rate, Lender shall apply all Interest Payments collected in
excess of the Legal Rate for the period in question to the outstanding Principal
Balance as of the date of receipt. Further, upon notice to Borrower, Lender
may
waive, reduce or limit the collection of any Interest Payments in excess of
the
Legal Rate.
3.
Amortization
and Repayment.
(a)
From the date hereof to and including the Maturity Date, Borrower shall pay
Lender the Principal Balance and interest thereon as follows:
(1) an
interest only payment at the Applicable Interest Rate or Alternative Applicable
Interest Rate, as the case may be, on the unpaid Principal Balance outstanding
from the date hereof through the last day of the first month of the term hereof,
payable on the first Payment Date; and
(2) 59
unequal, consecutive monthly installments of principal in the amounts set forth
on Schedule A attached hereto, plus interest at the Applicable Interest Rate
or
the Alternative Applicable Interest Rate, as the case may be, on the unpaid
Principal Balance outstanding, commencing on the second Payment Date, and
continuing monthly thereafter on each Payment Date; and
-2-
(3) on
the
Maturity Date, a final installment equal to the unpaid Principal Balance,
accrued and unpaid interest thereon and any and all other payments due under
this Note and the Transaction Documents.
(b) Borrower
may prepay all or a portion of the Principal Balance upon payment of all
interest accrued on the outstanding Principal Balance through the day of
prepayment and all other charges, and a prepayment premium equal to the
Principal Balance then being prepaid, multiplied by
(1)
3.0%, if such prepayment is made on or before the first Anniversary Date, (2)
2.0%, if such prepayment is made after the first Anniversary Date, but on or
before the fourth Anniversary Date, or (3) 1.0%, if such prepayment is made
after the fourth Anniversary Date, but more than 15 days prior to the Maturity
Date; provided, however, that Borrower may prepay without premium up to 5.0%
of
the original principal amount of this Note during any calendar year. Provided
that no Event of Default has occurred and is continuing, Borrower will not
be
responsible for a prepayment premium if the prepayment of the Principal Balance
is the result of a Casualty, Condemnation or Taking of the Property. Borrower
will be responsible for the applicable prepayment premium if the Principal
Balance is prepaid in whole or in part as a result of an acceleration of the
Principal Balance upon the occurrence of any Event of Default. Borrower shall
make all prepayments of the Principal Balance on a Payment Date. Lender shall
apply all prepayments first to interest and then to principal.
4. Security.
This
Note is secured by the Mortgage and the other Transaction Documents, which
state
the rights and obligations of the parties to the Property and other collateral
and provides for acceleration of the Principal Balance and other remedies upon
the occurrence of an Event of Default. The terms and conditions of the Mortgage
and all other Transaction Documents, other than this Note, are incorporated
herein by reference.
5. Assignment
and Participation.
(a) Without
in any way limiting any rights of Lender under the Mortgage or the other
Transaction Documents, Lender may, without the consent of Borrower, assign
to
one or more persons all or a portion of its rights and obligations under this
Note and the Loan. Upon such assignment, from and after the effective date
thereof, the assignee thereunder shall be a party hereto and shall have the
rights and obligations of Lender hereunder, and ▇▇▇▇▇▇ shall have no further
obligations or rights hereunder.
(b) Without
in any way limiting any rights of Lender under the Mortgage or the other
Transaction Documents, Lender may, without the consent of Borrower, sell
participations to one or more persons in or to all or a portion of its rights
and obligations under this Note and the Loan; provided, however, that (1)
Lender’s obligations under this Note shall remain unchanged, (2) Lender shall
remain solely responsible to Borrower for the performance of such obligations,
(3) Lender shall remain the holder of this Note for all purposes of this Note;
and (4) Borrower shall continue to deal solely and directly with Lender in
connection with Lender’s rights and obligations under and in respect of this
Note, the Mortgage and the other Transaction Documents.
(c) Without
in any way limiting any rights of Lender under the Mortgage or the other
Transaction Documents, Lender may, without the consent of Borrower, in
connection with any assignment or participation or proposed assignment or
participation pursuant to this subsection, disclose to the assignee or
participant or proposed assignee or participant, as the case may be, any
information relating to Borrower or any of its affiliates or to any aspect
of
the Loan or the Property that has been furnished to Lender by or on behalf
of
Borrower or any of its affiliates.
-3-
6. Miscellaneous.
(a) This
instrument shall be governed by and construed according to the laws of the
Commonwealth of Massachusetts.
(b) Whenever
used, the singular shall include the plural, the plural shall include the
singular, and the words "Lender" and "Borrower" shall be deemed to include
their
respective heirs, administrators, executors, successors and
assigns.
(c) In
the
event any one or more of the provisions hereof shall be invalid, illegal or
unenforceable in any respect, the validity of the remaining provisions hereof
shall be in no way affected, prejudiced or disturbed thereby.
(d) The
terms
and conditions of this Note may be changed, waived, discharged or terminated
only by an instrument in writing signed by the party against which enforcement
of such change, waiver, discharge or termination is asserted, and then such
modification, waiver, discharge or termination shall be effective only in the
specific instance and for the specific purpose given.
(e) Borrower
shall pay all costs and expenses in connection with the preparation, execution,
delivery and performance of this Note and the other Transaction Documents,
including without limitation, reasonable fees and expenses of its and ▇▇▇▇▇▇'s
counsel, taxes, documentary stamps and recording and filing fees and expenses.
(f) This
Note
and the other Transaction Documents constitute the sole and entire agreement
of
the parties with respect to the subject matter thereof.
(g) Borrower
waives
(1) presentment and demand for payment of any Indebtedness, except as otherwise
provided in the Transaction Documents; (2) protest, notice of protest and
nonpayment, notice of demand and dishonor and notice of acceleration with
respect to the Indebtedness or the Transaction Documents; (3) notice of costs,
expenses or losses and interest thereon, and notice of late charges; (4)
diligence
in taking any action to collect the Indebtedness or in proceeding against the
Property or any other collateral securing payment of this Note;
(5)
all
exemptions, whether homestead or otherwise, as to the Indebtedness and the
Obligations;
(6)
any
right
to require Lender to proceed against any other party or person or any collateral
before proceeding against Borrower or any other party;
and (7)
all other rights and defenses, the assertion or exercise of which would in
any
way diminish the liability of Borrower hereunder. Lender
may apply all funds made available to it from the proceeds of the disposition
of
any collateral or by the exercise of the right of set off either to the
Indebtedness or the Obligations, as Lender may elect from time to time.
(h) BORROWER
ACKNOWLEDGES THAT INTEREST IN THIS NOTE IS TO BE CALCULATED BY LENDER ON THE
BASIS OF A THREE HUNDRED SIXTY (360) DAY YEAR AND IS FULLY AWARE THAT SUCH
CALCULATIONS MAY RESULT IN AN ACCRUAL AND/OR PAYMENT OF INTEREST IN AMOUNTS
GREATER THAN CORRESPONDING INTEREST CALCULATIONS BASED ON A THREE HUNDRED
SIXTY-FIVE (365) DAY YEAR.
(i) ▇▇▇▇▇▇▇▇
AND ▇▇▇▇▇▇ ▇▇▇▇▇, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL
BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR
OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE LOAN, THE APPLICATION FOR
THE
LOAN, THIS NOTE, THE MORTGAGE OR THE OTHER TRANSACTION DOCUMENTS OR ANY ACTS
OR
OMISSIONS OF LENDER, ITS OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS IN CONNECTION
THEREWITH.
-4-
(j) Borrower
recognizes that the occurrence of an Event of Default, including without
limitation, its failure to make any payment when due as provided herein or
in
any other Transaction Document, will require Lender to incur additional expense
in servicing and administering the Loan, in loss to Lender of the use of the
money due and in frustration to Lender in meeting its other financial and loan
commitments and that the damages caused thereby would be extremely difficult
and
impractical to ascertain. Borrower agrees (1) that an amount equal to the late
charge under Section 2 plus the accrual of interest at the Alternative
Applicable Interest Rate is a reasonable estimate of the damage to Lender in
the
event of a late payment, and (2) that the accrual of interest at the Alternative
Applicable Interest Rate following any other Event of Default is a reasonable
estimate of the damage to Lender in the event of such other Event of Default,
regardless of whether there has been an acceleration of the Loan. Nothing in
this Note shall be construed as an obligation on the part of Lender to accept,
at any time, less than the full amount then due hereunder, or as a waiver or
limitation of ▇▇▇▇▇▇'s right to compel prompt performance.
(k) Upon
notice from Lender to Borrower of the loss, theft, destruction or mutilation
of
this Note and, upon receipt of indemnity reasonably satisfactory to Borrower
from Lender or, in the case of mutilation hereof, upon surrender of the
mutilated Note, Borrower will make and deliver a new note of like tenor in
lieu
of this Note.
Borrower,
intending to be legally bound hereby, has duly executed this Note on the day
and
year first above written.
| BORROWER: | ||
|
BAY
STATE REALTY HOLDINGS, INC.,
a Massachusetts corporation
|
||
| |
|
|
| By: | ▇▇▇▇▇ ▇▇▇▇▇▇, President | |
|
|
||
| By: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Secretary | |
|
|
||
-5-
SCHEDULE
A
Monthly
Installments of Principal
|
|
Payment
|
|
|
No.
|
Date
|
Principal
|
|
1
|
4/1/2006
|
11,265.21
|
|
2
|
5/1/2006
|
11,333.08
|
|
3
|
6/1/2006
|
11,401.37
|
|
4
|
7/1/2006
|
11,470.06
|
|
5
|
8/1/2006
|
11,539.17
|
|
6
|
9/1/2006
|
11,608.69
|
|
7
|
10/1/2006
|
11,678.63
|
|
8
|
11/1/2006
|
11,749.00
|
|
9
|
12/1/2006
|
11,819.78
|
|
10
|
1/1/2007
|
11,891.00
|
|
11
|
2/1/2007
|
11,962.64
|
|
12
|
3/1/2007
|
12,034.72
|
|
13
|
4/1/2007
|
12,107.22
|
|
14
|
5/1/2007
|
12,180.17
|
|
15
|
6/1/2007
|
12,253.56
|
|
16
|
7/1/2007
|
12,327.38
|
|
17
|
8/1/2007
|
12,401.66
|
|
18
|
9/1/2007
|
12,476.38
|
|
19
|
10/1/2007
|
12,551.55
|
|
20
|
11/1/2007
|
12,627.17
|
|
21
|
12/1/2007
|
12,703.25
|
|
22
|
1/1/2008
|
12,779.79
|
|
23
|
2/1/2008
|
12,856.78
|
|
24
|
3/1/2008
|
12,934.25
|
|
25
|
4/1/2008
|
13,012.17
|
|
26
|
5/1/2008
|
13,090.57
|
|
27
|
6/1/2008
|
13,169.44
|
|
28
|
7/1/2008
|
13,248.79
|
|
29
|
8/1/2008
|
13,328.61
|
|
30
|
9/1/2008
|
13,408.92
|
|
31
|
10/1/2008
|
13,489.71
|
|
32
|
11/1/2008
|
13,570.98
|
|
33
|
12/1/2008
|
13,652.75
|
|
34
|
1/1/2009
|
13,735.01
|
|
35
|
2/1/2009
|
13,817.76
|
|
36
|
3/1/2009
|
13,901.01
|
|
37
|
4/1/2009
|
13,984.76
|
|
38
|
5/1/2009
|
14,069.02
|
|
39
|
6/1/2009
|
14,153.79
|
|
40
|
7/1/2009
|
14,239.07
|
|
41
|
8/1/2009
|
14,324.86
|
|
42
|
9/1/2009
|
14,411.16
|
|
43
|
10/1/2009
|
14,497.99
|
|
44
|
11/1/2009
|
14,585.34
|
|
45
|
12/1/2009
|
14,673.22
|
|
46
|
1/1/2010
|
14,761.62
|
|
47
|
2/1/2010
|
14,850.56
|
|
48
|
3/1/2010
|
14,940.04
|
|
49
|
4/1/2010
|
15,030.05
|
|
50
|
5/1/2010
|
15,120.61
|
|
51
|
6/1/2010
|
15,211.71
|
|
52
|
7/1/2010
|
15,303.36
|
|
53
|
8/1/2010
|
15,395.56
|
|
54
|
9/1/2010
|
15,488.32
|
|
55
|
10/1/2010
|
15,581.64
|
|
56
|
11/1/2010
|
15,675.52
|
|
57
|
12/1/2010
|
15,769.96
|
|
58
|
1/1/2011
|
15,864.98
|
|
59
|
2/1/2011
|
15,960.56
|
-6-