Exhibit 10.73
PROMISSORY NOTE
$55,434,006.00
February 28, 2001
FOR VALUE RECEIVED, SFHI, LLC, a
Delaware limited liability company, as maker, having its principal place of business at 4336 Losee Road, #9, North Las Vegas, Nevada 89030 ("Borrower"), hereby unconditionally promises to pay to the order of LEHMAN BROTHERS HOLDINGS INC., D/B/A LEHMAN CAPITAL, A DIVISION OF LEHMAN BROTHERS HOLDINGS INC., a Delaware corporation, having an address at Three World Financial Center, 200 Vesey Street, New York, New York 10285 ("Lender"), or at such other place as the holder hereof may from time to time designate in writing, the principal sum of FIFTY-FIVE MILLION FOUR HUNDRED THIRTY FOUR THOUSAND SIX AND 00/100 ($55,434,006.00) DOLLARS, in lawful money of the United States of America with interest thereon to be computed from the date of this Note at the Applicable Interest Rate (defined below), and to be paid in installments as provided herein.
1. CERTAIN DEFINED TERMS
As used herein the following terms shall have the meanings set forth below:
(a) "Accrual Period" means the period commencing on the eleventh (11th) day of a calendar month and ending on the tenth (10th) day of the succeeding calendar month; provided that if this Note is dated as of any date other than the eleventh (11th) day of a month, the first Accrual Period shall (i) consist of only the date hereof, if the date hereof is the tenth (10th) day of a month, or (ii) commence on the date hereof and shall end on the next tenth (10th) day of a calendar month to occur after the date hereof.
(b) "Applicable Interest Rate" shall mean an interest rate equal to 7.01% per annum.
(c) "Monthly Payment" shall mean, for the Monthly Payment Date occurring on April 11, 2001, a payment equal to $392,835.07, and for each Monthly Payment Date falling within each of the periods set forth below, a payment in the amount set forth next to such period Monthly Payment Dates listed below, including the Monthly Payment Dates listed next to the applicable amount:
(1) May 11, 2001--April 11, 2002: $402,655.95
(2) May 11, 2002--April 11, 2003: $412,722.35
(3) May 11, 2003--April 11, 2004: $423,040.41
(4) May 11, 2004--April 11, 2005: $433,616.42
(5) May 11, 2005--April 11, 2006: $444,456.83
(6) May 11, 2006--April 11, 2007: $455,568.25
(7) May 11, 2007--April 11, 2008: $466,957.46
(8) May 11, 2008--April 11, 2009: $478,631.39
(9) May 11, 2009--April 11, 2010: $490,597.18
(10) May 11, 2010--April 11, 2011: $502,862.11
(11) May 11, 2011--April 11, 2012: $515,433.66
(12) May 11, 2012--April 11, 2013: $528,319.50
(13) May 11, 2013--March 11, 2014: $541,527.49
(d) "Loan" shall mean the loan evidenced by this Note.
(e) "Loan Documents" shall mean this Note, the Security Instrument, and any other documents or instruments which now or shall hereafter wholly or partially secure or guarantee payment of this Note or which have otherwise been executed by Borrower and/or any other person in connection with the Loan.
(f) "Lockout Period Expiration Date" shall mean the earlier of (a) the fourth (4th) anniversary of the date hereof, and (b) two years and one day from the "startup day" of any "real estate mortgage investment conduit" (as such terms are defined in Sections 860G and 860D, respectively, of the
Internal Revenue Code of 1986, as amended or any successor statute thereto) which may acquire the Loan.
(g) "Maturity Date" shall mean April 11, 2014.
(h) "Monthly Payment Date" shall mean the eleventh (11th) day of each calendar month prior to the Maturity Date commencing on (i) the eleventh (11th) day of the next succeeding calendar month after the date hereof if this Note is dated on or prior to the eleventh (11th) day of a month; or (ii) the eleventh (11th) day of the second succeeding calendar month after the date hereof if this Note is dated after the eleventh (11th) day of a month.
(i) "Security Instrument" shall mean the Deed of Trust and Security Agreement dated the date hereof in the principal sum of FIFTY-FIVE MILLION FOUR HUNDRED THIRTY FOUR THOUSAND SIX AND 00/100 ($55,434,006.00) DOLLARS given by Borrower to (or for the benefit of) Lender covering the fee estate of Borrower in certain premises located in Montgomery County, State of Maryland, and other property, as more particularly described therein (collectively, the "Property").
2. PAYMENT TERMS
(a) If this Note is dated as of a date other than the eleventh (11th) day of a calendar month, a payment shall be due from Borrower to Lender on the date hereof on account of all interest scheduled to accrue on the principal sum from and after the date hereof through and including the last day of the current Accrual Period. The Monthly Payment shall be due from Borrower to Lender on each Monthly Payment Date, with each Monthly Payment to be applied as follows: (i) first, to the payment of interest which has accrued during the preceding Accrual Period computed at the Applicable Interest Rate, and (ii) the balance toward the reduction of the principal sum. The balance of the principal sum and all interest thereon shall be due and payable on the Maturity Date. Interest on the principal sum of this Note shall be calculated by multiplying the actual number of days elapsed in the period for which interest is being calculated by a daily rate based on a 360-day year.
(b) Unless payments are made in the required amount in immediately available funds at the place where this Note is payable, remittances in payment of all or any part of the Debt (defined below) shall not, regardless of any receipt or credit issued therefor, constitute payment until the required amount is actually received by Lender in funds immediately available at the place where this Note is payable (or any other place as Lender, in Lender's sole discretion, may have established by delivery of written notice thereof to Borrower) and shall be made and accepted subject to the condition that any check or draft may be handled for collection in accordance with the practice of the collecting bank or banks.
3. DEFAULT AND ACCELERATION
(a) The whole of the principal sum of this Note, (b) interest, default interest, late charges and other sums, as provided in this Note, the Security Instrument or the other Loan Documents, (c) all other monies agreed or provided to be paid by Borrower in this Note, the Security Instrument or the other Loan Documents, (d) all sums advanced pursuant to the Security Instrument to protect and preserve the Property and the lien and the security interest created thereby, and (e) all sums advanced and costs and expenses incurred by Lender in connection with the Debt (defined below) or any part thereof, any renewal, extension, or change of or substitution for the Debt or any part thereof, or the acquisition or perfection of the security therefor, whether made or incurred at the request of Borrower or Lender (all the sums referred to in (a) through (e) above shall collectively be referred to as the "Debt") shall without notice become immediately due and payable at the option of Lender if any payment required in this Note prior to the Maturity Date is not paid on the date when due or on the happening of any other default, after the expiration of any applicable notice and grace periods, herein or under the terms of the Security Instrument or any of the other Loan Documents (collectively, an "Event of Default"). Notwithstanding anything contained herein to the contrary, no Event of Default shall occur due to any failure to pay any Monthly Payment resulting solely from the failure by Lender to receive the monthly rent payment under the Net Lease intended to be applied to the payment of such Monthly Payment, until the date which is five (5) days from the date of Lender's notice to Borrower of Lender's failure to receive such monthly rent payment on the first day of a calendar month. For the purposes of the preceding sentence, the rent payable under the Net Lease in any particular month shall be deemed to be intended to be applied to the Monthly Payment due in that month (for example, the monthly rent payment due under the Net Lease in April, 2001 is deemed to be intended to be applied to the Monthly Payment due on April 11, 2001).
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4. DEFAULT INTEREST
Borrower does hereby agree that upon the occurrence of an Event of Default, Lender shall be entitled to receive and Borrower shall pay interest on the entire unpaid principal sum at a rate (the "Default Rate") equal to (i) the greater of (a) the Applicable Interest Rate plus three percent (3%) and (b) the Prime Rate (as hereinafter defined) plus four percent (4%) or (ii) the maximum interest rate that Borrower may by law pay, whichever is lower. The Default Rate shall be computed from the occurrence of the Event of Default until the earlier of the date upon which the Event of Default is cured or the date upon which the Debt is paid in full. Interest calculated at the Default Rate shall be added to the Debt, and shall be deemed secured by the Security Instrument. This provision, 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 accruing to Lender by reason of the occurrence of any Event of Default.
The "Prime Rate" shall mean the annual rate of interest publicly announced by Citibank, N.A. in New York, New York, as its base rate, as such rate shall change from time to time. If Citibank, N.A. ceases to announce a base rate, Prime Rate shall mean the rate of interest published in The Wall Street Journal from time to time as the Prime Rate. If more than one Prime Rate is published in The Wall Street Journal for a day, the average of the Prime Rates shall be used, and such average shall be rounded up to the nearest one-quarter of one percent (.25%). If The Wall Street Journal ceases to publish the "Prime Rate", the Lender shall select an equivalent publication that publishes such "Prime Rate", and if such prime rates are no longer generally published or are limited, regulated or administered by a governmental or quasi-governmental body, then Lender shall select a comparable interest rate index.
5. PREPAYMENT; DEFEASANCE
(a) Borrower shall not have the right or privilege to prepay all or any portion of the principal amount of this Note until the date which is fifteen (15) days prior to the Maturity Date. From and after such date, provided no Event of Default exists, the principal balance of this Note may be prepaid, in whole but not in part, upon: (i) not less than fifteen (15) days prior written notice (the "Prepayment Notice") to Lender specifying the earliest date on which prepayment is to be made (the "Prepayment Date"); (ii) payment of all accrued and unpaid interest on the outstanding principal balance of this Note to and including the Prepayment Date together with a payment of all interest which would have accrued on the principal balance of this Note to and including the last day of the Accrual Period in which the Prepayment Date occurs; and (iii) payment of all other sums then due under this Note, the Security Instrument and the other Loan Documents. Lender shall not be obligated to accept any prepayment of the principal balance of this Note unless it is accompanied by all sums due in connection therewith.
(b) (i) At any time from and after the Lockout Period Expiration Date and provided no Event of Default exists at the time, Borrower may obtain the release of the Property from the lien of the Security Instrument and the other Loan Documents upon the satisfaction of the following conditions precedent:
(1) Borrower shall have provided Lender with not less than thirty (30)
days and not more than sixty (60) days prior written notice
specifying the date (the "Release Date") on which the Defeasance
Deposit (hereinafter defined) is to be made;
(2) Borrower shall have paid to Lender all interest accrued and unpaid
on the principal balance of this Note to and including the Release
Date;
(3) Borrower shall have paid to Lender all other sums due and payable
under this Note, the Security Instrument and the other Loan
Documents through and including the Release Date (including, but
not limited to, any Monthly Payment which may be due and payable on
the Release Date);
(4) Borrower shall have paid to Lender the Defeasance Deposit
(hereinafter defined);
(5) The transactions contemplated by this Section 5(b) shall not cause
the Loan to lose its status as a "qualified mortgage" within the
meaning of Sections 860D and 860G(a)(3)
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of the Internal Revenue Code of 1986, as amended, or any successor
statute thereto; and
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