Exhibit 10.98
PROMISSORY NOTE
$8,950,000.00 New York, New York
_____ ___, 2004
FOR VALUE RECEIVED, INLAND WESTERN EULESS LIMITED PARTNERSHIP, an
Illinois limited partnership having its principal place of business at 0000
Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000, a maker hereunder (referred to
herein as "BORROWER"), hereby unconditionally promises to pay to the order of
BEAR XXXXXXX COMMERCIAL MORTGAGE, INC., a New York corporation, as payee, having
an address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("LENDER"), or at
such other place as the holder hereof may from time to time designate in
writing, the principal sum of EIGHT MILLION NINE HUNDRED FIFTY THOUSAND AND
NO/100 DOLLARS ($8,950,000.00), in lawful money of the United States of America
with interest thereon to be computed from the date of this Note at the Interest
Rate, and to be paid in accordance with the terms of this Note and that certain
Loan Agreement, dated as of the date hereof, by and among Borrower, Inland
Western Xxxxxxxx, L.L.C., a Delaware limited liability company, Inland Western
Xxxxxx, L.L.C., a Delaware limited liability company, and Lender (the "LOAN
AGREEMENT"). All capitalized terms not defined herein shall have the respective
meanings set forth in the Loan Agreement.
ARTICLE 1
PAYMENT TERMS
Xxxxxxxx agrees to pay interest on the unpaid principal sum of
this Note from time to time outstanding at the rates and at the times specified
in the Loan Agreement and the outstanding balance of the principal sum of this
Note and all accrued and unpaid interest thereon shall be due and payable on the
Maturity Date. This Note shall be the "Note" as defined in the Loan Agreement.
ARTICLE 2
DEFAULT AND ACCELERATION
The Debt shall without notice become immediately due and payable
at the option of Lender if any payment required in this Note is not paid on or
prior to the date when due or if not paid on the Maturity Date or on the
happening of any other Event of Default.
ARTICLE 3
LOAN DOCUMENTS
This Note is secured by the Mortgage and the other Loan
Documents. All of the terms, covenants and conditions contained in the Loan
Agreement, the Mortgage 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. In the event of a conflict or inconsistency between the terms
of this Note and the Loan Agreement, the terms and provisions of the Loan
Agreement shall govern.
ARTICLE 4
SAVINGS CLAUSE
Notwithstanding anything to the contrary contained in this Note or the
Mortgage, neither the Applicable Interest Rate nor the Default Rate shall at any
time exceed the Maximum Rate. The term "Maximum Rate," as used herein, shall
mean, on any day, the highest nonusurious rate of interest (if any) permitted by
applicable law on such day. For purposes of Chapter 303 of the Texas Finance
Code, as it may from time to time be amended, the Maximum Rate shall be the
"weekly ceiling" as defined in Section 303.002 of said Code and as computed in
accordance with Section 303.003 of said Code, from time to time in effect;
provided, however, that to the extent permitted by applicable law, Lender
reserves the right to change, from time to time by further notice and disclosure
to Borrower, the ceiling on which the Maximum Rate is based under Chapter 303 of
said Code; and, provided further, that the "highest nonusurious rate of interest
permitted by applicable law" for purposes of this Note or the Mortgage shall not
be limited to the applicable rate ceiling under Chapter 303 of said Code if
federal laws or other state laws now or hereafter in effect and applicable to
this Note or the Mortgage (and the interest contracted for, charged and
collected hereunder) shall permit a higher rate of interest. In no event shall
the Loan be considered a revolving credit account as defined in Chapter 346 of
the Texas Finance Code, as may be hereafter amended or recodified.
It is the intention of the parties hereto to comply with the
usury laws of the State of Texas and the United States of America. The parties
hereto do not intend to contract for, charge or receive any interest or other
charge which is usurious, and by execution of this Note or the Mortgage,
Xxxxxxxx agrees that Xxxxxx has no such intent. This Note, the Mortgage, the
other Loan Documents and all other agreements between Borrower and Lender or any
other holder hereof, which are now existing or hereafter arising, whether
written or oral, are hereby expressly limited so that in no event whatsoever,
whether by reason of acceleration of maturity hereof, or otherwise, shall the
amount paid, or agreed to be paid, to Lender or any other holder hereof for the
use, forbearance or detention of the money to be due hereunder or otherwise, or
for the payment or performance of any covenant or obligation contained herein or
in any other document evidencing, securing or pertaining to the Debt, exceed the
Maximum Rate. If from any circumstance whatsoever fulfillment of any provisions
hereof or other document, at the time performance of such provisions shall be
due, shall involve transcending the valid limits prescribed by law, then ipso
facto, the obligation to be fulfilled shall be reduced to the Maximum Rate, and
if from any such circumstance Lender or any other holder shall ever receive as
interest or otherwise an amount which will exceed the Maximum Rate, such amount
which would be excessive interest shall be applied to the reduction of the
principal amount owing hereunder or on account of any other principal
indebtedness of Borrower to the holder and not to the payment of interest, or if
such excessive interest exceeds the unpaid balance of principal hereof and such
other indebtedness, such excess shall be refunded to Borrower. All sums paid and
agreed to be paid to Lender or any other holder for use, forbearance or
detention of the indebtedness of Borrower shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the
period until payment in full on the Note (or any renewals, extensions and
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rearrangement thereof) so that the actual rate of interest on account of the
Debt is uniform throughout the term of this Note (and all renewals, extensions
and rearrangements hereof) and does not exceed the Maximum Rate. The terms and
provisions of this Article 4 shall control and supersede any other provision of
this Note or the other Loan Documents.
ARTICLE 5
NO ORAL CHANGE
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 Borrower or Lender, 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.
ARTICLE 6
WAIVERS
Borrower 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, notice of intention to accelerate, notice of
acceleration, protest and notice of protest and non-payment and all other
notices of any kind. 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 Loan Agreement or the
other Loan Documents made by agreement between Lender or any other Person shall
release, modify, amend, waive, extend, change, discharge, terminate or affect
the liability of Borrower, and any other Person who may become liable for the
payment of all or any part of the Debt, under this Note, the Loan Agreement or
the other Loan Documents. No notice to or demand on Borrower shall be deemed to
be a waiver of the obligation of Borrower or of the right of Lender to take
further action without further notice or demand as provided for in this Note,
the Loan Agreement or the other Loan Documents. If Borrower is a partnership,
the agreements herein contained shall remain in force and applicable,
notwithstanding any changes in the individuals comprising the partnership, and
the term "Borrower," as used herein, shall include any alternate or successor
partnership, but any predecessor partnership and their partners shall not
thereby be released from any liability. If Borrower is a limited liability
company, the agreements herein contained shall remain in force and applicable,
notwithstanding any changes in the members comprising the company, and the term
"Borrower," as used herein, shall include any alternate or successor company,
but any predecessor company and its members shall not thereby be released from
any liability. If Borrower is a corporation, the agreements contained herein
shall remain in full force and applicable notwithstanding any changes in the
shareholders comprising, or the officers and directors relating to, the
corporation, and the term "Borrower" as used herein, shall include any
alternative or successor corporation, but any predecessor corporation shall not
be relieved of liability hereunder. (Nothing in the foregoing sentence shall be
construed as a consent to, or a waiver of, any prohibition or restriction on
transfers of interests in such entity which may be set forth in the Loan
Agreement, the Mortgage or any other Loan Document.)
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ARTICLE 7
TRANSFER
Upon the transfer of this Note, Borrower hereby waiving notice of
any such transfer except as provided in the Loan Agreement, Lender may deliver
all the collateral mortgaged, granted, pledged or assigned pursuant to the Loan
Documents, or any part thereof, to the transferee who shall thereupon become
vested with all the rights herein or under applicable law given to Lender with
respect thereto, and Lender shall from that date forward forever be relieved and
fully discharged from any liability or responsibility in the matter; but Lender
shall retain all rights hereby given to it with respect to any liabilities and
the collateral not so transferred.
ARTICLE 8
EXCULPATION
The provisions of Section 9.4 of the Loan Agreement are hereby
incorporated by reference into this Note to the same extent and with the same
force as if fully set forth herein.
ARTICLE 9
GOVERNING LAW
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT ENTERED INTO PURSUANT
TO THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND SHALL IN ALL
RESPECTS BE GOVERNED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
STATE IN WHICH THE PROPERTY IS LOCATED AND APPLICABLE FEDERAL LAWS.
ARTICLE 10
NOTICES
All notices or other written communications hereunder shall be
delivered in accordance with Section 10.6 of the Loan Agreement.
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IN WITNESS WHEREOF, Xxxxxxxx has duly executed this Note as of the day
and year first above written.
BORROWER:
INLAND WESTERN EULESS LIMITED
PARTNERSHIP, an Illinois limited partnership
By: Inland Western Euless GP, L.L.C., a Delaware
limited liability company, its sole general partner
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, its sole
member
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Asst. Secretary
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ACKNOWLEDGMENT
STATE OF Illinois
COUNTY OF Du Page
This instrument was acknowledged before me on Apr 26, 2004, by Xxxxx
X. Xxxxxx, Ass't Sec of Inland Western Retail Real Estate Trust, Inc., a
Maryland corporation, the sole member of Inland Western Euless GP, L.L.C., a
Delaware limited liability company, the sole general partner of INLAND WESTERN
EULESS LIMITED PARTNERSHIP, an Illinois limited partnership, on behalf of said
entities.
/s/ Xxxxx X. Xxxxxxxx
---------------------------------
Notary Public, State of Illinois
My commission expires:
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OFFICIAL SEAL
XXXXX X XXXXXXXX
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES:06/30/04
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