Exhibit 10.244
Loan No. 6518403
MORTGAGE NOTE
$23,300,000.00 Duluth, Georgia
June 28, 2004
FOR VALUE RECEIVED, INLAND WESTERN DULUTH JOHN'S CREEK SPE, L.L.C., a
Delaware limited liability company, having its principal place of business at
0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 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 Twenty-three
Million Three Hundred Thousand and No/100 Dollars ($23,300,000,00) 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. interest only is to be paid in installments as follows:
$99,025.00 on the 1st day of August, 2004, and on the
first day of each calendar month thereafter up to and
including the 1st day of June, 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 the 1st day of
July, 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 five and one tenth percent (5.10%) per annum.
Loan No. 6518403
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 other instrument now or hereafter evidencing, securing, guaranteeing or
executed in connection with the indebtedness evidenced hereby (the "LOAN
DOCUMENTS") (all such sums hereinafter collectively referred to as the "DEBT")
shall without notice become immediately due and payable at the option of Payee
upon an "EVENT OF DEFAULT" as the same is defined in the Mortgage (hereinafter
defined). All of the terms, covenants and conditions contained in 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.
2. PREPAYMENT. Except as provided below, Maker may not prepay the
loan in whole or in part.
On or after the end of the 2nd 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, and subject to payment of
a prepayment premium equal to the greater of:
(a) the positive amount, if any, equal to (i) the sum of the
present values of all scheduled payments due under this
Note from the Prepayment Date to and including the
Maturity Date, minus (ii) the principal balance of this
Note immediately prior to such prepayment; or
(b) one percent (1.00%) of the principal balance of this Note
immediately prior to such prepayment.
All present values shall be calculated as of the Prepayment Date,
using a discount rate, compounded monthly, equal to the yield rate, converted to
its monthly equivalent, 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 Prepayment Date.
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.
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Loan No. 6518403
The loan will be open to prepayment without premium on any scheduled
payment date during the last ninety (90) days of the term of the loan.
If any notice of prepayment is given, the principal balance of the
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.
The above premium shall not be applicable to a prepayment resulting
from Xxxxx's election to require insurance loss proceeds or condemnation awards
or the proceeds from any letter of credit held by Xxxxx as additional security
for the Loan to be applied to a payment of principal.
No partial prepayment shall be allowed except in the case of the
application by Xxxxx of any insurance or condemnation proceeds as expressly
provided for in the Loan Documents.
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.
3. ACCELERATION/DEFAULT. Maker acknowledges that the loan was made
on the basis and assumption that Xxxxx would receive the payments of interest
set forth herein for the full term of this loan. Therefore, whenever the
Maturity Date of the 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
prepayment premium equal to (i) the interest which would have accrued on the
principal balance of this Note at the Applicable Interest Rate from the date of
such acceleration to the expiration of the 2nd Loan Year PLUS (ii) an amount
equal to the prepayment premium that would have been due and payable pursuant to
Section 2 hereof had such prepayment occurred on the first (1 st) day of the 3rd
Loan Year. In addition, in the event of any prepayment made on or prior to the
first (1st) day of the 2nd Loan Year, there shall also then be immediately due
and payable in addition to the prepayment premium set forth in the preceding
sentence an additional sum equal to two percent (2.00%) of the then outstanding
principal balance of this Note.
If an Event of Default occurs on or after the date on which prepayment
is permitted, then in lieu of the above premium set forth in this Section 3,
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 in this Section 3.
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Loan No. 6518403
4. DEFAULT RATE. Maker does hereby agree that upon the occurrence
of an Event of Default (beyond any applicable grace or cure period) 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 five percent (5%) 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 Mortgage is situated. This charge
shall be added to the Debt, and shall be deemed secured by the Mortgage. 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 interest payment payable under this
Note (except for the final payment) is not paid in full within five (5) days of
the date on which it is due, Maker shall pay to 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 Mortgage and
certain other Loan Documents. The term "MORTGAGE" as used in this Note shall
mean that certain Mortgage, Assignment of Leases and Rents and Security
Agreement dated the date hereof securing the principal sum of $23,300,000.00
made by Maker in favor of Payee covering certain premises located at 00000
Xxxxxxx Xxxxxx Xxxx, Xxxx xx Xxxxxx, in the County of Xxxxxx, State of Georgia,
as more particularly described therein. The Mortgage contains 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 Payee shall be (a) 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 or (b) if required by law, refunded to Maker.
All sums paid or agreed to be paid to Payee for the use or forbearance of the
Debt shall, to the extent permitted by
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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
Mortgage 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.
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 Mortgage 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 Mortgage 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
Mortgage and the other Loan Documents and that this Note, the Mortgage 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 mortgage note in form
and content identical to this Note in lieu of the lost, stolen, destroyed or
mutilated Note.
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15. NOTICE. All notices required to be given pursuant hereto shall
be given in the manner specified in the Mortgage directed to the parties at
their respective addresses as provided therein.
16. COSTS AND EXPENSES. Maker shall pay all expenses and costs,
including reasonable 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 foreclosure proceeding.
17. FORBEARANCE. Any forbearance by Payee in exercising any right
or remedy under this Note, the Mortgage 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 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
Mortgage, any claim based on or in respect of any liability of Maker under this
Note, the Mortgage or any other Loan Document shall be enforced only against the
Mortgaged Property (as such term is defined in the Mortgage) 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 Mortgaged Property 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, misrepresentation and waste, (ii) any
rents, issues or profits collected more than one (1) month in advance of their
due dates to the extent such sums remain collected more than one month in
advance of their due dates following an Event of Default, (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 to the extent such misapplication continues following an Event of
Default, (iv) liability under environmental covenants, conditions and
indemnities contained in the Mortgage and in any separate environmental
indemnity agreements, (v) personalty or fixtures 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
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Loan No. 6518403
can create liens on any portion of the Mortgaged Property 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 Mortgaged Property, (vii) the
unauthorized sale, conveyance or transfer of title to the Mortgaged Property or
encumbrance of the Mortgaged Property, (viii) the failure of Maker to maintain
its status as a single purpose, bankruptcy-remote entity pursuant to its
organizational documents and the Loan Documents, and (ix) reasonable attorney's
fees, court costs and other expenses incurred by Payee 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 where the Mortgaged Property is
located 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 Mortgage 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 Mortgage and the
other Loan Documents; (x) to impair the validity of the indebtedness secured by
the Mortgage; (y) to impair the right of Payee as mortgagee 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. STATE SPECIFIC PROVISIONS. The provisions of this Section 20
are an integral part of this Note. In the event of any inconsistencies between
the other terms and provisions of this Note and the terms and provisions of this
Section 20, the terms and provisions of this Section 20 shall be controlling.
(a) DEED TO SECURE DEBT; TRUST PROPERTY. Section 6 of this Note captioned
"Security for Loan" is amended by changing the title of the real estate security
instrument from "Mortgage, Assignment of Leases and Rents and Security
Agreement" to "Deed to Secure Debt, Assignment of Leases and Rents and Security
Agreement" and the defined term "Mortgage" shall be deemed to refer to such
instrument. In addition, any reference herein to "Mortgaged Property" shall be
deemed to be a reference to "Trust Property".
(b) INTEREST BEFORE AND AFTER JUDGMENT. The Default Rate of interest
shall apply to the Debt both before and after any judgment on the indebtedness
evidenced by this Note.
(c) ATTORNEYS' FEES. In case this Note or the Mortgage or any other Loan
Document should be placed in the hands of an attorney at law for collection or
enforcement, Maker agrees to pay all costs of collection or enforcement
including reasonable attorneys' fees.
(d) EXECUTION UNDER SEAL. THE MAKER IS EXECUTING THIS NOTE UNDER XXXX
WITH THE EXPRESS INTENTION THAT THIS NOTE BE CONSTRUED AS AN INSTRUMENT EXECUTED
UNDER SEAL AND THE PHRASE "UNDER SEAL" IS HEREBY INSERTED AFTER THE PHRASE "THIS
NOTE" IN THE LAST SENTENCE OF THIS NOTE APPEARING BELOW.
This Note shall be governed and construed in accordance with the laws
of the State of Georgia and the applicable laws of the United States of America.
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Loan No. 6518403
IN WITNESS WHEREOF, Xxxxx has duly executed and delivered this Note
the day and year first above written.
INLAND WESTERN DULUTH JOHN'S
CREEK SPE, L.L.C., a Delaware limited liability
company
By: Inland Western Duluth Xxxx's Creek, L.L.C.,
a Delaware limited liability company, its Sole
Member
By: Inland Western Retail Real Estate
Trust, Inc., a Maryland corporation,
its Sole Member
By: /s/ Xxxxx X Xxxxxx
-----------------------------
Name: Xxxxx X Xxxxxx
---------------------------
Title: Asst Secretary
--------------------------
Attest:
/s/ Xxxxxxx Xxxxxx
-------------------------------
Asst. Secretary
[Affix Corporate Seal]
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