FIXED RATE NOTE

      
      
    
 

 
EXHIBIT
      10.2

Loan
      No.
      V_60804

FIXED
      RATE NOTE

$_____________November
      ____, 2006

FOR
      VALUE
      RECEIVED, (COMPANY SUBSIDIARY), a _________ limited partnership ("Borrower"),
      promises to pay to the order of JPMORGAN CHASE BANK, N.A., a banking association
      chartered under the laws of the United States of America, its successors and
      assigns (hereinafter referred to as "Lender"),
      at
      the office of Lender or its agent, designee, or assignee at 000 Xxxx Xxxxxx,
      Xxx
      Xxxx, Xxx Xxxx 00000, Attention: Loan Servicing, or at such place as Lender
      or
      its agent, designee, or assignee may from time to time designate in writing,
      the
      principal sum of $_______________, in lawful money of the United States of
      America, with interest thereon to be computed on the unpaid principal balance
      from time to time outstanding at the Applicable Interest Rate (hereinafter
      defined) at all times prior to the occurrence of an Event of Default (as defined
      in the Security Instrument [hereinafter defined]), and to be paid in
      installments as set forth below. Unless otherwise herein defined, all initially
      capitalized terms shall have the meanings given such terms in the Security
      Instrument.
 
1.  PAYMENT
      TERMS
 
Principal
      and interest due under this Note shall be paid as follows:
 
(a)  A
      payment
      of interest only on the date hereof for the period from the date hereof through
      and including November 30, 2006; and
 
(b)  A
      constant payment, calculated on the basis of an amortization period of thirty
      (30) years, of $__________, on the first day of January, 2007 and on the first
      day of each calendar month thereafter up to and including the first day of
      November, 2016; 
 
with
      payments under this Note to be applied as follows:
 
(i)  First,
      to
      the payment of interest and then to other costs and charges due in connection
      with this Note or the Debt, as Lender may determine in its sole discretion;
      and
 
(ii)  The
      balance shall be applied toward the reduction of the principal sum;
 
and
      the
      balance of said principal sum, together with accrued and unpaid interest and
      any
      other amounts due under this Note shall be due and payable on the first day
      of
      December, 2016 or upon earlier maturity hereof whether by acceleration or
      otherwise (the "Maturity
      Date").
      Interest on the principal sum of this Note shall be calculated on the basis
      of a
      three hundred sixty (360) day year and paid for the actual number of days
      elapsed. All amounts due under this Note shall be payable without setoff,
      counterclaim or any other deduction whatsoever.

 
 

          
        
 


2.  INTEREST
 
The
      term
      "Applicable
      Interest Rate"
      means
      from the date of this Note through and including the Maturity Date, a rate
      of
      five and 865/1000 percent (5.865%) per annum.
 
3.  SECURITY
 
This
      Note
      is secured by, and Xxxxxx is entitled to the benefits of, the Security
      Instrument, the Assignment, the Environmental Agreement, and the other Loan
      Documents (hereinafter defined). The term "Security
      Instrument"
      means
      the Deed of Trust and Security Agreement dated the date hereof given by Borrower
      for the use and benefit of Lender covering the estate of Borrower in certain
      premises as more particularly described therein (which premises, together with
      all properties, rights, titles, estates and interests now or hereafter securing
      the Debt and/or other obligations of Borrower under the Loan Documents, are
      collectively referred to herein as the "Property").
      The
      term "Assignment"
      means
      the Assignment of Leases and Rents of even date herewith executed by Xxxxxxxx
      in
      favor of Xxxxxx. The term "Environmental
      Agreement"
      means
      the Environmental Indemnity Agreement of even date herewith executed by Xxxxxxxx
      in favor of Xxxxxx. The term "Loan
      Documents"
      refers
      collectively to this Note, the Security Instrument, the Assignment, the
      Environmental Agreement, and any and all other documents executed in connection
      with this Note or now or hereafter executed by Xxxxxxxx and/or others and by
      or
      in favor of Lender, which wholly or partially secure or guarantee payment of
      this Note or pertain to indebtedness evidenced by this Note. 
 
4.  LATE
      FEE
 
If
      any
      installment payable under this Note (including the final installment due on
      the
      Maturity Date) is not received by Lender prior to the tenth (10th) calendar
      day
      after the same is due (without regard to any applicable cure and/or notice
      period), Borrower shall pay to Lender upon demand an amount equal to the lesser
      of (a) five percent (5%) of such unpaid sum or (b) the maximum amount
      permitted by applicable law to defray the expenses incurred by Lender in
      handling and processing such delinquent payment and to compensate Lender for
      the
      loss of the use of such delinquent payment, and such amount shall be secured
      by
      the Loan Documents. 
 
5.  DEFAULT
      AND ACCELERATION
 
So
      long
      as an Event of Default exists, Lender may, at its option, without notice or
      demand to Borrower, declare the Debt immediately due and payable. All remedies
      hereunder, under the Loan Documents and at law or in equity shall be cumulative.
      In the event that it should become necessary to employ counsel to collect the
      Debt or to protect or foreclose the security for the Debt or to defend against
      any claims asserted by Borrower arising from or related to the Loan Documents,
      Xxxxxxxx also agrees to pay to Lender on demand all reasonable costs of
      collection or defense incurred by Xxxxxx, including reasonable outside
      attorneys' fees for the services of counsel whether or not suit be brought,
      and
      including attorneys’ fees in any bankruptcy or insolvency proceeding.

 
 

          
        
 


6.  DEFAULT
      INTEREST
 
Upon
      the
      occurrence and during the continuation of an Event of Default Borrower shall
      pay
      interest on the entire unpaid principal sum and any other amounts due under
      the
      Loan Documents at the rate equal to the lesser of (a) the maximum rate permitted
      by applicable law, or (b) the greater of (i) five percent (5%) above the
      Applicable Interest Rate or (ii) five percent (5%) above the Prime Rate
      (hereinafter defined), in effect at the time of the occurrence of the Event
      of
      Default (the "Default
      Rate").
      The
      term "Prime
      Rate"
      means
      the prime rate reported in the Money Rates section of The
      Wall Street Journal.
      In the
      event that The
      Wall Street Journal
      should
      cease or temporarily interrupt publication, the term "Prime Rate" shall mean
      the
      daily average prime rate published in another business newspaper, or business
      section of a newspaper, of national standing and general circulation chosen
      by
      Xxxxxx. In the event that a prime rate is no longer generally published or
      is
      limited, regulated or administered by a governmental or quasi-governmental
      body,
      then Lender shall select a comparable interest rate index which is readily
      available and verifiable to Borrower but is beyond Lender's control. The Default
      Rate shall be computed from the occurrence of the Event of Default until the
      actual receipt and collection of a sum of money determined by Xxxxxx to be
      sufficient to cure the Event of Default. Amounts of interest accrued at the
      Default Rate shall constitute a portion of the Debt, and shall be deemed secured
      by the Loan Documents. 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 accruing to Lender by reason of the
      occurrence of any Event of Default. 
 
7.  PREPAYMENT
 
(a)  The
      principal balance of this Note may not be prepaid in whole or in part (except
      with respect to the application of casualty or condemnation proceeds or
Section
      7.3
      of the
      Security Instrument) prior to the Maturity Date. If following the occurrence
      of
      any Event of Default, Borrower shall tender payment to Lender or Lender shall
      receive proceeds (whether through foreclosure or the exercise of the other
      remedies available to Lender under the Security Instrument or the other Loan
      Documents), Borrower shall pay in addition to interest accrued and unpaid on
      the
      principal balance of this Note and all other sums then due under this Note
      and
      the other Loan Documents a prepayment consideration in an amount equal to the
      greater of (A) one percent (1%) of the outstanding principal balance of this
      Note at the time such payment or proceeds are received, or (B) (x) the present
      value as of the date such payment or proceeds are received of the remaining
      scheduled payments of principal and interest from the date such payment or
      proceeds are received through the Maturity Date (including any balloon payment)
      determined by discounting such payments at the Discount Rate (as hereinafter
      defined), less (y) the amount of the payment or proceeds received. The term
      "Discount
      Rate"
      means
      the rate which, when compounded monthly, is equivalent to the Treasury Rate
      (as
      hereinafter defined), when compounded semi-annually. The term "Treasury
      Rate"
      means
      the yield calculated by the linear interpolation of the yields, as reported
      in
      Federal Reserve Statistical Release H.15-Selected Interest Rates under the
      heading "U.S. Government Securities/Treasury Constant Maturities" for the week
      ending prior to the date the payment of such proceeds are received, of U.S.
      Treasury constant maturities with maturity dates (one longer and one shorter)
      most nearly approximating the Maturity Date.(In
      the
      event Release H.15 is no longer published, Lender shall select a comparable
      publication to determine the Treasury Rate.) Lender shall notify Borrower of
      the
      amount and the basis of determination of the required prepayment consideration,
      which shall be conclusive except in the case of manifest error. Notwithstanding
      the foregoing, Borrower shall have the additional privilege to prepay the entire
      principal balance of this Note (together with any other sums constituting the
      Debt, including, without limitation, all accrued interest and other costs or
      charges due in connection with this Note or the Debt up to and including the
      next scheduled payment date) on any Business Day (as defined in the Security
      Instrument) occurring on or after that date which is three (3) months preceding
      the Maturity Date without any fee or consideration for such
      privilege.
 
(b)  If
      the
      prepayment results from the application to the Debt of the casualty or
      condemnation proceeds from the Property, no prepayment consideration will be
      imposed. Partial prepayments of principal resulting from the application of
      casualty or condemnation proceeds to the Debt (other than such application
      which
      results from an Event of Default) shall change the amounts of subsequent monthly
      installments as hereinafter provided, but shall not change the dates on which
      such installments are due, unless Lender shall otherwise agree in writing.
      As of
      the date such proceeds are applied by Lender to reduce the outstanding principal
      balance of this Note, the monthly installment of interest and principal set
      forth in Section
      1(b)
      of this
      Note shall be recomputed at the Applicable Interest Rate and the outstanding
      principal balance of this Note remaining following such application, based
      upon
      an amortization schedule of 30 years less the period from the first day of
      the
      calendar month following the date of the advance hereunder to the date of the
      application of such proceeds. Xxxxxx's determination of such recalculated
      payment shall be binding and conclusive on Borrower.
 
(c)  (i)Notwithstanding
      any provision of this Section 7
      to the
      contrary, at any time after the earlier of (1) the date which is two (2) years
      after the "startup day," within the meaning of Section 860G(a)(9) of the
      Internal Revenue Code of 1986, as amended from time to time or any successor
      statute (the "Code"),
      of a
      "real estate mortgage investment conduit," within the meaning of Section 860D
      of
      the Code, that holds this Note, and (2) a regularly scheduled payment date
      on or
      after that date which is three (3) years after the date of the first monthly
      payment due under Section
      1(b),
      and
      provided no Event of Default (or any event which with the passage of time or
      the
      giving of notice, or both, could become an Event of Default) has occurred under
      the Security Instrument or under any of the Loan Documents, Borrower may cause
      the release of the Property (in whole but not in part) from the lien of the
      Security Instrument and the other Loan Documents upon the satisfaction of the
      following conditions precedent:
 
(A)  not
      less
      than thirty (30) days prior written notice to Lender specifying a regularly
      scheduled payment date (the "Release
      Date")
      on
      which the Defeasance Deposit (hereinafter defined) is to be made;
 
(B)  the
      payment to Lender of interest accrued and unpaid on the principal balance of
      this Note to and including the Release Date;

 
 

          
        
 


 
(C)  the
      payment to Lender of all other sums, not including scheduled interest or
      principal payments, due under this Note, the Security Instrument and the other
      Loan Documents;
 
(D)  the
      payment to Lender of the Defeasance Deposit; and
 
(E)  the
      delivery to Lender of:
 


        
          (1)  
          a
              security agreement, in form and substance satisfactory to Lender, creating
              a first priority lien on the Defeasance Deposit and the U.S. Obligations
              (hereinafter defined) purchased on behalf of Borrower with the Defeasance
              Deposit in accordance with this subparagraph (the "Security
              Agreement");

        
 


        
          (2)  
          a
              release of the Property from the lien of the Security Instrument (for
              execution by Xxxxxx) in a form appropriate for the jurisdiction in
              which
              the Property is located;

        
 


        
          (3)  
          an
              officer's certificate of Borrower certifying that the requirements
              set
              forth in this subparagraph (i) have been
              satisfied;

        
 


        
          (4)  
          an
              opinion of counsel for Borrower in form reasonably satisfactory to
              Lender
              stating, among other things, that defeasance of this Note will not
              cause
              any adverse consequences to any REMIC holding the Loan or the holders
              of
              any securities issued by the REMIC or result in a taxation of the income
              from the Loan to such REMIC or cause a loss of REMIC status, and that
              Xxxxxx has a perfected first priority security interest in the Defeasance
              Deposit and the U.S. Obligations purchased by Xxxxxx on behalf of
              Borrower;

        
 


        
          (5)  
          evidence
              satisfactory to Lender, in its reasonable discretion, that the Defeasance
              Deposit is adequate to provide payment on or prior to, but as close
              as
              possible to, all successive scheduled payment dates after the Release
              Date
              upon which interest and principal payments are required under this
              Note
              (including the amounts due on the Maturity Date) and in amounts equal
              to
              the scheduled payments due on such dates under this
              Note;

        
 


        
          (6)  
          evidence
              in writing from the applicable Rating Agencies to the effect that such
              release will not result in a re-qualification, downgrade or withdrawal
              of
              any rating in effect
              immediately prior to such defeasance for any
              Securities;

        
 


        
          (7)  
          payment
              of all of Xxxxxx's expenses incurred in connection with the defeasance
              including, without limitation, reasonable attorneys fees;
              and

        
 


        
          (8)  
          such
              other certificates, documents or instruments as Lender may reasonably
              request.

        
 
In
      connection with the conditions set forth in subsection
      (c)(i)(E)
      above,
      Borrower hereby appoints Lender as its agent and attorney-in-fact for the
      purpose of using the Defeasance Deposit to purchase U.S. Obligations which
      provide payment on or prior to, but as close as possible to, all successive
      scheduled payment dates after the Release Date upon which interest and principal
      payments are required under this Note (including the amounts due on the Maturity
      Date) and in amounts equal to the scheduled payments due on such dates under
      this Note (the "Scheduled
      Defeasance Payments").
      Borrower, pursuant to the Security Agreement or other appropriate document,
      shall authorize and direct that the payments received from the U.S. Obligations
      may be made directly to Lender and applied to satisfy the obligations of the
      Borrower under this Note.
 
(ii) Upon
      compliance with the requirements of this subsection
      (c),
      the
      Property shall be released from the lien of the Security Instrument and the
      pledged U.S. Obligations shall be the sole source of collateral securing this
      Note. Any portion of the Defeasance Deposit in excess of the amount necessary
      to
      purchase the U.S. Obligations required by subparagraph
      (c)(i)
      above
      and satisfy the Borrower's obligations under this subsection
      (c)
      shall be
      remitted to the Borrower with the release of the Property from the lien of
      the
      Security Instrument.

(iii) For
      purposes of this subsection
      (c),
      the
      following terms shall have the following meanings:

(A) The
      term
      "Defeasance
      Deposit"
      shall
      mean an amount equal to 100% of the remaining principal amount of this Note,
      the
      Yield Maintenance Premium, any costs and expenses incurred or to be incurred
      in
      the purchase of the U.S. Obligations necessary to meet the Scheduled Defeasance
      Payments and any revenue, documentary stamp or intangible taxes or any other
      tax
      or charge due in connection with the transfer of this Note (if required to
      accomplish defeasance in accordance with the provisions hereof) or otherwise
      required to accomplish the agreements of this subsection;

(B) The
      term
      "Yield
      Maintenance Premium"
      shall
      mean the amount (if any) which, when added to the remaining principal amount
      of
      this Note, will be sufficient to purchase U.S. Obligations providing the
      required Scheduled Defeasance Payments; and

 
 

          
        
 


(C) The
      term
      "U.S.
      Obligations"
      shall
      mean direct non-callable obligations of the United States of
      America.

(iv) Upon
      the
      release of the Property in accordance with this subsection
      (c),
      Borrower shall, at Xxxxxx’s request, assign all its obligations and rights under
      this Note, together with the pledged Defeasance Deposit, to a successor special
      purpose entity designated by Xxxxxxxx and approved by Lender in its sole
      discretion. Such successor entity shall execute an assumption agreement in
      form
      and substance satisfactory to Lender in its sole discretion pursuant to which
      it
      shall assume Borrower’s obligations under this Note and the Security Agreement.
      In connection with such assignment and assumption, Borrower shall (x) deliver
      to
      Lender an opinion of counsel in form and substance and delivered by counsel
      satisfactory to Lender in its sole discretion stating, among other things,
      that
      such assumption agreement is enforceable against Borrower and such successor
      entity in accordance with its terms and that this Note, the Security Agreement
      and the other Loan Documents, as so assumed, are enforceable against such
      successor entity in accordance with their respective terms, and (y) pay all
      reasonable costs and expenses incurred by Lender or its agents in connection
      with such assignment and assumption (including, without limitation, the review
      of the proposed transferee and the preparation of the assumption agreement
      and
      related documentation). In connection with such assignment and assumption,
      Borrower and any Guarantor may be released of personal liability under the
      Note
      and the other Loan Documents, but only as to acts or events occurring after
      the
      closing of such assignment and assumption.

(v) Upon
      the
      release of the Property in accordance with this subsection
      (c),
      Borrower shall have no further right to prepay this Note pursuant to the other
      provisions of this Section 7
      or
      otherwise.

8.  SAVINGS
      CLAUSE
 
This
      Note
      is subject to the express condition that at no time shall Borrower be obligated
      or required to pay interest on the principal balance due hereunder at a rate
      which could subject Lender to either civil or criminal liability as a result
      of
      being in excess of the maximum interest rate which Borrower is permitted by
      applicable law to contract or agree to pay. If by the terms of this Note,
      Borrower is at any time required or obligated to pay interest on the principal
      balance due hereunder at a rate in excess of such maximum rate, the Applicable
      Interest Rate or the Default Rate, as the case may be, shall be deemed to be
      immediately reduced to such maximum rate and all previous payments in excess
      of
      the maximum rate shall be deemed to have been payments in reduction of principal
      and not on account of the interest due hereunder. All sums paid or agreed to
      be
      paid to Lender for the use, forbearance, or detention of the Debt, shall, to
      the
      extent permitted by applicable law, be amortized, prorated, allocated, and
      spread throughout the full stated term of this Note until payment in full so
      that the rate or amount of interest on account of the Debt does not exceed
      the
      maximum lawful rate of interest 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 or in any of the other Loan Documents, it is not
      the
      intention of Lender 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.

 
 

          
        
 


9.  WAIVERS
 
(a)  Except
      as
      specifically provided in the Loan Documents, Borrower and any endorsers,
      sureties or guarantors hereof jointly and severally waive presentment and demand
      for payment, notice of intent to accelerate maturity, notice of acceleration
      of
      maturity, protest and notice of protest and non-payment, all applicable
      exemption rights, valuation and appraisement, notice of demand, and all other
      notices in connection with the delivery, acceptance, performance, default or
      enforcement of the payment of this Note and the bringing of suit and diligence
      in taking any action to collect any sums owing hereunder or in proceeding
      against any of the rights and collateral securing payment hereof. Borrower
      and
      any surety, endorser or guarantor hereof agree (i) that the time for any
      payments hereunder may be extended from time to time without notice and consent,
      (ii) to the acceptance by Lender of further collateral, (iii) the
      release by Lender of any existing collateral for the payment of this Note,
      (iv) to any and all renewals, waivers or modifications that may be granted
      by Lender with respect to the payment or other provisions of this Note, and/or
      (v) that additional Borrowers, endorsers, guarantors or sureties may become
      parties hereto all without notice to them and without in any manner affecting
      their liability under or with respect to this Note. No extension of time for
      the
      payment of this Note or any installment hereof shall affect the liability of
      Borrower under this Note or any endorser or guarantor hereof even though the
      Borrower or such endorser or guarantor is not a party to such
      agreement.
 
(b)  Failure
      of Lender to exercise any of the options granted herein to Lender upon the
      happening of one or more of the events giving rise to such options shall not
      constitute a waiver of the right to exercise the same or any other option at
      any
      subsequent time in respect to the same or any other event. The acceptance by
      Lender of any payment hereunder that is less than payment in full of all amounts
      due and payable at the time of such payment shall not constitute a waiver of
      the
      right to exercise any of the options granted herein to Lender at that time
      or at
      any subsequent time or nullify any prior exercise of any such option without
      the
      express written acknowledgment of the Lender.
 
10.  EXCULPATION
 
(a)  Notwithstanding
      anything in the Loan Documents to the contrary, but subject to the
      qualifications below, Xxxxxx and Borrower agree that:
 
(i)  Borrower
      shall be liable upon the Debt and for the other obligations arising under the
      Loan Documents to the full extent (but only to the extent) of the security
      therefore and Lender shall not seek a personal judgment against Borrower;
provided,
      however,
      that in
      the event (A)  of a breach or default under Sections 4.3
      or
8.3
      of the
      Security Instrument or (B) the Property or any part thereof becomes an asset
      in
      a voluntary bankruptcy or insolvency proceeding, the limitation on recourse
      set
      forth in this Subsection 10(a)
      will be
      null and void and completely inapplicable, and this Note shall be with full
      recourse to Borrower.

 
 

          
        
 


(ii)  If
      a
      default occurs in the timely and proper payment of all or any part of the Debt,
      Lender shall not enforce the liability and obligation of Borrower to perform
      and
      observe the obligations contained in this Note or the Security Instrument by
      any
      action or proceeding wherein a money judgment shall be sought against Borrower
      (or any partner, member or owner thereof), except that Lender may bring a
      foreclosure action, action for specific performance or other appropriate action
      or proceeding to enable Lender to enforce and realize upon the Security
      Instrument, the Other Loan Documents and the interest in the Property, the
      Rents
      and any other collateral given to Lender created by the Security Instrument
      and
      the Other Loan Documents; provided,
      however,
      that
      any judgment in any action or proceeding shall be enforceable against Borrower
      only to the extent of Borrower’s interest in the Property, in the Rents and in
      any other collateral given to Lender. Xxxxxx, by accepting this Note and the
      Security Instrument, agrees that it shall not, except as otherwise herein
      provided, sue for, seek or demand any deficiency judgment against Borrower
      in
      any action or proceeding, under or by reason of or under or in connection with
      this Note, the Other Loan Documents or the Security Instrument.
 
(iii)  The
      provisions of this Subsection 10(a)
      shall
      not (A) constitute a waiver, release or impairment of any obligation
      evidenced or secured by this Note, the Other Loan Documents or the Security
      Instrument; (B) impair the right of Lender to name Borrower as a party defendant
      in any action or suit for judicial foreclosure and sale under the Security
      Instrument; (C) affect the validity or enforceability of any indemnity,
      guaranty, master lease or similar instrument made in connection with this Note,
      the Security Instrument, or the Other Loan Documents; (D) impair the right
      of
      Lender to obtain the appointment of a receiver; (E) impair the enforcement
      of
      the Assignment executed in connection herewith; (F) impair the right of Lender
      to enforce the provisions of Section
      11.2
      of the
      Security Instrument; or (G) impair the right of Lender to obtain a deficiency
      judgment or judgment on this Note against Borrower if necessary to obtain any
      insurance proceeds or condemnation awards to which Xxxxxx would otherwise be
      entitled under the Security Instrument; provided,
      however,
      Lender
      shall only enforce such judgment against the insurance proceeds and/or
      condemnation awards.
 
(iv)  Notwithstanding
      the provisions of this Article to the contrary, Borrower shall be personally
      liable to Lender for the Losses Lender incurs due to: (A) any fraud, willful
      misconduct or material misrepresentation by Borrower, its general partners,
      if
      any, its members, if any, its principals, its affiliates, its agents or its
      employees or by any guarantor in connection with the Loan evidenced by this
      Note: (B) the misapplication or misappropriation of Rents; (C) the extent of
      any
      insurance proceeds or condemnation awards which are not applied as required
      under the Loan Documents; (D) the extent of the value of any Personal Property
      taken from the Property by or on behalf of Borrower and not replaced with
      Personal Property of the same utility and of the same or greater value; (E)
      the
      extent of the value of any actual waste or arson committed by Xxxxxxxx, any
      

 
 

          
        
 

principal,
      affiliate, general partner or member thereof or by any Guarantor; (F) the extent
      of any fees or commissions paid by Borrower to any principal, affiliate, general
      partner or member of Borrower, or any Guarantor in violation of the terms of
      this Note, the Security Instrument or the Other Loan Documents; (G) the extent
      of any liability and costs incurred by Lender due to Borrower’s failure to
      comply with the provisions of Section
      11.2
      of the
      Security Instrument; or (H) any breach of the Environmental
      Indemnity.
 
(b)  Nothing
      herein shall be deemed to be a waiver of any right which Lender may have under
      Sections 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy
      Code
      to file a claim for the full amount of the Debt or to require that all
      collateral shall continue to secure all of the Debt, owing to Lender in
      accordance with this Note, the Security Instrument and the Other Loan
      Documents.
 
11.  AUTHORITY
 
Borrower
      represents that Xxxxxxxx (and each signatory on behalf of Xxxxxxxx) has full
      power, authority and legal right to execute, deliver and perform its obligations
      pursuant to this Note and the other Loan Documents and that this Note and the
      other Loan Documents constitute legal, valid and binding obligations of
      Borrower. Borrower further represents that the loan evidenced by the Loan
      Documents was made for business or commercial purposes and not for personal,
      family or household use.
 
12.  NOTICES
 
All
      notices or other communications required or permitted to be given pursuant
      hereto shall be given in the manner and be effective as specified in the
      Security Instrument, directed to the parties at their respective addresses
      as
      provided therein.
 
13.  TRANSFER
 
Lender
      shall have the unrestricted right at any time or from time to time to sell
      this
      Note and the loan evidenced by this Note and the other Loan Documents or
      participation interests therein. Borrower shall execute, acknowledge and deliver
      any and all instruments requested by Xxxxxx to satisfy such purchasers or
      participants that the unpaid indebtedness evidenced by this Note is outstanding
      upon the terms and provisions set out in this Note and the other Loan Documents.
      To the extent, if any, specified in such assignment or participation, such
      assignee(s) or participant(s) shall have the rights and benefits with respect
      to
      this Note and the other Loan Documents as such assignee(s) or participant(s)
      would have if they were the Lender hereunder.
 
14.  WAIVER
      OF TRIAL BY JURY
 
XXXXXXXX
      HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY
      JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH
      RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS NOTE OR THE OTHER LOAN
      DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
      THEREWITH INCLUDING, BUT NOT LIMITED TO, THOSE 

 
 

          
        
 

RELATING
      TO (A) ALLEGATIONS THAT A PARTNERSHIP EXISTS BETWEEN XXXXXX AND BORROWER;
      (B) USURY OR PENALTIES OR DAMAGES THEREFOR; (C) ALLEGATIONS OF
      UNCONSCIONABLE ACTS, DECEPTIVE TRADE PRACTICE, LACK OF GOOD FAITH OR FAIR
      DEALING, LACK OF COMMERCIAL REASONABLENESS, OR SPECIAL RELATIONSHIPS (SUCH
      AS
      FIDUCIARY, TRUST OR CONFIDENTIAL RELATIONSHIP); (D) ALLEGATIONS OF
      DOMINION, CONTROL, ALTER EGO, INSTRUMENTALITY, FRAUD, REAL ESTATE FRAUD,
      MISREPRESENTATION, DURESS, COERCION, UNDUE INFLUENCE, INTERFERENCE OR
      NEGLIGENCE; (E) ALLEGATIONS OF TORTIOUS INTERFERENCE WITH PRESENT OR
      PROSPECTIVE BUSINESS RELATIONSHIPS OR OF ANTITRUST; OR (F) SLANDER, LIBEL
      OR DAMAGE TO REPUTATION. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN
      KNOWINGLY AND VOLUNTARILY BY XXXXXXXX, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY
      EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD
      OTHERWISE ACCRUE. XXXXXX IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH
      IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY
      BORROWER.
 
15.  APPLICABLE
      LAW
 
This
      Note
      shall be governed by and construed in accordance with the laws of the state
      in
      which the real property encumbered by the Security Instrument is located
      (without regard to any conflict of laws or principles) and the applicable laws
      of the United States of America.
 
16.  JURISDICTION
 
BORROWER
      HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY COURT OF COMPETENT
      JURISDICTION LOCATED IN THE STATE IN WHICH THE PROPERTY IS LOCATED IN CONNECTION
      WITH ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE.
 
17.  NO
      ORAL
      CHANGE
 
The
      provisions of this Note and the other Loan Documents may be amended or revised
      only by an instrument in writing signed by the Borrower and Xxxxxx.
 
This
      Note
      and all the other Loan Documents embody the final, entire agreement of Xxxxxxxx
      and Lender and supersede any and all prior commitments, agreements,
      representations and understandings, whether written or oral, relating to the
      subject matter hereof and thereof and may not be contradicted or varied by
      evidence of prior, contemporaneous or subsequent oral agreements or discussions
      of Xxxxxxxx and Xxxxxx. There are no oral agreements between Borrower and
      Lender. 
 
18.  ORAL
      AGREEMENTS
 
NOTICE
      IS HEREBY GIVEN THAT ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND
      CREDIT, MODIFY LOAN TERMS, OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT
      ARE
      NOT ENFORCEABLE UNDER WASHINGTON LAW.
 

 


        
 
 

          
        
 

        


Executed
      as of the day and year first above written.
 
BORROWER:

(COMPANY
      SUBSIDIARY), a _________ limited partnership 

By: (COMPANY
      SUBSIDIARY), a _________ corporation, its sole general partner


By:      
Name:      
Title:      
Document Metadata

Table of Contents

FIXED RATE NOTE

Document Metadata
