Exhibit 10.393
Loan No. 10024996
PROMISSORY NOTE
$10,982,300.00
November 12, 2004
FOR VALUE RECEIVED, INLAND WESTERN MANSFIELD LIMITED PARTNERSHIP, an
Illinois limited partnership, having its principal place of business at 0000
Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000, as maker hereunder (referred to
herein as "BORROWER"), hereby unconditionally promises to pay to the order of
KEYBANK NATIONAL ASSOCIATION, a national banking association, its successors and
assigns, having an address at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx
00000 ("LENDER"), or at such other place as the holder hereof may from time to
time designate in writing, the principal sum of TEN MILLION NINE HUNDRED
EIGHTY-TWO THOUSAND THREE HUNDRED AND NO/100 DOLLARS ($10,982,300.00), 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, between Borrower 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
It is expressly stipulated and agreed to be the intent of Borrower and
Lender at all times to comply strictly with the applicable Texas law, or federal
law(if applicable), governing the maximum rate or amount of interest payable on
the indebtedness evidenced by this Note and the Loan Documents. All agreements
in this Note and all other Loan Documents, whether now existing or hereafter
arising and whether written or oral are expressly limited so that in no
contingency or event whatsoever, whether by reason of acceleration of maturity
of the indebtedness evidenced hereby, prepayment, or otherwise, shall the amount
agreed to be paid hereunder for the use, forbearance, or detention of money
exceed the highest lawful rate permitted under applicable usury laws (the
"MAXIMUM AMOUNT"). To the extent Chapter 303 of the Texas Finance Code, and its
successor statutes and amendments, as then in effect (collectively, the
"STATUTE"), are applicable, the "weekly ceiling" specified in the Statute, as
selected by Xxxxxx, is the applicable ceiling. Lender may, in accordance with
and to the extent permitted by applicable law, at its option and from time to
time revise its election of the applicable "rate ceiling" as to current future
balances outstanding, and may use the "quarterly ceiling" or the "month ceiling"
from time to time in effect, as such terms are defined in the Statute, or any
other legally available "ceilings" as the Maximum Amount under Texas or other
applicable law. If the Maximum Amount as determined under any applicable federal
law, shall at any time exceed the maximum rate of interest as determined under
applicable Texas law, then to the extent permitted by law, the applicable
federal rate shall be deemed controlling for purposes of determining the Maximum
Amount during such period of time. In no event shall the provisions of Chapter
346 of the Texas Finance Code (which regulate certain revolving credit loan
accounts and revolving triparty accounts) apply to the indebtedness evidenced
hereby. This Article 4 will control all agreements between Borrower and Lender.
If, from any circumstance whatsoever (including without limitation, the receipt
of any late charge or similar amount), fulfillment of any provision of this Note
or any other Loan Document at the time performance of such provision shall be
due shall involve exceeding any usury limit prescribed by law that a court of
competent jurisdiction may deem applicable hereto, then IPSO FACTO, the
obligations to be fulfilled shall be reduced to allow compliance with such
limit, and if, from any circumstance whatsoever, Lender shall ever receive
anything of value deemed interest in an amount that would exceed the highest
lawful rate, the receipt of such excess shall be deemed a mistake and shall be
canceled automatically or, if theretofore paid, such excess shall be credited
against the principal amount of the indebtedness evidenced hereby to which the
same may lawfully be credited, and any portion of such excess not capable of
being so credited shall be refunded immediately to Borrower. Borrower hereby
agrees that, as a condition precedent to any claim seeking usury penalties
against Xxxxxx, Xxxxxxxx will provided written notice to Lender shall have sixty
(60) days after receipt of such notice in which to correct such usury violation,
if any, by either refunding such excess interest to Borrower or crediting such
excess interest against this Note and/or the indebtedness evidenced hereby or in
the Loan Documents then owing by Borrower to Xxxxxx. All interest contracted
for, charged, taken, reserved, paid or agreed to be paid to Lender shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full term of this Note, including any extensions and renewals
hereof until payment in full [ILLEGIBLE] the principal balance of this Note so
that the interest thereon for such full term will not exceed any time the
Maximum Amount.
2
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
[ILLEGIBLE] forth in the Loan Agreement, the Mortgage or any other Loan
Document.)
ARTICLE 7
TRANSFER
Upon the transfer of this Note, Borrower hereby waiving notice of any such
[ILLEGIBLE] except as provided in the Loan Agreement, Lender may deliver all the
collateral [ILLEGIBLE] granted, pledged or assigned pursuant to the Loan
Documents, or any part thereof, to transferee who shall thereupon become vested
with all the rights herein or under applicable given to Lender with respect
thereto, and Lender shall from that date forward forever be relieved
3
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.
[NO FURTHER TEXT ON THIS PAGE)
4
IN WITNESS WHEREOF, Xxxxxxxx has duly executed this Note as of the day and
year first above written.
BORROWER;
INLAND WESTERN MANSFIELD LIMITED
PARTNERSHIP, an Illinois limited partnership
By: Inland Western Xxxxxxxxx XX, L.L.C., a
Delaware limited liability company, its
general partner
By: Inland Western Retail Real Estate
Trust, Inc., a Maryland corporation,
its sole member
By: /s/ [ILLEGIBLE]
------------------------------
Name: [ILLEGIBLE]
Title: asst. Secretary
Pay to the order of ________________________, without recourse.
KEYBANK NATIONAL ASSOCIATION, a
national banking association
By:
--------------------------------------------
Print Name:
------------------------------------
Print Title:
-----------------------------------
STATE OF ILLINOIS
COUNTY OF Du PAGE
On this 9th day of November, 2004, before me, XXXXX X. XXXXX, a Notary
Public in and for said state, personally appeared [ILLEGIBLE] XXXXXX, who being
by me duly sworn did say that she is the ASST. SEC'Y of Inland Western Retail
Real Estate Trust, Inc., a Maryland corporation, the sole member of Inland
Western Xxxxxxxxx XX, L.L.C., a Delaware limited liability company, the general
partner of Inland Western Mansfield Limited Partnership, an Illinois limited
partnership, and that the within instrument was signed and sealed in behalf of
said corporation in behalf of said limited liability company by authority of its
board of directors, and acknowledged said instrument to be the free act and deed
of said corporation in behalf of said limited liability company for the purposes
there in stated.
[Notarial Seal] /s/ Xxxxx X. Xxxxx
--------------------------
Print Name: XXXXX X. XXXXX
--------------
My commission expires: 10/13/08
OFFICIAL SEAL
XXXXX X. XXXXX
NOTARY PUBLIC STATE OF ILLINOIS
MY COMMISSION [ILLEGIBLE]
6
