Exhibit 10.44
PROMISSORY NOTE
$13,127,000.00 New York, New York
January __, 2003
FOR VALUE RECEIVED, INLAND PARK PLACE 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 THIRTEEN MILLION ONE HUNDRED TWENTY SEVEN THOUSAND AND NO/100
DOLLARS ($13,127,000.00), 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
New Britain Main, L.L.C., a Delaware limited liability company ("OTHER
BORROWER") and Lender (the "LOAN AGREEMENT"). All capitalized terms not defined
herein shall have the respective meanings set forth in the Loan Agreement.
WHEREAS, Xxxxxxxx, Other Borrower and Lender are party to that certain Loan
Agreement dated October 31, 2003 (the "PARK PLACE LOAN AGREEMENT") pursuant to
which Borrower executed that certain Promissory Note dated October 31, 2003 (the
"PRE-EXISTING NOTE") in the principal amount of THIRTEEN MILLION ONE HUNDRED
TWENTY SEVEN THOUSAND AND NO/100 DOLLARS ($13,127,000.00) (the "ORIGINAL LOAN"),
that certain Deed of Trust and Security Agreement dated October 31, 2003 and
other Loan Documents defined in the Park Place Loan Agreement. As of the date
hereof, the outstanding principal balance of the Original Loan is THIRTEEN
MILLION ONE HUNDRED TWENTY SEVEN THOUSAND AND NO/100 DOLLARS ($13,127,000.00).
WHEREAS, Xxxxxxxx and Lender have agreed that the Original Loan will be
cross-defaulted and cross-collateralized with Xxxxxx's loan to Other Borrower.
Xxxxxxxx and Xxxxxx have agreed to amend and restate the terms of the
Pre-Existing Note by entering into an Amended and Restated Promissory Note.
Borrower, Other Borrower and Xxxxxx have executed the Loan Agreement dated as of
the date hereof, which shall supercede the Park Place Loan Agreement in all
respects with respect to Borrower.
AGREEMENT:
NOW, THEREFORE, Xxxxxxxx and Xxxxxx hereby agree to amend and restate
the Pre-Existing Note in its entirety as follows:
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.
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
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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 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 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
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waiver of, any prohibition or restriction on transfers of interests in such
partnership which may be set 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 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 PARK PLACE LIMITED
PARTNERSHIP, an Illinois limited partnership
By: Inland Plano Investments, LLC, a Delaware
limited liability company, its general partner
By: Inland Western Retail Real Estate
Trust, Inc., its sole member
By: /s/ Xxxxxxx Xxxxxx
-----------------
Name: Xxxxxxx Xxxxxx
Title: Asst. Secretary
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ACKNOWLEDGMENT
STATE OF ILLINOIS
COUNTY OF DUPAGE
This instrument was acknowledged before me on January 26, 2004, by
Xxxxxxx Xxxxxx, Asst. Secretary of Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, the sole member of Inland Plano Investments, LLC,
a Delaware limited liability company, the general partner of INLAND PARK PLACE
LIMITED PARTNERSHIP, an Illinois limited partnership, on behalf of said
entities.
/s/ Xxxxx X. Xxxxx
--------------------------------
Notary Public, State of Illinois
My commission expires:
OFFICIAL SEAL
12/8/07 XXXXX X XXXXX
--------------------- NOTARY PUBLIC - STATE OF ILLINOIS
MY COMMISSION EXPIRES: 12/08/07
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