Exhibit 10.335
Allstate Life Insurance Company
Loan No. 122533
MORTGAGE NOTE
Chicago, Illinois
$5,384,025 September 27, 2004
1. PAYMENT OF PRINCIPAL AND INTEREST. FOR VALUE RECEIVED, INLAND WESTERN
DALLAS PARADISE, L.L.C. a Delaware limited liability company (the "Maker"),
hereby promises to pay to the order of ALLSTATE LIFE INSURANCE COMPANY, and any
subsequent holder of this Note ("Holder" or "Holders") in the manner hereinafter
provided, the principal amount of FIVE MILLION THREE HUNDRED EIGHTY SEVEN
THOUSAND TWENTY FOUR DOLLARS ($5,384,025), together with interest on the
outstanding principal balance from the date of the initial disbursement (for
purposes of this Note, "disbursement" means the date funds are wire transferred
from Holder's account) of all or a part of the principal of this Note
("Disbursement Date") until maturity at the rate of four and 96/100 percent
(4.96%) per annum ("Contract Rate") as follows:
(a) on the Disbursement Date, interest only, in advance, accruing from the
Disbursement Date to the last day of September, 2004 both inclusive; and
(b) interest only, in arrears, in the amount of TWENTY TWO THOUSAND TWO
HUNDRED FIFTY THREE AND 97/100 DOLLARS ($22,253.97) on the first day of
November, 2004, and on the first day of each month thereafter until this Note is
fully paid (the initial payment and each subsequent payment under this
subparagraph (b) shall each hereinafter be referred to as "Monthly Payment");
and
(c) on April 1, 2009, the entire unpaid principal amount and any interest
accrued but remaining unpaid and all other sums due under this Note.
Except for the interest payable under paragraph (a) above, interest shall
be payable in arrears and calculated on the basis of a 360 day year containing
twelve 30 day months. All such payments on account of the indebtedness evidenced
by this Note shall be first applied to interest accrued on the unpaid principal
amount and the remainder toward reduction of the unpaid principal amount.
2. PAYMENT INFORMATION. All payments required to be made hereunder shall
be made during regular business hours to Holder at its office c/o Commercial
Mortgage Division, Allstate Plaza South, Suite G5C, 0000 Xxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Servicing Manager, with sufficient
information to identify the source and application of such payment to Holder's
Loan #122533, or at such other place as Holder may from time to time designate
in writing. All payments shall be made in currency of the United States of
America without presentment or surrender of this Note. Payments to Holder shall
be made by transferring immediately available federal funds by bank wire or
interbank transfer for the account of Holder. Any payment of principal or
interest received after 1:00 p.m. Chicago time shall be deemed to have been
received by Holder on the next business day and shall bear interest accordingly.
If and so long as Holder directs Maker to make payments to a servicing agent,
then payments may
be made by check. Payments made by check will not be deemed made until good
funds for such check are received by Holder or the servicing agent.
3. SECURITY FOR NOTE. The payment of this Note and all other sums due
Holder is secured by (a) a Deed to Secure Debt and Security Agreement
("Mortgage"), of even date herewith, granted by Maker, as grantor, to Holder and
ALLSTATE INSURANCE COMPANY, an Illinois insurance corporation ("AIC"), as
grantee, covering certain real property, the improvements thereon and certain
personal property situated in the County of Paulding, State of Georgia and
described in the Mortgage ("Property"), and (b) those certain instruments of
indebtedness and security described as "Related Agreements" in the Mortgage.
Except as otherwise defined herein, all of the defined terms contained in the
Mortgage and the Related Agreements are hereby incorporated herein by express
reference.
4. LATE CHARGES. If any Monthly Payment required under this Note not be
paid in full on or before the fifth (5th) day of the month in which such payment
is due, Maker acknowledges that the Holder will incur extra expenses for the
handling of the delinquent payment and servicing the indebtedness evidenced
hereby, and that the exact amount of these extra expenses is extremely difficult
and impractical to ascertain, hut that a charge of five percent (5%) of the
amount of the delinquent payment ("Late Charge") would be a fair approximation
of the expense so incurred by Xxxxxx. If applicable law requires a lesser
charge, however, then the maximum charge permitted by such law may be charged by
Xxxxxx for said purpose. Therefore, Maker shall, in such event, without further
notice, and without prejudice to the right of Holder to collect any other
amounts provided to be paid hereunder or under the Mortgage, the Related
Agreements or any other instrument executed for purposes of further securing
payment of the obligations evidenced by this Note, or to declare an Event of
Default, as defined below, pay to Holder immediately upon demand the Late Charge
to compensate Holder for expenses incurred in handling delinquent payments.
5. INTEREST PAYABLE UPON DEFAULT. If there occurs an Event of Default
under this Note or the Mortgage or under any Related Agreement, then the unpaid
principal amount of this Note, and all accrued and unpaid interest thereon shall
bear interest at the Contract Rate plus five percent (5%) per annum compounded
monthly ("Default Rate") from the date of expiration of any applicable cure or
grace period until such time, if any, as the Event of Default is cured and the
Mortgage and this Note are reinstated as permitted by applicable law, or
otherwise until such time as the unpaid principal amount of this Note and all
other indebtedness evidenced by this Note are fully repaid, whichever is
earlier.
6. EVENTS OF DEFAULT. An "Event of Default" shall exist under this Note:
(a) in the event Maker shall fail to make any payment due under this Note,
other than the final payment and Prepayment Premium, on or before the fifth
(5th) day of the month in which such payment is due;
(b) in the event Maker shall fail to make the final payment or the
Prepayment Premium when such payment is due; or
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(c) if there shall exist an Event of Default under the Mortgage, the AIC
Note (as defined in the Mortgage), or in any of the Related Agreements.
7. ADDITIONAL PAYMENTS. The additional payments called for under
Paragraphs 4 and 5 shall be in addition to, and shall in no way limit, any other
rights and remedies provided for in this Note, the Mortgage, the AIC Note, any
Related Agreements, or otherwise provided by law.
8. PAYMENT OF TAXES AND EXPENSES. Maker further promises to pay to
Holder, immediately upon written notice from Holder: (i) all recordation,
transfer, stamp, documentary or other fees or taxes levied on Holder (exclusive
of Holder's income taxes) by reason of the making or recording of this Note, the
Mortgage or any of the Related Agreements, and (ii) all intangible property
taxes levied upon any Holder of this Note or mortgagee under the Mortgage or
secured party under the Related Agreements.
Maker further promises to pay to Holder, immediately upon written notice
from Holder, all actual costs, expenses, disbursements, escrow fees, title
charges and reasonable legal fees and expenses actually incurred by Xxxxxx and
its counsel in (i) the collection, attempted collection, or negotiation and
documentation of any settlement or workout of the principal amount of this Note,
the interest thereon or any installment or other payment due hereunder, and (ii)
any suit or proceeding whatsoever at all trial and appellate levels in regard to
this Note or to protect, sustain or enforce the lien of any instrument securing
this Note, including, without limitation, in any bankruptcy proceeding or
judicial or nonjudicial foreclosure proceeding. It is the intent of the parties
that Maker pay all expenses and reasonable attorneys' and paralegals' fees
incurred by Xxxxxx as a result of or in connection with (A) matters described in
clauses (i) and (ii) above, (B) the negotiation and closing of the loan
transaction evidenced by this Note and the AIC Note, and any supplements or
amendments thereto, (C) the protection of property given as security for the
indebtedness evidenced hereby, and (D) responding to requests from Maker that
Holder take certain actions, and as may otherwise be reasonably incurred by
Xxxxxx as a result of or in connection with entering into the loan transaction
evidenced by this Note and the AIC Note.
9. PREPAYMENT. Maker is prohibited from prepaying this Note until October
1, 2005 (the "No-Prepayment Period"). Subsequent to the No-Prepayment Period, at
any time with thirty (30) days prior written notice to Holder, specifying the
date of prepayment, Maker will have the privilege of prepaying the outstanding
principal amount together with any accrued but unpaid interest, any other sums
secured by the Mortgage and the Related Agreements, and a prepayment premium
("Prepayment Premium") equal to the greater of:
(a) one percent of the principal amount prepaid, or
(b) the yield maintenance payment calculated as follows:
If the Prevailing Interest Rate is less than the Contract Rate, the
yield maintenance payment shall be the remainder of (x) minus (y)
where "(x)" is the present value of all unpaid installments of
principal and interest due under this Note from the date of prepayment
to and including the original maturity date of this Note, discounted
at the Prevailing Interest Rate, plus 0.50 percent (50 basis points),
and "(y)" is the outstanding principal balance of this Note as of the
prepayment date.
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The term "Prevailing Interest Rate" as used herein shall mean the
yield to maturity on a United States Treasury Bond or Treasury Note
selected by Holder having a maturity date as near as possible to the
original maturity date of this Note and an "ask" price, as close as
possible to par (as published two weeks prior to the specified date of
prepayment in THE WALL STREET JOURNAL or similar publication or
available from the Federal Reserve Bank of New York), less the Basis
Point Adjustment as computed in accordance with EXHIBIT A attached
hereto to convert the monthly payments to a semi-annual equivalent.
No Prepayment Premium shall be due on the principal balance prepaid within
the thirty (30) day period prior to the Maturity Date of this Note.
Written notice of Maker's election to make a prepayment in full of this
Note shall be given in the manner provided for notices under the Mortgage.
Partial prepayment of the outstanding principal amount of this Note shall not be
permitted except in accordance with the terms of the Mortgage. In the event of
such a permitted partial prepayment, the Prepayment Premium calculated in this
Paragraph 9 shall be prorated based on the amount of the partial prepayment
relative to the then current outstanding principal balance of this Note.
Maker acknowledges that Holder:
(a) has advanced the amounts evidenced by this Note with the expectation
that such amounts would be outstanding for a period at least equal to the
No-Prepayment Period;
(b) would not have been willing to advance such amounts on these terms for
a shorter period of time;
(c) in making the loan evidenced by this Note, is relying on Maker's
creditworthiness and its agreement to pay in strict accordance with the terms
set forth in the Note; and
(d) would not make the loan evidenced by this Note without full and
complete assurance by Maker of its agreement not to prepay all or a part of the
principal of this Note except as expressly permitted herein and in the Mortgage.
Maker has been advised and acknowledges that Holder is relying on the
receipt of payments under this Note to, among other things, match and support
its obligations under contracts entered into by Holder with third parties and
that in the event of a prepayment, Xxxxxx could suffer loss and additional
expenses which are extremely difficult and impractical to ascertain.
Accordingly, it is the express intent of Maker and Holder that: (a) Maker shall
have no right to prepay this Note during the No-Prepayment Period; (b) any
prepayment of this Note during the No-Prepayment Period shall only occur in the
event Holder accelerates payment under this Note or as otherwise set forth in
the Mortgage; (c) any prepayment described in foregoing clause (b) shall (unless
otherwise expressly permitted in the Mortgage) require the payment of the
Prepayment Premium; and (d) to the extent permitted by applicable law, Maker has
waived, and hereby waives, any right to prepay this Note except as expressly
provided in the Mortgage or this Note during the No-Prepayment Period. In the
event, notwithstanding the foregoing express intent of Maker and Holder and the
express waiver by Maker of any right to prepay this Note during the
No-Prepayment Period, that the applicable law of the jurisdiction in which the
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Property is located permits the Maker to prepay this Note during the
No-Prepayment Period, then the applicable Prepayment Premium described in clause
(c) in the third sentence of this grammatical paragraph shall be paid to Holder
as a condition to any such prepayment.
Maker expressly acknowledges that, pursuant to the provisions of this Note
and except as otherwise provided in this Note or the Mortgage, Maker has no
right to prepay this Note in whole or in part during the No-Prepayment Period.
In the event any prepayment is required or expressly permitted, Maker shall be
liable for the payment of the Prepayment Premium unless expressly stated
otherwise in this Note or in the Mortgage. Furthermore, Maker waives any rights
it may have under any applicable state laws as they relate to any prepayment
restrictions contained in this Paragraph 9 or otherwise contained in this Note
and expressly acknowledges that Xxxxxx has made the loan evidenced by this Note
in reliance upon such agreement, and waiver of Maker and that Holder would not
have made the loan evidenced by this Note without such agreement and waiver of
Maker. Maker acknowledges that specific weight has been given to the
consideration given for such agreement, which consideration is the granting of
the loan.
10. EVASION OF PREPAYMENT PREMIUM. Maker acknowledges that in the event of
an acceleration of payment of this Note following an Event of Default by Maker,
a tender of payment of an amount necessary to satisfy the indebtedness evidenced
hereby, but not including the Prepayment Premium, made at any time prior to a
foreclosure sale by Maker, its successors or assigns or by anyone on behalf of
Maker, or by a buyer upon foreclosure or power of sale, shall constitute a
prepayment hereunder and shall be presumed to be and conclusively deemed to
constitute a deliberate evasion of the prepayment provisions hereof and shall
therefore be subject to the Prepayment Premium in accordance with this Note with
the date of prepayment being deemed the date of occurrence of the foreclosure
sale or the tender of payment of the amount necessary to pay the entire
indebtedness evidenced hereby in full, including the Prepayment Premium.
11. MAKER'S COVENANTS. Maker agrees that:
(a) this instrument and the rights and obligations of all parties
hereunder shall be governed by and construed under the laws of the state or
commonwealth in which the Property is located;
(b) the obligation evidenced by this Note is an exempted transaction under
the Truth-in-Lending Act, 15 U.S.C Section 1601, ET SEQ. (1982);
(c) said obligation constitutes a business loan for the purpose of the
application of any laws that distinguish between consumer loans and business
loans and that have as their purpose the protection of consumers in the state or
commonwealth in which the Property is located;
(d) at the option of the Holder, the United States District Court for the
district in which the Property is located or any court of competent jurisdiction
of the state or commonwealth in which the Property is located shall have
jurisdiction in any action, suit or other proceeding arising out of or relating
to any act taken or omitted hereunder or the enforcement of this Note, the
Mortgage and the Related Agreements and Maker shall not assert in any such
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action, suit or other proceeding that it is not personally subject to the
jurisdiction of such courts, that the action, suit or other proceeding is
brought in an inconvenient forum or that the venue of the action, suit or other
proceeding is improper;
(e) it hereby waives any objections to venue; and
(f) it hereby waives its right to a trial by jury.
12. SEVERABILITY. The parties hereto intend and believe that each
provision of this Note comports with all applicable local, state and federal
laws and judicial decisions. However, if any provision or any portion of any
provision contained in this Note is held by a court of law to be invalid,
illegal, unlawful, void or unenforceable as written in any respect, then it is
the intent of all parties hereto that such portion or provision shall be given
force to the fullest possible extent that it is legal, valid and enforceable,
that the remainder of the Note shall be construed as if such illegal, invalid,
unlawful, void or unenforceable portion or provision was not contained therein,
and the rights, obligations and interests of Maker and Holder under the
remainder of this Note shall continue in full force and effect.
13. USURY LAWS. It is the intention of Maker and Holder to conform
strictly to the usury laws now or hereafter in force in the state or
commonwealth in which the Property is located, and any interest payable under
this Note, the Mortgage, or any Related Agreement shall be subject to reduction
to an amount not to exceed the maximum non-usurious amount for commercial loans
allowed under the usury laws of the state or commonwealth in which the Property
is located as now or hereafter construed by the courts having jurisdiction over
such matters. In the event such interest (whether designated as interest,
service charges, points, or otherwise) does exceed the maximum legal rate, it
shall be:
(a) cancelled automatically to the extent that such interest exceeds the
maximum legal rate;
(b) if already paid, at the option of the Holder, either be rebated to
Maker or credited on the principal amount of the Note; and
(c) if the Note has been prepaid in full, then such excess shall be
rebated to Maker.
14. ACCELERATION. Upon an Event of Default, Holder shall have the right,
without further demand or notice, to declare the entire principal amount of this
Note and/or any Future Advance (as defined in the Mortgage) then outstanding,
all accrued and unpaid interest thereon and all other further sums payable under
this Note, which shall include the Prepayment Premium (calculated as provided in
Paragraph 9 above), the Mortgage or any note evidencing any Future Advance, to
be immediately due and payable and, notwithstanding the stated maturity in this
Note or any note evidencing any Future Advance, all such sums declared due and
payable shall thereupon become immediately due and payable. During the existence
of such Event of Default, Holder may apply payments received on any amounts due
under the Note, the Mortgage, any Related Agreement or any note evidencing any
Future Advance as Holder may determine in its sole discretion.
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15. WAIVERS BY MAKER. As to this Note, the Mortgage, the Related
Agreements and any other instruments securing the indebtedness, Maker and all
guarantors, sureties and endorsers, severally waive all applicable exemption
rights, whether under any state constitution, homestead laws or otherwise, and
also severally waive diligence, valuation and appraisement, presentment for
payment, protest and demand, notice of protest, demand and dishonor and
diligence in collection and nonpayment of this Note and all other notices in
connection with the delivery, acceptance, performance, default, or enforcement
of the payment of this Note (except notice of default specifically provided for
in the Mortgage and the Related Agreements). To the extent permitted by law,
Maker further waives all benefit that might accrue to Maker by virtue of any
present or future laws exempting the Property, or any other property, real or
personal, or the proceeds arising from any sale of any such property, from
attachment, levy, or sale under execution, or providing for any stay of
execution to be issued on any judgment recovered on this Note or in any action
to foreclose the Mortgage, injunction against sale pursuant to power of sale,
exemption from civil process or extension of time for payment. Xxxxx agrees that
any real estate that may be levied upon pursuant to a judgment obtained by
virtue of this Note, or any writ of execution issued thereon, may be sold upon
any such writ in whole or in part in any order desired by Xxxxxx.
16. MAKER NOT RELEASED. No delay or omission of Holder to exercise any of
its rights and remedies under this Note, the Mortgage or any Related Agreements
at any time following the happening of an Event of Default shall constitute a
waiver of the right of Holder to exercise such rights and remedies at a later
time by reason of such Event of Default or by reason of any subsequently
occurring Event of Default. The acceptance by Holder of payment of any sum
payable hereunder after the due date of such payment shall not be a waiver of
Holder's right to either require prompt payment when due of all other sums
payable hereunder or to declare a default for failure to make prompt payment.
This Note, or any payment hereunder, may be extended from time to time by
agreement in writing between Maker and Holder without in any other way affecting
the liability and obligations of Maker and endorsers, if any.
17. NONRECOURSE. Except as otherwise set forth in this Paragraph, Xxxxxx's
recourse under this Note, the AIC Note, the Mortgage and the Related Agreements
shall be limited to and satisfied from the Property and the proceeds thereof,
the rents and all other income arising therefrom during and after the month in
which an Event of Default has occurred, the other assets of Maker arising out of
the Property which are given as collateral for this Note and the AIC Note and
any other collateral given in writing to Holder as security for repayment of
this Note (all of the foregoing are collectively referred to as the "Loan
Collateral"). Notwithstanding the preceding sentence:
(a) Holder may, in accordance with the terms of this Note, the AIC Note,
the Mortgage or any Related Agreement: (i) foreclose the lien of the Mortgage;
(ii) take appropriate action to enforce this Note, the AIC Note, the Mortgage
and the Related Agreements to realize upon and/or protect the Loan Collateral;
(iii) name Maker as a party defendant in any action brought under this Note, the
AIC Note, the Mortgage or the Related Agreements so long as the exercise of any
remedy is limited to the Loan Collateral; (iv) pursue all of its rights and
remedies against any guarantor or surety or master tenant whether or not a
partner, member or other owner of Maker; and (v) pursue all of its rights and
remedies against Maker and the indemnitors under that certain Environmental
Indemnity Agreement of even date herewith;
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(b) Holder may seek damages or other monetary relief, to the extent of
actual monetary loss, or any other remedy at law or in equity against Maker, and
the indemnitors/guarantors, if any, under any nonrecourse exception indemnity
agreements ("Nonrecourse Indemnitors") by reason of or in connection with: (i)
the failure of Maker to pay to Holder, upon demand, all rents, issues and
profits of the Property to which Holder is entitled pursuant to this Note, the
AIC Note, the Mortgage or the Related Agreements following an Event of Default;
(ii) any waste of the Property or any willful act or omission by Maker which
damages or materially reduces the value of the Property; (iii) the distribution
of rents, issues and profits from the Property prior to the payment of operating
expenses or the provision for reserves, if any, to be made pursuant to this
Note, the AIC Note, the Mortgage or the Related Agreements prior to any other
expenditure or distribution by Maker; (iv) the failure to account for and to
turn over security deposits (and interest required by law or agreement to be
paid thereon) or prepaid rents following the occurrence of an Event of Default
under this Note, the AIC Note, the Mortgage or any Related Agreements; (v) the
failure to timely pay all real estate taxes or any regular or special
assessments affecting the Property; (vi) the failure to account for and to turn
over real estate tax accruals following the occurrence of an Event of Default
under this Note, the AIC Note, the Mortgage or any Related Agreements; (vii) the
failure to maintain casualty and liability insurance as required under the
Mortgage or the Related Agreements or to apply insurance proceeds or
condemnation awards relating to the Property or other collateral in the manner
required under applicable provisions of this Note, the AIC Note, the Mortgage or
any Related Agreement; (viii) any modification, termination or cancellation of
any lease of all or any portion of the Property without Holder's prior written
consent, if and to the extent such consent is required under the Mortgage or the
Related Agreements and if and to the extent such modification, termination or
cancellation has a material adverse affect on the value of the Property; (ix) a
default by Maker under any lease of all or any portion of the Property; or (x)
costs and expenses, including, without limitation, attorney's fees and transfer
taxes, incurred by Holder in connection, with the enforcement of this Note, the
AIC Note, the Mortgage or the Related Agreements or in connection with a
deed-in-lieu of foreclosure if the Event of Default giving rise to the
enforcement action is one described in subsections (b) or (c) as an exception to
the nonrecourse provisions, or if the Maker or any principal of Maker objects to
any actions taken by Holder to exercise its remedies under the Loan Documents;
Maker or principal of Maker commences any lawsuit to enjoin or delay a
foreclosure of the Property by Holder, or raises defenses or counterclaims to a
foreclosure action; Maker applies for the appointment of a receiver, trustee or
liquidator for it or for any of its property, or, as a debtor, files a voluntary
petition in bankruptcy, or petition or answer seeking reorganization or an
arrangement with creditors or lakes advantage of any bankruptcy, reorganization,
insolvency, readjustment of debt, dissolution or liquidation law or statute, or
makes a general assignment for the benefit of creditors; or in the event any
bankruptcy or reorganization proceedings (voluntary or involuntary), the Maker
or any principal of Maker opposes any motion by Holder for relief from the
Automatic Stay; and
(c) Maker, its sole member or general partners and the Nonrecourse
Indemnitor(s), if any, shall become personally liable for payment of all the
indebtedness evidenced by this Note or the AIC Note and performance of all other
obligations of Maker under this Note, the AIC Note, the Mortgage and Related
Agreements upon the occurrence of any of the following: (i) fraud or willful
misrepresentation of a material fact by Maker, its sole or general partners, or
Nonrecourse Indemnitor(s), if any, in connection with this Note, the AIC Note,
the Mortgage, the Related
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Agreements or any request for any action or consent by Holder; (ii) a Transfer
of any interest in Maker or all or any portion of the Property or any interest
therein in violation of the terms of this Note, the AIC Note, the Mortgage or
the Related Agreements; or (iii) the incurrence by Maker of any indebtedness in
violation of the terms of this Note, the AIC Note, the Mortgage or Related
Agreements (whether secured or unsecured, direct or contingent), other than
unsecured debt or routine trade payables incurred in the ordinary course of
business in connection with the operation of the Property.
In addition, Maker, its sole member or general partners and the Nonrecourse
Indemnitors, if any, shall be responsible for any costs and expenses incurred by
Holder in connection with the collection of any amounts for which Maker, its
sole member or general partners, if any, and the Nonrecourse Indemnitors, if
any, are personally liable under this Paragraph 17, including attorneys' fees
and expenses, court costs, filing fees and all other costs and expenses incurred
in connection therewith.
18. SUCCESSORS AND ASSIGNS. The provisions of this Note shall be binding
upon Maker and its legal representatives, successors and assigns and shall inure
to the benefit of any Holder and its successors and assigns. In the event Maker
is composed of more than one party, obligations arising from this Note are and
shall be joint and several as to each such party.
19. REMEDIES CUMULATIVE. The remedies of Holder as provided in this Note,
the AIC Note, or in the Mortgage or the Related Agreements, and the warranties
contained herein or therein shall be cumulative and concurrent, may be pursued
singly, successively or together at the sole discretion of Holder, may be
exercised as often as occasion for their exercise shall occur and in no event
shall the failure to exercise any such right or remedy be construed as a waiver
or release of such right or remedy. No remedy under this Note, conferred upon or
reserved to Holder is intended to be exclusive of any other remedy provided in
this Note, the AIC Note, the Mortgage or any of the Related Agreements or
provided by law, but each shall be cumulative and shall be in addition to every
other remedy given under the Mortgage or any of the Related Agreements or
hereunder or now or hereafter existing at law or in equity or by statute.
20. NOTICES. All notices, written confirmation of wire transfers and all
other communications with respect to this Note shall be directed as follows:
If to Holder:
c/o Allstate Investments, LLC
Allstate Plaza South, Suite G5C
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Commercial Mortgage Division
Servicing Manager
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With a copy to:
c/o Allstate Investments, LLC
Allstate Plaza South, Suite G5A
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Investment Law Division
If to Maker:
Inland Western Dallas Paradise, L.L.C.
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
With a copy to:
The Inland Real Estate Group, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
or at such other place as Holder or Maker may from time to time designate in
writing. All notices shall be in writing and shall be (a) hand-delivered, (b)
sent by United States express mail or by private overnight courier, or (c)
served by certified mail postage prepaid, return receipt requested, to the
appropriate address set forth above. Notices served as provided in (a) and (b)
shall be deemed to be effective upon delivery. Any notice served by certified
mail shall be deposited in the United States mail with postage thereon fully
prepaid and shall be deemed effective on the day of actual delivery as shown by
the addressee's return receipt or the expiration of three business days after
the date of mailing, whichever is earlier in time.
21. NO ORAL MODIFICATION. This Note may not be modified or discharged
orally, but only by an agreement in writing signed by the party against whom
enforcement of any waiver, modification or discharge is sought.
22. TIME. Time is of the essence with regard to the performance of the
obligations of Maker in this Note and each and every term, covenant and
condition herein by or applicable to Maker.
23. CAPTIONS. The captions and headings of the paragraphs of this Note are
for convenience only and are not to be used to interpret, define or limit the
provisions hereof.
24. REPLACEMENT NOTE. Upon receipt of evidence reasonably satisfactory to
Maker of the loss, theft, destruction or mutilation of this Note, and in the
case of any such loss, theft or destruction, upon delivery of an indemnity
agreement reasonably satisfactory to Maker or, in the case of any such
mutilation, upon surrender and cancellation of this Note, Maker will execute and
deliver to Holder in lieu thereof, a replacement note dated as of the date of
this Note,
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identical in form and substance to this Note and upon such execution and
delivery all references in the Mortgage to this Note shall be deemed to refer to
such replacement note.
25. ATTORNEYS' FEES. Notwithstanding anything contained herein to the
contrary, (i) "reasonable attorneys' fees" are not, and shall not be, statutory
attorneys' fees under the O.C.G.A., (ii) if, under any circumstances Borrower is
required hereunder to pay any or all of Xxxxxx's attorneys' fees and expenses,
Borrower shall be responsible only for actual legal fees and out of pocket
expenses actually incurred by Xxxxxx at customary hourly rates for the work
done, and (iii) Borrower shall not be liable under any circumstances for
additional attorneys' fees or expenses under O.C.G.A. Section 13-1-11.
* * * * *
[Signature Page Follows]
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IN WITNESS WHEREOF, Maker has caused this Mortgage Note to be duly executed
under seal on the date first above written.
MAKER:
INLAND WESTERN DALLAS PARADISE, L.L.C.,
a Delaware limited liability company
By: INLAND WESTERN RETAIL REAL ESTATE
TRUST, INC., a Maryland corporation,
Its sole member
By: /s/ [ILLEGIBLE]
---------------------------------
Its Asst. Secretary
--------------------------------
[SEAL]
12
EXHIBIT A
BASIS POINT ADJUSTMENT TABLE
U.S. Treasury U.S. Treasury
Bond or Note Basis Point Bond or Note Basis Point
Yield Adjustment Yield Adjustment
------------- ----------- ------------- -----------
0.00-1.55 .00 14.07-14.24 .40
1.56-2.69 .01 14.25-14.41 .41
2.70-3.48 .02 14.42-14.59 .42
3.49-4.12 .03 14.60-14.77 .43
4.13-4.68 .04 14.78-14.94 .44
4.69-5.17 .05 14.95-15.11 .45
5.18-5.63 .06 15.12-15.28 .46
5.64-6.05 .07 15.29-15.44 .47
6.06-6.44 .08 15.45-15.61 .48
6.45-6.82 .09 15.62-15.77 .49
6.83-7.17 .10 15.78-15.94 .50
7.18-7.51 .11 15.95-16.10 .51
7.52-7.83 .12 16.11-16.26 .52
7.84-8.14 .13 16.27-16.41 .53
8.15-8.44 .14 16.42-16.57 .54
8.45-8.73 .15 16.58-16.73 .55
8.74-9.02 .16 16.74-16.88 .56
9.03-9.29 .17 16.89-17.03 .57
9.30-9.55 .18 17.04-17.18 .58
9.56-9.81 .19 17.19-17.33 .59
9.82-10.07 .20 17.34-17.48 .60
10.08-10.31 .21 17.49-17.63 .61
10.32-10.55 .22 17.64-17.78 .62
10.56-10.79 .23 17.79-17.92 .63
10.80-11.02 .24 17.93-18.07 .64
11.03-11.25 .25 18.08-18.21 .65
11.26-11.47 .26 18.22-18.35 .66
11.48-11.69 .27 18.36-18.49 .67
11.70-11.90 .28 18.50-18.63 .68
11.91-12.11 .29 18.64-18.77 .69
12.12-12.32 .30 18.78-18.91 .70
12.33-12.52 .31 18.92-19.05 .71
12.53-12.72 .32 19.06-19.18 .72
12.73-12.92 .33 19.19-19.32 .73
12.93-13.12 .34 19.33-19.45 .74
13.13-13.31 .35 19.46-19.59 .75
13.32-13.50 .36 19.60-19.72 .76
13.51-13.69 .37 19.73-19.85 .77
13.70-13.87 .38 19.86-19.99 .78
13.88-14.06 .39 20.00-20.12 .79
