Exhibit 99
PROMISSORY NOTE
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March 23, 2006
St. Louis, Missouri
$43,000,000.00
1. PROMISE TO PAY.
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FOR VALUE RECEIVED, MECW, LLC, a Delaware limited liability
company, ("BORROWER"), whose address is 0000 Xxxxx Xxxxxx Xxxx, Xx. Xxxxx,
Xxxxxxxx 00000, promises to pay to the order of LASALLE BANK NATIONAL
ASSOCIATION, a national banking association ("LENDER"), whose address is 000
Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, or at such other
place as the holder hereof may from time to time designate, on or before
April 1, 2021 (the "MATURITY DATE"), the principal amount of Forty-Three
Million and 00/100 DOLLARS ($43,000,000.00) (the "PRINCIPAL AMOUNT"), or so
much thereof as may from time to time be outstanding, in lawful money of the
United States of America, with interest thereon to be computed from the date
of this Promissory Note at the Contract Rate, and to be paid in accordance
with the terms of this Promissory Note without set-off, deduction or
counterclaim. This Promissory Note and any modifications, renewals or
extensions hereof and any substitutions therefor (the "NOTE") the Deed of
Trust, Security Agreement and Fixture Filing dated as of even date herewith
executed by Xxxxxxxx in favor of Lender (the "SECURITY INSTRUMENT"), the
Guaranty, dated of even date herewith executed by Guarantor in favor of
Lender (the "GUARANTY"), and any and all other documents now or hereafter
executed by Borrower and/or others in favor of Lender, which wholly or
partially secure or guarantee payment of this Note or pertain to
indebtedness evidenced by this Note (the "LOAN"), are collectively referred
to herein as the "LOAN DOCUMENTS".
2. PRINCIPAL AND INTEREST.
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So long as no Event of Default (as hereinafter defined) exists,
interest shall accrue on the outstanding Principal Amount at five and
905/1000 percent (5.905%) per annum (the "CONTRACT RATE") based on the
actual number of days in each given month and a 360 day year. Principal and
interest shall be paid to the Lender as follows: (a) on the date hereof, a
payment of all interest that is scheduled to accrue on the Principal Amount
through the remainder of this calendar month, but excluding the first day of
the next calendar month following the date hereof, (b) commencing on May 1,
2006, and on the first day of each month thereafter up to and including
March 1, 2021, Borrower shall pay to Lender constant monthly payments of
principal and interest equal to $360,655.18; and (c) the outstanding
Principal Amount of this Note, together with all accrued and unpaid
interest, shall be due and payable in full on the Maturity Date. Whenever
any payment is stated to be due or a computation is to be made on a day that
is not a Business Day, such payment or computation will be made on the next
succeeding Business Day, but the calculation of interest remains from the
first day of the month through the last day of the month. "BUSINESS DAY"
shall be defined as a day of the year on which banks are not required or
authorized to close in Chicago, Illinois or New York, New York.
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3. PREPAYMENT AND DEFEASANCE.
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3.1 PREPAYMENTS.
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This Note may not be prepaid in whole or in part during the term
hereof, except as otherwise specifically provided herein.
3.2 DEFEASANCE.
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Notwithstanding any provision of this PARAGRAPH 3 to the contrary
(but subject to the last sentence of this SUBPARAGRAPH 3.2), at any time
after the earlier of (a) three (3) years after the full funding of the Loan
or (b) 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" ("REMIC"), within the meaning of Section 860D of the
Code, that holds this Note, and provided no Event of Default has occurred
and is continuing hereunder or under any of the other Loan Documents,
Borrower may cause the release of the Property from the lien of the Security
Instrument and the other Loan Documents upon the satisfaction of the
following conditions (the "DEFEASANCE"):
(i) Not less than thirty (30) days prior written
notice shall be given to Lender specifying a date
(the "RELEASE DATE") on which the Defeasance
Deposit (as hereinafter defined) is to be made,
such date being a day on which a regularly
scheduled monthly installment of principal and
interest is required to be paid pursuant to
PARAGRAPH 2 above (a "DEBT SERVICE PAYMENT
DATE");
(ii) Borrower shall pay to Lender all accrued and
unpaid interest on the principal balance of the
Note and all scheduled principal payments due
through and including the Release Date. If for
any reason the Release Date is not a Debt Service
Payment Date, Borrower shall also pay interest
that would have accrued on the Note through the
next Debt Service Payment Date;
(iii) Borrower shall have paid all other sums (not
including scheduled interest or principal
payments) due under this Note and under the other
Loan Documents, including any Defeasance
processing fee charged by Xxxxxx;
(iv) Borrower shall deliver to Lender on or prior to
the Release Date:
A. The estimated amount necessary to
purchase the Defeasance Collateral (the
"DEFEASANCE DEPOSIT");
B. An executed pledge and security
agreement, in form and substance
satisfactory to Lender in its sole
discretion, creating a first priority
security interest in favor of Xxxxxx
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in the Defeasance Deposit and the
Defeasance Collateral (the "DEFEASANCE
SECURITY AGREEMENT");
C. A certificate of Borrower certifying
that it is requesting the lien against
the Property be released to facilitate a
disposition or refinancing of, or other
customary commercial transaction
involving, the Property and not as part
of an arrangement to collateralize a
REMIC offering with obligations that are
not real estate mortgages, and that all
of the other requirements set forth in
this SUBPARAGRAPH 3.2 have been
satisfied;
D. An opinion of counsel for Borrower in
form and substance and delivered by
counsel satisfactory to Lender in its
sole discretion stating, among other
things, that (1) the Defeasance Deposit
has been duly and validly assigned and
delivered to Lender; (2) the posting of
the Defeasance Deposit will not
adversely affect the tax status of the
REMIC under the Code and that the
Defeasance complies with all applicable
REMIC provisions under the Code; and (3)
Xxxxxx has a perfected first priority
security interest in the Defeasance
Collateral and that the Defeasance
Security Agreement is enforceable
against Borrower in accordance with its
terms;
E. A certificate of Borrower certifying
that all requirements relating to the
Defeasance set forth in this Note and
any other Loan Documents have been
satisfied; and
X. Xxxx other certificates, opinions of
counsel, documents or instruments as
Lender may reasonably require; and
(v) If required by the Applicable Rating Agencies for
any Secondary Market Transaction relating to the
Loan, Xxxxxx receives written assurances that the
securities of the REMIC ("SECURITIES") that
directly or indirectly holds this Note will not
have a downgrade, withdrawal or qualification of
the credit rating then assigned to the Securities
by any rating agencies ("APPLICABLE RATING
AGENCIES") as a result of the Defeasance;
(vi) The holder of the Defeasance Collateral, which
shall be successor entity designated by LaSalle
Bank National Association in its sole discretion,
shall be a single purpose entity, which shall not
own any other assets or have any other
liabilities or operate any other property (except
in connection with other defeased loans held in
the same securitized loan pool with the Loan);
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(vii) Borrower shall pay all costs and expenses
incurred by Lender or its agents in connection
with the Defeasance, including, without
limitation, all costs and expenses associated
with the purchase of the Defeasance Collateral,
the preparation of the Defeasance Security
Agreement and related documentation, the
preparation and recordation of a release of the
lien of the Mortgage, as well as all fees and
expenses of the Applicable Rating Agencies, and
all reasonable accountants' and attorneys' fees
and expenses; and
(viii) Borrower must comply with all other applicable
REMIC provisions under the Code as well as any
Applicable Rating Agencies' requirements.
Notwithstanding anything that may be contained herein to the
contrary, the Loan may not be defeased during the last ninety (90) days of
the loan term if the Loan has not previously been defeased.
3.3 DEFEASANCE COLLATERAL.
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Upon compliance with the requirements of SUBPARAGRAPH 3.2 above:
(a) Lender shall use the Defeasance Deposit to purchase on
Xxxxxxxx's behalf direct, non-callable obligations of the United States of
America (which are government securities within the meaning of Treas. Reg.
1.860G-2(a)(8)(i) and which securities must comply [as determined by Lender
in its sole discretion] with REMIC and rating agency requirements) that
provide, without reinvestment, for payments not later than the due dates of
all successive monthly Debt Service Payment Dates occurring after the
Release Date, with each such payment being equal to or greater than the
amount of the corresponding installment of principal and interest required
to be paid under this Note (including all amounts due on the Maturity Date
for the balance of the term hereof) (the "DEFEASANCE COLLATERAL") as
certified by an independent certified public accountant satisfactory to
Lender, each of which securities shall be duly endorsed as directed by
Xxxxxx or accompanied by a written instrument of transfer in form and
substance wholly satisfactory to Lender (including, without limitation, such
instruments as may be required by the depository institution holding such
securities to effectuate book-entry transfers and pledges through the
book-entry facilities of such institution) to create a first priority
security interest therein in favor of Lender in conformity with all
applicable state and federal laws governing granting of such security
interests. In connection with the conditions set forth above, Borrower
hereby appoints Xxxxxx as its agent and attorney-in-fact for the purpose of
purchasing the Defeasance Collateral with the Defeasance Deposit. Borrower,
pursuant to the Defeasance Security Agreement, shall authorize and direct
the payments received from the Defeasance Collateral to be made directly to
Lender and applied to satisfy the obligations of Borrower under this Note.
Any portion of the Defeasance Deposit in excess of the amount necessary to
purchase the Defeasance Collateral and satisfy all of Borrower's obligations
to Lender shall be returned to Borrower without interest.
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(b) The Property shall be released from the lien of the Security
Instrument and the other Loan Documents after Borrower fulfills the
Applicable Rating Agencies' and all REMIC requirements, and the Defeasance
Collateral shall constitute collateral which shall secure this Note and all
other obligations under the Loan Documents.
3.4 ASSIGNMENT.
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Upon the release of the Property in accordance with this PARAGRAPH
3, Borrower shall (with respect to a Partial Defeasance (as hereinafter
defined in SUBPARAGRAPH 3.5) assign all its obligations and rights under
this Note, together with the pledged Defeasance Collateral, to a successor
entity designated by LaSalle Bank National Association in its sole
discretion. Such successor entity shall be a single purpose entity, which
shall not own any other assets or have any other liabilities or operate any
other property (except in connection with other defeased loans held in the
same securitized loan pool with the Loan), and 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 Defeasance Security Agreement. As conditions to such
assignments and assumption, Borrower shall (a) deliver to Lender an opinion
of counsel in form and substance and delivered by counsel satisfactory to
the Applicable Rating Agencies and 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 Defeasance Security Agreement and the other Loan Documents,
as so assumed, are enforceable against such successor entity in accordance
with their respective terms, (b) if a non-consolidation opinion with respect
to the successor entity is required by the Applicable Rating Agencies, pay
the reasonable legal expenses of Xxxxxx's counsel incurred in connection
with that opinion (in form and substance satisfactory to the Applicable
Rating Agencies), (c) pay all 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), and (d) pay to the servicer
of this Note a defeasance processing fee in an amount equal to one-half of
one percent (0.5%) of the outstanding principal balance of this Note but in
no event less than (i) $10,000 or greater than (ii) $20,000, provided,
notwithstanding anything to the contrary herein or in the other Loan
Documents, no other assumption fee shall be payable by Borrower in
connection with such assumption. Upon such assumption, Borrower shall be
relieved of its obligations hereunder, under the other Loan Documents and
under the Defeasance Security Agreement, with the sole exception of (A)
representations and warranties made in connection with Defeasance, (B) the
underlying obligation to effect Defeasance, (C) any loss to Lender if
Defeasance is set aside, voided or rescinded and (D) any rights or
obligations that are specifically intended to survive the repayment of the
Loan or other payment, satisfaction or termination of this Note, the Loan
Documents or the Defeasance Security Agreement.
3.5 PARTIAL DEFEASANCE.
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(a) Notwithstanding anything to the contrary contained herein, or
in any of the other Loan Documents. Borrower shall be permitted to complete
a Defeasance of either
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or both of the Release Parcels (as defined in the Security Instrument)
(each, a "PARTIAL DEFEASANCE") provided that each of the following terms and
conditions are satisfied with respect to each Partial Defeasance:
(i) the Lockout Period has expired;
(ii) All of the terms and conditions of SUBPARAGRAPHS
3.2 and 3.3 hereof have been satisfied with
respect to each Partial Defeasance;
(iii) All of the terms and conditions of PARAGRAPH 57
of the Security Instrument have been satisfied
with respect to the Release Parcel that is the
subject of the Partial Defeasance;
(iv) Borrower shall have provided to Lender a written
request for the Partial Defeasance at least sixty
(60) days prior to the date on which the proposed
Partial Defeasance is to occur;
(v) No Event of Default or any event that, with the
passage of time or the giving of notice, would
constitute an Event of Default hereunder or any
of the other Loan Documents shall exist at the
time of the written request for a Partial
Defeasance or at the time of the Partial
Defeasance;
(vi) In connection with the Partial Defeasance of a
Release Parcel, Borrower shall pay to Lender as
the Defeasance Deposit with regard to such
Partial Defeasance an amount that would be
sufficient to purchase Defeasance Collateral that
will yield payments equal to one hundred
twenty-five percent (125%) of (A) the amount of
the corresponding monthly loan payments allocated
to such Release Parcel for the balance of the
term of the Loan, and (B) all amounts required to
be paid on the Maturity Date with respect to the
portion of the Principal Amount allocated to such
Release Parcel. For purposes hereof, fourteen and
68/100ths percent (14.68%) of the outstanding
principal balance of the Principal Amount shall
be deemed allocated to Metro 1 (as defined in the
Security Instrument) and seven and 41/100ths
percent (7.41%) of the outstanding principal
balance of the Principal Amount shall be
allocated to Metro 2 (as defined in the Security
Instrument) (if the Release Parcels are not
defeased at the same time, when calculating the
allocated amount of outstanding principal balance
of the Principal Amount for the second Partial
Defeasance, the calculation will be based upon
the outstanding balance of both the Defeased Note
and Undefeased Note (as those terms are
hereinafter defined) using the foregoing
percentages). The portion of the payments
generated by the Defeasance Collateral by the
first sentence of this SUBPARAGRAPH 3.5(a)(vi)
with respect to the Release Parcel, in excess of
the amount
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necessary to pay the scheduled payments due for
the portion of the Principal Amount allocated to
such Release Parcel is hereinafter referred to as
the "ADDITIONAL DEPOSIT";
(vii) Following the Partial Defeasance, the Actual DSCR
(as defined below) for the Remaining Parcel (as
defined in the Security Instrument) shall be
equal to or greater than the greater of (A) at
least a 1.22:1.00 debt service coverage ratio, or
(B) the Actual DSCR for the entire Property as of
the date immediately preceding the date of such
Partial Defeasance;
(viii) Following the Partial Defeasance the loan to
value for the Remaining Parcel (the "LTV") (which
includes all secured debt of Borrower), shall not
exceed the lesser of (A) LTV for the Property as
of the closing date of the Loan, which is deemed
to be sixty-one and 34/100ths percent (61.34%),
and (B) the LTV for the entire Property
immediately preceding such Partial Defeasance,
based upon an appraisal at Borrower's cost and
expense from an independent MAI appraiser dated
within sixty (60) days prior to the date of the
anticipated Partial Defeasance, approved by
Lender and the Applicable Rating Agencies (if so
required) at the time of the Partial Defeasance;
(ix) Lender shall have received evidence reasonably
satisfactory to Lender that Borrower is Solvent
(as hereinafter defined), and shall not be
rendered Insolvent (as hereinafter defined) by
the Partial Defeasance;
(x) If the Partial Defeasance is subject to the
Rating Agencies review, Lender shall have
received the written confirmation of the
Applicable Rating Agencies to the release of such
Release Parcel from the lien of the Security
Instrument and the substitution of the Defeasance
Collateral (as calculated pursuant to this
SUBPARAGRAPH 3.5), stating, among other things,
that the Partial Defeasance shall not result in a
downgrade, withdrawal or qualification of the
then current ratings by the Applicable Rating
Agencies of the Securities and otherwise in form
and substance reasonably satisfactory to Lender
and its counsel;
(xi) Borrower shall pay all of Lender's reasonable
costs and expenses incurred in connection with
the matters contained in this SUBPARAGRAPH 3.5,
including, without limitation, reasonable
attorneys' fees, expenses and recording fees,
appraisal fees and the costs to obtain Applicable
Rating Agency approval;
(xii) Lender shall apply payments received from the
Additional Deposit to the payment of scheduled
principal and interest due under this
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Note as such payments become due hereunder, and
Xxxxxxxx shall receive full credit for such
payments, to the extent so paid. In the event all
Indebtedness is paid and all Obligations have
been fully satisfied under the Loan Documents,
any remaining balance of the Additional Deposit
shall be promptly returned to Borrower; and
(xiii) At Lender's request, all necessary documents
shall be prepared and executed at Borrower's
expense to split this Note and issue two (2)
substitute notes, one (1) such substitute note
having a principal balance equal to 125% of the
amount of the outstanding principal balance of
this Note allocated to such Release Parcel at the
time of the Partial Defeasance pursuant to this
SUBPARAGRAPH 3.5 (the "DEFEASED NOTE") and the
other note having a principal balance equal to
outstanding principal balance of the entire Note
less the amount of the Defeased Note (the
"UNDEFEASED NOTE") (in the event there is more
than one Partial Defeasance, there would be a
Defeased Note for each Release Parcel and the
Undefeased Note then would be the outstanding
principal balance of the entire Note less the
amounts of the Defeased Notes). The Defeased
Note(s) and the Undefeased Note each shall have
identical terms as this Note (other than the
initial principal balance, but the total amount
due under the Defeased Note(s) and Undefeased
Note shall be the same amount then currently due
under this Note [i.e., all monthly payments and
amounts due at the Maturity Date shall not change
in the aggregate]) and shall be cross-defaulted
with each other, provided, however, the Borrower
shall have no further right to prepay the
Defeased Note(s). In the event Lender so elects
to split this Note into the Defeased Note and the
Undefeased Note, then a Partial Defeasance shall
be effected pursuant to SUBPARAGRAPHS 3.2 and 3.3
and this SUBPARAGRAPH 3.5, provided that all
references in the Defeased Note to the Note in
SUBPARAGRAPHS 3.2 and 3.3 shall be deemed to be a
reference to such Defeased Note, and all
references to the Property shall be deemed to be
a reference to the applicable Release Parcel. In
the case of a Partial Defeasance, SUBPARAGRAPH
3.4 shall apply with respect to the Defeased Note
and the Release Parcel. A Defeased Note cannot be
the subject of any further Defeasance.
As used in this SUBPARAGRAPH 3.5(a), the following terms shall have
the following meanings:
"ACTUAL ANNUAL DEBT SERVICE" shall mean an amount equal to twelve
(12) times the actual monthly payment payable under (a) with respect to the
entire Property, the Notes (i.e., the Defeased Note(s) and the Undefeased
Note) and (b) with respect to the Remaining Parcel, the Undefeased Note. For
purposes of calculating the Actual Annual Debt Service in connection with
this SUBPARAGRAPH 3.5, the monthly payment payable under the Undefeased Note
following the Partial Release shall not be reduced by the
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aggregate payments scheduled to be paid each month from the Additional
Deposit (as the applicable Additional Deposit would be used to pay the
applicable Defeased Note(s) because the Defeased Note will be at 125% of the
outstanding Principal Amount allocated to such Release Parcel).
"ACTUAL DSCR" shall mean (a) with respect to the entire Property,
the ratio of Net Cash Flow derived from the entire Property for the
preceding twelve (12) calendar months to the Actual Annual Debt Service
under the Loan and all other secured debt of Borrower and (b) with respect
to the Remaining Parcel, the ratio of Net Cash Flow derived from the
Remaining Parcel for the preceding twelve (12) calendar months to the Actual
Annual Debt Service under the Undefeased Note.
"INSOLVENT" shall have the meaning set forth in Section 101(32) of
the Title II of the United States Code, as the same may be amended from time
to time.
"NET CASH FLOW" as determined by Xxxxxx shall have the meaning
assigned to it in that certain Cash Management Agreement of even date
between Borrower and Lender in connection with the Loan.
"SOLVENT" shall mean both (a) that the financial condition of the
Borrower is such that the sum of the Borrower's debts is less than the
aggregate of, at fair valuation, all of the Borrower's assets (exclusive of
assets that were personally transferred, cancelled or removed with intent to
hinder, delay or defraud such Borrower's creditors) and (b) that the
Borrower is paying its debts as such debts become due, unless such debts are
the subject of a bona fide dispute.
For all of the foregoing definitions, in the event that Xxxxxx
chooses not to split the Note into two (2) substitute notes (a Defeased Note
and an Undefeased Note), any calculation based on split notes will be made
as if the Lender did split this Note, based on defeased and undefeased
portions of this Note.
(b) All agreements and instruments to be delivered to Lender
pursuant to this SUBPARAGRAPH 3.5 shall be prepared by Lender at Borrower's
sole reasonable cost and expense and shall be in form and substance
satisfactory to Lender in its sole and absolute discretion. Borrower shall
have no right in completing the Partial Defeasance to assign all of its
rights and obligations to a successor entity as provided in SUBPARAGRAPH
3.4, which right is hereby waived.
(c) Upon satisfaction of all of the foregoing, Lender shall release
the Release Parcel which is the subject of the Partial Defeasance from the
lien of the Security Instrument in accordance with the provisions of
PARAGRAPH 57 of the Security Instrument.
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3.6 NO FURTHER RIGHTS.
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Upon the release of the Property in accordance with this PARAGRAPH
3, Borrower shall have no further right to prepay this Note pursuant to the
other provisions of this PARAGRAPH 3 or otherwise.
3.7 PREPAYMENT FEE AFTER EVENT OF DEFAULT.
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In the event the Principal Amount of this Note is, as a result of
Xxxxxx's exercise of its rights upon Borrower's default and acceleration of
the obligation to pay the unpaid Principal Amount of this Note (irrespective
of whether foreclosure proceedings have been commenced), (a) due prior to
the Maturity Date, or (b) paid prior to the Maturity Date, Lender shall, in
either event, be entitled to collect and Borrower shall pay to Lender on the
date of prepayment (the "PREPAYMENT DATE"), in addition to any other sums
due hereunder or under any of the other Loan Documents, a prepayment fee
(the "PREPAYMENT FEE") in an amount equal to the greater of (i) 3% of the
outstanding principal balance of this Note at the time such payment or
proceeds are received by Lender or (ii) the Yield Maintenance Amount. Lender
shall notify Borrower of the amount of the Prepayment Fee that Borrower
shall be required to pay on the Prepayment Date.
"YIELD MAINTENANCE AMOUNT" means an amount, never less than zero,
equal to (x) the present value as of the date such prepayment 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 by Lender.
"DISCOUNT RATE" means the rate which, when compounded monthly, is
equivalent to the Treasury Rate (as hereinafter defined), when
compounded semi-annually.
"TREASURY RATE" means the yield calculated by the
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
such payment or 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).
All percentages shall be rounded to the nearest one
hundred thousandth percent and dollar amounts shall be
rounded to the nearest whole dollar.
3.8 PREPAYMENT FOLLOWING CASUALTY OR CONDEMNATION.
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Notwithstanding the foregoing, provided no Event of Default has
occurred and is outstanding, there shall be no Yield Maintenance Amount and
Defeasance shall not be
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required to the extent the prepayment is attributed solely to Xxxxxx's
application of any insurance proceeds or condemnation awards against the
Principal Amount in accordance with PARAGRAPH 5 of the Security Instrument.
4. DEFAULT.
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4.1 EVENTS OF DEFAULT.
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The following shall constitute an "EVENT OF DEFAULT" under this
Note: (a) failure to pay any amounts owed pursuant to this Note within five
(5) days after such payment is due; (b) failure to pay the outstanding
Principal Amount and all accrued and unpaid interest in full on the Maturity
Date; or (c) the occurrence of any Event of Default under any of the other
Loan Documents.
4.2 REMEDIES.
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So long as an Event of Default remains outstanding: (a) interest
shall accrue at a rate (the "DEFAULT RATE") equal to the lesser of (i) the
Contract Rate plus 5% per annum, or (ii) the maximum amount permitted by
applicable law, and, to the extent not paid when due, shall be added to the
Principal Amount; (b) Lender may, at its option and without notice (which
notice is expressly waived), declare the unpaid Principal Amount and all
accrued and unpaid interest immediately due and payable. Xxxxxx's rights,
remedies and powers, as provided in this Note and the other Loan Documents,
are cumulative and concurrent, and may be pursued singly, successively or
together against Xxxxxxxx, the security described in the other Loan
Documents, any guarantor(s) hereof and any other security given at any time
to secure the payment hereof, all at the sole discretion of Lender.
Additionally, Lender may in its sole discretion resort to every other right
or remedy available at law or in equity without first exhausting the rights
and remedies contained herein. Xxxxxx's failure, for any period of time or
on more than one occasion, to exercise its option to accelerate the Maturity
Date shall not constitute a waiver of the right to exercise the same at any
time during the continued existence of any Event of Default or any
subsequent Event of Default.
5. LATE CHARGE.
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If payments of principal and/or interest, or any other amounts due
under this Note or the other Loan Documents are not timely made and remain
overdue for a period of five (5) days, Borrower, without notice or demand by
Xxxxxx, promptly shall pay a late charge (the "LATE CHARGE") equal to the
lesser of (a) five percent (5%) of such past due amounts or (b) the maximum
amount permitted by applicable law. Until paid, the Late Charge shall be
added to the Principal Amount. Nothing in this Note shall be construed as an
obligation on the part of Lender to accept, at any time, less than the full
amount then due hereunder, or as a waiver or limitation of Xxxxxx's right to
compel prompt performance.
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6. WAIVER.
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Borrower, for itself and all endorsers, guarantors and sureties of
this Note, and each of them, and their heirs, legal representatives,
successors and assigns, respectively hereby waives presentment for payment,
demand, notice of nonpayment, notice of dishonor, protest of any dishonor,
notice of protest and protest of this Note, and all other notices in
connection with the delivery, acceptance, performance, default or
enforcement of the payment of this Note (excepting only notices expressly
provided for herein), and agrees that its liability shall be unconditional
and without regard to the liability of any other party and shall not be in
any manner affected by any indulgence, extension of time, renewal, waiver or
modification granted or consented to by the Lender. Borrower, for itself and
all endorsers, guarantors and sureties of this Note, and each of them, and
their heirs, legal representatives, successors and assigns, respectively
hereby consents to every extension of time, renewal, waiver or modification
that may be granted by Lender with respect to the payment or other
provisions of this Note, and to the release of any makers, endorsers,
guarantors or sureties, or of any collateral given to secure the payment
hereof, or any part hereof, with or without substitution, and agrees that
additional makers or guarantors or endorsers may become parties hereto
without notice to Borrower and without affecting the liability of Borrower
hereunder. Borrower hereby waives the right to assert a setoff, counterclaim
or deduction in any action or arising out of or in any way connected with
this Note or any of the other Loan Documents. No right of rescission,
set-off, abatement, diminution, counterclaim or defense has been or will be
asserted with respect to this Note or any of the other Loan Documents.
7. SECURITY, APPLICATION OF PAYMENTS.
---------------------------------
This Note is secured by, and Xxxxxx is entitled to the benefits of,
the liens, encumbrances, and obligations created hereby and by the Security
Instrument and the other Loan Documents and the terms and provisions of the
Security Instrument and the other Loan Documents are hereby incorporated
herein. Each payment on the Loan is to be applied when received first to the
payment of any fees, expenses or other costs Borrower is obligated to pay
hereunder or under the terms of the Security Instrument or the other Loan
Documents, second to the payment of any accrued and unpaid Late Charge,
third to the payment of interest on the Principal Amount from time to time
remaining unpaid, and the remainder of such payment shall be used to reduce
the Principal Amount.
8. SALE OF LOAN; SECURITIZATION.
----------------------------
Xxxxxxxx acknowledges and agrees that Lender may, at any time and
without the consent of Borrower or any Guarantor, sell, transfer,
securitize, assign and convey all or any portion of its right, title and
interest in and to the Loan, the servicing of the Loan, the Loan Documents,
any guaranties given in connection with the Loan and any collateral given to
secure the Loan. In addition, Lender may issue one or more participations
therein, or consummate one or more private or public securitizations of
rated single- or multi-class securities (collectively, the "Securities")
secured by or evidencing ownership interests in all or any portion of the
Loan and the Loan Documents or a pool of assets that include the Loan and
the Loan Documents (such sales, participations and/or securitizations,
collectively, a "Securitization"). Borrower covenants to cooperate with
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Xxxxxx's efforts in the sale, transfer, rating and/or securitization of the
Loan (including cooperating with third parties, including, but not limited
to, the Applicable Rating Agencies and potential investors to facilitate the
rating and Securitization of the Loan). At the request of Lender, and to the
extent not already required to be provided by Borrower under this Note,
Borrower shall use reasonable efforts to provide information not in the
possession of Lender or which may be reasonably required by Lender in order
to satisfy the market standards to which Lender customarily adheres or which
may be reasonably required by prospective investors and/or Applicable Rating
Agencies in connection with any such Securitization including, without
limitation, to:
(i) provide additional and/or updated financial and
other information with respect to the Property,
Xxxxxxxx, Guarantors and the manager, managing
member or general partner, as the case may be, of
Xxxxxxxx ("MANAGER"), and budgets relating to the
Property (collectively, together with all
information previously provided by or at the
expense of the Borrower, Guarantors and Manager,
the "PROVIDED INFORMATION"), together with
appropriate verification and/or consents related
to the Provided Information through letters of
auditors or opinions of counsel of independent
attorneys reasonably acceptable to Xxxxxx and the
Applicable Rating Agencies;
(ii) assist in preparing descriptive materials for
presentations to any or all of the Applicable
Rating Agencies, and work with, and if requested,
supervise, third-party service providers engaged
by Xxxxxxxx, Guarantors and their respective
affiliates to obtain, collect, and deliver
information requested or required by Lender or
Applicable Rating Agencies;
(iii) deliver (A) revised opinions of counsel as to
non-consolidation, due execution and
enforceability with respect to the Property,
Borrower, Guarantors and their respective
affiliates and the Loan Documents, and (B)
revised organizational documents for Borrower,
which counsel opinions and organizational
documents shall be reasonably satisfactory to
Lender and the Applicable Rating Agencies;
(iv) if required by any Applicable Rating Agency, use
commercially reasonable efforts to deliver such
additional tenant estoppel letters, subordination
agreements or other agreements from parties to
agreements that affect the Property, which
estoppel letters, subordination agreements or
other agreements shall be reasonably satisfactory
to Lender and the Applicable Rating Agencies;
(v) make such representations and warranties as of
the closing date of the Securitization with
respect to the Property, Borrower, Guarantors and
the Loan Documents as may be reasonably
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requested by Lender or the Applicable Rating
Agencies and consistent with the facts covered by
such representations and warranties as they exist
on the date thereof, including the
representations and warranties made in the Loan
Documents (which such representations and
warranties may include that there are no
misstatements and/or omissions in the information
relating to Borrower, the Property and the Loan
that has been furnished to or approved by
Borrower);
(vi) execute such amendments to the Loan Documents as
may be requested by Lender or the Applicable
Rating Agencies to effect the Securitization
and/or deliver one or more new component notes to
replace this Note or modify this Note to reflect
multiple components of the Loan (provided such
new notes or modified note shall have the same
weighted average coupon, the same weighted
average amortization and the same maturity date
of this Note), and modify the cash management
agreement, if any, with respect to the newly
created components such that the pricing and
marketability of the Securities and the size of
each class of Securities and the rating assigned
to each such class by the Applicable Rating
Agencies shall provide the most favorable rating
levels and achieve the optimum rating levels for
the Loan; provided, however, any such amendments
or modifications shall not modify any material
economic terms or materially increase Borrower's
obligations under the Loan Documents;
(vii) if requested by Xxxxxx, cooperate with Lender in
preparing and providing any information, as well
as reviewing any such information regarding the
Property, Borrower, Guarantors, Manager, and
their affiliates, and the Loan which is contained
in a preliminary or final private placement
memorandum, prospectus, prospectus supplement
(including any amendment or supplement to either
thereof), or other disclosure document to be used
by Lender or any affiliate thereof; and
(viii) supply to Lender such documentation, financial
statements and reports in form and substance
required in order to comply with any applicable
securities laws. Lender shall reimburse Borrower
for all reasonable out of pocket third party
costs and expenses incurred by Borrower solely in
connection with Xxxxxxxx's complying with
requests made under this Paragraph 8 (including,
without limitation, the fees and expenses of the
Applicable Rating Agencies), provided Borrower
advises Lender of such costs and expenses before
Borrower incurs the same.
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9. JURY TRIAL WAIVER.
-----------------
BORROWER AND LENDER, BY ITS ACCEPTANCE OF THIS NOTE, EACH HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ITS RESPECTIVE RIGHTS TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE
SUBJECT MATTER OF THIS NOTE AND THE BUSINESS RELATIONSHIP THAT IS BEING
ESTABLISHED. THIS WAIVER IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE
BY XXXXXXXX AND XXXXXX, AND XXXXXXXX ACKNOWLEDGES ON BEHALF OF ITSELF AND
ITS PARTNERS, MEMBERS, SHAREHOLDERS, AS THE CASE MAY BE, THAT NEITHER THE
LENDER NOR ANY PERSON ACTING ON BEHALF OF THE LENDER HAS MADE ANY
REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR HAS TAKEN
ANY ACTIONS WHICH IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. XXXXXXXX AND
XXXXXX ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A
BUSINESS RELATIONSHIP, THAT XXXXXXXX AND XXXXXX HAVE ALREADY RELIED ON THIS
WAIVER IN ENTERING INTO THIS NOTE AND THAT EACH OF THEM WILL CONTINUE TO
RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. XXXXXXXX AND XXXXXX
FURTHER ACKNOWLEDGE THAT THEY HAVE BEEN REPRESENTED (OR HAVE HAD THE
OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS NOTE AND IN THE MAKING
OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF THEIR OWN FREE
WILL, AND THAT THEY HAVE HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH
COUNSEL.
10. MISCELLANEOUS.
-------------
10.1 LAWFUL RATE OF INTEREST.
-----------------------
It is expressly stipulated and agreed to be the intent of Xxxxxxxx
and Lender at all times to comply with applicable state law or applicable
United States federal law (to the extent that it permits Lender to contract
for, charge, take, reserve or receive a greater amount of interest than
under state law) and that this paragraph shall control every other covenant
and agreement in this Note and the other Loan Documents. If the applicable
law (state or federal) is ever judicially interpreted so as to render
usurious any amount called for under this Note or under any of the other
Loan Documents, or contracted for, charged, taken, reserved or received with
respect to the indebtedness evidenced by this Note and the other Loan
Documents, or if Xxxxxx's exercise of the option to accelerate the maturity
of this Note, or if any prepayment by Borrower results in Borrower having
paid any interest in excess of that permitted by applicable law, then it is
Xxxxxxxx's and Xxxxxx's express intent that all excess amounts theretofore
collected by Xxxxxx be credited on the principal balance of this Note (or,
if this Note has been or would thereby be paid in full, refunded to
Borrower), and the provisions of this Note and the other Loan Documents
immediately be deemed reformed and the amounts thereafter collectible
hereunder and thereunder reduced, without the necessity of the execution of
any new document, so as to comply with the applicable law, but so as to
permit the recovery of the fullest amount otherwise called for hereunder and
thereunder. All sums paid or agreed to
-15-
be paid to Lender for the use, forbearance and detention of the indebtedness
evidenced hereby and by the other Loan Documents shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full term of such indebtedness until payment in full so that
the rate or amount of interest on account of such indebtedness does not
exceed the maximum rate permitted under applicable law from time to time in
effect and applicable to the indebtedness evidenced hereby for so long as
such indebtedness remains 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.
10.2 CAPTIONS; DEFINITIONS.
---------------------
The captions of the Paragraphs of this Note are for convenience
only and shall not be deemed to modify, explain, enlarge or restrict any of
the provisions hereof. Capitalized terms used and not otherwise defined
herein shall have the meanings given to them in the Security Instrument and
the other Loan Documents, as the case may be.
10.3 SEVERABLE PROVISIONS.
--------------------
Every provision of this Note is intended to be severable. If any
term or provision hereof is declared by a court of competent jurisdiction to
be illegal, invalid or unenforceable for any reason whatsoever, such
illegality, invalidity or unenforceability shall not affect the balance of
the terms and provisions hereof, which terms and provisions shall remain
binding and enforceable.
10.4 NOTICES.
-------
Notices shall be given under this Note in conformity with the terms
and conditions of the Security Instrument.
10.5 JOINT AND SEVERAL; SUCCESSORS AND ASSIGNS.
-----------------------------------------
The obligations of Borrower in this Note shall be joint and several
obligations of Borrower and of each Borrower, if more than one, and this
Note shall be binding upon and inure to the benefit of each Borrower's and
Xxxxxx's heirs, personal representatives, successors and assigns.
10.6 TIME OF ESSENCE.
---------------
Time is of the essence of this Note and the performance of each of
the covenants and agreements contained herein and each of the other Loan
Documents.
10.7 GOVERNING LAW/JURISDICTION.
--------------------------
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES. BORROWER HEREBY
-16-
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY COURT OF COMPETENT
JURISDICTION LOCATED IN THE CITY OF CHICAGO AND STATE OF ILLINOIS IN
CONNECTION WITH ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE AND
THE OTHER LOAN DOCUMENTS.
10.8 NO ORAL MODIFICATION.
--------------------
There are no oral agreements between Borrower and Lender. The
provisions of this Note and the other Loan Documents may be amended or
revised only by an instrument in writing signed by Xxxxxxxx and Xxxxxx. This
Note and all the other Loan Documents 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 or prior, contemporaneous or subsequent
oral agreements or discussions of any person or party.
10.9 COUNTERPARTS.
------------
This Note may be executed in several counterparts, each of which
shall be deemed an original instrument and all of which together shall
constitute a single Note.
10.10 AUTHORITY.
---------
Borrower (and the undersigned representative of Borrower, if any)
represents that Borrower 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 was made for business or commercial
purposes and not for personal, family or household use.
11. EXCULPATION.
-----------
Except as set forth below, neither Borrower nor any Guarantor shall
be personally liable to pay the Principal Amount, or any other amount due,
or to perform any obligation, under the Loan Documents, and Xxxxxx agrees to
look solely to the Property and any other collateral heretofore, now, or
hereafter pledged by any party to secure the Loan; provided, however, in the
event (a) of any fraud, willful misconduct, or material misrepresentation by
Borrower or any Guarantor in connection with the Loan, (b) the first
scheduled monthly payment on the Note after the date hereof is not paid when
due, (c) of a breach of the terms of Paragraphs 15 or 16 of the Security
Instrument or (d) of the voluntary filing by Borrower, or the filing against
Borrower by any Guarantor or any affiliate of any Guarantor, or an
involuntary bankruptcy filing against Borrower in which Borrower or
Guarantor acts in collusion with the filing party with respect to the
filing, of any proceeding for relief under any federal or state bankruptcy,
insolvency or receivership laws or any assignment for the benefit of
creditors made by Borrower, the limitation on recourse set forth in this
PARAGRAPH 11 will be null and void and completely inapplicable, and this
Note shall be with full recourse to Borrower and Guarantor. Borrower and
each Guarantor, jointly and severally, shall be personally liable
-17-
for all losses, liabilities, damages, costs, expenses and claims including,
without limitation, attorneys' fees and expenses incurred by or suffered by
Xxxxxx as a result of:
(i) any waste of the Property caused by act(s) or
omission(s) of Borrower, its agents, affiliates,
officers and employees; or the removal or
disposal of any portion of the Property after an
Event of Default under the Loan Documents to the
extent such Property is not replaced by Borrower
with like property of equivalent value, function
and design;
(ii) the misapplication, misappropriation or
conversion of: (A) any rents, security deposits,
proceeds or other funds; (B) any insurance
proceeds paid by reason of any loss, damage or
destruction to the Property and not used by
Borrower for restoration or repair of the
Property when and as permitted by the Loan
Documents; and/or (C) any awards or amounts
received in connection with the condemnation of
all or any portion of the Property and not used
by Borrower for restoration or repair of the
Property when and as permitted by the Loan
Documents;
(iii) Borrower's failure to deliver any security
deposits collected with respect to the Property
to Lender or any other party entitled to receive
such security deposits under the Loan Documents
following a default; and any rents (including
advanced or prepaid rents), issues, profits,
accounts or other amounts generated by or related
to the Property attributable to, or accruing
after a default, which amounts were collected by
Borrower or any other party on its behalf or for
its benefit and not turned over to the Lender or
used to pay unaffiliated third parties for
reasonable and customary operating expenses and
capital expenditures for the Property, taxes and
insurance premiums with respect to the Property
or any other amounts required to be paid under
the Loan Documents with respect to the Property;
(iv) the breach of the obligations set forth in that
certain Hazardous Substances Indemnification
Agreement from Borrower and Guarantor(s) to
Lender of even date herewith, as hereafter
amended, if at all;
(v) any modification, amendment, surrender or
termination, without the prior written consent of
Xxxxxx, of (i) that certain Lease Agreement dated
as of March 21, 2006 between Borrower and K-V
Pharmaceutical Company, Inc., a Delaware
corporation ("K-V"), pertaining to the portion of
the Property known as Corporate Exchange, and
(ii) that certain Sub-Lease dated as of March 21,
2006 between Xxxxxxxx and K-V pertaining to the
-18-
portion of the Property known as Corporate Xxxxx,
Metro 1 and Metro 2;
(vi) any real estate taxes or PILOT payments due with
respect to the Property in excess of the amounts
set forth in Section 3.2(c) of the Performance
--------------
Agreement (as defined in the Guaranty), whether
due to Section 3.6 of the Performance Agreement
-----------
or otherwise; and/or
(vii) any cost incurred by Lender or Borrower in curing
defaults under the Ground Lease with respect to
the property demised pursuant to the Ground
Lease, and commonly known as 00000 Xxxxxxxxx
Xxxxx, Xx. Xxxxx Xxxxxx, XX.
The foregoing shall in no way limit or impair the enforcement
against the Property or any other security granted by the Loan Documents of
any of the Lender's rights and remedies pursuant to the Loan Documents.
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
Loan secured by the Loan Documents or to require that all collateral shall
continue to secure all of the Loan owing to Lender in accordance with this
Note and the other Loan Documents.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK -
SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Xxxxxxxx does execute this Note as of the date
set forth above.
BORROWER:
MECW, LLC, a Delaware limited liability
company
By: K-V Pharmaceutical Company, a
Delaware corporation, its sole
member
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
and Chief Financial Officer
