Exhibit 10.293
Loan No. 10024995
PROMISSORY NOTE
$9,954,300.00
August ___, 2004
FOR VALUE RECEIVED, INLAND WESTERN CANTON PARADISE, L.L.C., a Delaware
limited liability company, having its principal place of business at 0000
Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000, as maker hereunder (referred to
herein as "BORROWER"), hereby unconditionally promises to pay to the order of
KEYBANK NATIONAL ASSOCIATION, a national banking association, its successors and
assigns, having an address at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx
00000 ("LENDER"), or at such other place as the holder hereof may from time to
time designate in writing, the principal sum of NINE MILLION NINE HUNDRED
FIFTY-FOUR THOUSAND THREE HUNDRED AND NO/100 DOLLARS ($9,954,300.00), in lawful
money of the United States of America with interest thereon to be computed from
the date of this Note at the Interest Rate, and to be paid in accordance with
the terms of this Note and that certain Loan Agreement, dated as of the date
hereof, between Xxxxxxxx and Lender (the "LOAN AGREEMENT"). All capitalized
terms not defined herein shall have the respective meanings set forth in the
Loan Agreement.
ARTICLE 1
PAYMENT TERMS
Xxxxxxxx agrees to pay interest on the unpaid principal sum of this Note
from time to time outstanding at the rates and at the times specified in the
Loan Agreement and the outstanding balance of the principal sum of this Note and
all accrued and unpaid interest thereon shall be due and payable on the Maturity
Date. This Note shall be the "Note" as defined in the Loan Agreement. TIME IS
OF THE ESSENCE.
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, notice of exercise of said option being waived.
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, (a) all agreements and
communications between Borrower and Lender are hereby and shall automatically be
limited so that, after taking into account all amounts deemed interest, the
interest contracted for, charged or received by Lender shall never exceed the
maximum lawful rate or amount, (b) in calculating whether any interest exceeds
the lawful maximum, all such interest shall be amortized, prorated, allocated
and spread over the full amount and term of all principal indebtedness of
Borrower to Lender, and (c) if through any contingency or event, Lender receives
or is deemed to receive interest in excess of the lawful maximum, any such
excess shall be deemed to have been applied toward payment of the principal of
any and all then outstanding indebtedness of Borrower to Lender, or if there is
no such indebtedness, shall immediately be returned to Borrower.
ARTICLE 5
NO ORAL CHANGE
This Note may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
Borrower or Lender, but only by an agreement in writing signed by the party
against whom enforcement of any modification, amendment, waiver, extension,
change, discharge or termination is sought.
ARTICLE 6
WAIVERS
Borrower and all others who may become liable for the payment of all or any
part of the Debt do hereby severally waive presentment and demand for payment,
notice of dishonor, notice of intention to accelerate, notice of acceleration,
protest and notice of protest and non-payment and all other notices of any kind.
No release of any security for the Debt or extension of time for payment of this
Note or any installment hereof, and no alteration, amendment or waiver of any
provision of this Note, the Loan Agreement or the other Loan Documents made by
agreement between Lender or any other Person shall release, modify, amend,
waive, extend, change, discharge, terminate or affect the liability of Borrower,
and any other Person who may become liable for the payment of all or any part of
the Debt, under this Note, the Loan Agreement or the other Loan Documents. No
notice to or demand on Borrower shall be deemed to be a waiver of the obligation
of Borrower or of the right of Lender to take further action without further
notice or demand as provided for in this Note, the Loan Agreement or the other
Loan Documents. If Borrower is a partnership, the agreements herein contained
shall remain in force and applicable, notwithstanding any changes in the
individuals comprising the partnership, and the term "Borrower," as used herein,
shall include any alternate or successor partnership, but any predecessor
partnership and their partners shall not thereby be released from any liability.
If Borrower is a limited liability company, the agreements herein contained
shall remain in force and applicable, notwithstanding any changes in the members
comprising the company, and the term "Borrower," as used herein, shall include
any alternate or successor company, but any predecessor company and its members
shall not thereby be released from any liability. If Borrower is a corporation,
the agreements contained herein shall remain in full force and applicable
notwithstanding any changes in the shareholders comprising, or the officers and
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directors relating to, the corporation, and the term "Borrower" as used herein,
shall include any alternative or successor corporation, but any predecessor
corporation shall not be relieved of liability hereunder. (Nothing in the
foregoing sentence shall be construed as a consent to, or a waiver of, any
prohibition or restriction on transfers of interests in such entity which may be
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. XXXXXXXX AND XXXXXX XXXXXX
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THE LOAN OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH THE LOAN, THIS NOTE OR ANY OTHER LOAN DOCUMEN, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMETN (WHETHER VERBAL OR WRITTEN),
OR ACTION OF BORROWER OR LENDER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
XXXXXX'S MAKING OF THE LOAN.
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 WESTERN CANTON 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/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Asst. Secretary
Pay to the order of ________________________________, without recourse.
KEYBANK NATIONAL ASSOCIATION, a
national banking association
By:
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Print Name:
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Print Title:
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STATE OF Illinois
COUNTY OF Cook
On this 12th day of August, 2004, before me, Xxxxxxxxx Xxx Xxxxxx, a Notary
Public in and for said state, personally appeared Xxxxxxx Xxxxxx, who being by
me duly sworn did say that she is the Asst. Secretary of Inland Western
Retail Real Estate Trust, Inc., a Maryland corporation, the sole member of
Inland Western Canton Paradise, L.L.C., a Delaware limited liability company,
and that the within instrument was signed and sealed in behalf of said
corporation in behalf of said limited liability company by authority of its
board of directors, and acknowledged said instrument to be the free act and deed
of said corporation in behalf of said limited liability company for the purposes
therein stated.
[Notarial Seal] /s/ Xxxxxxxxx Xxx Xxxxxx
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Print Name:
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My commission expires:
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[SEAL]
"OFFICIAL SEAL"
XXXXXXXXX XXX XXXXXX
NOTARY PUBLIC STATE OF ILLINOIS
My Commission Expires 11/14/2004
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