Exhibit 10.397
Allstate Insurance Company
Loan No. 122541
MORTGAGE NOTE
Chicago, Illinois
$860,550.00 November 2, 2004
1. PAYMENT OF PRINCIPAL AND INTEREST. FOR VALUE RECEIVED, INLAND WESTERN
XXXXXXX COLUMNS, L.L.C., a Delaware limited liability company (the "Maker"),
hereby promises to pay to the order of ALLSTATE INSURANCE COMPANY, and any
subsequent holder of this Note ("Holder" or "Holders") in the manner hereinafter
provided, the principal amount of EIGHT HUNDRED SIXTY THOUSAND FIVE HUNDRED
FIFTY DOLLARS ($860,550), 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 95/100 percent (4.95%) 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 November, 2004, both inclusive; and
(b) interest only, in arrears, in the amount of THREE THOUSAND FIVE
HUNDRED FORTY NINE AND 77/100 DOLLARS ($3,549.77) on the first day of January,
2005, 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 May 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 #122541, 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 the following documents, each as amended by that certain
Loan Modification Agreement (the "Loan Modification") of even date herewith by
and between Maker and Holder and that certain Amendment to Loan Documents (the
"Amendment") of even date herewith by and between Maker and Holder: (a) a Deed
of Trust, Assignment of Leases, Rents and Contracts, Security Agreement and
Fixture Filing ("Deed of Trust") of even date herewith, granted by Maker, as
trustor, to X. Xxxxxx Xxxxxxxx, a resident of Shelby County, Tennessee
("Trustee"), as trustee, in favor of Holder and ALLSTATE LIFE INSURANCE COMPANY,
an Illinois insurance corporation ("XXXX"), as beneficiary, covering a leasehold
estate in certain real property, the improvements thereon and certain personal
property situated in the County of Madison, State of Tennessee and described in
the Deed of Trust ("Property"), and (b) those certain instruments of
indebtedness and security described as "Related Agreements" in the Deed of
Trust. Except as otherwise defined herein, all of the defined terms contained in
the Deed of Trust 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, but 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 Deed of Trust, 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 Deed of Trust 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 Deed of Trust 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;
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(b) in the event Maker shall fail to make the final payment or the
Prepayment Premium when such payment is due; or
(c) if there shall exist an Event of Default under the Deed of Trust, the
XXXX Phase II Note (as defined in the Amendment) 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 XXXX Phase II Note, the Deed
of Trust, 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
Deed of Trust or any of the Related Agreements, and (ii) all intangible property
taxes levied upon any Holder of this Note or mortgagee under the Deed of Trust
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 Holder 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, the XXXX Phase II 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 or the XXXX Phase II Note.
9. PREPAYMENT. Maker is prohibited from prepaying this Note until
November 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 Deed of Trust 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
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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.
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 Deed of Trust.
Partial prepayment of the outstanding principal amount of this Note shall not be
permitted except in accordance with the terms of the Deed of Trust. 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 Deed of
Trust.
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 Deed of Trust; (c) any prepayment described in foregoing clause (b) shall
(unless otherwise expressly permitted in the Deed of Trust) require the payment
of the Prepayment Premium; and (d) to the extent permitted by applicable law,
Maker
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has waived, and hereby waives, any right to prepay this Note except as expressly
provided in the Deed of Trust 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
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 Deed of Trust, 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 Deed of Trust. 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, trustee's or power of sale by Maker, its successors or assigns or
by anyone on behalf of Maker, or by a buyer upon foreclosure, trustee's 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;
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(d) at the option of the Holder, the United States District Court for the
district in which the Property is located and 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 Deed of Trust and the Related Agreements and Maker shall not assert in any
such 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 Deed of Trust, 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 Deed of Trust) 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 Deed of Trust 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
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such Event of Default, Holder may apply payments received on any amounts due
under the Note, the Deed of Trust, any Related Agreement or any note evidencing
any Future Advance as Holder may determine in its sole discretion.
15. WAIVERS BY MAKER. As to this Note, the Deed of Trust, 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 Deed of Trust 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 Deed of Trust, injunction against sale pursuant to power of
sale, exemption from civil process or extension of time for payment. Maker
agrees that any real estate or any personalty 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 Deed of Trust 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 XXXX Phase II Note, the Deed of Trust 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 XXXX Phase II 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 XXXX Phase
II Note, the Deed of Trust or any Related Agreement: (i) foreclose the lien of
the Deed of Trust; (ii) take appropriate action to enforce this Note, the XXXX
Phase II Note, the Deed of Trust 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 XXXX Phase II Note, the Deed of Trust
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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 and that certain Terrorism Insurance Indemnity Agreement of even
date herewith;
(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
XXXX Phase II Note, the Deed of Trust 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 XXXX Phase II Note, the Deed of Trust or the Related
Agreement 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 XXXX Phase II Note, the
Deed of Trust 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 XXXX Phase II Note,
the Deed of Trust or any Related Agreements; (vii) the failure to maintain
casualty and liability insurance as required under the Deed of Trust 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 XXXX Phase II Note, the Deed of Trust or
any Related Agreements; (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 Deed of Trust
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; (x) all transfer, recordation or other taxes imposed at any time by
the State of Tennessee, Madison County, Tennessee or other governmental
authority with jurisdiction over the Property relating to this Note, the XXXX
Phase II Note, the Deed of Trust or any Related Agreement; or (xi) costs and
expenses, including, without limitation, attorney's fees and transfer taxes,
incurred by Holder in connection with the enforcement of this Note, the XXXX
Phase II Note, the Deed of Trust 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 Xxxxxx, 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 takes advantage of any bankruptcy, reorganization,
insolvency, readjustment of debt,
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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 Xxxxxx for relief from the Automatic Stay; and
(c) Maker, any general partners of Maker and the Nonrecourse
Indemnitor(s), if any, shall become personally liable for payment of all the
indebtedness evidenced by this Note or the XXXX Phase II Note and performance of
all other obligations of Maker under this Note, the XXXX Phase II Note, the Deed
of Trust and Related Agreements upon the occurrence of any of the following: (i)
fraud or willful misrepresentation of a material fact by Maker, any general
partners of Maker, or Nonrecourse Indemnitor(s), if any, in connection with this
Note, the XXXX Phase II Note, the Deed of Trust, the Related 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 XXXX Phase II Note, the Deed of Trust or the
Related Agreements; or (iii) the incurrence by Maker of any indebtedness in
violation of the terms of this Note, the XXXX Phase II Note, the Deed of Trust
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, any general partners of Maker 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
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 XXXX Phase II Note, or in the Deed of Trust 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 XXXX Phase II Note, the Deed of Trust 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 Deed of Trust or any
of the Related Agreements or hereunder or now or hereafter existing at law or in
equity or by statute.
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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
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 Xxxxxxx Columns, 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.
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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, identical in form and substance to this Note and upon such execution
and delivery all references in the Deed of Trust to this Note shall be deemed to
refer to such replacement note.
25. TRANSFER OF NOTE. Holder may, at any time, sell, transfer or assign
this Note, the Deed of Trust and the Related Agreements, and any or all
servicing rights with respect to this Note, or grant participations in this Note
or issue mortgage pass-through certificates or other securities evidencing a
beneficial interest in this Note. Holder may forward to any prospective
purchaser or any rating agency rating securities all documents and information
Holder now has or may acquire, as Holder determines necessary or desirable,
including, without limitation, financial information regarding Maker, its
general partners, shareholders, members or other principals.
26. FUTURE ADVANCE. This Note is given to evidence the Additional Advance
contemplated in Paragraph 6 of the Letter Agreement and the amounts secured by
this Note and the XXXX Phase II Note shall be deemed the Phase II Advance as
referenced in the Mortgage.
* * * * *
[Signature Page Follows]
11
IN WITNESS WHEREOF, Maker has caused this Mortgage Note to be duly executed
on the date first above written.
MAKER:
INLAND WESTERN XXXXXXX COLUMNS, L.L.C.,
a Delaware limited liability company
By: INLAND WESTERN RETAIL REAL ESTATE
TRUST, INC., a Maryland corporation,
Its sole member
By: /s/ [ILLIGIBLE]
--------------------------------
Its: asst Secretary
-------------------------------
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
