Exhibit 10.33
Loan No. 6518217
MORTGAGE NOTE
$18,150,000.00 New Britain, Connecticut
January 1, 2004
FOR VALUE RECEIVED, INLAND SOUTHEAST NEW BRITAIN, L.L.C., a Delaware
limited liability company, having its principal place of business at 0000
Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000 (hereinafter referred to as
"MAKER"), promises to pay to the order of XXXX XXXXXXX LIFE INSURANCE COMPANY
("XXXX XXXXXXX"), a Massachusetts corporation, its successors and assigns, at
its principal place of business at Xxxx Xxxxxxx Tower, T-00, 000 Xxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (Xxxx Xxxxxxx and each successor or assign
being hereinafter referred to as "PAYEE"), or at such place as the holder hereof
may from time to time designate in writing, the principal sum of Eighteen
Million One Hundred Fifty Thousand and No/100 Dollars ($18,150,000.00) in lawful
money of the United States of America with interest thereon to be computed from
the date of disbursement of the loan proceeds at the Applicable Interest Rate
(hereinafter defined).
1. PAYMENT OF PRINCIPAL AND INTEREST. Principal and interest shall be
paid as follows:
(a) If the loan proceeds are not disbursed on the first day of a
month, then interest only at the Applicable Interest Rate from
and including the date of disbursement of the loan proceeds to
the first day of the month following such disbursement shall be
due and payable in advance on the date of such disbursement;
(b) Interest only is to be paid in installments as follows:
$68,970.00 on the 1st day of March, 2004, and on the first day of
each calendar month thereafter up to and including the 1st day of
January, 2009; and
(c) The outstanding principal balance and all accrued and unpaid
interest thereon and all other sums and fees due under this Note
shall be due and payable on the 1st day of February, 2009 (the
"MATURITY DATE").
Interest on the principal balance of this Note shall be calculated on
a monthly basis using, as the agreed method of calculation, a three hundred
sixty (360) day year consisting of twelve (12) months of thirty (30) days each;
PROVIDED, HOWEVER, that interest for a period of less than a full month shall be
calculated by multiplying the actual number of days elapsed during such partial
month by a daily rate based upon a three hundred sixty-five day year and the
interest rate then due under this Note.
The term "APPLICABLE INTEREST RATE" as used in this Note shall mean
from the date of disbursement of the loan proceeds through and including the
Maturity Date, a rate of four and fifty-six hundredths percent (4.56%) per
annum.
Loan No. 6518217
If at any time Payee receives, from Maker or otherwise, any amount
applicable to the Debt (hereinafter defined) which is less than all amounts due
and payable at such time, Payee may apply that payment to amounts then due and
payable in any manner and in any order determined by Xxxxx, in Xxxxx's sole
discretion. Payee shall, however, be under no obligation to accept any amount
less than all amounts then due and payable. Maker agrees that neither Xxxxx's
acceptance of a payment from Maker in an amount that is less than all amounts
then due and payable nor Payee's application of such payment shall constitute or
be deemed to constitute either a waiver of the unpaid amounts or an accord and
satisfaction. This provision shall control notwithstanding any inconsistent
direction by Maker or any other obligor hereunder.
The whole of the principal sum of this Note, together with all
interest accrued and unpaid thereon and all other sums due under this Note and
any other instrument now or hereafter evidencing, securing, guaranteeing or
executed in connection with the indebtedness evidenced hereby (the "LOAN
DOCUMENTS") (all such sums hereinafter collectively referred to as the "DEBT")
shall without notice become immediately due and payable at the option of Payee
upon an "EVENT OF DEFAULT" as the same is defined in the Mortgage (hereinafter
defined). All of the terms, covenants and conditions contained in 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.
2. PREPAYMENT. Except as provided below, Maker may not prepay the loan in
whole or in part.
On or after the end of the 2nd Loan Year (as hereinafter defined), on
any scheduled payment date and subject to giving Payee not less than thirty (30)
nor more than ninety (90) days' prior written notice specifying the scheduled
payment date on which prepayment is to be made (the "PREPAYMENT DATE"), Maker
may prepay the entire principal amount together with any and all accrued
interest and other sums due under the Loan Documents, and subject to payment of
a prepayment premium equal to the greater of:
(a) the positive amount, if any, equal to (i) the sum of the present
values of all scheduled payments due under this Note from the
Prepayment Date to and including the Maturity Date, minus (ii)
the principal balance of this Note immediately prior to such
prepayment; or
(b) one percent (1.00%) of the principal balance of this Note
immediately prior to such prepayment.
All present values shall be calculated as of the Prepayment Date,
using a discount rate, compounded monthly, equal to the yield rate, converted to
its monthly equivalent, of the United States Treasury Security having the
closest maturity date to the Maturity Date of this Note as established in the
Wall Street Journal or other business publication of general circulation five
(5) business days before the Prepayment Date.
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Loan No. 6518217
In the event that the yield rate on publicly traded United States
Treasury Securities is not obtainable, then the nearest equivalent issue or
index shall be selected, at Payee's reasonable determination, and used to
calculate the prepayment premium.
The loan will be open to prepayment without premium on any scheduled
payment date during the last ninety (90) days of the term of the loan.
If any notice of prepayment is given, the principal balance of the
loan and the other sums required pursuant to the Section 2 shall be due and
payable on the Prepayment Date, unless Maker provides written notice to Payee
that it is revoking said prepayment notice no later than five (5) business days
prior to the Prepayment Date.
The above premium shall not be applicable to a prepayment resulting
from Xxxxx's election to require insurance loss proceeds or condemnation awards
to be applied to a payment of principal.
No partial prepayment shall be allowed except in the case of the
application by Xxxxx of any insurance or condemnation proceeds as expressly
provided for in the Loan Documents.
The Loan Year is defined as any twelve month period commencing with
the date on which the first monthly installment is due or any anniversary
thereof.
3. ACCELERATION/DEFAULT. Maker acknowledges that the loan was made on the
basis and assumption that Xxxxx would receive the payments of interest set forth
herein for the full term of this loan. Therefore, whenever the Maturity Date of
the loan has been accelerated by reason of an Event of Default under the Loan
Documents, which Event of Default occurs prior to the time period, if any, in
which prepayment is allowed and prior to the date on which the full amount of
the balance of principal and interest then remaining unpaid shall be due,
including an acceleration by reason of sale, conveyance, further encumbrance or
other Event of Default (which acceleration shall be at Payee's sole option),
there shall be due, in addition to the outstanding principal balance, accrued
interest and other sums due under the Loan Documents, a prepayment premium equal
to (i) the interest which would have accrued on the principal balance of this
Note at the Applicable Interest Rate from the date of such acceleration to the
expiration of the 2nd Loan Year plus (ii) an amount equal to the prepayment
premium that would have been due and payable pursuant to Section 2 hereof had
such prepayment occurred on the first (1st) day of the 3rd Loan Year. In
addition, in the event of any prepayment made on or prior to the first (1st) day
of the 2nd Loan Year, there shall also then be immediately due and payable in
addition to the prepayment premium set forth in the preceding sentence an
additional sum equal to two percent (2.00%) of the then outstanding principal
balance of this Note.
If an Event of Default occurs on or after the date on which prepayment
is permitted, then in lieu of the above premium, payment of a premium set forth
in this Section 3 calculated in the manner set forth in Section 2 hereof shall
be required.
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Loan No. 6518217
A tender of the amount necessary to satisfy the entire indebtedness,
paid at any time following such Event of Default or acceleration, including at a
foreclosure sale or during any subsequent redemption period, if any, shall be
deemed a voluntary prepayment, and, at Payee's option, such payment shall
include a premium as described in this Section 3.
4. DEFAULT RATE. Maker does hereby agree that upon the occurrence of an
Event of Default (beyond any applicable grace or cure period) and while any
Event of Default exists, including, without limitation, the failure of Maker to
pay the Debt in full on the Maturity Date, Payee shall be entitled to receive
and Maker shall pay interest on the entire unpaid principal sum, effective from
the date of Maker's initial default with respect to such Event of Default
without allowance for any applicable notice and/or grace period, at a rate (the
"DEFAULT RATE") equal to five percent (5%) above the Applicable Interest Rate,
but in no event to exceed the highest rate permitted under the laws of the
jurisdiction where the property secured by the Mortgage is situated. This charge
shall be added to the Debt, and shall be deemed secured by the Mortgage. This
clause, however, shall not be construed as an agreement or privilege to extend
the date of the payment of the Debt, nor as a waiver of any other right or
remedy available to Payee by reason of the occurrence of any Event of Default.
5. LATE CHARGE. If any monthly interest payment payable under this Note
(except for the final payment) is not paid in full within five (5) days of the
date on which it is due, Maker shall pay to Payee an amount equal to the lesser
of five percent (5%) of such unpaid sum or the maximum amount permitted by
applicable law to defray the expenses incurred by Payee in handling and
processing such delinquent payment and to compensate Payee for the loss of the
use of such delinquent payment and such amount shall be secured by the Loan
Documents.
6. SECURITY FOR LOAN. This Note is secured by the Mortgage and certain
other Loan Documents. The term "MORTGAGE" as used in this Note shall mean the
Mortgage, Assignment of Leases and Rents and Security Agreement dated the date
hereof in the principal sum of $18,150,000.00 given by Maker for the use and
benefit of Payee covering certain premises located at 0000 Xxxxxx Xxxxxx, xx xxx
Xxxx xx Xxx Xxxxxxx, Xxxxxx xx Xxxxxxxx, State of Connecticut, as more
particularly described therein.
7. COMPLIANCE WITH LAW. It is expressly stipulated and agreed to be the
intent of Maker and Payee at all times to comply with applicable state law or
applicable United States federal law (to the extent that it permits Payee 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 any of the other Loan Documents, or
contracted for, charged, taken, reserved or received with respect to the Debt,
or if Payee's exercise of the option to accelerate the Maturity Date, or if any
prepayment by Maker results in Maker's having paid any interest in excess of
that permitted by applicable law, then it is Payee's express intent that all
excess amounts theretofore collected by Payee shall be (a) credited on the
principal balance of this Note and all other Debt and the provisions of this
Note, and the other Loan Documents immediately be deemed reformed and the
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Loan No. 6518217
amounts thereafter collectible hereunder and thereunder reduced, without the
necessity of the execution of any new documents, so as to comply with the
applicable law, but so as to permit the recovery of the fullest amount otherwise
called for hereunder or thereunder or (b) if required by law, refunded to Maker.
All sums paid or agreed to be paid to Payee for the use or forbearance of the
Debt shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full stated term of the Debt until payment
in full so that the rate or amount of interest on account of the Debt does not
exceed the maximum lawful rate from time to time in effect and applicable to the
Debt for so long as the Debt is outstanding. Notwithstanding anything to the
contrary contained herein, in the Mortgage or in any of the other Loan
Documents, it is not the intention of Payee 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.
8. AMENDMENTS. 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 Maker or Payee, 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.
9. JOINT AND SEVERAL LIABILITY. If Maker consists of more than one person
or party, the obligations and liabilities of each such person or party shall be
joint and several.
10. CONSTRUCTION. Whenever used, the singular number shall include the
plural, the plural the singular, and the words "PAYEE" and "MAKER" shall
include their respective successors, assigns, heirs, executors and
administrators.
11. WAIVERS. Maker 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, protest, notice of protest and non-payment and
notice of intent to accelerate the maturity hereof (and of such acceleration).
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 Mortgage or any other Loan Documents made by
agreement between Payee and any other person or party shall release, modify,
amend, waive, extend, change, discharge, terminate or affect the liability of
Maker and any other who may become liable for the payment of all or any part of
the Debt, under this Note, the Mortgage or any other Loan Documents.
12. AUTHORITY. Maker (and the other undersigned representative of Maker,
if any) represents that Maker has full power, authority and legal right to
execute, deliver and perform its obligations pursuant to this Note, the Mortgage
and the other Loan Documents and that this Note, the Mortgage and the other Loan
Documents constitute valid and binding obligations of Maker.
13. TIME. Time is of the essence of this Note.
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Loan No. 6518217
14. REPLACEMENT NOTE. In the event of the loss, theft or destruction of
this Note, upon Maker's receipt of a reasonably satisfactory indemnification
agreement executed in favor of Maker by Xxxxx or in the event of the mutilation
of this Note, upon the surrender of the mutilated Note by Xxxxx to Maker, Maker
shall execute and deliver to Payee a new mortgage note in form and content
identical to this Note in lieu of the lost, stolen, destroyed or mutilated Note.
15. NOTICE. All notices required to be given pursuant hereto shall be
given in the manner specified in the Mortgage directed to the parties at their
respective addresses as provided therein.
16. COSTS AND EXPENSES. Maker shall pay all expenses and costs, including
reasonable fees and out-of-pocket expenses of attorneys and expert witnesses and
costs of investigation incurred by Xxxxx as a result of any Event of Default or
in connection with efforts to collect any amount due under this Note or to
enforce the provisions of any of the Loan Documents, including those incurred in
post-judgement collection efforts and in any bankruptcy proceeding (including
any action for relief from the automatic stay of any bankruptcy proceeding) or
judicial or non-judicial foreclosure proceeding.
17. FORBEARANCE. Any forbearance by Payee in exercising any right or
remedy under this Note, the Mortgage or any other Loan Document or otherwise
afforded by applicable law shall not be a waiver of or preclude the exercise of
that or any other right or remedy. The acceptance by Payee of any payment after
the due date of such payment or in an amount which is less than the required
payment shall not be a waiver of Payee's right to require prompt payment when
due of all other payments or to exercise any right or remedy with respect to any
failure to make prompt payment. Enforcement by Payee of any security for Maker's
obligations under this Note shall not constitute an election by Xxxxx of
remedies so as to preclude the exercise of any other right or remedy available
to Payee.
18. SECTION HEADINGS. The Section headings inserted in this Note have been
included for convenience only and are not intended and shall not be construed to
limit or define in any way the substance of any section contained herein.
19. LIMITATION ON LIABILITY. Notwithstanding anything to the contrary
contained herein, but subject to the obligations of PARAGRAPH 45 of the
Mortgage, any claim based on or in respect of any liability of Maker under this
Note, the Mortgage or any other Loan Document shall be enforced only against the
Mortgaged Property (as such term is defined in the Mortgage) and any other
collateral now or hereafter given to secure this Note and not against any other
assets, properties or funds of Maker; PROVIDED, HOWEVER, that the liability of
Maker for loss, costs or damage arising out of the matters described in the
subsections below (collectively, "NON-RECOURSE CARVEOUT OBLIGATIONS") shall not
be limited solely to the Mortgaged Property and other collateral now or
hereafter given to secure this Note but shall include all of the assets,
properties and funds of Maker: (i) fraud, misrepresentation and waste, (ii) any
rents, issues or profits collected more than one (1) month in advance of their
due dates to the extent such sums remain collected more than one month in
advance of their due dates following an Event of Default, (iii) any
misapplication of rents, issues or profits, security deposits and any other
payments from
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Loan No. 6518217
tenants or occupants (including, without limitation, lease termination fees),
insurance proceeds, condemnation awards or other sums of a similar nature to the
extent such misapplication continues following an Event of Default, (iv)
liability under environmental covenants, conditions and indemnities contained in
the Mortgage and in any separate environmental indemnity agreements, (v)
personalty or fixtures removed or allowed to be removed by or on behalf of Maker
and not replaced by items of equal or greater value or functionality than the
personalty or fixtures so removed, (vi) failure to pay taxes or assessments
prior to delinquency, or to pay charges for labor, materials or other charges
which can create liens on any portion of the Mortgaged Property and any sums
expended by Payee in the performance of or compliance with the obligations of
Maker under the Loan Documents, including, without limitation, sums expended to
pay taxes or assessments or hazard insurance premiums or bills for utilities or
other services or products for the benefit of the Mortgaged Property, (vii) the
unauthorized sale, conveyance or transfer of title to the Mortgaged Property or
encumbrance of the Mortgaged Property, (viii) the failure of Maker to maintain
its status as a single purpose, bankruptcy-remote entity pursuant to its
organizational documents and the Loan Documents, and (ix) attorney's fees, court
costs and other expenses incurred by Payee in connection with enforcement of
Maker's personal liability as set forth herein. Nothing herein shall be deemed
(w) to be a waiver of any right which Payee may have under any bankruptcy law of
the United States or the state where the Mortgaged Property is located
including, but not limited to, Section 506(a), 506(b), 1111(b) or any other
provisions of the U.S. Bankruptcy Code to file a claim for the full amount of
the indebtedness secured by the Mortgage or to require that all collateral
securing the indebtedness secured hereby shall continue to secure all of the
indebtedness owing to Payee in accordance with this Note, the Mortgage and the
other Loan Documents; (x) to impair the validity of the indebtedness secured by
the Mortgage; (y) to impair the right of Payee as mortgagee or secured party to
commence an action to foreclose any lien or security interest; or (z) to modify,
diminish or discharge the liability of any guarantor under any guaranty or of
any indemnitor under any indemnity agreement.
This Note shall be governed and construed in accordance with the laws
of the State of Connecticut and the applicable laws of the United States of
America.
20. SPECIAL STATE PROVISIONS. IN CONNECTION WITH ANY ACTION OR PROCEEDING
RELATING TO THIS NOTE, OR THE OTHER DOCUMENTS OR TRANSACTIONS EVIDENCED HEREBY
OR THEREBY, (i) MAKER WAIVES ANY RIGHT TO NOTICE AND HEARING UNDER CHAPTER
903(a) OF THE CONNECTICUT GENERAL STATUTES, AS NOW OR HEREAFTER AMENDED, OR ANY
SUCCESSOR ACT THERETO, AND AUTHORIZES THE ATTORNEY OF PAYEE TO ISSUE A WRIT FOR
THE PREJUDGMENT REMEDY WITHOUT COURT ORDER, AND (ii) MAKER WAIVES TRIAL BY JURY
IN ANY SUCH ACTION OR PROCEEDING AND AGREES THAT NO SUCH ACTION WITH RESPECT TO
WHICH A JURY TRIAL HAS BEEN WAIVED SHALL BE SOUGHT TO BE CONSOLIDATED WITH ANY
OTHER ACTION WITH RESPECT TO WHICH A JURY TRIAL CANNOT OR HAS NOT BEEN WAIVED.
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Loan No. 6518217
STATE OF ___________ )
) ss. ____________ January ___, 2004
COUNTY OF __________ )
Personally appeared ______________, ___________________ of Inland Western
Retail Real Estate Trust, Inc., a Maryland corporation, the Sole Member of
Inland Southeast New Britain, L.L.C., a Delaware limited liability company,
signer and sealer of the foregoing instrument, and acknowledged the same to be
his/her free act and deed as such __________ and the free act and deed of said
____________ and ____________, before me.
-----------------------------------
Name:
Commissioner of the Superior Court
Notary Public
My commission expires:
-------------
[SEAL]
[ACKNOWLEDGEMENT PAGE TO MORTGAGE NOTE]
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Loan No. 6518217
IN WITNESS WHEREOF, Xxxxx has duly executed and delivered this Note the day
and year first above written.
WITNESSED BY: MAKER:
/s/ XxXxxx Xxxxxxxxx INLAND SOUTHEAST NEW BRITAIN, L.L.C.,
---------------------- a Delaware limited liability company
Name: XxXxxx Xxxxxxxxx
----------------
By: Inland Western Retail Real Estate Trust, Inc.,
a Maryland corporation, its sole member
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------------
Its: Asst. Secretary
------------------------------------------
[SIGNATURE PAGE TO MORTGAGE NOTE]
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Loan No. 6518217
STATE OF ILLINOIS )
) ss. ____________ January 5, 2004
COUNTY OF DUPAGE )
Personally appeared Xxxxxxx Xxxxxx, Asst. Secretary of Inland Western
Retail Real Estate Trust, Inc., a Maryland corporation, the Sole Member of
Inland Southeast New Britain, L.L.C., a Delaware limited liability company,
signer and sealer of the foregoing instrument, and acknowledged the same to be
his/her free act and deed as such Asst. Sec. and the free act and deed of said
Corporation and _____________, before me.
/s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------------
Name:
Commissioner of the Superior Court
OFFICIAL SEAL Notary Public
XXXXXXXX X. XXXXXXXX My commission expires:
NOTARY PUBLIC-STATE OF ILLINOIS ----------------
MY COMMISSION EXPIRES: 03-12-07
[SEAL]
[ACKNOWLEDGEMENT PAGE TO MORTGAGE NOTE]
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