Exhibit 10.27
Loan No. V_17415
FIXED RATE NOTE
$36,050,000.00 As of June 14, 2001
FOR VALUE RECEIVED, WHC809, LLC, a Delaware limited liability company,
(hereinafter referred to as "Borrower"), promises to pay to the order of XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation, its
successors and assigns (hereinafter referred to as "Lender"), as the office of
Lender or its agent, designee, or assignee at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000, Attention: Loan Servicing, or at such place as Lender or its
agent, designee, or assignee may from time to time designate in writing, the
principal sum of THIRTY SIX MILLION FIFTY THOUSAND AND NO/100 DOLLARS
($36,050,000.00), in lawful money of the United States of America, with
interest thereon to be computed on the unpaid principal balance from time to
time outstanding at the Applicable Interest Rate (hereinafter defined) at all
times prior to the occurrence of an Event of Default (as defined in the
Security Instrument [hereinafter defined]), and to be paid in installments as
set forth below. Unless otherwise herein defined, all initially capitalized
terms shall have the meanings given such terms in the Security Instrument.
1. PAYMENT TERMS
Principal and interest due under this Note shall be paid as follows:
(a) A payment of interest only on the date hereof for the period from the
date hereof through June 30, 2001, both inclusive; and
(b) A constant payment of $276,570.13, on the first day of August, 2001
and on the first day of each calendar month thereafter up to and including the
first day of June, 2011;
with payments under this Note to be applied as follows:
(i) First, to the payment of interest and other costs and charges
due in connection with this Note or the Debt, as Lender may determine in its
sole discretion; and
(ii) The balance shall be applied toward the reduction of the
principal sum;
and the balance of said principal sum, together with accrued and unpaid
interest and any other amounts due under this Note shall be due and payable on
the first day of July, 2011 or upon earlier maturity hereof whether by
acceleration or otherwise (the "Maturity Date"). Interest on the principal sum
of this Note shall be calculated on the basis of a three hundred sixty (360)
day year and paid for the actual number of days elapsed. All amounts due under
this Note shall be payable without setoff, counterclaim or any other deduction
whatsoever.
2. INTEREST
The term "APPLICABLE INTEREST RATE" means from the date of this Note
through and including the Maturity Date, a rate of seven and ninety-three
hundredths percent (7.93%) per annum.
3. SECURITY
This Note is secured by, and Xxxxxx is entitled to the benefits of, the
Security Instrument, the Assignment and the other Loan Documents (hereinafter
defined). The term "SECURITY INSTRUMENT" means the Deed of Trust and Security
Agreement dated the date hereof given by Borrower for the use and benefit of
Lender covering the estate of Borrower in certain premises as more particularly
described therein (which premises, together with all properties, rights, titles,
estates and interests now or hereafter securing the Debt and/or other
obligations of Borrower under the Loan Documents, are collectively referred to
herein as the "PROPERTY"). The term "ASSIGNMENT" means the Assignment of Leases
and Rents of even date herewith executed by Xxxxxxxx in favor of Xxxxxx. The
term "ENVIRONMENTAL INDEMNITY" means the Environmental Indemnity Agreement of
even date herewith executed by Xxxxxxxx in favor of Xxxxxx. The term "LOAN
DOCUMENTS" refers collectively to this Note, the Security Instrument, the
Assignment and any and all other documents executed in connection with this Note
or now or hereafter executed by Xxxxxxxx and/or others and by or in favor of
Lender, which wholly or partially secure or guarantee payment of this Note or
pertains to indebtedness evidenced by this Note.
4. LATE FEE
If any installment payable under this Note (excluding the final installment
due on the Maturity Date) is not received by Lender prior to the fifth (5th)
calendar day after the same is due (without regard to any applicable cure and/or
notice period), Borrower shall pay to Lender upon demand an amount equal to the
lesser of (a) five percent (5%) of such unpaid sum or (b) the maximum amount
permitted by applicable law to defray the expenses incurred by Lender in
handling and processing such delinquent payment and to compensate Lender for the
loss of the use of such delinquent payment, and such amount shall be secured by
the Loan Documents.
5. DEFAULT AND ACCELERATION
So long as an Event of Default exists and is continuing, Lender may, at its
option, without notice or demand to Borrower, declare the Debt immediately due
and payable. All remedies hereunder, under the Loan Documents and at law or in
equity shall be cumulative. In the event that it should become necessary to
employ counsel to collect the Debt or to protect or foreclose the security for
the Debt or to defend against any claims asserted by Borrower arising from or
related to the Loan Documents, Xxxxxxxx also agrees to pay to Lender on demand
all costs of collection or defense incurred by Xxxxxx, including reasonable
attorneys' fees for the services of counsel whether or not suit be brought.
6. DEFAULT INTEREST
Upon the occurrence of an Event of Default Borrower shall pay interest on
the entire unpaid principal sum and any other amounts due under the Loan
Documents at the rate equal to the lesser of (a) the maximum rate permitted by
applicable law, or (b) the greater of (i) five percent (5%) above the
Applicable Interest Rate or (ii) five percent (5%) above the Prime Rate
(hereinafter defined), in effect at the time of the occurrence of the Event of
Default (the "DEFAULT RATE"). The term "PRIME RATE" means the prime rate
reported in the Money Rates section of The Wall Street Journal. In the event
that The Wall Street Journal should cease or temporarily interrupt publication,
the term "PRIME RATE" shall mean the daily average prime rate published in
another business newspaper, or business section of a newspaper, of national
standing and general circulation chosen by Xxxxxx. In the event that a prime
rate is no longer generally published or is limited, regulated or administered
by a governmental or quasi-governmental body, then Lender shall select a
comparable interest rate index which is readily available and verifiable to
Borrower but is beyond Lender's control. The Default Rate shall be computed
from the occurrence of the Event of Default until the actual receipt and
collection of a sum of money determined by Xxxxxx to be sufficient to cure the
Event of Default. Amounts of interest accrued at the Default Rate shall
constitute a portion of the Debt, and shall be deemed secured by the Loan
Documents. 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 accruing to Lender by reason of the occurrence of any
Event of Default.
7. PREPAYMENT
(a) The principal balance of this Note may not be prepaid in whole or in
part (except with respect to the application of casualty or condemnation
proceeds) prior to the Maturity Date. If following the occurrence of any Event
of Default and the acceleration of the Debt by Xxxxxx, Borrower shall tender
payment to Lender or Lender shall receive proceeds (whether through foreclosure
or the exercise of the other remedies available to Lender under the Security
Instrument or the other Loan Documents), Borrower shall pay in addition to
interest accrued and unpaid on the principal balance of this Note and all other
sums then due under this Note and the other Loan Documents a prepayment
consideration in an amount equal to the greater of (A) one percent (1%) of the
outstanding principal balance of this Note at the time such payment or proceeds
are received, or (B)(x) the present value as of the date such payment 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. The term "DISCOUNT RATE" means the rate which,
when compounded monthly, is equivalent to the Treasury Rate (as hereinafter
defined), when compounded semi-annually. The term "TREASURY RATE" means the
yield calculated by the linear 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 the payment or such 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.) Lender shall notify Borrower of the amount and the basis of
determination of the required prepayment consideration, which shall be
3
conclusive except in the case of manifest error. Notwithstanding the foregoing,
Borrower shall have the additional privilege to prepay the entire principal
balance of this Note (together with any other sums constituting the Debt) on any
scheduled payment date occurring on or after that date which is three (3) months
preceding the Maturity date without any fee or consideration for such privilege.
(b) If the prepayment results from the application to the Debt of the
casualty or condemnation proceeds from the Property, no prepayment consideration
will be imposed. Partial prepayments of principal resulting from the application
of casualty or condemnation proceeds to the Debt shall not change the amounts of
subsequent monthly installments nor change the dates on which such installments
are due, unless Lender shall otherwise agree in writing.
(c) (i) Not withstanding any provision of this Section 7 to the
contrary, at any time after the earlier of (1) the date which is two 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," within the meaning of
Section 860D of the Code, that holds this Note, and (2) a regularly scheduled
payment date on or after that date which is four (4) years after the date of the
first monthly payment due under Section 1(b), and provided no Event of Default
is continuing (or any event has occurred and has not been cured by Borrower
which with the passage of time or the giving of notice, or both, could become an
Event of Default) has occurred under the Security Instrument or under any of the
Loan Documents, Borrower may cause the release of the Property (in whole but not
in part) from the lien of the Security Instrument and the other Loan Documents
upon the satisfaction of the following conditions precedent:
(A) not less than thirty (30) days prior written notice to
Lender specifying a regularly scheduled payment date (the "Release Date") on
which the Defeasance Deposit (hereinafter defined) is to be made;
(B) the payment to Lender of interest accrued and unpaid on the
principal balance of this Note to and including the Release Date;
(C) the payment to Lender of all other sums, not including
scheduled interest or principal payments, due under this Note, the Security
Instrument and the other Loan Documents;
(D) the payment to Lender of the Defeasance Deposit; and
(E) the delivery to Lender of:
(1) a security agreement, in form and substance
satisfactory to Lender, creating a first priority lien on the Defeasance Deposit
and the U.S. Obligations (hereinafter defined) purchased on behalf of Borrower
with the Defeasance Deposit in accordance with the subparagraph (the "Security
Agreement");
4
(2) a release of the Property from the lien of the Security
Instrument (for execution by Xxxxxx) in a form appropriate for the
jurisdiction in which the Property is located;
(3) an officer's certificate of Borrower certifying that the
requirements set forth in this subparagraph (i) have been satisfied;
(4) an opinion of counsel for Borrower in form satisfactory to Lender
stating, among other things, that defeasance of this Note will not cause
any adverse consequences to any REMIC holding the Loan or the holders of
any securities issued by the REMIC or result in a taxation of the income
from the Loan to such REMIC or cause a loss of REMIC status, and that
Lender has a perfected first priority security interest in the Defeasance
Deposit and the U.S. Obligations purchased by Xxxxxx on behalf of Borrower;
(5) an opinion of a certified public accountant acceptable to Lender
to the effect that the Defeasance Deposit is adequate to provide payment on
or prior to, but as close as possible to, all successive scheduled payment
dates after the Release Date upon which interest and principal payments are
required under this Note (including the amounts due on the Maturity Date)
and in amounts equal to the scheduled payments due on such dates under this
Note;
(6) evidence in writing from the applicable Rating Agencies to the
effect that such release will not result in a re-qualification, reduction
or withdrawal of any rating in effect immediately prior to such defeasance
for any Securities;
(7) payment of all of Xxxxxx's expenses incurred in connection with
the defeasance including, without limitation, reasonable attorneys fees;
and
(8) such other certificates, documents or instruments as Lender may
reasonably request.
In connection with the conditions set forth in subsection (c)(i)(E) above,
Borrower hereby appoints Lender as its agent and attorney-in-fact for the
purpose of using the Defeasance Deposit to purchase U.S. Obligations which
provide payment on or prior to, but as close as possible to, all successive
scheduled payment dates after the Release Date upon which interest and
principal payments are required under this Note (including the amounts due on
the Maturity Date) and in amounts equal to the scheduled payments due on such
dates under this Note (the "Scheduled Defeasance Payments"). Borrower, pursuant
to the Security Agreement or other appropriate document, shall authorize and
direct that the payments received from the U.S. Obligations may be made
directly to Lender and applied to satisfy the obligations of the Borrower under
this Note.
5
(ii) Upon compliance with the requirements of this subsection (c), the
Property shall be released from the lien of the Security Instrument and the
pledged U.S. Obligations shall be the sole source of collateral securing this
Note. Any portion of the Defeasance Deposit in excess of the amount necessary
to purchase the U.S. Obligations required by subparagraph (c)(i) above and
satisfy the Borrower's obligations under this subsection (c) shall be remitted
to the Borrower with the release of the Property from the lien of the Security
Instrument
(iii) For purposes of this subsection (c), the following terms shall
have the following meanings:
(A) The term "Defeasance Deposit" shall mean an amount equal to
100% of the remaining principal amount of this Note, the Yield Maintenance
Premium, any costs and expenses incurred or to be incurred in the purchase
of the U.S. Obligations necessary to meet the Scheduled Defeasance Payments
and any revenue, documentary stamp or intangible taxes or any other tax or
charge due in connection with the transfer of this Note or otherwise
required to accomplish the agreements of this subsection;
(B) The term "Yield Maintenance Premium" shall mean the amount
(if any) which, when added to the remaining principal amount of this Note,
will be sufficient to purchase U.S. Obligations providing the required
Scheduled Defeasance Payments; and
(C) The term "U.S. Obligations" shall mean direct non-callable
obligations of the United States of America.
(iv) Upon the release of the Property in accordance with this
subsection (c), Borrower shall, at Xxxxxx's request, assign all its obligations
and rights under this Note, together with the pledged Defeasance Deposit, to a
successor special purpose entity designated by Xxxxxxxx and approved by Lender
in its sole discretion. Such successor entity 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 Security Agreement. In connection with such assignment and assumption,
Borrower shall (x) deliver to Lender an opinion of counsel in form and
substance and delivered by counsel satisfactory to 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 Security Agreement and the other Loan Documents,
as so assumed, are enforceable against such successor entity in accordance with
their respective terms, and (y) 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). In connection with such
assignment and assumption, Borrower and any Guarantor shall be released of
personal liability under the Note and the other Loan Documents, but only as to
acts or events occurring after the closing of such assignment and assumption.
6
of the right to exercise the same or any other option at any subsequent time in
respect to the same or any other event. The acceptance by Lender of any payment
hereunder that is less than payment in full of all amounts due and payable at
the time of such payment shall not constitute a waiver of the right to exercise
any of the options granted herein to Lender at that time or at any subsequent
time or nullify any prior exercise of any such option without the express
written acknowledgment of the Lender.
10. EXCULPATION
(a) Notwithstanding anything in the Loan Documents to the contrary, but
subject to the qualifications below, Xxxxxx and Borrower agree that:
(i) Borrower shall be liable upon the Debt and for the other
obligations arising under the Loan Documents to the full extent (but only to the
extent) of the security therefor; provided, however, that in the event (A) of
fraud, willful misconduct or material misrepresentation by Borrower, its general
partners, if any, its members, if any, its principals, its affiliates, its
agents or its employees or by any Guarantor in connection with the loan
evidenced by this Note, (B) of a breach or default under Sections 4.3 (excluding
Sections 4.3(g) and 4.3(s)) or 8.2 of the Security Instrument, or (C) the
Property or any part thereof becomes an asset in a voluntary bankruptcy or
insolvency proceeding, the limitation on recourse set forth in this Subsection
10(a) will be null and void and completely inapplicable, and this Note shall be
with full recourse to Borrower.
(ii) If a default occurs in the timely and proper payment of all or
any part of the Debt, Lender shall not enforce the liability and obligation of
Borrower to perform and observe the obligations contained in this Note or the
Security Instrument by any action or proceeding wherein a money judgment shall
be sought against Borrower, except that Lender may bring a foreclosure action,
action for specific performance or other appropriate action or proceeding to
enable Lender to enforce and realize upon the Security Instrument, the Other
Loan Documents and the interest in the Property, the Rents and any other
collateral given to Lender created by the Security Instrument and the Other Loan
Documents; provided, however, that any judgment in any action or proceeding
shall be enforceable against Borrower only to the extent of Xxxxxxxx's interest
in the Property, in the Rents and in any other collateral given to Lender.
Xxxxxx, by accepting this Note and the Security Instrument, agrees that it shall
not, except as otherwise herein provided, sue for, seek or demand any deficiency
judgment against Borrower in any action or proceeding, under or by reason of or
under or in connection with this Note, the Other Loan Documents or the Security
Instrument.
(iii) The provisions of this Subsection 10(a) shall not (A) constitute
a waiver, release or impairment of any obligation evidenced or secured by this
Note, the Other Loan Documents or the Security Instrument; (B) impair the right
of Lender to name Borrower as a party defendant in any action or suit for
judicial foreclosure and sale under the Security Instrument; (C) affect the
validity or enforceability of any indemnity, guaranty, master lease or similar
instrument made in connection with this Note, the Security Instrument, or the
Other Loan Documents; (D) impair the right of Lender to obtain the appointment
of a receiver; (E) impair the enforcement of the Assignment executed in
connection herewith; or (F) impair the right of Lender to enforce the provisions
of Article 11 of the Security Instrument; or (G) impair the right
8
(v) Upon the release of the Property in accordance with this
subsection (c), Borrower shall have no further right to prepay this Note
pursuant to the other provisions of this Section 7 or otherwise.
8. SAVINGS CLAUSE
This Note is subject to the express condition that at no time shall
Borrower be obligated or required to pay interest on the principal balance due
hereunder at a rate which could subject Lender to either civil or criminal
liability as a result of being in excess of the maximum interest rate which
Borrower is permitted by applicable law to contract or agree to pay. If by the
terms of this Note, Borrower is at any time required or obligated to pay
interest on the principal balance due hereunder at a rate in excess of such
maximum rate, the Applicable Interest Rate or the Default Rate, as the case may
be, shall be deemed to be immediately reduced to such maximum rate and all
previous payments in excess of the maximum rate shall be deemed to have been
payments in reduction of principal and not on account of the interest due
hereunder. All sums paid or agreed to be paid to Lender for the use,
forbearance, or detention of the Debt, shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the
full stated term of this Note until payment in full so that the rate or amount
of interest on account of the Debt does not exceed the maximum lawful rate of
interest 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 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.
9. WAIVERS
(a) Except as specifically provided in the Loan Documents, Borrower and
any endorsers, sureties or guarantors hereof jointly and severally waive
presentment and demand for payment, notice of intent to accelerate maturity,
notice of acceleration of maturity, protest and notice of protest and
non-payment, all applicable exemption rights, valuation and appraisement,
notice of demand, and all other notices in connection with the delivery,
acceptance, performance, default or enforcement of the payment of this Note and
the bringing of suit and diligence in taking any action to collect any sums
owing hereunder or in proceeding against any of the rights and collateral
securing payment hereof. Borrower and any surety, endorser or guarantor hereof
agree (i) that the time for any payments hereunder may be extended from time
to time without notice and consent, (ii) to the acceptance by Lender of further
collateral, (iii) the release by Lender of any existing collateral for the
payment of this Note, (iv) to any and all renewals, waivers or modifications
that may be granted by Lender with respect to the payment or other provisions
of this Note, and/or (v) that additional Borrowers, endorsers, guarantors or
sureties may become parties hereto all without notice to them and without in
any manner affecting their liability under or with respect to this Note. No
extension of time for the payment of this Note or any installment hereof shall
affect the liability of Borrower under this Note or any endorser or guarantor
hereof even though the Borrower or such endorser or guarantor is not a party to
such agreement.
(b) Failure of Lender to exercise any of the options granted herein to
Lender upon the happening of one or more of the events giving rise to such
options shall not constitute a waiver
7
of Lender to obtain a deficiency judgment or judgment on this Note against
Borrower if necessary to obtain any insurance proceeds or condemnation awards
to which Xxxxxx would otherwise be entitled under the Security Instrument;
provided, however, Lender shall only enforce such judgment against the
insurance proceeds and/or condemnation awards.
(iv) Notwithstanding the provisions of this Article to the
contrary, Borrower shall be personally liable to Lender for the Losses it incurs
due to: (A) the misapplication or misappropriation of Rents by Borrower (but
only to the extent of such misapplication or misappropriation); (B) the
misapplication or misappropriation of insurance proceeds or condemnation awards
(but only to the extent of such misapplication or misappropriation); (C)
Borrower's failure to return or to reimburse Lender for all Personal Property
taken from the Property by or on behalf of Borrower and not replaced with
Personal Property of the same utility and of the same or greater value; (D) any
act of actual waste or arson by Borrower, any principal, affiliate, general
partner or member thereof or by any Guarantor; (E) any fees or commissions paid
by Borrower to any principal, affiliate, general partner or member of Borrower,
or any Guarantor in violation of the terms of this Note, the Security Instrument
or the Other Loan Documents; (F) Borrower's failure to comply with the
provisions of Section 11.2 of the Security Instrument; or (G) any breach of the
Environmental Indemnity.
(b) 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 Debt or to
require that all collateral shall continue to secure all of the Debt, owing to
Lender in accordance with this Note, the Security Instrument and the other Loan
Documents.
11. AUTHORITY
Borrower 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 evidenced by the Loan Documents was made for business
or commercial purposes and not for personal, family or household use.
12. NOTICES
All notices or other communications required or permitted to be given
pursuant hereto shall be given in the manner and be effective as specified in
the Security Instrument, directed to the parties at their respective addresses
as provided therein.
13. TRANSFER
Lender shall have the unrestricted right at any time or from time to
time to sell this Note and the loan evidenced by this Note and the Loan
Documents or participation interests therein. Borrower shall execute,
acknowledge and deliver any and all instruments requested by Xxxxxx to satisfy
such purchasers or participants that the unpaid indebtedness evidenced by this
Note is outstanding upon the terms and provisions set out in this Note and the
other Loan Documents. To the extent, if any, specified in such assignment or
participation, such assignee(s) or
9
participant(s) shall have the rights and benefits with respect to this Note and
the other Loan Documents as such assignee(s) or participant(s) would have if
they were the Lender hereunder.
14. WAIVER OF TRIAL BY JURY
BORROWER HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF
RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT
ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS NOTE OR THE
OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN
CONNECTION THEREWITH INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO (A)
ALLEGATIONS THAT A PARTNERSHIP EXISTS BETWEEN XXXXXX AND BORROWER; (B) USURY OR
PENALTIES OR DAMAGES THEREFOR; (C) ALLEGATIONS OF UNCONSCIONABLE ACTS, DECEPTIVE
TRADE PRACTICE, LACK OF GOOD FAITH OR FAIR DEALING, LACK OF COMMERCIAL
REASONABLENESS, OR SPECIAL RELATIONSHIPS (SUCH AS FIDUCIARY, TRUST OR
CONFIDENTIAL RELATIONSHIP); (D) ALLEGATIONS OF DOMINION, CONTROL, ALTER EGO,
INSTRUMENTALITY, FRAUD, REAL ESTATE FRAUD, MISREPRESENTATION, DURESS, COERCION,
UNDUE INFLUENCE, INTERFERENCE OR NEGLIGENCE; (E) ALLEGATIONS OF TORTIOUS
INTERFERENCE WITH PRESENT OR PROSPECTIVE BUSINESS RELATIONSHIPS OR OF ANTITRUST;
OR (F) SLANDER, LIBEL OR DAMAGE TO REPUTATION. THIS WAIVER OF RIGHT TO TRIAL BY
JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY XXXXXXXX, AND IS INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A
TRIAL BY JURY WOULD OTHERWISE ACCRUE. XXXXXX IS HEREBY AUTHORIZED TO FILE A COPY
OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY
BORROWER.
15. APPLICABLE LAW
This Note shall be governed by and construed in accordance with the laws of
the state in which the real property encumbered by the Security Instrument is
located (without regard to any conflict of laws or principles) and the
applicable laws of the United States of America.
16. JURISDICTION
BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY COURT OF
COMPETENT JURISDICTION LOCATED IN THE STATE IN WHICH THE PROPERTY IS LOCATED IN
CONNECTION WITH ANY PROCEEDING ARISING OUT OF FOR RELATING TO THIS NOTE.
17. NO ORAL CHANGE
The provisions of this Note and the Loan Documents may be amended or
revised only by an instrument in writing signed by the Borrower and Lender. This
Note and all the other Loan Documents embody the final, entire agreement of
Xxxxxxxx and Lender and supersede any and
10
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 of prior, contemporaneous or subsequent
oral agreements or discussions of Xxxxxxxx and Xxxxxx. There are no oral
agreements between Borrower and Lender.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO
FORBEAR FROM ENFORCING PAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON
LAW.
11
This FIXED RATE NOTE is executed as of the day and year first above written.
BORROWER:
WHC809, LLC, a Delaware limited
liability company
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
