Exhibit 10.164
LOAN NO. 6518370
MORTGAGE NOTE
$46,750,000.00 Lansing, Michigan
June 15, 2004
FOR VALUE RECEIVED, INLAND WESTERN LANSING EASTWOOD, 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 Forty-six
Million Seven Hundred Fifty Thousand and No/100 Dollars ($46,750,000.00) 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:
$180,766.67 on the 1st day of August, 2004 and on the
first day of each calendar month thereafter up to and
including the 1st day of June, 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 July 1,
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 (365) day
year and the interest rate then due under this Note.
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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 sixty-four hundredths percent (4.64%) per
annum.
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.
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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.
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 this 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
or the proceeds from any letter of credit held by Xxxxx as additional security
for the Loan 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 or letter of credit
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
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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 set forth in this
Section 3, payment of a premium calculated in the manner set forth in Section 2
hereof shall be required.
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 that certain Mortgage dated the date hereof, securing the principal sum of
$46,750,000.00 made by Maker in favor of Payee covering certain premises located
at 0000 Xxxxxx Xxxxxxxxx, Xxxx xx Xxxxxxx, xx xxx Xxxxxx of Xxxxxx, State of
Michigan, as more particularly described therein. The Mortgage contains
provisions providing for acceleration of the sums secured thereby in the event
of certain transfers of or encumbrances upon the real estate or interests
therein or interests in Maker, which provisions are incorporated herein by this
reference.
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
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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
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,
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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.
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-judgment collection efforts and in any bankruptcy proceeding
(including any action for relief from the automatic stay of any bankruptcy
proceeding) or 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
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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 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, assessments or ground rents
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, including without limitation liabilities
for any loss, cost or damage arising in connection with any subdivision, zoning,
setback, parking, access or tax parcel issues occurring or related to any act or
omission of Maker in connection with the sale or transfer, or the proposed sale
or transfer, of any portion of the Mortgaged Property, or any foreclosure of the
Mortgage or related sale of the then entirety of the Mortgaged Property in
connection with such foreclosure (and only the then entirety of the Mortgaged
Property, it being understood and agreed by Maker and Payee that Maker shall not
be liable for any Non-Recourse Carveout Obligations arising under this
subsection (vii) to the extent that the same arise from Payee's election to
foreclose or exercise any right of sale with respect to less than the entirety
of the Mortgaged Property as is then encumbered by the Mortgage at the time of
such sale) in connection therewith, which gives rise to a claim by either GMRI,
Inc., Comerica Bank or Max & Xxxx's Restaurants, Inc. (or any of their
respective successors and assigns) under their respective leases of portions of
the Mortgaged Property [which leases are dated April 28, 2003, October 3, 2002
(as amended March 31, 2003), and September 19, 2001, respectively], to the
effect that -- as a result of such sale or transfer or proposed sale or transfer
-- any such tenant or its successor or assign has the right to exercise the
right of first refusal granted in such party's lease to purchase the premises
demised to it pursuant to such lease (provided, Maker's liability hereunder with
respect to the exercise of any right of first refusal by a tenant under the
aforementioned leases shall cease, with respect to each such
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lease, as of the date on which Xxxxx receives a fully-executed subordination,
non-disturbance and attornment agreement from the tenant under such lease in
form and substance satisfactory to Payee in its sole discretion), (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)
reasonable 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 Michigan and the applicable laws of the United States of
America.
[The Balance of this Page is Left Intentionally Blank]
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IN WITNESS WHEREOF, Xxxxx has duly executed and delivered this Note
under seal the day and year first above written.
INLAND WESTERN LANSING XXXXXXXX,
L.L.C., a Delaware limited liability company
By: Inland Western Lansing Eastwood SPE,
L.L.C., a Delaware limited liability company,
its Sole Member
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, its Sole
Member
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: asst. Secretary
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