EXHIBIT 10.1
MORTGAGE NOTE
$200,000,000.00 New York, New York
Dated as of March 29, 1999
FOR VALUE RECEIVED, PROLOGIS TRUST, a Maryland real estate investment
trust, having an office at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Maker"), promises to pay to the order of PRO-INDUSTRIAL FUNDING COMPANY, INC.,
a Delaware corporation (the "Payee"), at its office c/▇ ▇▇▇▇▇▇ Guaranty Trust
Company of New York, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such
other place as may be designated in writing by the holder of this Note, in legal
tender of the United States of America in immediately available funds, the
principal sum of TWO HUNDRED MILLION AND NO/100 DOLLARS ($200,000,000) or so
much thereof as shall at any time be outstanding (the "Principal Amount"),
together with interest on the Principal Amount to be computed from the date
hereof on the basis of a 360-day year (consisting of twelve thirty day months,
except that for periods of less than 30 days, interest shall be computed on the
basis of the actual number of days in such period divided by the actual number
of days in such calendar year), at the rate of 7.584% per annum (the "Interest
Rate").
All capitalized terms used herein and not defined herein shall have the
respective meanings assigned to them in those certain Mortgages and Security
Agreements and Assignments of Leases and Rents, Deeds of Trust and Security
Agreements and Assignments of Leases and Rents and Deeds to Secure Debt and
Assignments of Leases and Rents of even date herewith (collectively, the
Mortgages") given by Maker, ProLogis Limited Partnership II, a Delaware limited
partnership and ProLogis - North Carolina Limited Partnership, a Delaware
limited partnership (collectively, the "Mortgagors"), to, or for the benefit of,
Payee, as mortgagee or beneficiary, as security for the indebtedness evidenced
hereby and covering the interests of the Mortgagors in the real and personal
property more particularly described in said Mortgages (collectively, the
"Mortgaged Property").
Maturity Date. As used herein, the term "Maturity Date" shall mean
April 1, 2024 or any earlier date to which such Maturity Date shall be
accelerated pursuant to any right or option (including the right to prepay, if
any, contained herein) under this Note or the other Loan Documents by which the
Payee may accelerate the Maturity Date.
Defaults. This Note is secured by the Mortgages, as the same may be
amended, modified, supplemented, restated, consolidated, spread, split,
extended, replaced or renewed, from time to time, and all of the other Loan
Documents. The Obligations shall become immediately due and payable, at the
option of the Payee, upon the occurrence of any default in payment under this
Note, or any other event which would constitute an Event of Default under the
Mortgages or any of the other Loan Documents. All of the terms, provisions,
covenants, agreements and conditions contained in the Mortgages and all of the
other Loan Documents are hereby made a part of this Note to the same extent and
effect as if fully set forth herein.
Payments. The Principal Amount shall be paid by Maker to Payee
together with interest at the Interest Rate as follows:
On the date hereof, the Maker shall pay to the Payee an installment of
interest only computed on the Principal Amount at the Interest Rate for the
actual number of days to elapse from and including the date hereof through and
including March 31, 1999.
On the first day of May, 1999 and on the first day of each month
thereafter through and including May 1, 2005, Maker shall make Interest Only
Payments (as hereinafter defined) to Payee.
The term "Interest Only Payments" shall mean payments of interest
accruing on the Principal Amount hereunder at the Interest Rate, payable monthly
in arrears.
On the first day of June, 2005 and the first day of each month
thereafter through and including (i) May 1, 2018 (the "Conversion Date") if the
Conversion (as hereinafter defined) occurs and (ii) the Maturity Date (if the
Conversion does not occur), Maker shall make Constant Monthly Payments (as
hereinafter defined) to Payee.
The term "Constant Monthly Payments" shall mean monthly payments of
principal and interest in the amount of (i) One Million Four Hundred Nine
Thousand Nine Hundred Fifty and 80/100 Dollars ($1,409,950.80) prior to the
exercise of the Amortization Acceleration Option (hereinafter defined) and (ii)
the Accelerated Constant Monthly Payment Amount (hereinafter defined) from and
after the exercise of the Amortization Acceleration Option. Each Constant
Monthly Payment shall be applied first to interest and then to the reduction of
the Principal Amount.
Provided that (i) no Event of Default shall exist under this Note, the
Mortgages or the other Loan Documents as of the Conversion Date and (ii) the
outstanding Principal Amount shall not exceed forty percent (40%) of the value
of the Mortgaged Property as of the Conversion Date, and (iii) Payee shall not
have exercised the Amortization Acceleration Option (as hereinafter defined),
Maker shall have the option (the "Conversion Option"), exercisable by written
notice delivered by Maker to Payee on or before April 30, 2018, to cease making
Constant Monthly Payments and convert the schedule for repayment of the
indebtedness evidenced hereby to an interest only schedule (the "Conversion").
In such event, Maker shall make Interest Only Payments to Payee, on the first
day of June, 2018 and the first day of each month thereafter through and
including the Maturity Date. The value of the Mortgaged Property as of the
Conversion Date shall be determined pursuant to an appraisal acceptable to Payee
to be obtained by Payee at Maker's sole cost and expense.
Notwithstanding anything to the contrary contained in this Note (and
irrespective of whether Maker shall have previously exercised the Conversion
Option), in the event that the Maker shall exercise the DE-REIT Option (defined
in Section 2.14 of the Mortgage), Payee shall have the option (the "Amortization
Acceleration Option"), exercisable, in ▇▇▇▇▇'s sole discretion, by written
notice to Maker given any time within five (5) years after the Maker's exercise
of the DE-REIT Option, to require that the amount of each Periodic Installment
(as hereinafter defined) thereafter be an amount sufficient to fully repay the
entire remaining Principal Amount, less the Balloon Payment (as hereinafter
defined), together with interest accruing on the Principal Amount at the
Interest Rate in equal monthly installments over the remainder of the term of
this Note (based on a conventional 30-day month amortization schedule) (the
"Accelerated Constant Monthly Payment Amount").
The term Balloon Amount shall mean SEVENTY-FIVE MILLION AND NO/100
DOLLARS ($75,000,000) of the Principal Amount.
The remaining balance of the Principal Amount, all accrued interest,
and all other portions of the Obligations remaining unpaid on the Maturity Date
shall be due and payable on the Maturity Date.
All payments, whether of principal, interest or otherwise, due
hereunder and under any of the Loan Documents shall be paid by wire transfer of
immediately available federal funds to the following account of the Payee,
unless otherwise directed by the Payee in writing:
▇▇▇▇▇▇ Guaranty Trust Company of New York
Bank of New York
ABA #▇▇▇-▇▇▇-▇▇▇ BNF: IOC566
Attn: P&I Dept/for further credit to
A/C: 188967 - Re: ProLogis Portfolio
Any wire transfer received by the Payee after 1:00 p.m. New York City time shall
be deemed received on the next succeeding business day.
For purposes hereof, the following terms shall have the following meanings:
The term "Periodic Installments" shall mean collectively the Constant Monthly
Payments and the Interest Only Payments.
Prepayment Rights and Charges.
A. The Principal Amount shall not be prepayable, in whole or in part.
Notwithstanding the foregoing, at any time following the first (1st) anniversary
of the date hereof, the Maker shall have the right to prepay the entire unpaid
Principal Amount evidenced by this Note, in full, but not in part upon not less
than sixty (60) days prior written notice to Payee, with accrued and unpaid
interest thereon and all other sums due under the Mortgages and the other Loan
Documents by paying to Payee (x) the then remaining unpaid Principal Amount and
all accrued and unpaid interest thereon and all other sums then due and owing
under the Mortgages and the other Loan Documents plus (y) if such prepayment is
made prior to the date which is six (6) months prior to the scheduled Maturity
Date, an amount (the "Make Whole Amount") not less than zero, equal to the
amount by which:
(1) the sum of the Present Value (as hereinafter defined) of
(i) all Periodic Installments which would have been payable under this
Note had this Note not been prepaid, and (ii) the portion of the
Principal Amount which would have been due and payable on the scheduled
Maturity Date had this Note not been prepaid; exceeds
(2) the then outstanding Principal Amount of this Note.
For purposes of the definition of Make-Whole Amount, "Present Value" shall be
computed in accordance with generally accepted accounting principles at a
discount rate equal to the Treasury Yield (as hereinafter defined), plus
twenty-five hundredths of one percent (0.25%); and the "Treasury Yield" shall be
determined by reference to the most recent Federal Reserve Statistical Release
H.15 (519) (or any successor or substitute publication of the Federal Reserve
Board) (the "Statistical Release") that has become publicly available at least
two business days prior to the date fixed for prepayment, and shall be the most
recent weekly average yield to maturity (expressed as a rate per annum) opposite
the caption "Treasury Constant Maturities" for the year corresponding to the
then Remaining Life (as hereinafter defined) of this Note, converted to a
mortgage equivalent yield; provided that if the Remaining Life of this Note does
not correspond directly to any of the "Treasury Constant Maturities" shown on
the Statistical Release, the Treasury Yield shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the most
recent weekly average yield of the two "Treasury Constant Maturities" shown on
the Statistical Release and which are for maturities as close as possible to the
Remaining Life. The "Remaining Life" of this Note shall equal, at the date of
prepayment or acceleration, the number of years obtained by dividing (x) the
Principal Amount of this Note as of the date of prepayment into (y) the sum of
the products obtained by multiplying (A) the amount of each then remaining
principal payment, including the payment on the scheduled Maturity Date, under
this Note by (B) the number of years (calculated to the nearest one-twelfth)
that will elapse between such date of prepayment or acceleration and the date on
which such payment is to be made (assuming for purposes of clauses (A) and (B)
above that (i) the optional prepayment of this Note pursuant hereto or any
acceleration of maturity of this Note, as applicable, in respect of which the
Make-Whole Amount is then being determined, had not occurred, (ii) the
Conversion, if not previously exercised and still exercisable, shall have
occurred, and (iii) the Amortization Acceleration Option, unless previously
exercised, shall not have been exercised). The Treasury Yield shall be computed
to the fifth decimal place (one thousandth of a percentage point) and then
rounded to the fourth decimal point (one hundredth of a percentage point).
B. The Maker hereby acknowledges that the Payee would not make the loan
evidenced by this Note without full and complete assurance by the Maker of its
agreement to pay the Periodic Installments as hereinabove provided, and its
further agreement not to prepay all or any part of the Principal Amount prior to
the Maturity Date, except on the terms expressly set forth herein. In
consideration of the foregoing, if, as a result of an Event of Default, the
Payee shall declare the Obligations due and payable, in whole or in part, prior
to the scheduled Maturity Date in accordance with its rights under this Note,
the Mortgages or any Loan Documents, then, the Maker shall pay to the Payee on
the date of such acceleration, in addition to all other amounts due the Payee,
an amount equal to the Make-Whole Amount which would have been due and payable
in accordance with the foregoing provisions of this Note had a prepayment
occurred on the date of such acceleration. The Maker hereby waives any rights
the Maker may have to prepay the loan evidenced by this Note without charge and
agrees to pay the Make-Whole Amount, if applicable, upon any prepayment, whether
voluntary, pursuant to any such acceleration or otherwise. The Maker hereby
acknowledges that if such acceleration shall result from an Event of Default, it
shall be presumed, for purposes of imposing the Make-Whole Amount only, and
conclusively deemed to be a willful and deliberate attempt by the Maker to avoid
the payment of the Make-Whole Amount or the limitations on prepayment herein
contained and the Make-Whole Amount shall constitute liquidated damages, and not
a penalty, as a reasonable estimate of the Payee's loss as a consequence of the
breach of the Maker's covenant not to prepay the Obligations other than as
specifically permitted herein, the exact amount of which damages would be
impossible to ascertain.
C. Any such Make-Whole Amount (whether voluntary, pursuant to any
acceleration or otherwise) shall constitute a portion of the Obligations
evidenced hereby and secured by the Mortgages and the other Loan Documents.
Nothing herein shall constitute a waiver by the Payee of any right it may have
to specifically enforce the terms of repayment of the Obligations set forth
herein, in the Mortgages and in the other Loan Documents. The foregoing
provisions shall be deemed to apply, without limitation, to any prepayment of
the Obligations in connection with (i) any reinstatement of any or all of the
Loan Documents under any foreclosure proceedings, (ii) any right of redemption
or (iii) the consummation of any foreclosure sale, whether or not such
prepayment is made by or on behalf of the Maker or otherwise and whether or not
any such prepayment is made pursuant to rights granted at law or in equity.
Late Charge. In the event that any payment provided for herein shall
become overdue for a period of ten (10) days or more, in addition to any other
amounts due the Payee hereunder, a late charge of four cents ($.04) for each
dollar of the amount so overdue shall become immediately due to the Payee as
liquidated damages, and not as a penalty, as a reasonable estimate of the
Payee's additional administrative expenses, the exact amount of which would be
impossible to ascertain, and such sum shall be part of the Obligations evidenced
hereby and secured by the Mortgages and the other Loan Documents. Such late
charges shall be due and payable with the immediately succeeding monthly payment
due hereunder whether or not the Payee shall have billed the Maker for such
charges or upon demand if there shall be no succeeding monthly payment due
thereafter. Application of a late charge shall not be construed as a consent by
the Payee to an extension of time for any payment, as a waiver of any default
that may be related to such or any other overdue payment or of any other default
or as a waiver of any other right or remedy of the Payee hereunder, at law or in
equity.
Default Rate Applied Upon Non-Payment. In the event that any payment
due hereunder is not paid in full when due or the Obligations are not paid in
full on the Maturity Date, or such earlier date as the Obligations may become
due hereunder, the entire amount of the Obligations (including, to the extent
permitted by applicable law, any portion thereof which constitutes accrued and
unpaid interest) shall accrue interest until all payments past due hereunder are
fully paid at a rate of interest equal to the lesser of (i) three percent (3%)
per annum above the Interest Rate and (ii) the highest lawful rate of interest
per annum allowable under applicable law (the "Default Rate"), whether or not an
action against the Maker shall have been commenced, and if commenced, whether or
not a judgment against the Maker shall have been obtained.
Set off. Upon the occurrence of an Event of Default under the terms of
this Note or the Mortgages or any of the Loan Documents, the Payee is hereby
authorized at any time or from time to time without notice to the Maker or to
any other person, any such notice being hereby expressly waived, to immediately
set off and appropriate and apply any and all deposits (general or special) and
any other indebtedness at any time held or owing by the Payee to or for the
credit or the account of the Maker against and on account of the Obligations and
liabilities of the Maker hereunder.
Nonrecourse Obligation. Subject to the limitations and conditions of
clauses (A) and (B) of this paragraph, the Payee agrees that it will look solely
to the Mortgaged Property and Additional Property and such other collateral, if
any, as may now or hereafter be given to secure the repayment of the Obligations
and no other property or assets of the Maker, or any partner, trustee,
shareholder or principal of the Maker, shall be subject to levy, execution or
other enforcement procedure for the satisfaction of the remedies of the Payee,
or for any payment required to be made under this Note or any of the other Loan
Documents or for the performance of any of the covenants or warranties contained
in the Loan Documents; provided that (A) the foregoing provisions of this
paragraph shall not (i) constitute a waiver of the Obligations secured by the
Mortgages or the other Loan Documents, (ii) impair the right of Payee to obtain
a deficiency judgment in any action or proceeding in order to preserve its
rights and remedies, including, without limitation, foreclosure, non-judicial
foreclosure, or the exercise of a power of sale, under the Mortgages; however,
▇▇▇▇▇ agrees that it shall not enforce such deficiency judgment against the
assets of the Maker or any other Mortgagor other than the Additional Properties
or in the exercise of its rights and remedies under the Mortgages, (iii) limit
the right of the Payee to name the Maker and/or the partners, trustees,
shareholders or principals of the Maker as parties defendant in any action or
suit for judicial foreclosure and sale under the Mortgages or the other Loan
Documents so long as no monetary judgment shall be enforced against the Maker,
or any partner, trustee, shareholder or principal of the Maker except to the
extent of the Mortgaged Property or such other collateral, it being agreed by
Payee that in no event shall Payee have recourse to the assets of Maker's
trustees, directors, shareholders, officers or employees and Payee shall have
recourse to the assets of Maker other than the Mortgaged Property only to the
extent of the Recourse Obligations of Maker (as hereinafter defined), (iv)
release or impair this Note, the Indemnity Agreement, or the liens of the
Mortgages, (v) prevent or in any way hinder the Payee from exercising any remedy
available to the Payee under this Note or any of the other Loan Documents or to
name the Maker or any person owning an interest in the Maker in any action, suit
or proceeding in connection with the exercise of any such remedy, provided that,
except to the extent of the Recourse Obligations of Maker, no judgment in the
nature of a deficiency shall be enforced against any assets of the Maker or any
person owning an interest in the Maker, other than the Mortgaged Property or
such other collateral securing the Obligations, (vi) release or limit the
liability of the Maker or any Indemnitors under the Indemnity Agreement or
affect in any way the validity, enforceability or recourse of any indemnity,
including, but not limited to, the Indemnity Agreement, the Lease Indemnity
Agreement executed by the Maker in favor of the Payee of even date herewith and
the Legal Compliance Indemnity Agreement executed by the Maker in favor of the
Payee of even date herewith, or any guaranty given in connection with this Note
or any of the other Loan Documents, and further provided that (B) Maker (but not
its trustees, officers, directors or shareholders) shall be personally liable to
Payee for the Recourse Obligations of Maker. For purposes hereof, the term
"Recourse Obligations of Maker" shall mean any and all Losses (as hereinafter
defined) Payee incurs due to (a) fraud or intentional misrepresentation by
Maker, its agents or principals in connection with the execution and the
delivery of this Note, the Mortgages or the other Loan Documents, (b) any
inaccuracy contained in that certain Compliance and Survey Certificate delivered
by the Maker to the Payee of even date herewith, (c) Maker's misapplication or
misappropriation of any of the following with respect to the Mortgaged Property
(1) rents received by Maker, (2) tenant security deposits or rents collected in
advance, or (3) insurance proceeds or condemnation awards, (d) waste, (e)
Maker's failure to pay taxes, maintenance charges, ground rents, charges for
utility services, charges for labor or materials or other charges that can
create liens on the Mortgaged Property, (f) Maker's willful failure to deliver
the financial information described in Section 2.10 of the Mortgages, (g) any
Transfer or encumbrance made by Maker contrary to the provisions of the Loan
Documents, (h) any failure of Maker to comply with handicapped accessibility
laws (including, without limitation, the Americans with Disabilities Act, as
amended (the "ADA")) affecting the Mortgaged Property, and (i) the voidability,
in whole or in part, of the Obligations incurred by PROLOGIS LIMITED
PARTNERSHIP-II and PROLOGIS-NORTH CAROLINA LIMITED PARTNERSHIP or any lien or
security interest granted by PROLOGIS LIMITED PARTNERSHIP-II and/or
PROLOGIS-NORTH CAROLINA LIMITED PARTNERSHIP because of the occurrence of a
fraudulent transfer or a preference, in either case under federal bankruptcy,
state insolvency, or similar creditors rights laws. For purposes hereof, the
term "Losses" shall mean any and all claims, suits, liabilities (including,
without limitation, strict liabilities), actions, proceedings, obligations,
debts, damages, losses, costs, expenses, diminutions in value, fines, penalties,
charges, fees, expenses, judgments, awards, amounts paid in settlement, punitive
damages, foreseeable and unforseeable consequential damages, of whatever kind or
nature (including but not limited to reasonable attorneys' fees and other costs
of defense).
Miscellaneous.
A. All parties now and hereafter liable with respect to this Note,
whether as Maker, principal, surety, guarantor, endorsee or otherwise, hereby
waive presentation for payment, demand, notice of nonpayment or dishonor,
protest and notice of protest. No delay or omission on the part of the Payee in
exercising any right under this Note, the Mortgages or any other Loan Documents
shall operate as a waiver of such right or of any other right of the Payee, nor
shall any waiver by the Payee of any such right or rights on any one occasion be
deemed a bar to exercise or waiver of the same right or rights on any future
occasion.
B. All agreements in this Note and in the other Loan Documents are
expressly limited so that in no contingency or event whatsoever, whether by
reason of advancement or acceleration of maturity of the Obligations, or
otherwise, shall the amount paid or agreed to be paid hereunder or thereunder
for the use, forbearance or detention of money exceed the highest lawful rate
permitted under applicable usury laws. If, from any circumstance whatsoever,
fulfillment of any provision of this Note or any of the Loan Documents, at the
time performance of such provision shall be due, shall involve transcending the
limit of validity prescribed by law which a court of competent jurisdiction may
deem applicable hereto, then, ipso facto, the obligation to be fulfilled shall
be reduced to the limit of such validity and if, from any circumstance
whatsoever, the Payee shall ever receive as interest an amount which would
exceed the highest lawful rate, the receipt of such excess shall be deemed a
mistake and shall be canceled automatically and such excess shall be held in
trust by the Payee for the benefit of the Maker and shall be credited against
the Principal Amount of the Obligations to which the same may lawfully be
credited, and any portion of such excess not capable of being so credited shall
be rebated to the Maker.
C. Each and every right, remedy and power hereby granted to the Payee
or allowed it by law or other agreement shall be cumulative and not exclusive
and may be exercised by the Payee from time to time.
D. If any payment on this Note becomes due and payable on a Saturday,
Sunday or public holiday under the laws of the State of New York, the maturity
thereof shall, unless otherwise provided herein, be extended to the next
business day.
E. The Maker agrees to promptly pay all taxes which may be imposed,
either directly or indirectly, on this Note (other than income taxes imposed on
Payee). Any such sums shall be added to the amount due under this Note and be
paid herewith.
F. The Maker hereby agrees to pay all costs of collection when
incurred, including reasonable attorneys' fees and expenses (which costs may be
added to the amount due under this Note and shall be paid promptly upon demand
with interest thereon at the Default Rate) and to perform and comply with each
of the terms, covenants and provisions contained in this Note, the Mortgages or
any of the other Loan Documents on the part of the Maker to be observed or
performed. No release of any security for the Principal Amount due under this
Note, or extension of time for the payment of this Note, or any installment
hereof, and no alteration, amendment or waiver of any provision of this Note,
the Mortgages or any of the other Loan Documents, shall release, discharge,
modify, change or affect the liability of the Maker or any guarantor under this
Note, the Mortgages or any of the other Loan Documents.
G. In the event that any provision of this Note or the application
thereof to the Maker shall, to any extent, be invalid or unenforceable under any
applicable statute, regulation, or rule of law, then such provision shall be
deemed inoperative to the extent that it may conflict therewith and shall be
deemed modified to conform to such statute, regulation or rule of law, and the
remainder of this Note and the application of any such invalid or unenforceable
provision to parties, jurisdictions, or circumstances other than to whom or to
which it shall be held invalid or unenforceable, shall not be affected thereby
nor shall same affect the validity or enforceability of any other provision of
this Note.
H. The headings in this Note are for the convenience of reference only,
are not to be considered a part hereof and shall not limit or otherwise affect
any of the terms hereof.
I. This Note is made and delivered in New York, New York and shall be
governed by, and construed according to, the laws of the State of New York. The
Maker hereby irrevocably: (a) submits in any legal proceeding relating to this
Note to the non-exclusive in personam jurisdiction of any state or United States
court of competent jurisdiction sitting in the City and State of New York and
agrees to suit being brought in such courts, as the Payee may elect; (b) waives
any objection it may now or hereafter have to the venue of such proceeding in
any such court or that such proceeding was brought in an inconvenient court; (c)
agrees to service of process in any legal proceeding by mailing of copies
thereof (by registered or certified mail, if practicable) postage prepaid, or by
telecopy, to its address set forth above or such other address of which the
Payee shall have been notified in writing; and (d) agrees that nothing herein
shall affect the Payee's right to effect service of process in any other manner
permitted by law, and that the Payee shall have the right to bring any legal
proceedings (including a proceeding for enforcement of a judgment entered by any
of the aforementioned courts) against the Maker in any other court or
jurisdiction in accordance with applicable law. The Maker, after consulting or
having had the opportunity to consult with counsel, knowingly, voluntarily and
intentionally waives any right it may have to a trial by jury in any action
brought with respect to any of the Loan Documents or related instrument or
agreement or any of the transactions contemplated by this Note or any course of
conduct, dealing, statements (whether oral or written) or actions of any party
to this Note, the Mortgages or any of the other Loan Documents. The Maker shall
not seek to consolidate, by counterclaim or otherwise, any such action in which
a jury trial has been waived with any other action in which a jury trial cannot
be or has not been waived. These provisions shall not be deemed to have been
modified in any respect or relinquished by the Payee except by a written
instrument executed by the Payee.
J. This Note may not be changed, modified, waived or discharged orally,
but only by an agreement in writing executed by the party against whom
enforcement of such change, modification, waiver or discharge is sought.
K. Whenever used in this Note, the singular number shall include the
plural, the plural the singular, and the terms the "Maker" and the "Payee" shall
include their respective successors and assigns; provided, however, that the
Maker shall in no event or under any circumstances have the right, without
obtaining the prior written consent of the Payee (which may be granted or
withheld in the sole and absolute discretion of the Payee), to assign or
transfer its obligations under this Note, the Mortgages or the other Loan
Documents, in whole or in part, to any other person, party or entity.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, ▇▇▇▇▇ has executed this Note as of the date first
set forth above.
PROLOGIS TRUST, a Maryland real estate investment trust
By:
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President