Exhibit 10.181
▇▇▇▇▇▇▇▇
MSDWMC Loan No. 01-09625
PROMISSORY NOTE
$12,125,000.00 New York, New York
October 24, 2001
FOR VALUE RECEIVED, ▇▇▇▇▇ 11/12 (DE) LLC, a Delaware limited liability
company, as maker, having its principal place of business at c/o W.P. ▇▇▇▇▇ &
Co. LLC, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Borrower"),
hereby unconditionally promises to pay to the order of ▇▇▇▇▇▇ FINANCIAL
CORPORATION, a Pennsylvania corporation, as payee, having an address at ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Lender"), or at
such other place as the holder hereof may from time to time designate in
writing, the principal sum of TWELVE MILLION ONE HUNDRED TWENTY FIVE THOUSAND
AND NO/100 DOLLARS ($12,125,000.00) (the "Loan"), in lawful money of the United
States of America with interest thereon to be computed from the date of this
Note at the Applicable Interest Rate (defined below) in accordance with the
terms of this Note.
ARTICLE I
PAYMENT TERMS
▇▇▇▇▇▇▇▇ agrees to pay sums under this Note in installments as
follows:
(a) on the date hereof, a payment of interest only in the amount of
$19,804.16 with respect to the period commencing on the date hereof and ending
on, and including, the last day of the month in which this Note is executed;
(b) a constant payment of $88,425.00 ("Debt Service") on the first
day of December, 2001 and on the first day of each calendar month thereafter up
to and including the first day of October, 2011 (each, a "Payment Date"), each
of the payments to be applied as follows: (i) first, to the payment of interest
computed at the Applicable Interest Rate; and (ii) the balance toward the
reduction of the principal sum; and
(c) the balance of the principal sum and all interest thereon on the
first day of November, 2011 (the "Maturity Date").
ARTICLE II
INTEREST
The interest rate on this Note is seven and thirty five hundredths percent
(7.35%) per annum (the "Applicable Interest Rate"). Interest on the principal
sum of this None shall be calculated by multiplying (a) the actual number of
days elapsed in the period for which the calculation is being made by (b) a
daily rate based on a three hundred sixty (360) day year (that is, the
Applicable Interest Rate or the Default Rate, as then applicable, divided by
360) by (c) the outstanding principal balance.
ARTICLE III
DEFAULT AND ACCELERATION
If any payment required in this Note is not paid (a) prior to the fifth
(5th) day after a Payment Date, (b) on the Maturity Date or (c) on the
happening of any other default, after the expiration of any applicable notice
and grace periods, herein or under the terms of the Security Instruments
(defined below) or any of the Other Security Documents (as defined in the
Security Instruments) (collectively, an "Event of Default"), at the option of
Lender (i) the whole of the principal sum of this Note, (ii) Interest, default
interest, late charges and other sums, as provided in this Note, the Security
Instruments or the Other Security Documents, (iii) all other monies agreed or
provided to be paid by Borrower in this Note, the Security Instruments or the
Other Security Documents, (iv) all sums advanced pursuant to the Security
Instruments to protect and preserve the Individual Properties (defined below)
and the lien and the security interest created thereby, and (v) all sums
advanced and costs and expenses incurred by Lender in connection with the Debt
(defined below) or any part thereof, any renewal, extension, or change of or
substitution for the Debt or any part thereof, or the acquisition or perfection
of the security therefor, whether made or incurred at the request of Borrower
of Lender (all the sums referred to in (i) through (v) above shall collectively
be referred to as the "Debt") shall without notice become immediately due and
payable.
ARTICLE IV
DEFAULT INTEREST
▇▇▇▇▇▇▇▇ agrees that upon the occurrence of an Event of Default, Lender
shall be entitled to receive and Borrower shall pay interest on the entire
unpaid principal sum at a per annum rate equal to the lesser of (a) five
percent (5%) plus the Applicable Interest Rate or (b) the maximum interest rate
which Borrower may by law pay (the "Default Rate"). The Default Rate shall be
computed from the occurrence of the default giving rise to such Event of
Default (without regard to any notice or grace period) until the earlier of the
date upon which the Event of Default is cured or the date upon which the Debt
is paid in full. Interest calculated at the Default Rate shall be deemed part
of the Debt and shall be deemed secured by the Security Instruments. This
clause, however, shall not be construed as an agreement or privilege to extend
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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.
ARTICLE V
LATE CHARGE
If any monthly installment payable under this Note is not paid prior to
the fifth (5th) day after the applicable Payment Date, Borrower shall pay to
Lender upon demand 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 Lender in handling and processing the delinquent payment
and to compensate Lender for the loss of the use of the delinquent payment and
the amount shall be secured by the Security Instruments and the Other Security
Documents.
ARTICLE VI
PREPAYMENT; DEFEASANCE
(a) Prepayment. The principal balance of this Note may not be prepaid in
whole or in part except as expressly permitted pursuant hereto.
(b) Total Defeasance. (i) Provided no Event of Default shall have
occurred and remain incurred, Borrower shall have the right at any time after
the Release Date (as defined below) to obtain a release of the lien of the
Security Instruments encumbering all Individual Properties upon satisfaction of
the following conditions:
(A) Borrower shall provide Lender sixty (60) days prior written
notice (or such shorter period of time if permitted by Lender in its sole
discretion) specifying a Payment Date (the "Defeasance Date") on which
Borrower shall have satisfied the conditions in this Article VI(b) and on
which it shall affect the defeasance;
(B) Borrower shall pay to Lender (A) all payments of principal and
interest due on this Note to and including the Defeasance Date and (B) all
other sums, then due under this Note, the Security Instruments and the
Other Security Documents;
(C) Borrower shall deposit the Total Defeasance Collateral into the
Defeasance Collateral Account and otherwise comply with the provisions of
Article VI(d) and (e) hereof;
(D) Borrower shall execute and deliver to Lender a Security Agreement
in respect of the Defeasance Collateral Account and the Total Defeasance
Collateral;
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(E) ▇▇▇▇▇▇▇▇ shall deliver to Lender an opinion of counsel for
Borrower that would be satisfactory to a prudent lender opining, among
other things, that (A) Lender has a legal and valid perfected first
priority security interest in the Defeasance Collateral Account and the
Total Defeasance Collateral, (B) if Securities have been issued, the REMIC
Trust formed pursuant to the related securitization will not fail to
maintain its status as a "real estate mortgage investment conduit" within
the meaning of Section 860D of the IRS Code as a result of the defeasance
pursuant to this Article VI(b), (C) a defeasance pursuant to this Article
VI(b) will not result in a deemed exchange for purposes of the IRS Code and
will not adversely effect the status of this Note as indebtedness for
federal income tax purposes, (D) delivery of the Total Defeasance
Collateral and the grant of a security interest therein to Lender shall not
constitute an avoidable preference under Section 547 of the Bankruptcy Code
or applicable state law and (E) a non-consolidation opinion with respect to
the Successor Borrower;
(F) Borrower shall deliver to Lender a confirmation in writing from
the applicable Rating Agencies to the effect that the release of the
Individual Properties from the lien of the Security Instruments as
contemplated by this Article VI(b) and the substitution of the Total
Defeasance Collateral will not result in a downgrading, withdrawal or
qualification of the respective ratings in effect immediately prior to such
defeasance for the Securities issued in connection with the securitization
which are then outstanding;
(G) Borrower shall deliver an officer's certificate certifying that
the requirements set forth in this Article VI(b) have been satisfied;
(H) Borrower shall deliver a certificate of Borrower's independent
certified public accountant certifying that the Total Defeasance Collateral
will generate monthly amounts equal to or greater than the Scheduled
Defeasance Payments;
(I) Borrower shall deliver such other certificates, opinions,
documents and instruments as Lender may reasonably request; and
(J) Borrower shall pay all costs and expenses of Lender incurred in
connection with the defeasance, including ▇▇▇▇▇▇'s reasonable attorneys'
fees and expenses and Rating Agency fees and expenses.
(ii) If ▇▇▇▇▇▇▇▇ has elected to defease this entire Note and the
requirements of this Article VI have been satisfied, all of the Individual
Properties shall be released from the Liens of their respective Security
Instruments and the Total Defeasance Collateral, pledged pursuant to the
Security Agreement, shall be the sole source of collateral securing this Note.
In connection with the release of the liens, Borrower shall submit to Lender,
not less than thirty (30) days prior to the Defeasance Date (or such shorter
time as permitted by ▇▇▇▇▇▇ in its sole discretion), a release of lien (and
related Other Security Documents) for execution by ▇▇▇▇▇▇. Such release shall be
in a form appropriate in each jurisdiction in which an Individual Property is
located and that would be satisfactory to a
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prudent lender. In addition, Borrower shall provide all other documentation
Lender reasonably requires to be delivered by Borrower in connection with
such release, together with an officer's certificate certifying that such
documentation (i) is in compliance with all legal requirements, and (ii)
will effect such releases in accordance with the terms of this Note.
Borrower shall pay all costs, taxes and expenses associated with the
release of the lien of the Security Instruments, including ▇▇▇▇▇▇'s
reasonable attorneys' fees. Except as set forth in this Article VI, no
repayment, prepayment or defeasance of all or any portion of this Note
shall cause, give rise to a right to require, or otherwise result in, the
release of any lien of any Security Instruments on any of the Individual
Properties.
(c) Partial Defeasance. (i) Provided no Event of Default shall have
occurred and remain uncured, Borrower shall have the right at any time after the
Release Date to obtain a release of the lien of the Security Instruments
encumbering one or more Individual Properties upon satisfaction of the
following conditions:
(A) Borrower shall provide Lender sixty (60) days prior written
notice (or such shorter period of time if permitted by Lender in its
sole discretion) specifying (A) a Payment Date (the "Partial
Defeasance Date") on which Borrower shall have satisfied the
conditions in this Article VI(c) and shall effect the defeasance and
(B) the Individual Property or Properties proposed to be released from
the lien of the Security Instruments (individually a "Release
Property" and collectively the "Release Properties");
(B) Borrower shall pay to Lender (A) all payments of principal
and interest due on this Note to and including the Partial Defeasance
Date and (B) all other sums, then due under this Note, the Security
Instruments and the Other Security Documents;
(C) Borrower shall deposit the Partial Defeasance Collateral
into the Defeasance Collateral Account and otherwise comply with the
provisions of Article VI(d) and (e) hereof;
(D) Borrower shall prepare all necessary documents to amend and
restate this Note and issue two substitute notes, one note having a
principal balance equal to 125% of the Allocated Loan Amount for the
Release Property or Release Properties, as the case may be (the
"Defeased Note"), and the other note having a principal balance equal
to the excess of (A) the original principal amount of this Note, over
(B) the amount of Defeased Note (the "Undefeased Note"). The Defeased
Note and Undefeased Note shall have identical terms as this Note
except for the principal balance. The Defeased Note and the Undefeased
Note shall be cross defaulted and cross collateralized unless the
Rating Agencies shall require otherwise or unless a Successor Borrower
is established pursuant to Article VI(e) hereof. A Defeased Note may
not be the subject of any further defeasance;
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(H) Borrower shall execute and deliver to Lender a Security Agreement in
respect of the Defeasance Collateral Account and the Partial Defeasance
Collateral;
(F) After giving effect to the release of the lien of the Security
Instruments encumbering the Individual Property or Individual Properties
proposed by Borrower to be released, the debt service coverage ratio (as
computed by Lender in accordance with generally accepted industry underwriting
standards for securitized commercial mortgage loans) with respect to the
remaining Individual Properties is not less than the greater of (1) the debt
service coverage ratio (as computed by Lender in accordance with generally
accepted industry underwriting standards for securitized commercial mortgage
loans) of all Individual Properties encumbered by the Security Instruments prior
to the release and (2) 1.53 to 1.0;
(G) Borrower shall have delivered to Lender and the Rating Agencies shall
have received from Borrower with respect to the matters referred to in clause
(F), (1) statements of the underwritable cash flow and debt service (as computed
by Lender in accordance with generally accepted industry underwriting standards
for securitized commercial mortgage loans) (both on a consolidated basis and
separately for the applicable Individual Property or Individual Properties to be
released) for the applicable measuring period and (2) based on the foregoing
statements of underwritable cash flow and debt service (as computed by Lender in
accordance with generally accepted industry underwriting standards for
securitized commercial mortgage loans), calculations of the debt service
coverage ratio (as computed by Lender in accordance with generally accepted
industry underwriting standards for securitized commercial mortgage loans) both
with and without giving effect to the proposed release, and (3) calculations of
the ratios referred to in such clause (F), accompanied by an officer's
certificate stating that such statements, calculations and information are true,
correct and complete in all material respects;
(H) Borrower shall deliver to Lender an opinion of counsel for Borrower
that would be satisfactory to a prudent lender opining, among other things, that
(1) Lender has a legal and valid perfected first priority security interest in
the Defeasance Collateral Account and the Partial Defeasance Collateral, (2) if
Securities has been issued, the REMIC Trust formed pursuant to the related
securitization will not fail to maintain its status as a "real estate mortgage
investment conduit" within the meaning of Section 860D of the Code as a result
of the defeasance pursuant to this Article VI(c), (3) a defeasance pursuant to
this Article VI(c) will not result in a deemed exchange for purposes of the IRS
Code and will not adversely effect the status of the Defeased Note and the
Undefeased Note as indebtedness for federal income tax purposes, (4) delivery of
the Partial Defeasance Collateral and the grant of a security interest therein
to Lender shall not constitute an avoidable preference under Section 547 of the
Bankruptcy Code or applicable state law and (5) a non-consolidation opinion with
respect to the Successor Borrower;
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(I) Borrower shall deliver to Lender evidence in writing from
the applicable Rating Agencies to the effect that the release of the
Individual Property or Individual Properties from the lien of the Security
Instruments as contemplated by this Article VI(c) and the substitution of
the Partial Defeasance Collateral will not result in a downgrading,
withdrawal or qualification of the respective ratings in effect immediately
prior to such defeasance for the Securities issued in connection with the
securitization which are then outstanding;
(J) Borrower shall deliver to Lender a certificate of Borrower's
independent certified public accountant certifying that the Partial
Defeasance Collateral will generate monthly amounts equal to or greater
than the Scheduled Defeasance Payments;
(K) Borrower shall deliver to Lender an officer's certificate
certifying that the requirements set forth in this Article VI(c) have been
satisfied;
(L) Borrower shall deliver to Lender such other certificates,
documents or instruments as Lender may reasonably request; and
(M) Borrower shall pay all costs and expenses of Lender incurred in
connection with the defeasance, including ▇▇▇▇▇▇'s reasonable attorneys'
fees and expenses.
(ii) If ▇▇▇▇▇▇▇▇ has elected to make a partial defeasance and the
requirements of this Article VI have been satisfied, the Release Property or
Release Properties shall be released from the lien of their Security
Instruments. In connection with the release of the lien, Borrower shall submit
to Lender, not less than thirty (30) days prior to the Partial Defeasance Date
(or such shorter time as permitted by Lender in its sole discretion), a release
of lien (and related Other Security Documents) for execution by ▇▇▇▇▇▇. Such
release shall be in a form appropriate in the jurisdiction in which such
Individual Property is located and that would be satisfactory to a prudent
lender. In addition, Borrower shall provide all other documentation Lender
reasonably requires to be delivered by Borrower in connection with such
release, together with an officer's certificate certifying that such
documentation (i) is in compliance with all legal requirements, and (ii)
will effect such releases in accordance with the terms of this Note. Borrower
shall pay all costs, taxes and expenses associated with the release of the lien
of the Security Instruments, including ▇▇▇▇▇▇'s reasonable attorneys' fees.
Borrower shall cause title to the Individual Property so released from the lien
of the Security Instrument to be transferred to and held by a person or entity
other that Borrower. Except as set forth in this Article VI, no repayment,
prepayment or defeasance of all or any portion of this Note shall cause, give
rise to a right to require, or otherwise result in, the release of any lien of
any Security Instrument on any of the Individual Properties.
(d) Defeasance Collateral Account. On or before the date on which Borrower
delivers the Total Defeasance Collateral or Partial Defeasance Collateral.
Borrower shall open at any Eligible Institution the defeasance collateral
account (the "Defeasance Collateral Account") which shall at all times be an
Eligible Account. The Defeasance Collateral Account shall contain only (i) Total
Defeasance Collateral and Partial Defeasance Collateral, and (ii) cash from
interest
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and principal paid on the Total Defeasance Collateral or Partial Defeasance
Collateral. All cash from interest and principal payments paid on the Total
Defeasance Collateral or Partial Defeasance Collateral shall be paid over to
Lender on each Payment Date and applied first to accrued and unpaid interest
and then to principal. Any cash from interest and principal paid on the Total
Defeasance Collateral or the Partial Defeasance Collateral not needed to pay
accrued and unpaid interest or principal shall be retained in the Defeasance
Collateral Account as additional collateral for the Loan. Borrower shall cause
the Eligible Institution at which the Total Defeasance Collateral and Partial
Defeasance Collateral are deposited to enter an agreement with Borrower and
Lender, satisfactory to Lender in its sole discretion, pursuant to which such
Eligible Institution shall agree to hold and distribute the Total Defeasance
Collateral and Partial Defeasance Collateral in accordance with this Note. The
Successor Borrower shall be the owner of the Defeasance Collateral Account and
shall report all income accrued on Total Defeasance Collateral and Partial
Defeasance Collateral for federal, state and local income tax purposes in its
income tax return. Borrower shall prepay all cost and expenses associated with
opening and maintaining the Defeasance Collateral Account. Lender shall not in
any way be liable by reason of any insufficiency in the Defeasance Collateral
Account.
(e) Successor Borrower. In connection with a total or partial
defeasance under this Article VI, Borrower shall, if required by the Rating
Agencies, establish or designate a successor entity (the "Successor Borrower")
which shall be a single purpose bankruptcy remote entity and which shall be
approved by the Rating Agencies. Any such Successor Borrower may, at Borrower's
option, be an affiliate of Borrower unless the Rating Agencies shall require
otherwise. Borrower shall transfer and assign all obligations, rights and duties
under and to this Note or the Defeased Note, as applicable, together with the
Total Defeasance Collateral or the Partial Defeasance Collateral, as applicable,
to such Successor Borrower. Such Successor Borrower shall assume the obligations
under this Note or the Defeased Note, as applicable, and the Security Agreement
and Borrower shall be relieved of its obligations under such documents. Borrower
shall pay $1,000 to any such Successor Borrower as consideration for assuming
the obligations under this Note or the Defeased Note, as applicable, and the
Security Agreement, Borrower shall pay all costs and expenses incurred by
▇▇▇▇▇▇, including ▇▇▇▇▇▇'s attorney's fees and expenses, incurred in connection
therewith.
(f) Definitions. The following terms shall have the meanings set
forth below:
"Allocated Loan Amount" shall mean the portion of the Loan allocated
to each Individual Property as set forth on Schedule I hereto.
"Eligible Account" shall mean a separate and identifiable account
from all other funds held by the holding institution that is either (i) an
account or accounts maintained with a federal or state-chartered depository
institution or trust company which complies with the definition of Eligible
Institution or (ii) a segregated trust account or accounts maintained with a
federal or state chartered depository institution or trust company acting in
its fiduciary capacity which, in the case of a state chartered depository
institution or trust company is subject to regulations substantially similar to
12 C.F.R. Section 9.10(b), having in either case a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by federal
and state
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authority. An Eligible Account will not be evidenced by a certificate of
deposit, passbook or other instrument.
"Eligible Institution" shall mean a depository institution or trust company
insured by the Federal Deposit Insurance Corporation the short term unsecured
debt obligations or commercial paper of which are rated at least A-1 by Standard
& Poor's Ratings Group, P-1 by ▇▇▇▇▇'▇ Investors Services, Inc. and F-1+ by
Fitch, Inc. in the case of accounts in which funds are held for thirty (30)
days or less or, in the case of accounts in which funds are held for more than
thirty (30) days, the long term unsecured debt obligations of which are rated at
least "AA" by Fitch, and S&P and "Aa2" by Moody's.
Partial Defeasance Collateral" shall mean U.S. Obligations which provide
payments (i) on or prior to, but as close as possible to, all Payment Dates
and other scheduled payment dates, if any, under the Defeased Note after the
Defeasance Date and up to and including the Maturity Date, and (ii) in amounts
equal to or greater than the Scheduled Defeasance Payments.
"Release Date" shall mean the earlier to occur of (a) the fourth
anniversary of the first day of the first full calendar month following the
date hereof and (b) the date that is two (2) years from the "startup day"
(within the meaning of Section 860G(a)(9) of the IRS Code) of a REMIC that
holds this Note.
"Scheduled Defeasance Payments" shall mean scheduled payments of interest
and principal under this Note in the case of a total defeasance and under the
Defeased Note in the case of a partial defeasance for all Payment Dates
occurring after the Defeasance Date and up to and including the Maturity Date
(including, in the case of a total defeasance, the outstanding principal
balance on this Note as of the Maturity Date and, in the case of a partial
defeasance, the outstanding principal balance on the Defeased Note as of the
Maturity Date).
"Security Agreement" shall mean a security agreement in form and substance
that would be satisfactory to a prudent lender pursuant to which Borrower
grants Lender a perfected, first priority security interest in the Defeasance
Collateral Account, the Total Defeasance Collateral and the Partial Defeasance
Collateral, as applicable.
"Total Defeasance Collateral" shall mean U.S. Obligations, which provide
payments (i) on or prior to, but as close as possible to, all Payment Dates and
other scheduled payment dates, if any, under this Note after the Defeasance
Date and up to and including the Maturity Date, and (ii) in amounts equal to or
greater than the Scheduled Defeasance Payments.
"U.S. Obligations" shall mean direct full faith and credit obligations of
the United States of America that are not subject to prepayment, call or early
redemption.
(g) Default Prepayment. If a Default Prepayment (defined below) occurs,
Borrower shall pay to Lender the entire Debt, including, without limitation, an
amount (the "Default Consideration") equal to the greater of (i) the amount (if
any) which when added to the then outstanding principal amount of this Note
will be sufficient to purchase Defeasance Collateral providing the required
Scheduled Defeasance Payments assuming Defeasance would be permitted hereunder,
or (ii) one percent (1%) of the Default Prepayment. For purposes of this
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Notes, the term "Default Prepayment" shall mean a prepayment of the principal
amount of this Note made after the occurrence of any Event of Default or an
acceleration of the Maturity Date under any circumstances, including, without
limitation, a prepayment occurring in connection with reinstatement of the
Security Instruments provided by statute under foreclosure proceedings or
exercise of a power of sale, any statutory right of redemption exercised by
Borrower or any other party having a statutory right to redeem or prevent
foreclosure, any sale in foreclosure or under exercise of a power of sale or
otherwise.
(h) Permitted and Mandatory Prepayments. Notwithstanding anything to the
contrary herein, Borrower may prepay the principal balance of this Note in
whole, without premium or penalty, on any Payment Date during the three (3)
months prior to the Maturity Date. Borrower shall prepay without premium or
penalty the principal balance of this Note in an amount equal to (i) any
insurance proceeds or condemnation awards which ▇▇▇▇▇▇ has the right to and
elects to have applied to the Debt pursuant to Sections 3.6 and 3.7 of the
Security Investments, (ii) (subject to the immediately following sentence) the
Allocated Loan Amount for the related Individual Property in the event Borrower
exercises its right to accept or reject ▇▇▇ ▇▇▇▇▇'s offer to terminate the Del
Monte Lease (as defined in the Security Instruments) pursuant to Section 3.8(f)
of the Security Instruments simultaneously with such prepayment or (iii) the
amount required by Lender due to changes in tax and debt credit pursuant to
Section 7.3(a) or (b) of the Security Instruments (provided, however, that in
the event any such prepayment pursuant to this sentence shall be made on a date
other than a Payment Date, the amount so prepaid shall include all interest
which would have accrued on such amount through the next Payment Date). In the
alternative, from and after the Release Date, in the event Borrower exercises
its right to accept or reject ▇▇▇ ▇▇▇▇▇'s offer to terminate the Del Monte Lease
pursuant to Section 3.8(f) of the Security Instruments, Borrower may, in lieu of
prepaying this Note in part pursuant to clause (ii) above, elect to partially
defease this Note pursuant to and in accordance with the terms and provisions of
Article VI of this Note with respect to the related Individual Property
simultaneously with the exercise of such right to accept or reject. In addition,
in the event (i) Lender consents to Borrower's acceptance of an Intended
Assignment Offer or an Abandonment Notice (as defined in the Security
Instruments) pursuant to Section 3.8(h) of the Security Instruments or (ii) Del
Monte exercises its option to purchase all of the Individual Properties pursuant
to and in accordance with Paragraph 37 of the Del Monte Lease, Borrower shall
partially or totally, as applicable, defease this Note pursuant to and in
accordance with the terms and provisions or Article VI of this Note with respect
to the related Individual Property(ies) simultaneously therewith. In each
instance of prepayment permitted under this subparagraph (h), Borrower shall be
required to pay all other sums due hereunder, and no principal amount repaid may
be reborrowed.
ARTICLE VII
SECURITY
This Note is secured by those certain Mortgage and Security Agreements and
those certain Deed to Secure Debt and Security Agreements dated the date
hereof each in the principal sum of $12,500,000.00 given by Borrower to (or for
the benefit of) Lender covering the fee estate of Borrower in certain premises
located in (i) Plover, Wisconsin, (ii) Toppemish,
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Washington, (iii) Mendote, Illinois and (iv) Yakima, Washington, and other
property, as more particularly described therein (each an "Individual Property"
and, collectively, the "Individual Properties") and intended to be duly recorded
in the applicable recording offices (each a "Security Instrument" and,
collectively, the "Security Instruments"), and by the Other Security Documents.
ARTICLE VIII
LOAN CHARGES
This Note, the Security Instruments and the Other Security Documents are
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, the
Security Instruments and the Other Security Documents, 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 the 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.
ARTICLE IX
WAIVERS
Borrower 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 and notice of protest and non-payment and
all other notices of any kind, except for notices expressly provided for in
this Note, the Security Instruments or the Other Security Documents. 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 Security Instruments or the Other Security Documents made by
agreement between Lender or any other person or party shall release, modify,
amend, waive, extend, change, discharge, terminate or affect the liability of
Borrower, and any other person or entity who may become liable for the payment
of all or any part of the Debt, under this Note, the Security Instruments or
the Other Security Documents. No notice to or demand on Borrower shall be
deemed to be a waiver of the obligation of Borrower or of the right of Lender
to take further action without further notice or demand as provided for in this
Note, the Security Instruments or the Other Security Documents. If Borrower is
a partnership, corporation or limited liability company, the agreements
contained herein shall remain in full force and effect, notwithstanding
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any changes in the individuals or entities comprising the Borrower, and the
term "Borrower," as used herein, shall include any alternate or successor
entity, but any predecessor entity, and its partners or members, as the case
may be, shall not thereby be released from any liability. (Nothing in the
foregoing sentence shall be construed as a consent to, or a waiver of, any
prohibition or restriction on transfers of interests in Borrower which may be
set forth in the Security Instruments or any Other Security Document.)
ARTICLE X
WAIVER OF TRIAL BY JURY
BORROWER AND ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM,
WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE
LOAN EVIDENCED BY THIS NOTE, THE APPLICATION FOR THE LOAN EVIDENCED BY THIS
NOTE, THIS NOTE, THE SECURITY INSTRUMENTS OR THE OTHER SECURITY DOCUMENTS OR ANY
ACTS OR OMISSIONS OF LENDER, ITS OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS IN
CONNECTION THEREWITH.
ARTICLE XI
EXCULPATION
(a) Notwithstanding anything to the contrary contained in this Note, the
Security Instruments or any Other Security Document (but subject to the
provisions of subsections (b), (c) and (d) of this Article 11), Lender shall
not enforce the liability and obligation of Borrower to perform and observe the
obligations contained in this Note or the Security Instruments by any action or
proceeding wherein a money judgment or any deficiency judgment or other
judgment establishing any personal liability shall be sought against Borrower
or any principal, director, officer, employee, beneficiary, shareholder,
partner, member, trustee, agent or affiliate of Borrower or any person owning,
directly or indirectly, any legal or beneficial interest in Borrower, or any
successors or assigns of any of the foregoing (collectively, the "Exculpated
Parties"), 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 this Note, the Security Instruments, the Other
Security Documents, and the interest in the Property, the Rents (as defined in
the Security Instruments) and any other collateral given to Lender to secure
this Note; provided, however, subject to the provisions of subsections (b), (c)
and (d) of this Article 11, that any judgment in any such action or
proceeding shall be enforceable against Borrower only to the extent of
Borrower's interest in the Property, in the Rents and in any other collateral
given to Lender to secure this Note. ▇▇▇▇▇▇, by accepting this Note and the
Security Instruments, agrees that it shall not, except as otherwise provided
in this Article 11, sue for, seek or demand any deficiency judgment against
Borrower or any of the Exculpated Parties, in any such action or proceeding,
under or by reason of or under or in connection with this Note, the Security
Instruments or the Other Security Documents. The
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provisions of this Article II shall not, however, (i) constitute a waiver,
release or impairment of any obligation evidenced or secured by this Note, the
Security Instruments or the Other Security Documents delivered to Lender; (ii)
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 Instruments; (iii)
affect the validity or enforceability of any indemnity, guaranty, master lease
or similar instrument made in connection with this Note, the Security
Instruments, or the Other Security Documents; (iv) impair the right of Lender to
obtain the appointment of a receiver; (v) impair the enforcement of the
Assignment of Leases and Rents executed in connection herewith; (vi) impair the
right of Lender to enforce the provisions of Section 12.2 of the Security
Instruments or of Section 3.12(c) of the Security Instruments; or (vii) impair
the right of Lender to obtain a deficiency judgment or other judgment on the
Note against Borrower if necessary to obtain any insurance proceeds or
condemnation awards to which ▇▇▇▇▇▇ would otherwise be entitled under the
Security Instruments; provided however, Lender shall only enforce such judgment
to the extent of the insurance proceeds and/or condemnation awards.
(b) Notwithstanding the provisions of this Article II to the
contrary, Borrower shall be personally liable to Lender for the Losses (as
defined in the Security Instruments) Lender incurs due to: (i) fraud or
intentional misrepresentation by Borrower or any of the Exculpated Parties in
connection with the execution and the delivery of this Note, the Security
Instruments or the Other Security Documents or any documents or certificate now
or at any time during the term of the Loan evidenced by this Note; (ii)
Borrower's misapplication or misappropriation of Rents received by Borrower
after the occurrence of and during the continuance of an Event of Default; (iii)
Borrower's misapplication or misappropriation of tenant security deposits or
Rents collected in advance; (iv) the misapplication or the misappropriation of
insurance proceeds or condemnation awards; (v) Personal Property (as defined in
the Security Instruments) taken from any Individual Property by or on behalf of
Borrower or any of the Exculpated Parties and not replaced with Personal
Property of the same utility and of the same or greater value specifically
excluding, however any Personal Property owned by any tenant on such Individual
Property; (vi) any act of arson by Borrower or any of the Exculpated Parties;
(vii) any fees or commissions paid by Borrower after Borrower receives notice
from Lender of the occurrence, and during the continuance, of an Event of
Default to any Exculpated Party in violation of the terms of this Note, the
Security Instruments or the Other Security Documents; (viii) Borrower's breach
of, or failure to comply with, the representations, warranties and covenants
contained in Article 5.8(b) and/or Article 12 of the Security Instruments; or
(ix) without the prior written consent of Lender, any amendment, modification or
waiver of any provisions of the Del Monte Lease, except as specifically
permitted pursuant to Section 3.8 of the Security Instruments, or any
termination thereof (whether by Borrower or Del Monte (as defined in the
Security Instruments)), except as otherwise specifically permitted pursuant to
the terms of the Del Monte Lease, this Note, the Security Instruments and the
Other Security Documents and except for the rejection of the Del Monte Lease by
▇▇▇ ▇▇▇▇▇ or its trustee in a bankruptcy proceeding.
(c) Notwithstanding the foregoing the agreement of Lender not to
pursue recourse liability as set forth in subsection (a) above SHALL BECOME NULL
AND VOID and shall be of no further force and effect in the event of Borrower's
default under Article 8 of the Security Instruments or if the Individual
Properties or any part thereof shall become an asset in a (i) voluntary
bankruptcy or insolvency proceeding, or (ii) an involuntary bankruptcy or
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insolvency proceeding (other than one filed by or on behalf of ▇▇▇▇▇▇) which is
not dismissed within ninety (90) days of filing.
(d) Nothing herein shall be deemed to be a waiver of any right which
Lender may have under Section 506(a), 506(b), 1111(b) or any other provision of
the U.S. Bankruptcy Code to file a claim for the full amount of the indebtedness
secured by the Security Instruments or to require that all collateral shall
continue to secure all of the indebtedness owing to Lender in accordance with
this Note, the Security Instruments and the Other Security Documents.
ARTICLE XII
AUTHORITY
▇▇▇▇▇▇▇▇ (and the undersigned representative of Borrower, if any)
represents that Borrower has full power, authority and legal right to execute
and deliver this Note, the Security Instruments and the Other Security Documents
and that this Note, the Security Instruments and the Other Security Documents
constitute valid and binding obligations of Borrower.
ARTICLE XIII
GOVERNING LAW
(A) THIS NOTE WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY ▇▇▇▇▇▇▇▇
AND ACCEPTED BY LENDER IN THE STATE OF NEW YORK, AND THE PROCEEDS OF THIS NOTE
WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A
SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION
EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS NOTE
AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT LAWS) AND
ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT
PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY
CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS NOTE AND
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER
ARISING OUT OF OR RELATING TO THIS NOTE MAY AT ▇▇▇▇▇▇'S OPTION BE INSTITUTED IN
ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT
TO SECTION 5-
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1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND BORROWER WAIVES ANY
OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON
CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION
OR PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT:
▇▇▇▇▇ 11/12 (DE) LLC
c/o W.P. ▇▇▇▇▇ & Co. LLC
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
Read ▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chairman, Real Estate Department
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY
AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN
ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SUCH AGENT AT SUCH ADDRESS AND WRITTEN NOTICE OF SUCH SERVICE
MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED
IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. ▇▇▇▇▇▇▇▇ (I) SHALL GIVE PROMPT
NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II)
MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT
WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL
BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS); AND (III)
SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO
HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A
SUCCESSOR.
ARTICLE XIV
NOTICES
All notices required or permitted hereunder shall be given as provided in
the Security Instruments.
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ARTICLE XV
INCORPORATION BY REFERENCE
All of the terms, covenants and conditions contained in the Security
Instruments and the Other Security 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.
ARTICLE XVI
MISCELLANEOUS
(a) Whenever pursuant to this Note it is provided that Borrower pay any
costs and expenses, such costs and expenses shall include; but not be limited
to, reasonable legal fees and disbursements of Lender, whether with respect to
retained firms, the reimbursement for the expenses of in-house staff, or
otherwise. Borrower shall pay to Lender on demand any and all expenses,
including legal expenses and reasonable attorneys' fees, incurred or paid by
▇▇▇▇▇▇ in enforcing this Note, whether or not any legal proceeding is commenced
hereunder, together with interest thereon at the Default Rate from the date paid
or incurred by Lender until such expenses are paid by Borrower.
(b) 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
Borrower or Lender, 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.
(c) If Borrower consists of more than one person or party, the obligations
and liabilities of each person or party shall be joint and several.
Whenever used, the singular number shall include the plural, the plural
number shall include the singular, and the words "Lender" and "Borrower" shall
include their respective successors, assigns, heirs, executors and
administrators.
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IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ has duly executed this Note as of the
day and year first above written.
BORROWER:
▇▇▇▇▇ 11/12 (DE) LLC,
a Delaware limited liability company
By: ▇▇▇▇▇ (DE) QRS 11/12-1, INC.,
a Delaware corporation,
its sole managing member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Director
SCHEDULE I
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PROPERTY ALLOCATED LOAN
AMOUNT
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▇▇▇▇▇▇▇, Illinois $4,000,000
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Toppanish, Washington $4,625,000
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Plover, Wisconsin $3,500,000
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