EXHIBIT 10.56
FIXED RATE NOTE
$12,100,000.00 June _____, 2003
FOR VALUE RECEIVED, EAST TOWN PLAZA, LLC, a Delaware limited liability
company ("Maker"), having its principal place of business at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, promises to pay to the order of
CITIGROUP GLOBAL MARKETS REALTY CORP., a New York corporation, its successors or
assigns ("Payee") at the office of Payee or its agent, designee or assignee at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, or at such place as
the holder hereof may from time to time designate in writing, the principal sum
of TWELVE MILLION ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($12,100,000.00) in
lawful money of the United States of America with interest thereon to be
computed on the unpaid principal balance from time to time outstanding from the
date of this Note (herein so called) at the Interest Rate (hereinafter defined),
and to be paid in installments as follows:
1. Payment Terms
(a) A payment of interest only on the date hereof for the
period from the date hereof through June 30, 2003, both inclusive;
(b) A constant payment of $68,323.36, (the "Constant
Payment"), on August 1, 2003 and on the first day of each calendar month
thereafter up to and including June 1, 2013; each of such payments to be applied
to the payment of interest computed at the Interest Rate (as defined below); and
the balance applied toward the reduction of the principal sum; and
(c) The balance of said principal sum and all interest
thereon shall be due and payable on July 1, 2013 or the first business day
thereafter if the same should be a banking holiday or weekend (the "Maturity
Date"). Interest on the principal sum of this Note shall be calculated by
multiplying the actual number of days elapsed in each accrual period by a daily
rate based on a three hundred sixty (360) day year. In computing the number of
days during which such interest accrues, the day on which funds are initially
advanced shall be included regardless of the time of day such advance is made,
and the day on which funds are repaid shall be included unless repayment is
credited prior to close of business. The Constant Payment required hereunder is
based on an amortization schedule of three hundred sixty (360) months.
In the absence of a specific determination by Payee to the contrary,
all payments paid by Maker to Payee in connection with the obligations of Maker
under this Note and under the other Loan Documents shall be applied in the
following order of priority: (a) to amounts, other than principal and interest,
due to Payee pursuant to this Note or the other Loan Documents; (b) to the
portion of accrued but unpaid interest accruing on this Note; and (c) to the
unpaid principal balance of this Note. Maker irrevocably waives the right to
direct the application of any and all payments at any time hereafter received by
Payee from or on behalf of Maker, and Maker irrevocably agrees that Payee shall
have the continuing exclusive right to apply any and all such
payments against the then due and owing obligations of Maker in such order of
priority as ▇▇▇▇▇ may deem advisable.
2. Interest Rate. The term "Interest Rate" as used in this Note
shall mean a rate of Five and 45/100 percent (5.45%) per annum.
3. Default and Acceleration. The whole of the principal sum of
this Note, together with all interest accrued and unpaid thereon, and all other
sums due under the Mortgage (hereinafter defined), the Loan Documents
(hereinafter defined) and this Note (all such sums hereinafter collectively
referred to as the "Debt") shall without notice become immediately due and
payable at the option of Payee if any payment due on the Maturity Date is not
paid on such date or if any other payment required in this Note is not paid on
or before the fifth (5th) day after the date when due, or if any Event of
Default (as defined in the Mortgage) occurs and is continuing, or on the
happening of any other default and continuance thereof, after the expiration of
any applicable notice and grace periods, herein or under the terms of the
Mortgage or other Loan Documents (hereinafter collectively an "Event of
Default"), and further provided that the Debt shall automatically become
immediately due and payable, without notice or any exercise of any option on the
part of Payee, if an Event of Default of the type set forth in Section 22(g) of
the Mortgage occurs with respect to Maker. 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. In the event that it should become necessary to
employ counsel to collect the Debt or to protect or foreclose the security
hereof, Maker also agrees to pay reasonable attorneys' fees for the services of
such counsel whether or not suit be brought.
4. Default Interest. Maker does hereby agree that upon the
occurrence and continuance of an Event of Default or upon 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 at the rate of
the greater of 5% above the Interest Rate or 5% above the Base Rate (hereinafter
defined), in effect at the time of the occurrence of the Event of Default (the
"Default Rate"). The term "Base Rate" shall mean the annual rate announced by
Citibank, N.A., in New York City, New York as its base rate in effect at the
time of the occurrence of the Event of Default. The Default Rate shall be
computed from the occurrence of the Event of Default until the actual receipt
and collection of the Debt. This charge shall be added to the Debt, and shall be
deemed secured by the Mortgage. This section, however, shall not be construed as
an agreement or privilege to extend the date of the payment of the Debt, nor as
a waiver of any other right or remedy accruing to Payee by reason of the
occurrence of any Event of Default. In the event the Default Rate is above the
maximum rate permitted by applicable law, the Default Rate shall be the maximum
rate permitted by applicable law.
5. Prepayment; Defeasance.
(a) The principal balance of this Note may not be prepaid
in whole or in part prior to the date which is sixty (60) calendar days prior to
the Maturity Date.
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(b) After the date which is the earlier to occur of (i)
the second (2nd) anniversary of the "start-up day" (within the meaning of
Section 860G(a)(9) of the Internal Revenue Code of 1986, as amended from time to
time, or any successor statute (the "Code")), of the "real estate investment
conduit" ("REMIC") that then holds this Note or (ii) the fourth (4th)
anniversary of the date of this Note, and prior to the date which is sixty (60)
calendar days prior to the Maturity Date, Maker may voluntarily defease the Debt
in whole, but not in part (such event, a "Defeasance"), by providing Payee with
the Defeasance Collateral (as defined below) producing payments which replicate
the Scheduled Defeasance Payments (as defined below), provided that any
Defeasance by Maker shall be subject to the satisfaction of the following
conditions precedent and other provisions below:
(i) Maker shall provide not less than thirty
(30) days prior written notice to Payee specifying a regularly
scheduled payment date (the "Defeasance Date") on which the
Defeasance is to occur. Such notice shall indicate the
principal amount of this Note to be defeased;
(ii) Maker shall pay to Payee all accrued and
unpaid interest on the principal balance of this Note to, but
not including, the Defeasance Date. If for any reason the
Defeasance Date is not a regularly scheduled payment date,
Maker shall also pay interest that would have accrued on this
Note through the next regularly scheduled payment date;
(iii) Maker shall pay to Payee all other sums, not
including scheduled interest or principal payments, due under
this Note, the Mortgage, and the other Loan Documents;
(iv) Maker shall pay to Payee an amount equal to
the full principal amount of this Note together with an
additional amount such that the aggregate amount (the
"Defeasance Deposit") is at least sufficient to purchase
direct, non-callable obligations of the United States of
America (the "Defeasance Collateral") that provide payments on
or prior to, but as close as possible to, all successive
scheduled payment dates after the Defeasance Date upon which
interest and/or principal payments are due under this Note
through and including the Maturity Date and in amounts equal
to the scheduled payments due on such dates, including, on the
Maturity Date, the outstanding principal balance of this Note,
together with all interest accrued thereon and all other sums
then due and owing upon this Note and under the Loan Documents
(the "Scheduled Defeasance Payments");
(v) Maker shall deliver to Payee on or prior to
the Defeasance Date the following: (a) an executed security
agreement, in form and substance satisfactory to Payee,
creating a first priority lien on the Defeasance Deposit and
the Defeasance Collateral (the "Defeasance Security
Agreement"); (b) an opinion of counsel for Maker in form and
substance satisfactory to Payee in its sole discretion
stating, among other things, that Maker has legally and
validly
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transferred and assigned the Defeasance Collateral and all
obligations, rights and duties under and to this Note to the
Successor Borrower (as defined below); that Payee has a
perfected first priority security interest in the Defeasance
Deposit and the Defeasance Collateral delivered by Maker, and
that any REMIC trust formed pursuant to Section 860D of the
Code that holds this Note will not fail to maintain its status
as a REMIC within the meaning of Section 860D of the Code as a
result of such Defeasance; (c) a certificate of Maker
certifying that all requirements relating to defeasance set
forth in this Note and any other Loan Documents have been
satisfied; (d) evidence in writing from each of the Rating
Agencies (as defined below) to the effect that the Defeasance
will not result in a qualification, downgrade or withdrawal of
any rating in effect immediately prior to the Defeasance Date
for any securities or "Pass-Through Certificates" issued
pursuant to the terms of a trust and servicing agreement in
the event that this Note or any interest therein is included
in a REMIC or other securitization vehicle; (e) a certificate
from an independent certified public accounting firm selected
by Payee certifying that the Defeasance Collateral is
sufficient to satisfy the payments required under this Note as
described above; and (f) such other certificates or
instruments and Payee may reasonably request;
(vi) Maker shall deliver such other certificates,
documents and instruments as Payee may reasonably request; and
(vii) Maker shall pay all costs and expenses to
Payee incurred in connection with the Defeasance, including
any costs and expenses associated with a release of the lien
of the Mortgage as provided below as well as reasonable
accountants' and attorneys' fees and expenses.
(c) For purposes hereof, "Rating Agencies" shall mean,
collectively, (i) Standard and Poor's Rating Services, (ii) ▇▇▇▇▇'▇ Investors
Service, Inc., (iii) Fitch, Inc. (or its affiliates), and (iv) any other rating
agency designated by ▇▇▇▇▇, and the respective successors and assigns of each.
(d) In connection with each Defeasance, Maker hereby
appoints Payee as its agent and attorney-in-fact for the purpose of using the
Defeasance Deposit to purchase the Defeasance Collateral. Maker, pursuant to the
Defeasance Security Agreement or other appropriate document, shall authorize and
direct that the payments received from the Defeasance Collateral may be made
directly to the account maintained by, or for the benefit of, Payee (unless
otherwise directed by ▇▇▇▇▇) and applied to satisfy the obligations of Maker or
Successor Borrower under this Note. If Maker has defeased the entire Note and
the conditions precedent listed above and all other terms and conditions set
forth herein have been satisfied, the Property shall be released from the lien
of the Mortgage and the Defeasance Collateral, pledged pursuant to the
Defeasance Security Agreement, shall be the sole source of collateral securing
this Note. In connection with the release of the lien, Maker shall submit to
Payee, not less than thirty (30) days prior to the Defeasance Date, a release of
lien for the Mortgage and related Loan Documents (including any guaranty) for
execution by ▇▇▇▇▇. Such release shall be in form
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appropriate in the jurisdiction in which the Property is located and
satisfactory to Payee in its sole discretion. In addition, Maker shall pay all
recording costs, fees and expenses associated with recording the release of
lien. Maker shall provide all other documentation Payee reasonably requires to
be delivered by Maker in connection with such release, together with a
certificate certifying that such documentation (i) is in compliance with all
applicable laws, and (ii) will effect such release in accordance with the terms
of this Note.
(e) Payee, at Maker's expense, may form or, at ▇▇▇▇▇'s
request, Maker shall form a special-purpose bankruptcy remote entity (the
"Successor Borrower") to be the obligor under this Note. Maker shall, at Payee's
request, assign all of its obligations and rights under this Note to the
Successor Borrower. In connection therewith, the Successor Borrower shall
execute an assumption agreement in form and substance satisfactory to Payee in
its sole discretion pursuant to which it shall assume Maker's obligations under
this Note and the Defeasance Security Agreement, and Maker and any guarantors
shall be released from their obligations with respect to such assumed documents.
The sole assets of the Successor Borrower shall be the Defeasance Collateral. In
connection with such assignment and assumption, Maker shall:
(i) deliver to Payee an opinion of counsel in
form and substance and delivered by counsel satisfactory to
Payee in its sole discretion stating, among other things, that
such assumption agreement is enforceable against Maker and the
Successor Borrower in accordance with its terms, that the
Note, the Defeasance Security Agreement and any other
documents executed in connection with such Defeasance are
enforceable against the Successor Borrower in accordance with
their respective terms and that the delivery of the Defeasance
Deposit and transfer of the Defeasance Collateral to Successor
Borrower does not constitute a fraudulent conveyance or a
preference payment under applicable bankruptcy law;
(ii) pay all costs and expenses incurred by Payee
or its agents in connection with such assignment and
assumption (including, without limitation, any fees and
disbursements of legal counsel); and
(iii) pay $1,000 to Successor Borrower as
consideration for assuming the obligations under the Note and
the Defeasance Security Agreement and a defeasance processing
fee to the servicer of the Note; provided, notwithstanding
anything to the contrary herein or in the Loan Documents, no
other assumption fee shall be payable by Maker in connection
with such assumption.
(f) If, prior to the date which is sixty (60) calendar
days prior to the Maturity Date, and following the occurrence of any Event of
Default, Maker shall tender payment of an amount sufficient to satisfy all or
any portion of the Debt, or if the balance of the Debt shall otherwise become
due and owing, as a result of acceleration upon the occurrence of an Event of
Default or otherwise, Maker shall immediately pay, in addition to the Debt and
any other amounts due under the terms of this Note and the other Loan Documents,
an amount equal to the Yield Maintenance Premium (as defined below); provided
that if a complete or partial
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prepayment results from the application to the Debt of the casualty or
condemnation proceeds from the property, no Yield Maintenance Premium will be
imposed. Partial prepayments of principal resulting from the application of
casualty or insurance proceeds to the Debt shall not change the amounts of
subsequent monthly installments nor change the dates on which such installments
are due, unless Payee shall otherwise agree in writing.
(g) For purposes hereof, "Yield Maintenance Premium"
shall mean an amount equal to the aggregate sum (without duplication) of:
(i) the product obtained by multiplying (1) the
entire unpaid principal balance of this Note at the time of prepayment (or at
the time of the earlier date upon which the balance of this Note shall become
due and payable, whether due to maturity, acceleration or otherwise), times (2)
the difference (if a positive number) obtained by subtracting from the
Applicable Interest Rate the yield rate (the "Yield Rate") on the 3.625% U.S.
Treasury Security due May 15, 2013 (the "Specified U.S. Treasury Security"), as
the Yield Rate is reported in the Wall Street Journal on the fifth Business Day
(as hereinafter defined) preceding (x) the date of prepayment where prepayment
is voluntary, or (y) the date upon which the balance of the Debt shall become
due and payable, whether due to maturity, acceleration or otherwise, times (3)
the present value factor calculated using the following formula:
1-(1 + r)(-n)
_____________
r
r= Yield Rate
n= the number of years, and any
fraction thereof, remaining between
the prepayment date (or such earlier
date upon which the balance of the
Debt shall have been accelerated or
otherwise become due and payable)
and the Maturity Date.
In the event that no Yield Rate is published for the Specified U.S. Treasury
Security, then the nearest equivalent U.S. Treasury Security shall be selected
at ▇▇▇▇▇'s sole discretion. If the publication of such Yield Rates in the Wall
Street Journal is discontinued, Payee shall determine such Yield Rates from
another source selected by Payee; and
(ii) an amount equal to the interest which would
have accrued on the principal balance of this Note during the remaining days of
the full calendar month within which such prepayment is made or the Debt shall
been accelerated or otherwise become due and payable.
(h) Maker acknowledges and agrees that Yield Maintenance
Premium is not a penalty or additional interest, but is ▇▇▇▇▇'s cost of
liquidating its investments in the event of any prepayment of this Note. Maker
hereby covenants and agrees to indemnify Payee and hold it harmless from any
costs, fees, expenses (including attorney's fees) resulting from any action,
litigation or judicial decision alleging, claiming or holding that the Yield
Maintenance Premium is a penalty or additional interest, and from any damages
(whether compensatory or punitive)
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ordered by a court, judge or administrative law judge which may determine that
the Yield Maintenance Premium is a penalty or additional interest.
(i) In the event of prepayment of this Note (in whole but
not in part) on or after the date which is sixty (60) calendar days prior to the
Maturity Date, Maker shall pay, together with the amount of such prepayment, an
amount equal to (i) the interest which would have been accrued on the amount of
such prepayment during the remaining days of the full calendar month within
which such prepayment is made, (ii) all accrued and unpaid interest and (iii)
any other sums due under this Note or any other Loan Document.
6. Security. This Note is evidence of that certain loan made by
Payee to Maker contemporaneously herewith (the "Loan"). This Note is secured by
(a) a Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture
Filing of even date herewith in the amount of this Note given by Maker for the
use and benefit of Payee covering the fee estate of Maker in certain premises as
more particularly described therein (the "Mortgaged Property") (as the same may
be amended, restated, extended, supplemented, or otherwise modified from time to
time, the "Mortgage"), (b) an Assignment of Leases and Rents of even date
herewith executed by Maker in favor of ▇▇▇▇▇ (as the same may be amended,
restated, extended, supplemented or otherwise modified from time to time, the
"Assignment of Leases"), and (c) the other Loan Documents (as hereinafter
defined). The term "Loan Documents" as used in this Note relates collectively to
this Note, the Mortgage, the Assignment of Leases and any and all other
documents securing, evidencing, or guaranteeing all or any portion of the Loan
or otherwise executed and/or delivered in connection with this Note and the
Loan, provided, however, that such term shall in no event be deemed to include
that certain Environmental Liabilities Agreement dated as of the date hereof in
favor of Payee.
7. Maximum Legal Interest. It is expressly stipulated and agreed
to be the intent of Maker and Payee at all times to comply with applicable state
law or applicable United States federal law (to the extent that it permits Payee
to contract for, charge, take, reserve, or receive a greater amount of interest
than under state law) and that this section shall control every other covenant
and agreement in this Note. If the applicable law (state or federal) is ever
judicially interpreted so as to render usurious any amount called for under this
Note, or contracted for, charged, taken, reserved, or received with respect to
the Debt, or if ▇▇▇▇▇'s exercise of the option to accelerate the Maturity Date,
or if any prepayment by Maker results in Maker 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 credited on the
principal balance of this Note and all other Debt and the provisions of this
Note 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. All
sums paid or agreed to be paid to Payee 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 of the Debt 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
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contrary contained herein, 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. Late Charges. Notwithstanding any longer period granted under
Section 3 hereof in connection with the occurrence of an Event of Default and
▇▇▇▇▇'s acceleration remedies, if any sum payable under this Note is not paid on
or before the fifth (5th) day after the date on which it is due, Maker shall pay
to Payee 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 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 Mortgage and other Loan Documents.
9. No Oral Changes. 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.
10. 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.
11. Waivers. Except as specifically provided in the Loan
Documents, 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, notice
of intent to accelerate the maturity hereof and notice 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 the other Loan Documents made by
agreement between Payee and any other person or party shall release, modify,
amend, waive, extend, change, discharge, terminate or affect the liability of
Maker, and any other who may become liable for the payment of all or any part of
the Debt, under this Note, the Mortgage or the other Loan Documents.
12. Limitations on Recourse. Notwithstanding anything in the Loan
Documents to the contrary, but subject to the qualifications and other
provisions in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker
agree that: (i) Maker shall be liable upon the Debt and for the other
obligations arising under the Loan Documents to the full extent (but only to the
extent) of all of the Mortgaged Property and any other items, property or
amounts which are collateral or security for the Loan; (ii) if a default occurs
in the timely and proper payment of all or any part of the Debt, any judicial
proceedings brought by Payee against Maker shall be limited to the preservation,
enforcement and foreclosure, or any thereof, of the liens, security titles,
estates, assignments, rights and security interests now or at any time hereafter
securing the payment of the Debt and/or the other obligations of Maker under the
Loan Documents, and no attachment, execution or other writ of process shall be
sought, issued or levied upon any assets, properties or funds of Maker other
than the Mortgaged Property; and (iii) in the event of a foreclosure of such
liens, security titles, estates, assignments, rights or security interests
securing
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the payment of the Debt, no judgment for any deficiency upon the Debt shall be
sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be
deemed to be a release or impairment of the Debt or the lien of the Loan
Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing
under the Loan Documents in case of any default or from enforcing any of the
other rights of Payee, including naming Maker as a party defendant in any action
or suit for foreclosure and sale under the Mortgage, or obtaining the
appointment of a receiver or prohibit Payee from obtaining a personal judgment
against Maker on the Debt to the extent (but only to the extent) such judgment
may be required in order to enforce the liens, security titles, estates,
assignments, rights and security interests securing payment of the Debt, or (3)
limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date
executed and delivered in connection with the indebtedness evidenced by this
Note or release, relieve, reduce, waive or impair in any way whatsoever, any
obligation of any party to the Guaranty or (4) release, relieve, reduce, waive
or impair in any way whatsoever any obligations of any person other than Maker
which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation
by Maker or any guarantor in connection with the Loan Documents or the documents
delivered by Maker, or the first full monthly payment on this Note is not paid
when due, or if any petition or proceeding for bankruptcy, reorganization or
arrangement pursuant to federal bankruptcy law, or any similar federal or state
law, shall be filed by Maker (or if any such petition or proceeding was not so
filed by Maker, but Maker or Guarantor or their respective agents, affiliates,
officers or employees consented to, acquiesced in arranged or otherwise
participated in bringing about the institution of such petition or proceeding),
or if there shall occur any material breach or default under the provisions of
Section 9 of the Mortgage (entitled "Single Purpose Entity/Separateness"), the
limitations on recourse set forth in this Section 12, including the provisions
of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void
and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way
release, affect or impair the right of Payee to recover, and Maker shall be
fully and personally liable and subject to legal action, for any loss, cost,
expense, damage, claim or other obligation (including without limitation
reasonable attorneys' fees and court costs) incurred or suffered by Payee
arising out of or in connection with the following:
(A) any continuing default beyond any
applicable cure periods of the Environmental Liabilities
Agreement executed by Maker for the benefit of Payee, dated of
even date herewith, including the indemnification provisions
contained therein;
(B) Maker's failure to obtain ▇▇▇▇▇'s
prior written consent to any subordinate financing (except as
permitted in Section 9(d) of the Mortgage) or any other
encumbrance on the Mortgaged Property, or any transfer of the
Mortgaged Property or majority ownership in Maker in violation
of the Mortgage;
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(C) the misapplication by Maker, its
agents, affiliates, officers or employees of any funds derived
from the Mortgaged Property, including security deposits,
insurance proceeds and condemnation awards, in violation of
the Loan Documents;
(D) Maker's failure to apply proceeds
of rents or any other payments in respect of the leases and
other income from the Mortgaged Property or any other
collateral when received to the costs of maintenance and
operation of the Mortgaged Property and to the payment of
taxes, lien claims, insurance premiums, monthly payments of
principal and interest or escrow payments or other payments
due under the Loan Documents to the extent the Loan Documents
require such proceeds to be then so applied;
(E) any litigation or other legal
proceeding related to the Debt filed by Maker or any guarantor
or indemnitor that delays or impairs Payee's ability to
preserve, enforce or foreclose its lien on the Mortgaged
Property, including, but not limited to, the filing of a
voluntary petition concerning Maker under the U.S. Bankruptcy
Code, in which action a claim, counterclaim, or defense is
asserted against Payee, other than any litigation or other
legal proceeding in which a final, non-appealable judgment for
money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful
misconduct of Maker, its agents, affiliates, officers or
employees which causes or results in a material diminution, or
material loss of value, of the Mortgaged Property that is not
reimbursed by insurance or which gross negligence or willful
misconduct exposes Payee to claims, liability or costs of
defense in any litigation or other legal proceeding;
(G) the seizure or forfeiture of the
Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s
interest therein, resulting from criminal wrongdoing by Maker,
its agents, affiliates, officers or employees; and
(H) waste to the Mortgaged Property
caused by the acts or omissions of Maker, its agents,
affiliates, officers, employees or contractors; or the removal
or disposal of any portion of the Mortgaged Property by Maker
its agents, affiliates, officers, employees or contractors
after an Event of Default to the extent such Mortgaged
Property is not replaced by Maker with like property of
equivalent value, function and design.
13. Notices. All notices or other communications required or
permitted to be given pursuant hereto shall be given in the manner and be
effective as specified in the Mortgage, directed to the parties at their
respective addresses as provided therein.
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14. Transfers of Note and Loan. Payee shall have the unrestricted
right at any time or from time to time to sell this Note and the Loan or
participation interests therein. Maker shall execute, acknowledge and deliver
any and all instruments requested by ▇▇▇▇▇ to satisfy such purchasers or
participants that the unpaid indebtedness evidenced by this Note is outstanding
upon the terms and provisions set out in this Note and the other Loan Documents.
To the extent, if any specified in such assignment or participation, such
assignee(s) or participant(s) shall have the rights and benefits with respect to
this Note and the other Loan Documents as such assignee(s) or participant(s)
would have if they were the Payee hereunder.
15. Waiver of Trial By Jury; Waiver of Certain Claims. MAKER
HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY
JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH
RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS NOTE OR THE OTHER LOAN
DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH INCLUDING, BUT NOT LIMITED TO THOSE RELATING TO (A) ALLEGATIONS THAT A
PARTNERSHIP EXISTS BETWEEN PAYEE AND MAKER; (B) USURY OR PENALTIES OR DAMAGES
THEREFOR; (C) ALLEGATIONS OF UNCONSCIONABLE ACTS, DECEPTIVE TRADE PRACTICE, LACK
OF GOOD FAITH OR FAIR DEALING, LACK OF COMMERCIAL REASONABLENESS, OR SPECIAL
RELATIONSHIPS (SUCH AS FIDUCIARY, TRUST OR CONFIDENTIAL RELATIONSHIP); (D)
ALLEGATIONS OF DOMINION, CONTROL, ALTER EGO, INSTRUMENTALITY, FRAUD, REAL ESTATE
FRAUD, MISREPRESENTATION, DURESS, COERCION, UNDUE INFLUENCE, INTERFERENCE OR
NEGLIGENCE; (E) ALLEGATIONS OF TORTIOUS INTERFERENCE WITH PRESENT OR PROSPECTIVE
BUSINESS RELATIONSHIPS OR OF ANTITRUST; OR (F) SLANDER, LIBEL OR DAMAGE TO
REPUTATION. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY MAKER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE
AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE.
▇▇▇▇▇ IS HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER BY MAKER.
16. 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.
17. Governing Law; Consent to Jurisdiction. This Note shall be
governed and construed in accordance with the laws of the state where the
Mortgaged Property is located and the applicable laws of the United States of
America. Maker hereby irrevocably submits to the jurisdiction of any court of
competent jurisdiction located in the state in which the Mortgaged Property is
located in connection with any proceeding relating to this Note.
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, ▇▇▇▇▇ has duly executed this Note the day and year
first above written.
EAST TOWN PLAZA, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By: East Town Plaza Holdings Corp.
a Delaware corporation,
its Managing Member
By: ______________________________
Its: _____________________________