Exhibit 10.185
SECURED PROMISSORY NOTE 2
LOAN NO. 753972
$16,277,000.00 June 22, 2004
1. FOR VALUE RECEIVED, INLAND WESTERN SAN ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ OAKS LIMITED
PARTNERSHIP, an Illinois limited partnership, as "BORROWER" ("Borrower" to be
construed as "Borrowers" if the context so requires), hereby promises to pay to
the order of PRINCIPAL LIFE INSURANCE COMPANY, an Iowa corporation (as
"LENDER"), having a principal place of business and post office address at c/o
Principal Real Estate Investors, LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, or at such other place as Lender may designate, the principal sum of
Sixteen Million Two Hundred Seventy Seven Thousand and 00/100 Dollars
($16,277,000.00) or so much thereof as shall from time to time have been
advanced, together with interest on the unpaid balance of said sum from June 22,
2004 (the "CLOSING DATE"), at the lesser of (a) the maximum rate permitted by
applicable law and (b) prior to default or maturity, the rate of three and
96/100 percent (3.96%) per annum.
The term the "OTHER NOTE" as used herein shall mean that certain secured
promissory note of even date herewith in the original principal amount of
$31,723,000.00 given by Borrower to Lender (Loan No. 753971), as may be
modified, amended, supplemented, extended or consolidated in writing and any
note(s) issued in exchange therefor or replacement thereof. Any default by
Borrower under the Other Note shall constitute a default under this Note.
Borrower is justly indebted to Lender for the aggregate principal sum of
$48,000,000.00 (the "LOAN AMOUNT") as evidenced by this Note and the Other Note.
A payment of interest from the Closing Date to and including June 30, 2004,
shall be paid on the Closing Date calculated by multiplying the actual number of
days elapsed in the period for which interest is being calculated by a daily
rate based on the foregoing annual interest rate and a 360-day year. Thereafter,
interest shall be computed on the unpaid balance on the basis of a 360-day year
composed of twelve 30-day months. Beginning on August 1, 2004, interest shall be
due and payable in arrears in monthly installments of Fifty Three Thousand Seven
Hundred Fourteen and 10/100 Dollars ($53,714.10), with an installment in a like
amount due and payable on the same day of each month thereafter continuing to
and including July 1, 2007. On July 1, 2007 ("RATE ADJUSTMENT DATE") the per
annum interest rate shall be adjusted to an interest rate established by Lender
("ADJUSTED INTEREST RATE") as herein provided. Commencing on August 1, 2007,
monthly installments of interest shall be due and payable in an amount
determined by Lender as set forth below, and a like amount shall be due and
payable on the same day of each month thereafter, except that all remaining
principal and interest to and including the date of payment and other
Indebtedness shall be due and payable on July 1, 2010 or such earlier date
resulting from the acceleration of the Indebtedness by ▇▇▇▇▇▇ ("MATURITY DATE").
All principal and interest shall be paid in lawful money of the United States of
America by wire transfer of immediately available funds to Lender at ▇▇▇▇▇ Fargo
Bank, Iowa, N.A., 7th and Walnut Streets, Des Moines, Iowa 50304, for credit to
Principal Life Insurance Company, Account No. 0000014752, RE: Loan No. 753972
with reference to Borrower. In the event Borrower fails to make any monthly
payment under this Note on or before the due date thereof, ▇▇▇▇▇▇▇▇ agrees to
make all subsequent payments by automated clearing house transfer through such
bank or financial institution as shall be approved in writing by ▇▇▇▇▇▇, shall
be made to an account
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designated by Lender, and shall be initiated by Lender or shall be made in such
other manner as Lender may direct from time to time. Any other monthly deposits
or payments Borrower is required to make to Lender under the terms of the Loan
Documents shall be made by the same payment method and on the same date as the
installments of interest due under this Note.
Lender shall notify Borrower in writing ("▇▇▇▇▇▇'S ADJUSTMENT NOTICE") on
or before May 1, 2007 of the number of basis points ("SPREAD") and the United
States Treasury Issue ("TREASURY ISSUE") that Lender anticipates it will use to
establish the Adjusted Interest Rate. The Spread shall be determined by Lender
in its sole discretion based on Lender's evaluation of: (i) the then current
financial performance and projected risk of the Premises, which shall encompass
various factors, including but not limited to contract debt service coverage,
loan-to-value ratio, economic debt service coverage, occupancy, frequency of
tenant rollover, financial strength and stability of tenants; (ii) the then
current financial status of Borrower, which shall include but not be limited to
creditworthiness, financial strength, percentage of liabilities to liquid
assets, and annual net income; and (iii) the remaining term and current
outstanding balance of this Note for the next three (3) years.
At any time and from time to time before the Adjusted Interest Rate is
established, provided at least seven (7) days have elapsed since the previous
Lender's Adjustment Notice, Lender may establish a new Spread which Lender
anticipates it will use to establish the Adjusted Interest Rate and notify
Borrower of the same. The Adjusted Interest Rate must be established by mutual
written agreement of ▇▇▇▇▇▇ and Borrower by June 1, 2007 (the "RATE SET
DEADLINE"). The Adjusted Interest Rate may only be established by mutual written
agreement of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ and simultaneous payment by Borrower of Ten
Thousand and no/100 Dollars ($10,000.00) ("RATE ADJUSTMENT FEE"). In the event:
(i) Lender and Borrower are unable for any reason to mutually agree in writing
on the Adjusted Interest Rate by the Rate Set Deadline, or (ii) Borrower fails
to pay the Rate Adjustment Fee to Lender when due, this Note shall become due
and payable in full, on July 1, 2007, ("CALL DATE") without a Make Whole
Premium, and all principal, interest accrued and to accrue to the date of
prepayment at the rate in effect at the time of the initial Lender's Adjustment
Notice, and all other Indebtedness evidenced by this Note shall become
immediately due and payable in full. Notwithstanding any other provision herein,
the Lender shall not be obligated to adjust the interest rate if any default
exists under this Note or the Loan Documents.
In the event ▇▇▇▇▇▇▇▇ accepts the Adjusted Interest Rate, then
notwithstanding anything herein or in any of the Loan Documents to the contrary,
Borrower shall have no right to prepay this Note at par during the last 90 days
prior to the Call Date and any prepayment will be subject to a Make Whole
Premium for the period ending on the Maturity Date calculated at the Adjusted
Interest Rate.
In the event Borrower accepts the Adjusted Interest Rate, Borrower is required
to provide Lender the following:
(i) a new standard loan title policy for the Loan in the form approved
by the insurance commissioner of the state of Texas, an abstractor's
certificate or, if available, an endorsement updating said title
policy in the Loan Amount in form and by an issuer satisfactory to
Lender at the time of the rate adjustment unless
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(x) the outstanding balance of the Loan Amount at the time of the
Call Date is less than $20,000,000.00, (y) no liens or encumbrances
exist against the Premises except as previously approved by ▇▇▇▇▇▇,
and (z) no mortgages or deeds of trust exist against the Premises
except for the Deed of Trust. ▇▇▇▇▇▇▇▇ further agrees that the
policy shall insure ▇▇▇▇▇▇'s Deed of Trust, at the Adjusted Interest
Rate to be a first and prior lien subject only to those exceptions
which were previously approved by ▇▇▇▇▇▇ and, if available, provide
coverage against mechanic's liens;
(ii) an amendment to this Note in form and substance satisfactory to
Lender executed by Borrower evidencing the Adjusted Interest Rate
and a representation that the Premises is free and clear of any
liens, privileges, mortgages or encumbrances except as expressly
permitted in the Deed of Trust;
(iii) a usury opinion or endorsement to the title policy acceptable to
Lender if ▇▇▇▇▇▇ reasonably believes that the Adjusted Interest Rate
is or may be usurious; and
(iv) a title search acceptable to ▇▇▇▇▇▇ and reimbursement for ▇▇▇▇▇▇'s
costs incurred in obtaining the same.
2. No privilege is reserved by Borrower to prepay any principal of this
Note prior to the Maturity Date, except on or after the date hereof, privilege
is reserved, after giving thirty (30) days' prior written notice to ▇▇▇▇▇▇ and
the lender under the Other Note, to prepay in full, but not in part, all
principal and interest to and including the date on which payment is made, along
with all sums, amounts, advances, or charges due under any instrument or
agreement by which this Note (and the Other Note, if applicable) is secured,
upon the payment of a "MAKE WHOLE PREMIUM." In the event Borrower chooses to
prepay this Note, Borrower is not required to simultaneously prepay the Other
Note. The Make Whole Premium shall be the lesser of: (a) the maximum amount
which is allowable under Texas law limiting the amount of interest which may be
contracted for, charged or received after considering all other amounts
constituting or deemed to constitute interest, and (b) the greater of one
percent (1%) of the principal amount to be prepaid or a premium calculated as
provided in subparagraphs (a) through (c) below:
(a) Determine the "REINVESTMENT YIELD." The Reinvestment Yield will be
equal to the yield on the U.S. Treasury Issue ("PRIMARY ISSUE")*
published one week prior to the date of prepayment and converted to
an equivalent monthly compounded nominal yield.
*As set forth above, the U.S. Treasury Issue applicable for each
prepayment period is as follows
Prepayment Period U.S. Treasury Issue
----------------- -------------------
To July 1, 2007 **
July 1, 2007 to July 1, 2010 **
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** At this time there is not a U.S. Treasury Issue for this
prepayment period. At the time of prepayment, Lender shall select in
its sole and absolute discretion a U.S. Treasury Issue with similar
remaining time to maturity as this Note.
(b) Calculate the "PRESENT VALUE OF THE LOAN." The Present Value of the
Loan is the present value of the payments to be made in accordance
with this Note (all installment payments and any remaining payment
due on Call Date, or if the Call Date has already passed, on the
Maturity Date) discounted at the Reinvestment Yield for the number
of months remaining from the date of prepayment to the Call Date, or
if the Call Date has already passed, to the Maturity Date.
(c) Subtract the amount of the prepaid proceeds from the Present Value
of the Loan as of the date of prepayment. Any resulting positive
differential shall be the premium.
If Borrower has otherwise fully complied with the preceding paragraphs, then,
during the last 90 days prior to either the Call Date or the Maturity Date,
provided no Event of Default exists, no Make Whole Premium shall be payable.
3. ▇▇▇▇▇▇▇▇ agrees that if ▇▇▇▇▇▇ accelerates the whole or any part of
the principal sum evidenced hereby, after the occurrence of an Event of Default,
or applies any proceeds pursuant to the provisions of the Loan Documents,
Borrower waives any right to prepay said principal sum in whole or in part
without premium and agrees to pay, as yield maintenance protection and not as a
penalty, the Make Whole Premium.
Notwithstanding the above, in the event any proceeds from a casualty or Taking
of the Premises are applied to reduce the principal balance hereof, such
reduction shall be made without a Make Whole Premium, provided no Event of
Default then exists under the Loan Documents.
4. If any payment of principal, interest, Make Whole Premium, or other
Indebtedness is not made when due, damages will be incurred by ▇▇▇▇▇▇, including
additional expense in handling overdue payments, the amount of which is
difficult and impractical to ascertain. ▇▇▇▇▇▇▇▇ therefore agrees to pay, upon
demand, the sum of four cents ($.04) for each one dollar ($1.00) of each said
payment which becomes overdue ("LATE CHARGE") as a reasonable estimate of the
amount of said damages, subject, however, to the limitations contained in
paragraph 6 hereof.
Notwithstanding anything hereinabove to the contrary, the Late Charge assessed
on any amount due on the Maturity Date but not then paid, whether or not by
acceleration, shall not be four cents for each one dollar as described above,
but shall instead be a sum equal to the interest which would have accrued on the
principal balance then outstanding from the date the payment is made to the end
of the month in which the Maturity Date occurs. Such Late Charge shall be in
addition to interest otherwise accruing under this Note.
5. If any Event of Default has occurred and is continuing under the
Loan Documents, the entire principal balance of the Loan, interest then accrued,
and Make Whole Premium, and all other Indebtedness whether or not otherwise then
due, shall at the option of Lender, become immediately due and payable without
demand or notice, and whether or not
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▇▇▇▇▇▇ has exercised said option, interest shall accrue on the entire principal
balance, interest then accrued, Make Whole Premium and any other Indebtedness
then due, at a rate equal to the Default Rate until fully paid.
6. Notwithstanding anything herein or in any of the other Loan
Documents to the contrary, no provision contained herein or therein which
purports to obligate Borrower to pay any amount of interest or any fees, costs
or expenses which are in excess of the maximum permitted by applicable law,
shall be effective to the extent it calls for the payment of any interest or
other amount in excess of such maximum. All agreements between Borrower and
Lender, whether now existing or hereafter arising and whether written or oral,
are hereby limited so that in no contingency, whether by reason of demand for
payment or acceleration of the maturity hereof or otherwise, shall the interest
contracted for, charged or received by ▇▇▇▇▇▇ exceed the maximum amount
permissible under applicable law. If, from any circumstance whatsoever, interest
would otherwise be payable to Lender in excess of the maximum lawful amount, the
interest payable to Lender shall be reduced to the maximum amount permitted
under applicable law; and if from any circumstance Lender shall ever receive
anything of value deemed interest by applicable law in excess of the maximum
lawful amount, an amount equal to any excessive interest shall, at the option of
Lender, be refunded to Borrower or be applied to the reduction of the principal
hereof, without a Make Whole Premium and not to the payment of interest or, if
such excessive interest exceeds the unpaid balance of principal hereof such
excess shall be refunded to Borrower. All interest paid or agreed to be paid to
Lender shall, to the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full period until payment in full of the
principal (including the period of any renewal or extension hereof) so that the
interest herein for such full period shall not exceed the maximum amount
permitted by applicable law. This paragraph shall control all agreements between
Borrower and Lender.
7. Borrower and any endorsers or guarantors waive presentment, protest
and demand, notice of protest, demand and dishonor and nonpayment, and notice of
default, notice of intent to accelerate maturity, notice of acceleration and
maturity, and agree the Maturity Date of this Note or any installment may be
extended without affecting any liability hereunder, and further promise to pay
all reasonable costs and expenses, including but not limited to, reasonable
attorney's fees incurred by Lender in connection with any default or in any
proceeding to interpret and/or enforce any provision of the Loan Documents. No
release of Borrower from liability hereunder shall release any other maker,
endorser or guarantor hereof.
8. This Note is secured by the Loan Documents creating among other
things legal and valid encumbrances on and an assignment of all of ▇▇▇▇▇▇▇▇'s
interest in any Leases of the Premises located in the county of Bexar, state of
Texas. Capitalized terms used herein and not otherwise defined shall have those
meanings given to them in the Loan Documents. In no event shall such documents
be construed inconsistently with the terms of this Note, and in the event of any
discrepancy between any such documents and this Note, the terms hereof shall
govern. The proceeds of this Note are to be used for business, commercial,
investment or other similar purposes, and no portion thereof will be used for
any personal, family or household use. This Note shall be governed by and
construed in accordance with the laws of the State where the Premises is
located, without regard to its conflict of law principles.
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9. Notwithstanding any provision to the contrary in this Note or the
Loan Documents and except as otherwise provided for below, the liability of
Borrower and any general partner of Borrower under the Loan Documents shall be
limited to the interest of ▇▇▇▇▇▇▇▇ and any general partner of Borrower in the
Premises and the Rents. In the event of foreclosure of the liens evidenced by
the Loan Documents, no judgment for any deficiency upon the Indebtedness
evidenced by the Loan Documents shall be sought or obtained by ▇▇▇▇▇▇ against
Borrower or any general partner of Borrower. Nothing herein shall in any manner
limit or impair (i) the lien or enforcement of the Loan Documents pursuant to
the terms thereof or (ii) the obligations of any indemnitor or guarantor, if
any.
Notwithstanding any provision hereinabove to the contrary, Borrower and any
general partner of Borrower shall be personally liable to Lender for:
(a) any loss or damage to Lender arising from (i) the sale or forfeiture
of the Premises resulting from ▇▇▇▇▇▇▇▇'s failure to pay any of the
taxes, assessments or charges specified in the Loan Documents or
(ii) Borrower's failure to insure the Premises in compliance with
the provisions of the Loan Documents;
(b) any event or circumstance for which Borrower indemnifies Lender
under the Environmental Indemnity;
(c) nonpayment of taxes, assessments, insurance premiums and utilities
for the Premises and any penalty or late charge associated with
nonpayment thereof;
(d) material failure to manage, operate, and maintain the Premises in a
commercially reasonable manner for similar property types in the
surrounding geographic area;
(e) any sums expended by ▇▇▇▇▇▇ in fulfilling the obligations of
Borrower as lessor under any Lease of the Premises prior to a sale
of the Premises pursuant to foreclosure or power of sale, a bona
fide sale (permitted by the terms of paragraph 2(f) of the Deed of
Trust (it being agreed that "Deed of Trust" as used herein shall be
construed to mean "mortgage" or "deed of trust" or "trust deed" as
the context so requires) or consented to in writing by ▇▇▇▇▇▇) to an
unrelated third party or upon conveyance to Lender of the Premises
by a deed acceptable to Lender in form and content (each of which
shall be referred to as a "SALE" for purposes of this paragraph) or
expended by Lender after a Sale of the Premises for obligations of
Borrower which arose prior to a Sale of the Premises;
Borrower's personal liability for items specified in (c), (d) and
(e) above shall be limited to the amount of rents, issues, proceeds
and profits from the Premises ("RENTS AND PROFITS") received by
Borrower for the twenty-four (24) months preceding an Event of
Default and thereafter; but less any such Rents and Profits applied
to (A) payment of principal, interest and other charges when due
under the Loan Documents, or (B) payment of expenses for the
operation, maintenance, taxes, assessments, utility charges and
insurance of the Premises including sufficient reserves for the same
or replacements or renewals thereof ("OPERATION EXPENSE(S)")
provided that (x) Borrower has furnished Lender with evidence
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reasonably satisfactory to Lender of the Operation Expenses and
payment thereof, and (y) any payments to parties related to Borrower
shall be considered an Operation Expense only to the extent that the
amount expended for the Operation Expense does not exceed the then
current market rate for such Operation Expense.
(f) any rents or other income regardless of type or source of payment or
other considerations in lieu thereof (including, but not limited to,
common area maintenance charges, lease termination payments, refunds
of any type, prepayment of rents, settlements of litigation, or
settlements of past due rents) from the Premises which Borrower has
received or will receive after an Event of Default under the Loan
Documents which are not applied to (A) payment of principal,
interest and other charges when due under the Loan Documents or (B)
payment of Operation Expenses provided that (x) Borrower has
furnished Lender with evidence reasonably satisfactory to Lender of
the Operation Expenses and payment thereof, and (y) any payments to
parties related to Borrower shall be considered an Operation Expense
only to the extent that the amount expended for the Operation
Expense does not exceed the then current market rate for such
Operation Expense;
(g) any security deposits of tenants not otherwise applied in accordance
with the terms of the Lease(s), together with any interest on such
security deposits required by law or the leases, not turned over to
Lender upon conveyance of the Premises to Lender pursuant to
foreclosure or power of sale or by a deed acceptable to Lender in
form and content;
(h) misapplication or misappropriation of tax reserve accounts, tenant
improvement reserve accounts, security deposits, prepaid rents or
other similar sums paid to or held by Borrower or any other entity
or person in connection with the operation of the Premises;
(i) any insurance or condemnation proceeds or other similar funds or
payments applied by Borrower in a manner other than as expressly
provided in the Loan Documents;
(j) any loss or damage to Lender arising from any fraud or willful
misrepresentation by or on behalf of Borrower, Interest Owner or any
guarantor regarding the Premises, the making or delivery of any of
the Loan Documents or in any materials or information provided by or
on behalf of Borrower, Interest Owner or guarantor, if any, in
connection with the Loan; and
(k) any loss or damage to Lender arising from movement of building
foundations and slabs, water infiltration and/or mold at the
Premises and any tenant issues related to these problems.
Notwithstanding anything contained in paragraphs 9(a)(i) and 9(c)
hereinabove as it relates solely to taxes, assessments and insurance
premiums, to the extent Lender is impounding for taxes, assessments and
insurance premiums in accordance with the Loan
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Documents and ▇▇▇▇▇▇▇▇ has fully complied with all terms and conditions of
the Loan Documents relating to impounding for the same, then Borrower shall
not be personally liable for ▇▇▇▇▇▇'s failure to apply any of said impound
amounts held by ▇▇▇▇▇▇ in accordance with the Loan Documents.
Notwithstanding anything to the contrary in the Loan Documents, the
limitation on liability contained in the first paragraph of this paragraph 9
SHALL BECOME NULL AND VOID and shall be of no further force and effect in the
event of any breach or violation of paragraph 2(f) (due on sale or encumbrance)
of the Deed of Trust, other than (i) the filing of a nonmaterial mechanic's lien
affecting the Premises or a mechanic's lien affecting the Premises for which
Borrower has complied with the provisions of paragraph 1(e) of the Deed of
Trust, or (ii) the granting of any utility or other nonmaterial easement or
servitude burdening the Premises, or (iii) any transfer or encumbrance of a
nonmaterial economic interest in the Premises not otherwise set forth in (i) or
(ii).
10. If more than one, all obligations and agreements of Borrower and of
any general partners of Borrower are joint and several.
11. This Note may not be changed or terminated orally, but only by an
agreement in writing and signed by the party against whom enforcement of any
waiver, change, modification or discharge is sought. All of the rights,
privileges and obligations hereunder shall inure to the benefit of the heirs,
successors and assigns of ▇▇▇▇▇▇ and shall bind the heirs and permitted
successors and assigns of ▇▇▇▇▇▇▇▇.
12. If any provision of this Note shall, for any reason, be held to be
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision hereof, but this Note shall be construed as if such invalid
or unenforceable provision had never been contained herein.
13. This Note may be executed in counterparts, each of which shall be
deemed an original; and such counterparts when taken together shall constitute
but one agreement.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ has caused this Note to be duly executed and
delivered as of the date first set forth above.
(REMAINDER OF PAGE INTENTIONALLY BLANK; SIGNATURES ON NEXT PAGE)
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SIGNATURE PAGE OF BORROWER TO
SECURED PROMISSORY NOTE 2
INLAND WESTERN SAN ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ OAKS
LIMITED PARTNERSHIP, an Illinois limited partnership
By: INLAND WESTERN SAN ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
OAKS GP, L.L.C., a Delaware limited liability
company, its General Partner
By: INLAND WESTERN RETAIL REAL
ESTATE TRUST, INC., a Maryland
corporation, its Sole Member
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Asst. Secretary
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