Exhibit 10.264
Allstate Life Insurance Company
Loan No. 122493
MORTGAGE NOTE A
Chicago, Illinois
$27,233,000 July 21, 2004
1. PAYMENT OF PRINCIPAL AND INTEREST. FOR VALUE RECEIVED, INLAND
GATEWAY SPE, L.L.C., a Delaware limited liability company (the "Maker"), hereby
promises to pay to the order of ALLSTATE LIFE INSURANCE COMPANY, and any
subsequent holder of this Note ("Holder" or "Holders") in the manner hereinafter
provided, the principal amount of TWENTY-SEVEN MILLION TWO HUNDRED THIRTY THREE
THOUSAND DOLLARS ($27,233,000), together with interest on the outstanding
principal balance from the date of the initial disbursement (for purposes of
this Note, "disbursement" means the date funds are wire transferred from
Holder's account) of all or a part of the principal of this Note ("Disbursement
Date") until maturity at a variable rate per annum ("Contract Rate") equal to
(a) 2.73% for the Initial Interest Period (as hereinafter defined), and (b)
thereafter equal to the LIBOR Rate (as hereinafter defined) plus 1.13%. The
Contract Rate shall be adjusted on the first day of each Interest Period (as
hereinafter defined).
"LIBOR Rate" shall mean the London Interbank Offered Rate for
the period of time comparable to the Interest Period (as hereinafter defined) as
published in The Wall Street Journal on the Interest Rate Determination Date (as
hereinafter defined). If the LIBOR Rate is no longer available in The Wall
Street Journal, the LIBOR Rate shall be as quoted at the close of business by
▇▇▇▇▇▇▇▇▇, L.P. on the Interest Rate Determination Date.
"Interest Rate Determination Date" shall be one day prior to the
first day of the Interest Period if the LIBOR Rate is available on such date,
and, if not, then the next preceding date on which the LIBOR Rate is available.
The "Initial Interest Period" shall mean the period commencing
on the Disbursement Date and continuing through October 31, 2004. The Initial
Interest Period shall include the balance of the month in which the Closing
occurs.
"Interest Period" shall mean three (3) calendar month periods
commencing on August 1, 2004.
Principal and interest shall be payable as follows:
(a) on the Disbursement Date, interest only, in advance, accruing
from the Disbursement Date to the last day of July, 2004 both inclusive; and
(b) on the first day of September, 2004, and on the first day of
each month thereafter until this Note is fully paid (the initial payment and
each subsequent payment under this subparagraph (b) shall each hereinafter be
referred to as "Monthly Payment"), in arrears, interest only on the unpaid
principal balance at the Contract Rate; and
(c) on July 1, 2009, the entire unpaid principal amount and any
interest accrued but remaining unpaid and all other sums due under this Note.
Except for the interest payable under paragraph (a) above, interest
shall be payable in arrears and calculated on the basis of a 360 day year
containing twelve 30 day months. All such payments on account of the
indebtedness evidenced by this Note shall be first applied to interest accrued
on the unpaid principal amount and the remainder toward reduction of the unpaid
principal amount.
2. PAYMENT INFORMATION. All payments required to be made hereunder
shall be made during regular business hours to Holder at its office c/o Allstate
Investments, LLC, Commercial Mortgage Division, Allstate Plaza South, Suite G5C,
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Servicing Manager,
with sufficient information to identify the source and application of such
payment to Holder's Loan #122493, or at such other place as Holder may from time
to time designate in writing. All payments shall be made in currency of the
United States of America without presentment or surrender of this Note. Payments
to Holder shall be made by transferring immediately available federal funds by
bank wire or interbank transfer for the account of Holder. Any payment of
principal or interest received after 1:00 p.m. Chicago time shall be deemed to
have been received by Holder on the next business day and shall bear interest
accordingly. If and so long as Holder directs Maker to make payments to a
servicing agent, then payments may be made by check. Payments made by check
will not be deemed made until good funds for such check are received by Holder
or the servicing agent.
3. GUARANTY FOR NOTE. The payment of this Note and all other sums
due Holder is guaranteed by a Payment Guaranty (the "Guaranty") of even date
herewith from Gateway Village LLC, a Maryland limited liability company
("Guarantor"). The Guaranty is secured by, INTER ALIA, (a) an Indemnity Deed of
Trust, Assignment of Leases, Rents and Contracts, Security Agreement and Fixture
Filing (the "Deed of Trust"), of even date herewith, from Guarantor, as grantor,
to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ And ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as trustee, in favor of Holder, as
beneficiary, covering certain real property, the improvements thereon and
certain personal property situated in the County of ▇▇▇▇ ▇▇▇▇▇▇▇, State of
Maryland, and described in the Deed of Trust (the "Property"), and (b) those
certain instruments of indebtedness and security separately described as
"Related Agreements" in the Deed of Trust. Except as otherwise defined herein,
all of the defined terms contained in the Guaranty, the Deed of Trust, and the
Related Agreements are hereby incorporated herein by express reference. This
Note, Note B (as defined in the Deed of Trust), the Guaranty, the Deed of Trust
and the Related Agreements referred to in the Deed of Trust are sometimes
collectively referred to as the "Loan Documents."
4. LATE CHARGES. If any Monthly Payment required under this Note is
not paid in full on or before the fifth (5th) day of the month in which such
payment is due, Maker acknowledges that the Holder will incur extra expenses for
the handling of the delinquent payment and servicing the indebtedness evidenced
hereby, and that the exact amount of these extra expenses is extremely difficult
and impractical to ascertain, but that a charge of five percent (5%) of the
amount of the delinquent payment ("Late Charge") would be a fair approximation
of the expense so incurred by ▇▇▇▇▇▇. If applicable law requires a lesser
charge, however, then the maximum charge permitted by such law may be charged by
▇▇▇▇▇▇ for said purpose. Therefore, Maker shall, in such event, without further
notice, and without prejudice to the right of Holder to collect
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any other amounts provided to be paid hereunder or under the Deed of Trust, any
of the other Loan Documents or any other instrument executed for purposes of
further securing payment of the obligations evidenced by this Note, or to
declare an Event of Default, as defined below, pay to Holder immediately upon
demand the Late Charge to compensate Holder for expenses incurred in handling
delinquent payments.
5. INTEREST PAYABLE UPON DEFAULT. If there occurs an Event of
Default under this Note, the Guaranty, the Deed of Trust or under any other Loan
Document, then the unpaid principal amount of this Note, and all accrued and
unpaid interest thereon and all other indebtedness evidenced, guaranteed or
secured by this Note, the Guaranty, the Deed of Trust and any of the other Loan
Documents, including any unpaid Late Charges, shall, at the option of the
Holder, become immediately due and payable, and following acceleration or
maturity, shall bear interest at the Contract Rate plus five percent (5%) per
annum compounded monthly ("Default Rate") from the date of expiration of any
applicable cure or grace period until such time, if any, as the Event of Default
is cured and the Guaranty, the Deed of Trust and this Note are reinstated as
permitted by applicable law, or otherwise until such time as the unpaid
principal amount of this Note and all other indebtedness evidenced by this Note
are fully repaid, whichever is earlier.
6. EVENTS OF DEFAULT. An "Event of Default" shall exist under this
Note:
(a) in the event Maker shall fail to make any payment due under this
Note, other than the final payment and Prepayment Premium, on or before the
fifth (5th) day of the month in which such payment is due; or
(b) in the event Maker shall fail to make the final payment or the
Prepayment Premium when such payment is due; or
(c) if there shall exist an Event of Default under Note B, the
Guaranty, the Deed of Trust or in any of the other Loan Documents; or
(d)(i) any court of competent jurisdiction shall sign an order (1)
adjudicating Maker, or any person, partnership, member, manager or corporation
holding an ownership interest in Maker or in any partnership comprising Maker,
or any guarantor (which term when used in this Note shall mean guarantor of
payment of the indebtedness) bankrupt or insolvent, (2) appointing a receiver,
trustee or liquidator of a substantial part of the property of Maker, or any
person, partnership, member, manager or corporation holding an ownership
interest in Maker, or in any partnership comprising Maker, or any guarantor, or
(3) approving a petition for, or effecting an arrangement in bankruptcy, or any
other judicial modification or alteration of the rights of Holder or of other
creditors of Maker, or any person, partnership, member, manager or corporation
holding an ownership interest in Maker, or in any partnership comprising Maker
or any guarantor; or (ii) Maker, any person, partnership, member, manager or
corporation holding an ownership interest in Maker or in any partnership
comprising Maker, shall (1) apply for or consent to the appointment of a
receiver, trustee or liquidator for it or for any of its property, (2) as
debtor, file a voluntary petition in bankruptcy, or petition or answer seeking
reorganization or an arrangement with creditors or to take advantage of any
bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or
liquidation law or statute, or an answer admitting the material allegations of a
petition filed against it and any proceeding under such law, (3) admit
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in writing an inability to pay its debts as they mature, or (4) make a general
assignment for the benefit of creditors; or (iii) an involuntary petition in
bankruptcy is filed against Maker, or any person, partnership, member, manager
or corporation holding an ownership interest in Maker or in any partnership
comprising Maker and the same is not vacated or stayed within ninety (90) days
of the filing date; or
(e) Maker makes or furnishes a representation, warranty, statement,
certificate, schedule and/or report to Holder in or pursuant to this Note which
is false or misleading in any material respect as of the date made or furnished;
or
(f) any federal, state or local tax lien or any claim of lien for
labor or materials or any other lien or encumbrance of any nature whatsoever is
recorded against Maker or any of its property and is not removed by payment or
transferred to substitute security in the manner provided by law, within thirty
(30) days after it is recorded in accordance with applicable law; or
(g) a final judgment is entered against Maker that materially and
adversely affects the value, use or operation of its property, or adversely
affects, or reasonably may adversely affect, the validity or enforceability of
this Note, and Maker does not discharge the same or provide for its discharge in
accordance with its terms, or procure a stay of execution thereon, in any event
within thirty (30) days from entry, or Maker shall not, within such period or
such longer period during which execution on such judgment shall have been
stayed, appeal therefrom or from the order, decree or process upon or pursuant
to which such judgment shall have been entered, and cause its execution to be
stayed during such appeal, or if on appeal such order, decree or process shall
be affirmed and Maker shall not discharge such judgment or provide for its
discharge in accordance with its terms within sixty (60) days after the entry of
such order or decree or affirmance, or if any stay of execution on appeal is
released or otherwise discharged; or
(h) Maker ceases to exist or to be qualified to do or transact
business in the state of its formation and the State of Maryland or is dissolved
or is a party to a merger, consolidation or reorganization, or sells all or
substantially all of its assets.
7. ADDITIONAL PAYMENTS. The additional payments called for under
Paragraphs 4 and 5 shall be in addition to, and shall in no way limit, any other
rights and remedies provided for in this Note, the Guaranty, the Deed of Trust,
any other Loan Documents, or otherwise provided by law.
8. PAYMENT OF TAXES AND EXPENSES. Maker further promises to pay to
Holder, immediately upon written notice from Holder: (i) all recordation,
transfer, stamp, documentary or other fees or taxes levied on Holder (exclusive
of Holder's income taxes) by reason of the making or recording of this Note, the
Guaranty, the Deed of Trust or any of the other Loan Documents, and (ii) all
intangible property taxes levied upon any Holder of this Note or beneficiary
under the Deed of Trust or secured party under any of the Loan Documents.
Maker further promises to pay to Holder, immediately upon written notice
from ▇▇▇▇▇▇, all actual costs, expenses, disbursements, intangible property
taxes imposed upon any Holder of this Note or beneficiary under the Deed of
Trust or secured party under any of the Loan Documents, escrow fees, title
charges and reasonable legal fees and expenses actually incurred
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by Holder and its counsel in connection with (i) the collection, attempted
collection, or negotiation and documentation of any settlement or workout of the
principal amount of this Note, the interest thereon or any installment or other
payment due hereunder, and (ii) any suit or proceeding whatsoever at all trial
and appellate levels in regard to this Note or to protect, sustain or enforce
the lien of any instrument securing this Note, including, without limitation, in
any bankruptcy proceeding or judicial or nonjudicial foreclosure proceeding. It
is the intent of the parties that Maker pay all expenses and reasonable
attorneys' and paralegals' fees incurred by Holder as a result of or in
connection with (A) matters described in clauses (i) and (ii) above, (B) the
negotiation and closing of the loan transaction evidenced by this Note, and any
supplements or amendments thereto, (C) the protection of property given as
security for the indebtedness evidenced hereby, and (D) responding to requests
from Maker that Holder take certain actions, and as may otherwise be reasonably
incurred by ▇▇▇▇▇▇ as a result of or in connection with entering into the loan
transaction evidenced by this Note.
9. PREPAYMENT. Maker is prohibited from prepaying this Note until
August 1, 2005 (the "No-Prepayment Period"). Subsequent to the No-Prepayment
Period, and at any time prior to the occurrence of conversion of the Contract
Rate to a fixed rate of interest in accordance with Section 26 of this Note
("Conversion"), with at least thirty (30) days prior written notice to Holder,
specifying the date of prepayment, which shall be the last day of an Interest
Period, Maker will have the privilege of prepaying the outstanding principal
amount together with any accrued but unpaid interest, any other sums guaranteed
by the Guaranty and secured by the Deed of Trust and the Loan Documents and
without a prepayment premium, unless at the time of such prepayment, an Event of
Default exists, in which case Maker shall be required to pay a prepayment
premium ("Pre-Conversion Prepayment Premium") equal to five percent (5%) of the
outstanding balance of this Note.
If Maker elects to convert the Contract Rate in accordance with Section
26 of this Note, then following occurrence of the Conversion and subsequent to
the No-Prepayment Period, at any time with thirty (30) days prior written notice
to Holder, specifying the date of prepayment, Maker will have the privilege of
prepaying the outstanding principal amount together with any accrued but unpaid
interest, any other sums secured by the Mortgage and the Related Agreements and,
a prepayment premium (collectively, "Post-Conversion Prepayment Premium") equal
to the greater of: (a) one percent (1%) of the principal amount prepaid; or (b)
the yield maintenance payment calculated as follows:
If the Prevailing Interest Rate is less than the Contract Rate, the
yield maintenance payment shall be the remainder of (x) minus (y) where
"(x)" is the present value of all unpaid installments of principal and
interest due under this Note from the date of prepayment to and
including the original maturity date of this Note, discounted at the
Prevailing Interest Rate, and "(y)" is the outstanding principal balance
of this Note as of the prepayment date.
The term "Prevailing Interest Rate" as used herein shall mean the yield
to maturity on a United States Treasury Bond or Treasury Note selected
by Holder having a maturity date as near as possible to the original
maturity date of this Note and an "ask" price, as close as possible to
par (as published two weeks prior to the specified date of prepayment in
The Wall Street Journal or similar publication or available from the
Federal Reserve
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Bank of New York) less the Basis Point Adjustment as computed in
accordance with Exhibit A attached hereto, to convert the monthly
payment to a semi-annual equivalent.
The Pre-Conversion Prepayment Premium and Post-Conversion Prepayment
Premium, as applicable, are hereinafter referred to collectively as the
"Prepayment Premium."
No Prepayment Premium shall be due on the principal balance prepaid
within the thirty (30) day period prior to the Maturity Date of this Note.
Written notice of Maker's election to make a prepayment in full of this
Note shall be given in the manner provided for in Section 20 of this Note.
Partial prepayment of the outstanding principal amount of this Note shall not be
permitted except in accordance with the terms of the Deed of Trust. In the event
of such a permitted partial prepayment, the Prepayment Premium calculated in
this Paragraph 9 shall be prorated based on the amount of the partial prepayment
relative to the then current outstanding principal balance of this Note.
Maker acknowledges that Holder:
(a) has advanced the amounts evidenced by this Note with the
expectation that such amounts would be outstanding for a period at least equal
to the No-Prepayment Period;
(b) would not have been willing to advance such amounts on these
terms for a shorter period of time;
(c) in making the loan evidenced by this Note, is relying on Maker's
creditworthiness and its agreement to pay in strict accordance with the terms
set forth in this Note; and
(d) would not make the loan evidenced by this Note without full and
complete assurance by Maker of its agreement not to prepay all or a part of the
principal of this Note except as expressly permitted herein and in the Deed of
Trust.
Maker has been advised and acknowledges that Holder is relying on the
receipt of payments under this Note to, among other things, match and support
its obligations under contracts entered into by Holder with third parties and
that in the event of a prepayment, ▇▇▇▇▇▇ could suffer loss and additional
expenses which are extremely difficult and impractical to ascertain.
Accordingly, it is the express intent of Maker and Holder that: (i) Maker shall
have no right to prepay this Note during the No-Prepayment Period; (ii) any
prepayment of this Note during the No-Prepayment Period shall only occur in the
event Holder accelerates payment under this Note or as otherwise set forth in
the Deed of Trust; (iii) any prepayment described in foregoing clause (ii) shall
(unless otherwise set forth in the Deed of Trust) (A) at any time prior to
Conversion, require the payment of (I) interest which would have accrued to the
end of the Interest Period in which prepayment occurs and (II) the
Pre-Conversion Prepayment Premium and (B) at any time following Conversion,
require the payment of the Post-Conversion Prepayment Premium; and (iv) to the
extent permitted by applicable law, Maker has waived, and hereby waives, any
right to prepay this Note except as expressly provided in the Deed of Trust or
this Note during the No-Prepayment Period. In the event, notwithstanding the
foregoing express intent of Maker and Holder and the express waiver by Maker of
any right to prepay this Note during the No-Prepayment Period, that the
applicable law of the jurisdiction in which the
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Property is located permits the Maker to prepay this Note during the
No-Prepayment Period, then the applicable Prepayment Premium described in clause
(iii) in the third sentence of this grammatical paragraph shall be paid to
Holder as a condition to any such prepayment.
Maker expressly acknowledges that, pursuant to the provisions of this
Note and except as otherwise provided in this Note or the Deed of Trust, no
right to prepay this Note in whole or in part exists during the No-Prepayment
Period. In the event any prepayment is required or expressly permitted, Maker
shall be liable for the payment of the Prepayment Premium unless expressly
stated otherwise in this Note. Furthermore, Maker waives any rights it may have
under any applicable state laws as they relate to any prepayment restrictions
contained in this Paragraph 9 or otherwise contained in this Note and expressly
acknowledges that ▇▇▇▇▇▇ has made the loan evidenced by this Note in reliance
upon such agreement and waiver of Maker and that Holder would not have made the
loan evidenced by this Note without such agreement and waiver of Maker. Maker
acknowledges that specific weight has been given to the consideration given for
such agreement, which consideration is the granting of the loan.
10. EVASION OF PREPAYMENT PREMIUM. Maker acknowledges that in the
event of an acceleration of payment of this Note following an Event of Default
by Maker, a tender of payment of an amount necessary to satisfy the entire
indebtedness evidenced hereby, but not including the Prepayment Premium, made at
any time prior to a foreclosure sale by Maker or Guarantor, or their respective
successors or assigns or by anyone on behalf of Maker, or by a buyer upon
foreclosure or power of sale, shall constitute a prepayment hereunder and shall
be presumed to be and conclusively deemed to constitute a deliberate evasion of
the prepayment provisions hereof and shall therefore be subject to the
Prepayment Premium in accordance with this Note with the date of prepayment
being deemed the date of occurrence of the foreclosure sale or the tender of
payment of the amount necessary to pay the entire indebtedness evidenced hereby
in full, including the Prepayment Premium.
11. MAKER'S COVENANTS. Maker agrees that:
(a) this instrument and the rights and obligations of all parties
hereunder shall be governed by and construed under the laws of the state or
commonwealth in which the Property is located;
(b) the obligation evidenced by this Note is an exempted transaction
under the Truth-in-Lending Act, 15 U.S.C. Section 1601, ET SEQ. (1982);
(c) said obligation constitutes a business or commercial loan for
the purpose of the application of any laws that distinguish between consumer
1oans and business or commercial loans and that have as their purpose the
protection of consumers in the state or commonwealth in which the Property is
located;
(d) at the option of the Holder, the United States District Court
for the district in which the Property is located and any court of competent
jurisdiction of the state or commonwealth in which the Property is located shall
have jurisdiction in any action, suit or other proceeding arising out of or
relating to any act taken or omitted hereunder or the enforcement of this Note,
the Guaranty, the Deed of Trust and the Related Agreements except to the extent
that
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jurisdiction must be in the courts of Maryland in order to properly enforce the
terms and provisions of the Note, the Guaranty, the Deed of Trust, and such
Related Agreements, and for all purposes Maker hereby consents to the
jurisdiction of the courts of Maryland and Maker shall not assert in any such
action, suit or other proceeding that it is not personally subject to the
jurisdiction of such courts that the action, suit or other proceeding is brought
in an inconvenient forum or that the venue of the action, suit or other
proceeding is improper;
(e) it hereby waives any objections to venue; and
(f) it hereby waives its right to a trial by jury.
12. SEVERABILITY. The parties hereto intend and believe that each
provision of this Note comports with all applicable local, state and federal
laws and judicial decisions. However, if any provision or any portion of any
provision contained in this Note is held by a court of law to be invalid,
illegal, unlawful, void or unenforceable as written in any respect, then it is
the intent of all parties hereto that such portion or provision shall be given
force to the fullest possible extent that it is legal, valid and enforceable,
that the remainder of the Note shall be construed as if such illegal, invalid,
unlawful, void or unenforceable portion or provision was not contained therein,
and the rights, obligations and interests of Maker and Holder under the
remainder of this Note shall continue in full force and effect.
13. USURY LAWS. It is the intention of Maker and Holder to conform
strictly to the usury laws now or hereafter in force in the State of Maryland,
and any interest payable under this Note, the Guaranty, the Deed of Trust, or
any other Related Agreement (as defined in the Deed of Trust) shall be subject
to reduction to an amount not to exceed the maximum non-usurious amount for
commercial loans allowed under the usury laws of the State of Maryland as now or
hereafter construed by the courts having jurisdiction over such matters. In the
event such interest (whether designated as interest, service charges, points, or
otherwise) does exceed the maximum legal rate, it shall be:
(a) cancelled automatically to the extent that such interest exceeds
the maximum legal rate;
(b) if already paid, at the option of the Holder, either be rebated
to Maker or credited on the principal amount of the Note; and
(c) if the Note has been prepaid in full, then such excess shall be
rebated to Maker.
14. ACCELERATION. Upon an Event of Default, Holder shall have the
right, without further demand or notice, to declare the entire principal amount
of this Note and/or any Future Advance (as defined in the Deed of Trust) then
outstanding, all accrued and unpaid interest thereon and all other further sums
payable under this Note, which shall include the Prepayment Premium (calculated
as provided in Paragraph 9 above), the Deed of Trust or any note evidencing any
Future Advance, to be immediately due and payable and, notwithstanding the
stated maturity in this Note or any note evidencing any Future Advance, all such
sums declared due and payable shall thereupon become immediately due and
payable. During the existence of such Event of Default, Holder may apply
payments received on any amounts due under the Note,
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the Guaranty, the Deed of Trust, any other Loan Document or any note evidencing
any Future Advance as Holder may determine in its sole discretion.
15. WAIVERS BY MAKER. As to this Note, the Guaranty, the Deed of
Trust, any of the other Loan Documents and any other instruments securing the
indebtedness, Maker and all guarantors (including Guarantor), sureties and
endorsers, severally waive all applicable exemption rights, whether under any
state constitution, homestead laws or otherwise, and also severally waive
diligence, valuation and appraisement, presentment for payment, protest and
demand, notice of protest, demand and dishonor and diligence in collection and
nonpayment of this Note and all other notices in connection with the delivery,
acceptance, performance, default, or enforcement of the payment of this Note
(except notice of default specifically provided for, without duplication, in the
Deed of Trust and any of the other Loan Documents). To the extent permitted by
law, Maker further waives all benefit that might accrue to Maker by virtue of
any present or future laws exempting the Property, or any other property, real
or personal, or the proceeds arising from any sale of any such property, from
attachment, levy, or sale under execution, or providing for any stay of
execution to be issued on any judgment recovered on this Note and/or the
Guaranty, or in any action to foreclose the Deed of Trust, injunction against
sale pursuant to power of sale, exemption from civil process or extension of
time for payment. ▇▇▇▇▇ agrees that any real estate that may be levied upon
pursuant to a judgment obtained by virtue of this Note, or any writ of execution
issued thereon, may be sold upon any such writ in whole or in part in any order
desired by ▇▇▇▇▇▇.
16. MAKER NOT RELEASED. No delay or omission of Holder to exercise
any of its rights and remedies under this Note, the Guaranty, the Deed of Trust
or any other Loan Documents at any time following the happening of an Event of
Default shall constitute a waiver of the right of Holder to exercise such rights
and remedies at a later time by reason of such Event of Default or by reason of
any subsequently occurring Event of Default. The acceptance by Holder of payment
of any sum payable hereunder after the due date of such payment shall not be a
waiver of Holder's right to either require prompt payment when due of all other
sums payable hereunder or to declare a default for failure to make prompt
payment. This Note, or any payment hereunder, may be extended from time to time
by agreement in writing between Maker and Holder without in any other way
affecting the liability and obligations of Maker and endorsers, if any.
17. NONRECOURSE. Except as otherwise set forth in this Paragraph,
▇▇▇▇▇▇'s recourse under this Note, the Guaranty, the Deed of Trust and the other
Loan Documents shall be limited to the Property and the proceeds thereof, the
rents and all other income arising therefrom during and after the month in which
an Event of Default has occurred, the other assets of Guarantor arising out of
the Property which are given as collateral for the Guaranty, and any other
collateral given in writing to Holder as security for repayment of the Guaranty
or this Note (all of the foregoing are collectively referred to as the "Loan
Collateral"). Notwithstanding the preceding sentence:
(a) Holder may, in accordance with the terms of this Note, the
Guaranty, the Deed of Trust or any of the other Loan Documents: (i) foreclose
the lien of the Deed of Trust; (ii) take appropriate action to enforce the Deed
of Trust, the Guaranty, this Note and any of the other Loan Documents to realize
upon and/or protect the Loan Collateral; (iii) name Maker or
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Guarantor as a party defendant in any action brought under this Note, the
Guaranty, the Deed of Trust or any of the other Loan Documents so long as the
exercise of any remedy is limited to the Loan Collateral; (iv) pursue all of its
rights and remedies against any guarantor or surety or master tenant whether or
not a partner, member or other owner of Maker or Guarantor; and (v) pursue all
of its rights and remedies against the indemnitors under that certain
Environmental Indemnity Agreement of even date herewith related to the Property;
(b) Holder may seek damages or other monetary relief, to the extent
of actual monetary loss, or any other remedy at law or in equity against Maker
or Guarantor, and the indemnitors/guarantors, if any, under any nonrecourse
exception indemnity agreements ("Nonrecourse Indemnitors") by reason of or in
connection with: (i) the failure of Maker or Guarantor to pay to Holder, upon
demand, all rents, issues and profits of the Property to which Holder is
entitled pursuant to this Note, the Guaranty, the Deed of Trust or any of the
other Loan Documents following an Event of Default; (ii) any waste of the
Property or any willful act or omission by Maker or Guarantor that damages or
materially reduces the value of the Property; (iii) the distribution of rents,
issues and profits from the Property prior to the payment of operating expenses
or the provision for reserves, if any, to be made pursuant to this Note, the
Guaranty, the Deed of Trust or any of the other Loan Documents prior to any
other expenditure or distribution by Maker or Guarantor; (iv) the failure to
account for and to turn over security deposits (and interest required by law or
agreement to be paid thereon) or prepaid rents following the occurrence of an
Event of Default; (v) the failure to timely pay all real estate taxes or any
regular or special assessments affecting the Property; (vi) the failure to
account for and to turn over real estate tax accruals following the occurrence
of an Event of Default; (vii) the failure to maintain casualty and liability
insurance as required hereunder or under the other Loan Documents or to apply
insurance proceeds or condemnation awards relating to the Property or other
collateral in the manner required under applicable provisions of the Deed of
Trust or other Loan Documents; (viii) any modification, termination or
cancellation of any lease of all or any portion of the Property without Holder's
prior written consent, if and to the extent such consent is required under the
Loan Documents and if and to the extent such modification, termination or
cancellation has a material adverse effect on the value of the Property; (ix) a
default by Guarantor under any lease of all or any portion of the Property; or
(x) costs and expenses, including, without limitation, attorney's fees and
transfer taxes, incurred by Holder in connection with the enforcement of this
Note, the Guaranty, the Deed of Trust or any of the other Loan Documents or in
connection with a deed-in-lieu of foreclosure if the Event of Default giving
rise to the enforcement action is one described in subsections (b) or (c) as an
exception to the nonrecourse provisions, or if Maker or Guarantor or any
principal of either objects to any actions taken by Holder to exercise its
remedies under this Note, the Guaranty, the Deed of Trust or any of the other
Loan Documents; (xi) Maker, Guarantor or any of their principals commences any
lawsuit to enjoin or delay a foreclosure of the Property by ▇▇▇▇▇▇, or raises
defenses or counterclaims to a foreclosure action; (xii) Maker or Guarantor
applies for the appointment of a receiver, trustee or liquidator for it or for
any of its property, or, as a debtor, files a voluntary petition in bankruptcy,
or petition or answer seeking reorganization or an arrangement with creditors or
takes advantage of any bankruptcy, reorganization, insolvency, readjustment of
debt, dissolution or liquidation law or statute, or makes a general assignment
for the benefit of creditors; (xiii) or in the event any bankruptcy or
reorganization proceedings (voluntary or involuntary), Maker, Guarantor or any
principal of either opposes any motion by Holder for relief from the Automatic
Stay; and
10
(c) Maker, Guarantor, any of their general partners and the
Nonrecourse Indemnitor(s), if any, shall become personally liable for payment of
all the indebtedness evidenced by this Note, the Guaranty and performance of all
other obligations of Maker and Guarantor under this Note, the Guaranty, the Deed
of Trust and the other Loan Documents upon the occurrence of any: (i) fraud or
willful misrepresentation of a material fact by Maker, Guarantor, any of their
general partners, or Nonrecourse Indemnitor(s), if any, in connection with this
Note, the Guaranty, the Deed of Trust, or the other Loan Documents or any
request for any action or consent by Holder; (ii) a Transfer of any interest in
Maker or Guarantor or all or any portion of the Property or any interest therein
in violation of the terms of this Note, the Guaranty, the Deed of Trust or the
other Loan Documents; or (iii) the incurrence by Maker or Guarantor of any
indebtedness in violation of the terms of this Note, the Guaranty, the Deed of
Trust or the other Loan Documents (whether secured or unsecured, direct or
contingent), other than unsecured debt or routine trade payables incurred in the
ordinary course of business in connection with the operation of the Property.
In addition, Maker, Guarantor, any of their general partners and the
Nonrecourse Indemnitors, if any, shall be responsible for any costs and expenses
incurred by Holder in connection with the collection of any amounts for which
Maker, Guarantor, any of their the general partners, if any, and the Nonrecourse
Indemnitors, if any, are personally liable under this Paragraph, including
attorneys' and paralegals' fees and expenses, court costs, filing fees and all
other costs and expenses incurred in connection therewith.
18. SUCCESSORS AND ASSIGNS. The provisions of this Note shall be
binding upon Maker and its legal representatives, successors and assigns and
shall inure to the benefit of any Holder and its successors and assigns. In the
event Maker is composed of more than one party, obligations arising from this
Note are and shall be joint and several as to each such party.
19. REMEDIES CUMULATIVE. The remedies of Holder as provided in this
Note, or in the Guaranty, the Deed of Trust or any of the other Loan Documents,
and the warranties contained herein or therein shall be cumulative and
concurrent, may be pursued singly, successively or together at the sole
discretion of Holder, may be exercised as often as occasion for their exercise
shall occur and in no event shall the failure to exercise any such right or
remedy be construed as a waiver or release of such right or remedy. No remedy
under this Note, conferred upon or reserved to Holder is intended to be
exclusive of any other remedy provided in this Note, the Guaranty, the Deed of
Trust or any of the other Loan Documents or provided by law, but each shall be
cumulative and shall he in addition to every other remedy given under the Deed
of Trust or any of the other Loan Documents or hereunder or now or hereafter
existing at law or in equity or by statute.
20. NOTICES. All notices, written confirmation of wire transfers and
all other communications with respect to this Note shall be directed as follows:
11
If to Holder:
c/o Allstate Investments, LLC
Allstate Plaza South, Suite G5C
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Commercial Mortgage Division
Servicing Manager
With a copy to:
c/o Allstate Investments, LLC
Allstate Plaza South, Suite G5A
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division
If to Maker:
Inland Gateway SPE, L.L.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
With a copy to:
The Inland Real Estate Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
or at such other place as Holder or Maker may from time to time designate in
writing. All notices shall be in writing and shall be (a) hand-delivered, (b)
sent by United States express mail or by private overnight courier, or (c)
served by certified mail postage prepaid, return receipt requested, to the
appropriate address set forth above. Notices served as provided in (a) and (b)
shall be deemed to be effective upon delivery. Any notice served by certified
mail shall be deposited in the United States mail with postage thereon fully
prepaid and shall be deemed effective on the day of actual delivery as shown by
the addressee's return receipt or the expiration of three business days after
the date of mailing, whichever is earlier in time.
21. NO ORAL MODIFICATION. This Note may not be modified or
discharged orally, but only by an agreement in writing signed by the party
against whom enforcement of any waiver, modification or discharge is sought.
22. TIME. Time is of the essence with regard to the performance of
the obligations of Maker in this Note and each and every term, covenant and
condition herein by or applicable to Maker.
23. CAPTIONS. The captions and headings of the paragraphs of this
Note are for convenience only and are not to be used to interpret, define or
limit the provisions hereof.
12
24. TRANSFER OF NOTE. Holder may, at any time, sell, transfer or
assign this Note, the Guaranty, the Deed of Trust and any of the Loan Documents,
and any or all servicing rights with respect to this Note, or grant
participations in this Note or issue mortgage pass-through certificates or other
securities evidencing a beneficial interest in this Note. Holder may forward to
any prospective purchaser or any rating agency rating securities all documents
and information Holder now has or may acquire, as Holder determines necessary or
desirable, including, without limitation, financial information regarding Maker,
its general partners, shareholders, members or other principals.
25. REPLACEMENT NOTE. Upon receipt of evidence reasonably
satisfactory to Maker of the loss, theft, destruction or mutilation of this
Note, and in the case of any such loss, theft or destruction, upon delivery of
an indemnity agreement reasonably satisfactory to Maker or, in the case of any
such mutilation, upon surrender and cancellation of this Note, Maker will
execute and deliver to Holder in lieu thereof, a replacement note dated as of
the date of this Note, identical in form and substance to this Note and upon
such execution and delivery all references to this Note in any of the Loan
Documents shall be deemed to refer to such replacement note.
26. CONVERSION OF NOTE. Maker shall have the one time right to
convert the Contract Rate to a fixed interest rate at any time during the term
of the loan evidenced by this Note, but no more than one time during the term of
this Note ("Conversion") subject to the following conditions:
(a) Maker shall notify Holder in writing of its preliminary
intention to convert the Contract Rate to a fixed interest rate no later than
sixty (60) days before the final day of the Interest Period following which
Maker wishes the Conversion to occur. Maker's written notification must be
accompanied by: (i) a current rent roll for the Property; (ii) current operating
statements for the Property; (iii) current financial statements in conformance
with the terms and provisions of the Loan Documents; (iv) a conversion fee equal
to one half percent (0.5%) of the then outstanding principal balance of the Loan
("Conversion Fee"); and (v) a Seven Thousand Five Hundred Dollar ($7,500)
deposit ("Expense Deposit"), toward ▇▇▇▇▇▇'s cost and expenses. The processing
of the Conversion will not commence until ▇▇▇▇▇▇ receives the foregoing items.
(b) Maker shall only have the right to elect to convert the Contract
Rate provided that:
(i) there is no Event of Default or event which, with notice
or the passage of time, or both, could result in an Event of Default by
Maker under this Note, the Guaranty, the Deed of Trust or any Related
Agreement;
(ii) Holder then has sufficient funds available for
investment in commercial mortgages that match the remaining term of the
Loan. Maker understands that ▇▇▇▇▇▇'s investments support and are
matched to various insurance products sold by ▇▇▇▇▇▇. The availability
of funds for any specific duration fluctuate on a daily basis due to,
among others factors, the sales volume of the insurance products and
other investment activity. Holder shall determine the availability of
funds in its reasonable business judgment but cannot and does not
guaranty the availability of such funds;
13
(iii) there is no deterioration in the financial condition of
(A) Maker, (B) any tenant(s) leasing 20,000 square feet or more in the
Property, or (C) the Property, in the sole opinion of Holder;
(iv) the Property has maintained a Debt Coverage Ratio, as
defined in the Deed of Trust, of not less than 225% for the 12 month
period ending upon the date Maker requests to convert the Contract Rate;
(v) the Property has a projected Debt Coverage Ratio
(utilizing a current interest rate as estimated by ▇▇▇▇▇▇ and the
amortization set forth in Paragraph 26 (e) below of not less than 225%
for the 12 months commencing on the date Maker requests to convert the
Contract Rate;
(vi) the loan to value ratio as established by a current MAI
appraisal prepared by an appraiser selected and engaged by ▇▇▇▇▇▇ is no
more than 60%; and
(vii) Note B has been paid in full.
(c) Upon receipt of the appraisal and other information necessary to
make the determination, Holder shall notify Maker whether the conditions set
forth in (b) above are satisfied. In the event the debt coverage ratio
requirement(s) or the loan to value requirement or any of them are not
satisfied, Maker may elect to make a partial prepayment of principal in an
amount which would result in the remaining principal balance of this Note being
able to satisfy all such conditions. Any partial prepayment shall be accompanied
by a pro-rata Pre-Conversion Prepayment Premium. Following notification from
Holder to Maker that all conditions precedent have been satisfied, Maker may,
during the next ten (10) consecutive business days following ▇▇▇▇▇▇'s notice
(but no more frequently than once per day), request Holder to quote an interest
rate applicable to this Note at that time, with the understanding that interest
rates fluctuate constantly with changes in the financial markets. Maker may then
notify Holder orally, followed by written notice (which may be given by
facsimile, followed by original overnight delivery) immediately following any
such quote, of its definitive election to convert the Contract Rate at the fixed
rate quoted. No quote shall be given or accepted later than 1:00 p.m. Chicago
time. No quote shall be given or accepted during the last ten (10) days of any
Interest Period and the ten (10) business day period during which Maker may
request a quote shall be extended accordingly. If for any reason Maker does not
accept a quoted rate, Maker shall be deemed to waive its right to convert the
Contract Rate and shall have no further rights to convert the Contract Rate. If
Holder determines that the conditions set forth above have not been satisfied or
if Maker declines the quoted interest rate, the Conversion Fee and the Expense
Deposit, less Holder's actual costs and expenses and a Five Thousand ($5,000)
processing fee, shall be returned to Maker.
(d) The interest rate quoted shall be ▇▇▇▇▇▇'s interest rate for
loans with the same duration as the remaining term of the Loan and otherwise
comparable to the Loan on the day Maker definitively notifies Holder of its
election to convert the Contract Rate pursuant to the terms hereof, as quoted to
Maker. The Conversion of the Contract Rate shall occur following the end of the
Interest Period in which Maker definitively notifies Holder of its election to
convert the Contract Rate as provided in (c) above.
14
(e) The Prepayment Premium applicable following Conversion shall be
the Post-Conversion Prepayment Premium as set forth in paragraph 9 of this Note.
(f) Maker shall pay any costs and expenses, including legal fees,
incurred by Holder or otherwise involved in the Conversion. If the actual costs
and expenses are less than the Expense Deposit, Holder shall refund the
difference to Maker at the closing. If the actual costs and expenses are greater
than the Expense Deposit, Maker shall pay the difference at the closing.
(g) At Holder's option, the Conversion shall be evidenced by an
amendment to this Note or by the execution of a new note. Maker further agrees
to execute and/or deliver to Holder any other documentation reasonably requested
by ▇▇▇▇▇▇, including without limitation, opinions of counsel and title
endorsements, all of which shall be satisfactory to Holder in ▇▇▇▇▇▇'s
reasonable discretion.
(h) If Maker exercises its right to convert the Contract Rate at the
rate quoted by ▇▇▇▇▇▇ and for any reason, other than a default of Holder, the
Conversion does not close within sixty (60) days following Maker's election (the
"Conversion Deadline"), Maker shall have no further right to convert the
Contract Rate and in addition, Maker shall pay all costs and expenses incurred
by Holder in connection with converting the Contract Rate including "Breakage
Costs." Such costs and expenses and Breakage Costs (collectively "Holder's
Breakage Expenses") shall be due and payable in full within five (5) days of
"Holder's Notice" described herein and shall bear interest at the Default Rate
until paid. Holder's Breakage Expenses shall be deemed to be additional advances
under this Note and guaranteed by the Guaranty. As used herein, "Breakage Costs"
shall mean the difference, as of the Conversion Deadline date between: (a) the
net present value of the cash flow to maturity (including the scheduled
principal repayment) for the Conversion Term based upon the United Stated
Treasury Bond or Treasury Note interest rate used to determine the Contract Rate
quoted by Holder ("Benchmark Treasury Rate"); and (b) the net present value of
the cash flow to maturity (including the scheduled principal repayment) based
upon the then available reinvestment rate in U.S. Treasury securities with a
comparable term to maturity, as quoted by ▇▇▇▇▇▇▇▇▇, L.P. The discount rate
used in each net present value calculation described in the preceding sentence
shall be the Benchmark Treasury Rate Holder shall provide Maker with a statement
("Holder's Notice") setting forth the calculation of the Holder's Breakage
Expenses in reasonable detail. ▇▇▇▇▇▇'s calculation shall be conclusive absent
manifest error.
(i) In the event either or both the conditions set forth in Section
26b(ii) above is not satisfied, ▇▇▇▇▇▇ agrees to waive the No-Prepayment Period
(if then applicable) and Maker may, but shall not be required to, prepay the
outstanding principal balance of this Note, with any applicable Prepayment
Premium in accordance with the prepayment provisions of this Note.
* * * * *
[Signature Page Follows]
15
IN WITNESS WHEREOF, Maker has caused this Note to be duly executed under
seal on the date first above written.
MAKER:
INLAND GATEWAY SPE, L.L.C., a
Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Authorized Person
16
EXHIBIT A
BASIS POINT ADJUSTMENT TABLE
U.S. Treasury U.S. Treasury
Bond or Note Basis Point Bond or Note Basis Point
Yield Adjustment Yield Adjustment
------------- ----------- ------------- -----------
0.00-1.55 .00 14.07-14.24 .40
1.56-2.69 .01 14.25-14.41 .41
2.70-3.48 .02 14.42-14.59 .42
3.49-4.12 .03 14.60-14.77 .43
4.13-4.68 .04 14.78-14.94 .44
4.69-5.17 .05 14.95-15.11 .45
5.18-5.63 .06 15.12-15.28 .46
5.64-6.05 .07 15.29-15.44 .47
6.06-6.44 .08 15.45-15.61 .48
6.45-6.82 .09 15.62-15.77 .49
6.83-7.17 .10 15.78-15.94 .50
7.18-7.51 .11 15.95-16.10 .51
7.52-7.83 .12 16.11-16.26 .52
7.84-8.14 .13 16.27-16.41 .53
8.15-8.44 .14 16.42-16.57 .54
8.45-8.73 .15 16.58-16.73 .55
8.74-9.02 .16 16.74-16.88 .56
9.03-9.29 .17 16.89-17.03 .57
9.30-9.55 .18 17.04-17.18 .58
9.56-9.81 .19 17.19-17.33 .59
9.82-10.07 .20 17.34-17.48 .60
10.08-10.31 .21 17.49-17.63 .61
10.32-10.55 .22 17.64-17.78 .62
10.56-10.79 .23 17.79-17.92 .63
10.80-11.02 .24 17.93-18.07 .64
11.03-11.25 .25 18.08-18.21 .65
11.26-11.47 .26 18.22-18.35 .66
11.48-11.69 .27 18.36-18.49 .67
11.70-11.90 .28 18.50-18.63 .68
11.91-12.11 .29 18.64-18.77 .69
12.12-12.32 .30 18.78-18.91 .70
12.33-12.52 .31 18.92-19.05 .71
12.53-12.72 .32 19.06-19.18 .72
12.73-12.92 .33 19.19-19.32 .73
12.93-13.12 .34 19.33-19.45 .74
13.13-13.31 .35 19.46-19.59 .75
13.32-13.50 .36 19.60-19.72 .76
13.51-13.69 .37 19.73-19.85 .77
13.70-13.87 .38 19.86-19.99 .78
13.88-14.06 .39 20.00-20.12 .79