MORTGAGE NOTE
Re: Plaza Westlake Shopping Center
$4,000,000.00 March 24, 1995
Chicago, Illinois
FOR VALUE RECEIVED, PLAZA WESTLAKE FUND XII, LTD., a Texas
limited partnership ("Maker") hereby jointly and severally
promises to pay to the order of Bank One, Chicago, NA, a national
bank ("Lender") the principal sum of Four Million and no/100
Dollars ($4,000,000.00) ("Loan") (or so much thereof as shall
have been disbursed by Lender from time-to-time to or on behalf
of Maker), at the place and in the manner hereinafter provided,
together with interest from the date hereof on the balance of the
principal remaining from time-to-time unpaid at the rates
described below.
During the period commencing as of the date of the initial
disbursement of the proceeds of the Loan ("Loan Opening Date")
and continuing thereafter through January 31, 2000 ("Maturity
Date"), unless Maker otherwise elects as provided below interest
shall accrue on the outstanding principal balance of the Loan
remaining from time-to-time unpaid under this Note prior to the
Maturity Date at a rate per annum ("Initial Interest Rate") equal
to the Prime Rate (as hereinafter defined), plus one percent
(1.00%).
For the purposes hereof, the term "Prime Rate" shall mean
and refer to the annual rate of interest announced by Lender from
time-to-time as its "Prime Rate," which is neither represented
nor warranted by Lender to be the lowest or most advantageous
rate of interest charged by Lender to its customers. The Initial
Interest Rate shall change concurrently with each change in the
Prime Rate, without Lender being required to give prior notice to
Maker or any guarantor of this Note.
Maker shall have a one time right, but not the obligation,
to fix the interest rate at the Loan Opening Date ("Interest Rate
Election"), at a fixed rate per annum equal to the level of the
five-year Treasury issue maturing closest to the Maturity Date as
designated by Lender, plus Two Hundred Fifty (250) basis points,
i.e. two and one-half percent ("Election Interest Rate") and
after such election the Loan shall bear interest at the Election
Interest Rate. The Initial Interest Rate and/or the Election
Interest Rate are sometimes referred to as the "Loan Rate".
Interest accruing on the principal outstanding under either
the Initial Interest Rate or the Election Interest Rate shall be:
(a) computed on the basis of a year consisting of 360 days and
(b) charged for the actual number of days within each monthly
period in which any amounts remain outstanding under the Loan.
The Loan shall be repaid on the first day of each month in
equal monthly installments of principal, calculated on a twenty
(20) year amortization of the original principal balance of the
Loan, together with interest on the principal balance from time
to time remaining unpaid at the applicable Loan Rate, with a
balloon payment of all principal, plus accrued and unpaid
interest and all fees and expenses due and payable to Lender on
the Maturity Date.
This Note evidences an arrangement, pursuant to which Lender
may from time-to-time make loans or advances to or for the
account of the Maker through means of drafts, items, orders for
the payment of money, evidences of debt or similar written
instruments, whether negotiable or nonnegotiable, signed by the
Maker or a person authorized or permitted to do so on behalf of
the Maker, which loans or advances are charged to an account in
respect of which the Lender renders bills or statements to Maker
at regular intervals, the amount of which statements are payable
by Maker as herein provided. All advances shall have the
priority of the original advance of funds evidenced by the Note.
Lender shall not be obligated to advance sums in excess of the
amount of the Loan hereunder.
Any prepayments of the Loan, including, without limitation
any amount of the Loan deemed by Lender to be repaid as a result
of any partial repayments of the Loan, shall incur a prepayment
penalty during the first twelve (12) months after the Loan
Opening Date of one percent (1%) of the committed amount of the
Loan (the "Prepayment Premium"). Thereafter, from the thirteenth
(13th) month through the Maturity Date, Borrower may upon ten
(10) days prior written notice prepay the entire amount of the
Loan at par without premium. All payments on account of the
indebtedness evidenced by this Note shall be first applied to
accrued and unpaid interest on the unpaid principal balance of
this Note, secondly, to all other sums then due Lender hereunder
or under any of the Loan Documents, and the remainder, if any, to
said unpaid principal balance. Any partial prepayments shall be
applied to the installments due hereunder in the inverse order of
their due date.
After the Maturity Date, or the earlier acceleration of the
indebtedness evidenced by this Note, or if said indebtedness has
not been accelerated, during any period in which an Event of
Default (as hereinafter defined) exists under this Note or any of
the Loan Documents, Maker shall pay interest on the balance of
principal remaining unpaid during any such period at an annual
rate equal to four percent (4%) plus the applicable Loan Rate
then in effect under this Note. The interest accruing under this
paragraph shall be immediately due and payable by Maker to the
holder of this Note and shall be additional indebtedness
evidenced by this Note.
In the event any payment of interest or principal due
hereunder or any escrow fund payment or deposit for taxes or
insurance due under the Mortgage (as hereinafter defined), other
than amounts unpaid after maturity, is not made within fifteen
(15) days after the date when any such payment is due in
accordance with the terms hereof or thereof, then, in addition to
the payment of the amount so due, Maker shall pay to Lender a
"late charge" of five cents ($.05) for each whole dollar so
overdue to defray part of the cost of collection and handling
such late charge. Maker agrees that the damages to be
sustained by the holder hereof for the detriment caused by any
late payment is extremely difficult and impractical to
ascertain, and that the amount of five cents ($.05) for each
$1.00 due is a reasonable estimate of such damages, does not
constitute interest, and is not a penalty.
All payments of principal and interest hereunder shall be
paid in coin or currency which, at the time or times of payment,
is the legal tender for public and private debts in the United
States of America and shall be made at such place as Lender or
the legal holder or holders of this Note may from time to time
appoint, and in the absence of such appointment, then at the
offices of Lender at 14 South LaGrange Road, LaGrange, Illinois
60525-2491. Payment submitted in funds not available until
collected shall continue to bear interest until collected. If
payment hereunder becomes due and payable on a Saturday, Sunday
or legal holiday under the laws of the State of Illinois, the due
date thereof shall be extended to the next succeeding business
day. and interest shall be payable thereon at the then applicable
interest rate during such extension.
Notwithstanding any provisions of this Note or any
instrument securing payment of the indebtedness evidenced by this
Note to the contrary, it is the intent of Maker and Lender that
Lender shall never be entitled to receive, collect or apply as
interest on principal of the indebtedness, any amount in excess
of the maximum rate of interest permitted to be charged by
applicable law; and if under any circumstance whatsoever,
fulfillment of any provision of this Note, at the time
performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by applicable law,
then, ipso facto, the obligation to be fulfilled shall be reduced
to the limit of such validity; and in the event Lender ever
receives, collects or applies as interest any such excess, such
amount which would be excess interest shall be deemed a permitted
partial prepayment of principal and treated hereunder as such;
and if the principal of the indebtedness secured hereby is paid
in full, any remaining excess funds shall forthwith be paid to
Maker. In determining whether or not interest of any kind
payable hereunder, under any specific contingency, exceeds the
highest lawful rate, Maker and Lender shall, to the maximum
extent permitted under applicable law, (1) characterize any
non-principal payment as an expense, fee or premium rather than
as interest and (2) amortize, prorate, allocate and spread, to
the end that the interest on account of such indebtedness does
not exceed the maximum amount permitted by applicable law;
provided that if the amount of interest received for the
actual period of existence thereof exceeds the maximum lawful
rate, Lender shall refund to Maker the amount of such excess.
Lender shall not be subject to any penalties provided by any
laws for contracting for, charging or receiving interest in
excess of the maximum lawful rate.
This Note and any and all other liabilities and obligations
and indebtedness of Maker to Lender, whether such liabilities,
obligation or indebtedness are now existing or hereafter created,
direct or indirect, absolute or contingent, joint or several, due
or to become due, howsoever created, arising or evidenced, and
howsoever acquired by Lender, are secured, inter alia, by the
Security Agreement of even date herewith made by Maker, the
Assignment of Rents and Leases of even date herewith made by
Maker, and the Mortgage (the "Mortgage") of even date herewith
made by the Maker to Lender creating a first mortgage lien on
certain real property (the "Premises") legally described in
Exhibit 1 attached to the Mortgage (the Mortgage and said
security documents and any other document or instrument securing
this Note or delivered to induce Lender to disburse the proceeds
evidenced hereby are hereinafter collectively referred to as the
"Loan Documents"). Reference is hereby made to the Loan
Documents (which are incorporated herein by reference as fully
and with the same effect as if set forth herein at length) for a
legal description of the Premises, a statement of the covenants
and agreements contained therein, a statement of the rights,
remedies, and security afforded thereby, and all matters therein
contained.
The occurrence of any one or more of the following events
shall constitute an "Event of Default" under this Note:
(a) the failure by Maker to make payment of principal
or interest as same becomes due and payable or payment of
any other amount due to Lender under this Note, within ten
(10) days after the date when any such payment is due in
accordance with the terms hereof, or the failure of Maker to
make payment of any amounts due to Lender under the Mortgage
or any of the other Loan Documents within ten (10) days
after written notice from Lender that any such payment is
due in accordance with the terms thereof; or
(b) the occurrence of any one or more of the "Events
of Default" under paragraph 14 of the Mortgage; or
(c) the occurrence of an "Event of Default" under the
Certificate and Agreement or any other of the Loan Documents
other than the Mortgage; or
(d) the sale, assignment or other disposition of all
or any portion of the Premises, or any interest in the Maker
(including without limitation, the sale of any shares or any
partnership interest, if any) in violation of paragraph 27
of the Mortgage.
At the election of the holder hereof, and without notice,
the principal balance remaining unpaid under this Note, and all
unpaid interest accrued thereon, shall be and become immediately
due and payable in full in the case of the occurrence of any
Event of Default. Failure to exercise this option shall not
constitute a waiver of the right to exercise same in the event of
any subsequent Event of Default. No holder hereof shall, by any
act of omission or commission, be deemed to waive any of its
rights, remedies or powers hereunder or otherwise unless such
waiver is in writing and signed by the holder hereof, and then
only to the extent specifically set forth therein. The rights,
remedies and powers of the holder hereof, as provided in this
Note, the Mortgage and in all of the other Loan Documents are
cumulative and concurrent, and may be pursued against Maker, any
guarantor, the Premises and any other security given at any time
to secure the repayment hereof, all at the sole discretion of the
holder hereof. If any suit or action is instituted or attorneys
are employed to collect this Note or any part thereof, or for the
protection or enforcement of any or all of the security for this
Note, whether or not any lawsuit is filed with respect thereto,
Maker promises and agrees to pay all costs and expenses of every
kind and nature of collection, protection and enforcement
including reasonable attorneys' fees and court costs.
Maker, any guarantor, and all others who now or may at any
time become liable for all or any part of the obligations
evidenced hereby, expressly agree hereby to be jointly and
severally bound, and jointly and severally: (i) waive and
renounce any and all homestead, redemption and exemption rights
and the benefit of all valuation and appraisement privileges
against the indebtedness evidenced by this Note or by any
extension or renewal hereof; (ii) waive presentment and demand
for payment, notices of nonpayment and of dishonor, protest of
dishonor, and notice of protest; (iii) waive any and all notices
in connection with the delivery and acceptance hereof and all
other notices in connection with the performance, default, or
enforcement of the payment hereof or hereunder, except as
otherwise expressly provided in the Loan Documents; (iv) waive
any and all lack of diligence and delays in the enforcement of
the payment hereof; (v) agree that the liability of each Maker,
guarantor, endorser or obligor shall be unconditional and without
regard to the liability of any other person or entity for the
payment hereof, and shall not in any manner be affected by any
indulgence or forbearance granted or consented to by Lender to
any of them with respect hereto; (vi) consent to any and all
extensions of time, renewals, waivers, or modifications that may
be granted by Lender with respect to the payment or other
provisions hereof, and to the release of any security at any time
given for the payment hereof, or any part thereof, with or
without substitution, and to the release of any person or entity
liable for the payment hereof; and (vii) consent to the addition
of any and all other makers, endorsers, guarantors, and other
obligors for the payment hereof, and to the acceptance of any and
all other security for the payment hereof, and agree that the
addition of any such makers, endorsers, guarantors or other
obligors, or security shall not affect the liability of Maker.
The proceeds of the loan evidenced by this Note will be used
solely for the purposes specified in 815 ILCS 205/4 (1993), as
amended, and the principal sum advanced is for a business loan
which comes within the purview of such section. Maker agrees
that the obligation evidenced by this Note is an exempted
transaction under the Truth-In-Lending Act, 15 U.S.C., Section
1601, et seq.
Time is of the essence hereof.
This Note is governed and controlled as to validity,
enforcement, interpretation, construction, effect and in all
other respects by the statutes, substantive laws and decisions of
the State of Illinois. This Note may not be changed or amended
orally but only by an instrument in writing signed by the party
against whom enforcement of the change or amendment is sought.
Lender shall in no event be construed for any purpose to be
a partner, joint venturer, agent or associate of Maker or any
beneficiary thereof or of any lessee, operator, concessionaire or
licensee of Maker or any beneficiary thereof in the conduct of
their respective businesses, and by the execution of this Note,
Maker agrees to indemnify, defend, and hold Lender harmless from
and against any and all damages, costs, expenses and liability
that may be incurred by Lender as a result of a claim that Lender
is such partner, joint venturer, agent or associate.
This Note has been made and delivered at Chicago, Illinois
and all funds disbursed to or for the benefit of Maker will be
disbursed in Chicago, Illinois.
In the event one or more of the provisions contained in this
Note shall for any reason be held to be invalid, illegal or
unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability
shall not affect any other provision of this Note, and this Note
shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein or therein.
Maker has executed this Note as of the day and year first
written above.
PLAZA WESTLAKE FUND XII, LTD., a Texas
limited partnership
By: PLAZA WESTLAKE CORP., a
Delaware corporation
By: /s/ Donald K. Reed
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Its: President
Attest: /s/ Harriet C. Yates
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Its: Secretary