PROMISSORY NOTE
U.S. $14,000,000.00 July 7, 1999
FOR VALUE RECEIVED, and at the times hereinafter specified,
ACADIA MERRILLVILLE REALTY, L.P., an Indiana limited partnership ("Maker"),
whose address is 20 Soundview Marketplace, Port Washington, New York 11050,
hereby promises to pay to the order of SUNAMERICA LIFE FNSURANCE COMPANY, an
Arizona corporation (hereinafter referred to, together with each subsequent
holder hereof, as "Holder"), at I SunAmerica Center, Century City, Los Angeles,
California 90067-6022, or at such other address as may be designated from time
to time hereafter by any Holder, the principal sum of FOURTEEN MILLION AND
NO/100THS DOLLARS ($14,000,000.00), together with interest on the principal
balance outstanding from time to time, as hereinafter provided, in lawful money
of the United States of America.
By its execution and delivery of this promissory note (this
"Note"), Maker covenants and agrees as follows:
1. Definitions. For purposes of this Note, the following terms
shall have the meanings ascribed to them below. Capitalized terms used herein
and not otherwise defined shall have the meanings set forth in the Mortgage
(hereinafter defined).
(a) "Business Day" shall have the meaning ascribed to
it in Section 8 of this Note.
(b) "Conversion Date" shall mean the first day of the
month following the date on which the LIBOR Rate is converted to the
Remaining Term Fixed Rate pursuant to Section 3 of this Note.
(c) "Effective Rate" shall mean:
(i) for the period commencing on the date
hereof through an including July 31, 1999, seven and thirty-six
hundredths percent (7.36)% per annum;
(ii) for the period commencing on August 1,
1999, and continuing through the day immediately preceding the
Conversion Date, if any, or if the Conversion Date does not occur,
through the Original Maturity Date, the LIBOR Rate; and
(iii) for the period commencing on the
Conversion Date, if any, and continuing through the Original Maturity
Date, the Remaining Term Fixed Rate.
(d) "LIBOR Determination Date" shall mean July 29,
1999, and each succeeding date that is two (2) Business Days prior to
the commencement date of a LIBOR Period.
(e) "LIBOR Index" shall mean the rate per annum for
United States dollar deposits quoted as the London Inter-Bank Offered
Rate ("LIBOR") as reported by Telerate News Service on the LIBOR
Determination Date for delivery of funds on such LIBOR Determination
Date for a period comparable to the LIBOR Period and in an amount
approximately equal to the principal amount of this Note outstanding
on such date.
(f) "LIBOR Period" shall mean the three-month period
commencing on August 1, 1999 ("the LIBOR Period Commencement Date"),
and each succeeding three-month period, and commencing on the first
day of November, February, May and August.
(g) "LIBOR Rate" shall mean a rate per annum equal to the sum
of the LIBOR Index plus the Margin.
(h) "Margin" shall mean two and five hundredths percent
(2.05%) per annum.
(i) "Original Maturity Date" shall mean August 1, 2002.
(j) "Principal and Interest Calculation" shall mean the
recalculation of combined payments of principal and interest on each
LIBOR Determination Date, based on the amount of principal balance
outstanding on such LIBOR Determination Date, which shall bear
interest at the LIBOR Rate, as determined for such LIBOR Period, and
re-amortized for each LIBOR Period based on the Original Amortization
Period minus the number of months actually elapsed from the LIBOR
Period Commencement Date.
(k) "Remaining Term Fixed Rate" shall mean a rate per annum
equal to the sum of the Remaining Term Index plus the Margin.
(1) "Remaining Term Index" shall mean the yield on the U.S.
Treasury Constant Maturity Series maturing on the Original Maturity
Date, for the week prior to the Conversion Date, as reported in
Federal Reserve Statistical Release H.15 Selected Interest Rates,
conclusively determined by Holder on the Conversion Date.
2. Interest Rate and Payments.
(a) The balance of principal outstanding from time to time
under this Note shall bear interest at a rate per annum, based on actual days in
the year divided by a three hundred sixty (360) day year composed of twelve (12)
months of thirty (30) days each, equal to the Effective Rate in effect from time
to time.
(b) Interest only on the outstanding principal balance of this
Note shall be payable on the date hereof, in advance, for the period from and
including the date hereof through and including July 31. 1999.
(c) Commencing on September 1, 1999, and on the first day of
each month thereafter through and including July 1, 2002, combined payments of
principal and interest shall be payable, in arrears, in an amount sufficient to
fully amortize the original principal amount of this Note over a three hundred
month amortization period (the "Original Amortization Period").
(d) For periods during which the LIBOR Rate shall be in
effect, the amount of the combined monthly payments of principal and interest
shall be recalculated based on the Principal and Interest Calculation, as of the
beginning of each LIBOR Period, and the LIBOR Rate shall be consecutively
redetermined and established as of the applicable LIBOR Determination Date,
effective as of the first day of the next succeeding calendar month, which shall
be deemed to be the first day of the next succeeding LIBOR Period.
(e) The entire outstanding principal balance, together with
all accrued and unpaid interest and all other sums due hereunder, shall be due
and payable in full on August 1, 2002 (the "Original Maturity Date").
3. Additional LIBOR Provisions.
(a) If Holder at any time shall determine that for any reason
adequate and reasonable means do not exist for ascertaining the LIBOR Rate, then
Holder shall promptly give notice thereof to Maker. If such notice is given and
until such notice has been withdrawn by Holder, then (i) no new LIBOR Rate shall
be set by Holder, and (ii) any portion of the outstanding principal balance
hereof which bears interest at the LIBOR Rate, subsequent to the end of the
LIBOR period applicable thereto, shall bear interest at the Remaining Term Fixed
Rate.
(b) If any law, treaty, rule, regulation or determination of a
court or governmental authority or any change therein or in the interpretation
or application thereof (each, a "Change in Law") shall make it unlawful for
Holder (i) to make LIBOR based interest rate options available hereunder, or
(ii) to maintain interest rates based on LIBOR, then in the former event, any
obligation of Holder to make available such unlawful LIBOR-based interest rate
shall immediately be cancelled, and in the latter event, any such unlawful
LIBOR-based interest rates then outstanding shall be converted to the Remaining
Term Fixed Rate; provided, however, that if any such change in law shall permit
any LIBOR-based interest rates to remain in effect until the expiration of the
term thereof applicable thereto, then such permitted LIBOR-based interest rates
shall continue in effect until the expiration of such term. Upon the occurrence
of any, of the foregoing events, Maker shall pay to Holder immediately upon
demand such amounts as may be necessary to compensate Holder for any fines,
fees, charges, penalties or other costs incurred or payable by Holder as a
result thereof and which are attributable to any LIBOR-based interest rate made
available to Maker hereunder, and any reasonable allocation made by Holder among
its operations shall be conclusive and binding upon Maker.
(c) if any Change in Law or compliance by Holder with any
request or directive (whether or not having the force of law) from any central
bank or other governmental authority shall:
(i) subject Holder to any tax, duty or other charge
with respect to any LIBOR-based interest rate, or change the basis of
taxation of payments to Holder of principal, interest, fees or any
other amount payable hereunder (except for changes in the rate of tax
on the overall net income of Holder); or
(ii) impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against
assets held by, deposits or other liabilities in or for the account
of, advances or loans by, or any other acquisition of funds by any
office of Holder; or
(iii) impose on Holder any other condition;
and the result of any of the foregoing is to increase the cost to Holder of
making, renewing or maintaining any LIBOR-based interest rate hereunder and/or
to reduce any amount receivable by Holder in connection therewith, then in any
such case, Maker shall pay to Holder immediately upon demand such amounts as may
be necessary to compensate Holder for any additional costs incurred by Holder
and/or reductions in amounts received by Holder which are attributable to such
LIBOR-based interest rate. In determining which costs incurred by Holder and/or
reductions in amounts received by Holder are attributable to any LIBOR-based
interest rate made available to Maker hereunder, any reasonable allocation made
by Holder among its operations shall be conclusive and binding upon Maker.
4. Holder's Extension Option; Net Operating Income.
(a) If Maker shall fail to pay the outstanding
principal balance of this Note and all accrued interest and other charges due
hereon at the Original Maturity Date, Holder shall have the right, at Holder's
sole option and discretion, to extend the term of the loan evidenced by this
Note (the "Loan") for an additional period of five (5) years (the "Extension
Term"). If Holder elects to extend the term of the Loan, Maker shall pay all
fees of Holder incurred in connection with such extension, including, but not
limited to, attorneys' fees and title insurance premiums. Maker shall execute
all documents reasonably requested by Holder to evidence and secure the Loan, as
extended, and shall obtain and provide to Holder any title insurance policy or
endorsement requested by Holder.
(b) Should Holder elect to extend the term of 'the
Loan as provided above, Holder shall (i) reset the interest rate borne by the
then-existing principal balance of the Loan to a rate per annum (the "New Rate")
equal to Holder's (or comparable lenders', if Holder is no longer making such
loans) then-prevailing interest rate for five (5) year loans secured by
properties similar to the Property (hereinafter defined), as determined by
Holder in its sole discretion; (ii) re-amortize the then-existing principal
balance of the Loan over the remaining portion of the Amortization Period (the
"New Amortization Period"); (iii) have the right to require Maker to enter into
modifications of the non-economic terms of the Loan Documents as Holder may
request (the "Non-Economic Modifications"); and (iv) notwithstanding any
provision set forth in the Loan Documents to the contrary, have the right to
require Maker to make monthly payments into escrow for insurance premiums and
real property taxes, assessments and similar governmental charges. Hence,
monthly principal and interest payments during the Extension Term shall be based
upon the New Rate, and calculated to amortize fully the outstanding principal
balance of the Loan over the New Amortization Period.
(c) If Holder elects to extend the term of the Loan,
Holder shall advise Maker of the New Rate on or prior to the Original Maturity
Date.
(d) In addition to the required monthly payments of
principal and interest set forth above, commencing on the first day of the
second month following the Original Maturity Date and continuing on the first
day of each month thereafter during the Extension Term (each an "Additional
Payment Date"), Maker shall make monthly payments to Holder in an amount equal
to all Net Operating Income (hereinafter defined) attributable to the Property
for the calendar month ending on the last day of the month that is two months
preceding each such Additional Payment Date. For example, assuming the Original
Maturity Date is January 1, then Net Operating Income for the period from
January I through January '31 shall be payable to Holder on March 1; Net
Operating Income for the period from February I through February 28 shall be
payable to Holder on April 1, and so on.
(e) Holder shall deposit all such Net Operating
Income received from Maker into an account or accounts maintained at a financial
institution chosen by Holder or its servicer in its sole discretion (the
"Deposit Account") and all such funds shall be invested in a manner acceptable
to Holder in its sole discretion. All interest, dividends and earnings credited
to the Deposit Account shall be held and applied in accordance with the terms
hereof.
(f) On the third Additional Payment Date and on each
third Additional Payment Date thereafter, Holder shall apply all Excess Funds
(hereinafter defined), if any, to prepayment of amounts due under this Note,
without premium or penalty.
(g) As security for the repayment of the Loan and the
performance of all other obligations of Maker under the Loan Documents, Maker
hereby assigns, pledges, conveys, delivers, transfers and grants to Holder a
first priority security interest in and to: all Maker's right, title and
interest in and to the Deposit Account; all rights to payment from the Deposit
Account and the money deposited therein or credited thereto (whether then due or
in the future due and whether then or in the future on deposit); all interest
thereon; any certificates, instruments and securities, if any, representing the
Deposit Account; all claims, demands, general intangibles, chooses in action and
other rights or interests of Maker in respect of the Deposit Account; any monies
then or at any time thereafter deposited therein; any increases, renewals,
extensions, substitutions and replacements thereof-, and all proceeds of the
foregoing.
(h) From time to time, but not more frequently than
monthly, Maker may request a disbursement (a "Disbursement") from the Deposit
Account for capital expenses, tenant improvement expenses, leasing commissions
and special contingency expenses. Holder may consent to or deny any such
Disbursement in its sole discretion.
(i) Upon the occurrence of any Event of Default
(hereinafter defined) (i) Maker shall not be entitled to any further
Disbursement from the Deposit Account; and (ii) Holder shall be entitled to take
immediate possession and control of the Deposit Account (and all funds contained
therein) and to pursue all of its rights and remedies available to Holder under
the Loan Documents, at law and in equity.
(j) All of the terms and conditions of the Loan shall
apply during the Extension Term, except as expressly set forth above, and except
that no further extensions of the Loan shall be permitted.
(k) For the purposes of the foregoing:
(i) "Excess Funds" shall mean, on any Additional Payment Date,
the amount of funds then existing in the Deposit Account (including any Net
Operating Income due on the applicable Additional Payment Date), less an amount
equal to the sum of three regularly scheduled payments of principal and interest
due on this Note;
(ii) "Net Operating, Income" shall mean, for any particular
period of time, Gross Revenue for the relevant period, less Operating Expenses
for the relevant period; provided, however, that if such amount is equal to or
less than zero (0), Net Operating Income shall equal zero (0);
(iii) "Gross Revenue" shall mean all payments and other
revenues (exclusive, however, of any payments attributable to sales taxes)
received by or on behalf of Maker from all sources related to the ownership or
operation of the Property, including, but not limited to, rents, room charges,
parking fees, interest, security deposits (unless required to be held in a
segregated account), business interruption insurance proceeds, operating expense
passthrough revenues and common area maintenance charges, for the relevant
period for which the calculation of Gross Revenue is being made; and
(iv) "Operating Expenses" shall mean the sum of all ordinary
and necessary operating expenses actually paid by Maker in connection with the
operation of the Property during the relevant period for which the calculation
of Operating Expenses is being made, including, but not limited to, (a) payments
made by Maker for taxes and insurance required under the Loan Documents, and (b)
monthly debt service payments as required under this Note.
5. Budgets During Extension Term.
(a) Within fifteen (15) days following the Original
Maturity Date and on or before December I of each subsequent calendar year,
Maker shall deliver to Holder a proposed revenue and expense budget for the
Property for the remainder of the calendar year in which the Original Maturity
Date occurs or the immediately succeeding calendar year (as applicable). Such
budget shall set forth Maker's projection of Gross Revenue and Operating
Expenses for the applicable calendar year, which shall be subject to Holder's
reasonable approval. Once a proposed budget has been reviewed and approved by
Holder, and Maker has made all revisions requested by Holder, if any, the
revised budget shall be delivered to Holder and shall thereafter become the
budget for the Property hereunder (the "Budget") for the applicable calendar
year. If Maker and Holder are unable to agree upon a Budget for any calendar
year, the budgeted Operating Expenses (excluding extraordinary items) provided
in the Budget for the Property for the preceding calendar year shall be
considered the Budget for the Property for the subject calendar year until Maker
and Holder agree upon a new Budget for such calendar year-
(b) During the Extension Term, Maker shall operate
the Property in accordance with the Budget for the applicable calendar year, and
the total of expenditures relating to the Property exceeding one hundred and
five percent (105%) of the aggregate of such expenses set forth in the Budget
for the applicable time period shall not be treated as Operating Expenses for
the purposes of calculating "Net Operating Income," without the prior written
consent of Holder except for emergency expenditures which, in the Maker's good
faith judgment, are reasonably necessary to protect, or avoid immediate danger
to, life or property.
6. Reports During Extension Term.
(a) During the Extension Term, Maker shall deliver to
Holder all financial statements reasonably required by Holder to calculate Net
Operating Income, including, without limitation, a monthly statement to be
delivered to Holder concurrently with Maker's payment of Net Operating Income
that sets forth the amount of Net Operating Income accompanying such statement
and Maker's calculation of Net Operating Income for the relevant calendar month.
Such statements shall be certified by an executive officer of Maker or Maker's
manager, managing member or general partner (as applicable) as having been
prepared in accordance with the terms hereof and to be true, accurate and
complete in all material respects.
(b) In addition, on or before February 1 of each
calendar year during the Extension Term, Maker shall submit to Holder an annual
income and expense statement for the Property which shall include the
calculation of Gross Revenue, Operating Expenses and Net Operating Income for
the preceding calendar year and shall be accompanied by Maker's reconciliation
of any difference between the actual aggregate amount of the Net Operating
Income for such calendar year and the aggregate amount of Net Operating Income
for such calendar year actually remitted to Holder. All such statements shall be
certified by an executive officer of Maker or Maker's manager, managing member
or general partner (as applicable) as having been prepared in accordance with
the terms hereof and to be true, accurate and complete in all material respects.
If any such annual financial statement discloses any inconsistency between the
calculation of Net Operating Income and the amount of Net Operating Income
actually remitted to Holder, Maker shall immediately remit to Holder the amount
of any underpayment of Net Operating Income for such calendar year or, in the
event of an overpayment by Maker, such amount may be withheld from any
subsequent payment of Net Operating Income required hereunder.
(c) Holder may notify Maker within ninety (90) days
after receipt of any statement or report required hereunder that Holder disputes
any computation or item contained in any portion of such statement or report. If
Holder so notifies Maker. Holder and Maker shall meet in good faith within
twenty (20) days after Holder's notice to Maker to resolve such disputed items.
If, despite such good faith efforts, the parties are unable to resolve the
dispute at such meeting or within ten (10) days thereafter, the items shall be
resolved by an independent certified public accountant designated by Holder
within fifteen (I 5) days after such ten (10) day period. The determination of
such accountant shall be final. All fees of such accountant shall be paid by
Maker. Maker shall remit to Holder any additional amount of Net Operating Income
found to be due for such periods within ten (10) days after the resolution of
such dispute by the parties or the accountant's determination, as applicable.
The amount of any overpayment found to have been made for such periods may be
withheld from any required future remittance of Net Operating Income.
(d) Maker shall at all times keep and maintain full
and accurate books of account and records adequate to reflect correctly all
items required in order to calculate Net Operating Income.
7. Prepayment.
(a) During the first (1st) year after the date of
this Note, Maker shall have no right to prepay all or any part of this Note.
(b) At any time after the first (1st) anniversary of
the date of this Note, Maker shall have the right to prepay the principal amount
of this Note, in whole or in part, and all accrued but unpaid interest hereon as
of the date of prepayment, provided that (i) Maker gives not less than thirty
(30) days' prior written notice to Holder of Maker's election to prepay this
Note, and (ii) Maker pays a prepayment premium to Holder equal to one-half
percent (1/2%) of the principal amount of this Note being prepaid, calculated as
of the prepayment date.
(c) Holder shall notify Maker of the amount and basis
of determination of the prepayment premium. Holder shall not be obligated to
accept any prepayment of the principal balance of this Note unless such
prepayment is accompanied by the applicable prepayment premium and all accrued
interest and other sums due under this Note.
(d) If Holder accelerates this Note for any reason,
then in addition to Maker's obligation to pay the then outstanding principal
balance of this Note and all accrued but unpaid interest thereon, Maker shall
pay an additional amount equal to the prepayment premium that would be due to
Holder if Maker were voluntarily prepaying this Note at the time that such
acceleration occurred, or if under the terms hereof no voluntary prepayment
would be permissible on the date of such acceleration, Maker shall pay a
prepayment premium calculated as set forth in the Mortgage
(e) Notwithstanding the foregoing, (i) at any time
during the Extension Term, Maker shall have the right to prepay the full
principal amount of this Note and all accrued but unpaid interest thereon as of
the date of prepayment, without prepayment premium thereon, and (ii) no
prepayment premium shall be due in connection with the application of any
insurance proceeds or condemnation awards to the principal balance of this Note,
as provided in the Mortgage.
8. Dates of Payments. Whenever any payment to be made under
this Note shall be stated to be due on a Saturday, Sunday or public holiday or
the equivalent for banks generally under the laws of the State of Indiana (any
other day being a "Business Day"), such payment may be made on the next
succeeding Business Day.
9. Default Rate.
(a) The entire balance of principal, interest, and
other sums due upon the maturity hereof, by acceleration or otherwise, shall
bear interest from the date due until paid at the greater of (i) fifteen percent
(I 5 %) per annum and (ii) a per annum rate equal to five percent (5%) over the
prime rate (for corporate loans at large United States money center commercial
banks) published in The Wall Street Journal on the first business day of each
month (the "Default Rate"); provided, however, that such rate shall not exceed
the maximum permitted by applicable state or federal law. In the event The Wall
Street Journal is no longer published or no longer publishes such prime rate,
Holder shall select a comparable reference.
(b) If any payment under this Note is not made within
five days of the date when due, interest shall accrue at the Default Rate from
the date such payment was due until payment is actually made.
10. Late Charges. In addition to interest as set forth herein,
Maker shall pay to Holder a late charge equal to four percent (4%) of any
amounts due under this Note in the event any such amount is not paid when due.
11. Application of Payments. All payments hereunder shall be
applied first to the payment of late charges, if any, then to the payment of
prepayment premiums, if any, then to the repayment of any sums advanced by
Holder for the payment of any insurance premiums, taxes, assessments, or other
charges against the property securing this Note (together with interest thereon
at the Default Rate from the date of advance until repaid), then to the payment
of accrued and unpaid interest, and then to the reduction of principal.
12. Immediately Available Funds. Payments under this Note
shall be payable in immediately available funds without setoff, counterclaim or
deduction of any kind, and shall be made by electronic funds transfer from a
bank account established and maintained by Maker for such purpose.
13. Security. This Note is secured by a Mortgage, Security
Agreement, Fixture Filing, Financing Statement and Assignment of Leases and
Rents of even date herewith granted by Maker for the benefit of the named Holder
hereof (the "Mortgage") encumbering certain real property and improvements
thereon commonly known as Merrillville Plaza as more particularly described in
such Mortgage (the "Property").
14. Certain Definitions. Capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Mortgage.
15. Event of Default. Each of the following events will
constitute an event of default (an "Event of Default") under this Note and under
the Mortgage and each other Loan Document, and any Event of Default under any
Loan Document shall constitute an Event of Default hereunder and under each of
the other Loan Documents:
(a) any failure to pay within five days of the date when due
any sum hereunder;
(b) any failure of Maker to properly perform any obligation
contained herein or in any of the other Loan Documents (other than the
obligation to make payments under this Note or the other Loan Documents) and the
continuance of such failure for a period of thirty (30) days following written
notice thereof from Holder to Maker; provided, however, that if such failure is
not curable within such thirty (30) day period, then, so long as Maker commences
to cure such failure within such thirty (30) day period and is continually and
diligently attempting to cure to completion, such failure shall not be an Event
of Default unless such failure remains uncured for sixty (60) days after such
written notice to Maker; or
(c) if, at any time during the Extension Term, Gross Revenue
for any calendar month shall be less than ninety-three percent (93%) of the
amount of projected Gross Revenue for such month set forth in the applicable
Budget.
16. Acceleration. Upon the occurrence of any Event of Default,
the entire balance of principal, accrued interest, and other sums owing
hereunder shall, at the option of Holder, become at once due and payable without
notice or demand. Upon the occurrence of an Event of Default described in
Section 15(c) hereof, Holder shall have the option, in its sole discretion, to
either (a) exercise any remedies available to it under the Loan Documents, at
law or in equity, or (b) require Maker to submit a new proposed budget for
Holder's approval. If Holder agrees to accept such new proposed budget, then
such budget shall become the Budget for all purposes hereunder.
17. Conditions Precedent. Maker hereby certifies and declares
that all acts, conditions and things required to be done and performed and to
have happened precedent to the creation and issuance of this Note, and to
constitute this Note the legal, valid and binding obligation of Maker,
enforceable in accordance with the terms hereof, have been done and performed
and happened in due and strict compliance with all applicable laws.
18. Certain Waivers and Consents. Maker and all parties now or
hereafter liable for the payment hereof, primarily or secondarily, directly or
indirectly, and whether as endorser, guarantor, surety, or otherwise, hereby
severally (a) waive presentment, demand, protest, notice of protest and/or
dishonor, and all other demands or notices of any sort whatever with respect to
this Note, (b) consent to impairment or release of collateral, extensions of
time for payment, and acceptance of partial payments before, at, or after
maturity, (c) waive any right to require Holder to proceed against any security
for this Note before proceeding hereunder, (d) waive diligence in the collection
of this Note or in filing suit on this Note, (e) waive relief from applicable
valuation and appraisement laws; and (f) agree to pay all costs and expenses,
including reasonable attorneys' fees, which may be incurred in the collection of
this Note or any part thereof or in preserving, securing possession of, and
realizing upon any security for this Note.
19. Usury Savings Clause. The provisions of this Note and of
all agreements between Maker and Holder are, whether now existing or hereinafter
made, hereby expressly limited so that in no contingency or event whatever,
whether by reason of acceleration of the maturity hereof, prepayment, demand for
payment or otherwise, shall the amount paid, or agreed to be paid, to Holder for
the use, forbearance, or detention of the principal hereof or interest hereon,
which remains unpaid from time to time, exceed the maximum amount permissible
under applicable law, it particularly being the intention of the parties hereto
to conform strictly to Indiana and Federal law, whichever is applicable. If from
any circumstance whatever, the performance or fulfillment of any provision
hereof or of any other agreement between Maker and Holder shall, at the time
performance or fulfillment of such provision is due, involve or purport to
require any payment in excess of the limits prescribed by law, then the
obligation to be performed or fulfilled is hereby reduced to the limit of such
validity, and if from any circumstance whatever Holder should ever receive as
interest an amount which would exceed the highest lawful rate, the amount which
would be excessive interest shall be applied to the reduction of the principal
balance owing hereunder (or, at Holder's option, be paid over to Maker) and
shall not be counted as interest. To the extent permitted by applicable law,
determination of the legal maximum amount of interest shall at all times be made
by amortizing, prorating, allocating and spreading in equal parts during the
period of the full stated term of this Note, all interest at any time contracted
for, charged, or received from Maker in connection with this Note and all other
agreements between Maker and Holder, so that the actual rate of interest on
account of the indebtedness represented by this Note is uniform throughout the
term hereof.
20. Non-Recourse-, Exceptions to Non-Recourse. Except as
expressly hereinafter set forth, the recourse of Holder with respect to the
obligations evidenced by this Note shall be solely to the Property, Chattels,
and Intangible Personalty (as such terms are defined in the Mortgage).
Notwithstanding anything to the contrary contained in this Note or in any Loan
Document, nothing shall be deemed in any way to impair, limit or prejudice the
rights of Holder (a) in foreclosure proceedings or in any ancillary proceedings
brought to facilitate Holder's foreclosure on the Property or any portion
thereof, (b) to recover from Maker damages or costs (including without
limitation reasonable attorneys' fees) incurred by Holder as a result of waste
by Maker; (c) to recover from Maker any condemnation or insurance proceeds
attributable to the Property which were not paid to Holder or used to restore
the Property in accordance with the terms of the Mortgage; (d) to recover from
Maker any rents, profits, security deposits, advances, rebates, prepaid rents or
other similar sums attributable to the Property collected by or for Maker
following an Event of Default under any Loan Document and not properly applied
to the reasonable fixed and operating expenses of the Property, including
payments of this Note; (e) to pursue the personal liability of Maker under the
provisions of Section 5.10 of the Mortgage, including any indemnification
provisions under such Section; (f) to exercise any specific rights or remedies
afforded Holder under any other provisions of the Loan Documents or by law or in
equity (or to recover under any guarantee agreement given in connection with
this Note); (g) to recover from Maker the amount of any accrued taxes,
assessments, and/or utility charges affecting the Property (whether or not the
same have been billed to Maker) that are either unpaid by Maker or paid by
Holder under the Mortgage and to collect from Maker any sums expended by Holder
in fulfilling the obligations of Maker, as lessor, under any leases affecting
the Property; (h) to pursue any personal liability of Maker and/or Guarantor
under the Environmental Indemnity Agreement; and (i) to recover from Maker the
amount of any loss suffered by Holder (that would otherwise be covered by
insurance) as a result of Maker's failure to maintain any insurance required
under the terms of any Loan Document. The agreement contained in this paragraph
to limit the personal liability of Maker shall become null and void and be of no
further force and effect in the event (i) that the Property or any part thereof
or any interest therein, or any interest in Maker, shall be further encumbered
by a voluntary lien securing any obligation upon which Maker or any general
partner, principal or affiliate of Maker shall be personally liable for
repayment, whether as obligor or guarantor;
(ii) of any breach or violation of Section 5.4, 5.5 or 5.7 of
the Mortgage; (iii) of any fraud or misrepresentation by Maker in connection
with the Property, the Loan Documents or the application made by Maker for the
Loan; or (iv) of any execution, amendment, modification or termination of any
lease of any portion of the Property without the prior written consent of Holder
if such consent is required under the terms of the Loan Documents. For purposes
of the foregoing, "affiliate" shall mean any individual, corporation, trust,
partnership or any other person or entity controlled by, controlling or under
common control with Maker. A person or entity of any nature shall be presumed to
have control when it possesses the power, directly or indirectly, to direct, or
cause the direction of, the management or policies of another person or entity,
whether through ownership of voting securities, by contract, or otherwise.
21. Severability. If any provision hereof or of any other
document securing or related to the indebtedness evidenced hereby is, for any
reason and to any extent, invalid or unenforceable, then neither the remainder
of the document in which such provision is contained, nor the application of the
provision to other persons, entities, or circumstances, nor any other document
referred to herein, shall be affected thereby, but instead shall be enforceable
to the maximum extent permitted by law.
22. Transfer of Note. Each provision of this Note shall be and
remain in full force and effect notwithstanding any negotiation or transfer
hereof and any interest herein to any other Holder or participant.
23. Governing Law. Regardless of the place of its execution,
this Note shall be construed and enforced in accordance with the laws of the
State of Indiana.
24. Time of Essence. Time is of the essence of this Note.
25. Remedies Cumulative. The remedies provided to Holder in
this Note, the Mortgage and the other Loan Documents are cumulative and
concurrent and may be exercised singly, successively or together against Maker,
the Property, and other security, or any guarantor of this Note, at the sole and
absolute discretion of the Holder.
26. No Waiver. Holder shall not by any act or omission be
deemed to waive any of its rights or remedies hereunder unless such waiver is in
writing and signed by the Holder and then only to the extent specifically set
forth therein. A waiver ' of 6ne event shall not be construed as continuing or
as a bar to or waiver of any right or remedy granted to Holder hereunder in
connection with a subsequent event.
27. Joint and Several Obligation. If Maker is more than one
person or entity, then (a) all persons or entities comprising Maker are 'jointly
and severally liable for all of the Maker's obligations hereunder; (b) all
representations, warranties, and covenants made by Maker shall be deemed
representations, warranties, and covenants of each of the persons or entities
comprising Maker; (c) any breach, Default or Event of Default by any of the
persons or entities comprising Maker hereunder shall be deemed to be a breach,
Default, or Event of Default of Maker; and (d) any reference herein contained to
the knowledge or awareness of Maker shall mean the knowledge or awareness of any
of the persons or entities comprising Maker.
28. WAIVER OF JURY TRIAL. MAKER AND HOLDER KNOWINGLY,
IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED ON THIS
NOTE, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE MORTGAGE, OR
ANY OTHER LOAN DOCUMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO OR TO ANY LOAN
DOCUMENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR MAKER AND HOLDER TO ENTER
INTO THE LOAN TRANSACTION EVIDENCED BY THIS NOTE.
29. WAIVER OF PREPAYMENT RIGHT WITHOUT PREMIUM MAKER HEREBY
EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE UNDER APPLICABLE LAW TO PREPAY THIS NOTE,
IN WHOLE OR IN PART, WITHOUT PREPAYMENT PREMIUM, UPON ACCELERATION OF THE
MATUMTY DATE OF THIS NOTE, AND AGREES THAT, IF FOR ANY REASON A PREPAYMENT OF
ALL OR ANY PART OF THIS NOTE IS MADE, WHETHER VOLUNTARILY OR FOLLOWING ANY
ACCELERATION OF THE MATURITY DATE OF THIS NOTE BY HOLDER ON ACCOUNT OF THE
OCCURRENCE OF ANY EVENT OF DEFAULT ARISING FOR ANY REASON, INCLUDING, WITHOUT
LIMITATION, AS A RESULT OF ANY PROHIBITED OR RESTRICTED TRANSFER, FURTHER
ENCUMBRANCE OR DISPOSITION OF THE PROPERTY OR ANY PART THEREOF SECURING THIS
NOTE, THEN MAKER SHALL BE OBLIGATED TO PAY, CONCURRENTLY WITH SUCH PREPAYMENT,
THE PREPAYMENT PREMIUM PROVIDED FOR IN THIS NOTE OR, IN THE EVENT OF PREPAYMENT
FOLLOWING ACCELERATION OF THE MATURITY DATE HEREOF WHEN THIS NOTE IS CLOSED TO
PREPAYMENT, AS PROVIDED IN THE MORTGAGE. MAKER HEREBY DECLARES THAT HOLDER'S
AGREEMENT TO MAKE THE LOAN AT THE INTEREST RATE AND FOR THE TERM SET FORTH IN
THIS NOTE CONSTITUTES ADEQUATE CONSIDEPATION, GIVEN INDIVIDUAL WEIGHT BY MAKER,
FOR THIS WAIVER AND AGREEMENT.
IN WITNESS WHEREOF and intending to be legally bound, Maker
has duly executed this Note as of the date first above written.
ACADIA MERRILLVILLE REALTY, L.P.,
an Indiana limited partnership
By: ACADIA MERRILLVILLE REALTY, INC., an Indiana corporation, its sole General
Partner
By: _______________________
Kenneth F. Bernstein
President