Exhibit 10.322
Loan No. 10024998
AMENDED AND RESTATED PROMISSORY NOTE
$20,625,000.00 August 17, 2004
FOR VALUE RECEIVED, INLAND WESTERN TALLAHASSEE GOVERNOR'S ONE, L.L.C., a
Delaware limited liability company, having its principal place of business at
0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000, as maker hereunder (referred
to herein as "BORROWER"), hereby unconditionally promises to pay to the order of
KEYBANK NATIONAL ASSOCIATION, a national banking association, its successors and
assigns, having an address at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx
00000 ("LENDER"), or at such other place as the holder hereof may from time to
time designate in writing, the principal sum of TWENTY MILLION SIX HUNDRED
TWENTY-FIVE THOUSAND AND NO/100 DOLLARS ($20,625,000.00), in lawful money of the
United States of America with interest thereon to be computed from the date of
this Note at the Interest Rate, and to be paid in accordance with the terms of
this Note and that certain Loan Agreement, dated as of the date hereof, between
Borrower and Lender (the "LOAN AGREEMENT"). All capitalized terms not defined
herein shall have the respective meanings set forth in the Loan Agreement.
ARTICLE 1
PAYMENT TERMS
Xxxxxxxx agrees to pay interest on the unpaid principal sum of this Note
from time to time outstanding at the rates and at the times specified in the
Loan Agreement and the outstanding balance of the principal sum of this Note and
all accrued and unpaid interest thereon shall be due and payable on the Maturity
Date. This Note shall be the "Note" as defined in the Loan Agreement.
ARTICLE 2
DEFAULT AND ACCELERATION
The Debt shall without notice become immediately due and payable at the
option of Lender if any payment required in this Note is not paid on or prior to
the date when due or if not paid on the Maturity Date or on the happening of any
other Event of Default.
ARTICLE 3
LOAN DOCUMENTS
This Note is secured by the Mortgage and the other Loan Documents. All of
the terms, covenants and conditions contained in the Loan Agreement, the
Mortgage and the other Loan Documents are hereby made part of this Note to the
same extent and with the same force as if they were fully set forth herein. In
the event of a conflict or inconsistency between the terms of this Note and the
Loan Agreement, the terms and provisions of the Loan Agreement shall govern.
ARTICLE 4
SAVINGS CLAUSE
Notwithstanding anything to the contrary, (a) all agreements and
communications between Borrower and Lender are hereby and shall automatically be
limited so that, after taking into account all amounts deemed interest, the
interest contracted for, charged or received by Lender shall never exceed the
maximum lawful rate or amount, (b) in calculating whether any interest exceeds
the lawful maximum, all such interest shall be amortized, prorated, allocated
and spread over the full amount and term of all principal indebtedness of
Borrower to Lender, and (c) if through any contingency or event, Lender receives
or is deemed to receive interest in excess of the lawful maximum, any such
excess shall be deemed to have been applied toward payment of the principal of
any and all then outstanding indebtedness of Borrower to Lender, or if there is
no such indebtedness, shall immediately be returned to Borrower.
ARTICLE 5
NO ORAL CHANGE
This Note may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
Borrower or Lender, but only by an agreement in writing signed by the party
against whom enforcement of any modification, amendment, waiver, extension,
change, discharge or termination is sought.
ARTICLE 6
WAIVERS
Borrower and all others who may become liable for the payment of all or any
part of the Debt do hereby severally waive presentment and demand for payment,
notice of dishonor, notice of intention to accelerate, notice of acceleration,
protest and notice of protest and non-payment and all other notices of any kind.
No release of any security for the Debt or extension of time for payment of this
Note or any installment hereof, and no alteration, amendment or waiver of any
provision of this Note, the Loan Agreement or the other Loan Documents made by
agreement between Lender or any other Person shall release, modify, amend,
waive, extend, change, discharge, terminate or affect the liability of Borrower,
and any other Person who may become liable for the payment of all or any part of
the Debt, under this Note, the Loan Agreement or the other Loan Documents. No
notice to or demand on Borrower shall be deemed to be a waiver of the obligation
of Borrower or of the right of Lender to take further action without further
notice or demand as provided for in this Note, the Loan Agreement or the other
Loan Documents. If Borrower is a partnership, the agreements herein contained
shall remain in force and applicable, notwithstanding any changes in the
individuals comprising the partnership, and the term "Borrower," as used herein,
shall include any alternate or successor partnership, but any predecessor
partnership and their partners shall not thereby be released from any liability.
If Borrower is a limited liability company, the agreements herein contained
shall remain in force and applicable, notwithstanding any changes in the members
comprising the company, and the term "Borrower," as used herein, shall include
any alternate or successor company, but any predecessor company and its members
shall not thereby be released from any liability. If Borrower is a corporation,
the agreements contained herein shall remain in full force and applicable
notwithstanding any changes in the shareholders comprising, or the officers and
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directors relating to, the corporation, and the term "Borrower" as used herein,
shall include any alternative or successor corporation, but any predecessor
corporation shall not be relieved of liability hereunder. (Nothing in the
foregoing sentence shall be construed as a consent to, or a waiver of, any
prohibition or restriction on transfers of interests in such entity which may be
set forth in the Loan Agreement, the Mortgage or any other Loan Document.)
ARTICLE 7
TRANSFER
Upon the transfer of this Note, Borrower hereby waiving notice of any such
transfer except as provided in the Loan Agreement, Lender may deliver all the
collateral mortgaged, granted, pledged or assigned pursuant to the Loan
Documents, or any part thereof, to the transferee who shall thereupon become
vested with all the rights herein or under applicable law given to Lender with
respect thereto, and Lender shall from that date forward forever be relieved and
fully discharged from any liability or responsibility in the matter; but Lender
shall retain all rights hereby given to it with respect to any liabilities and
the collateral not so transferred.
ARTICLE 8
EXCULPATION
The provisions of Section 9.4 of the Loan Agreement are hereby incorporated
by reference into this Note to the same extent and with the same force as if
fully set forth herein.
ARTICLE 9
GOVERNING LAW
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT ENTERED INTO PURSUANT TO THE
LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND SHALL IN ALL RESPECTS BE
GOVERNED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH
THE PROPERTY IS LOCATED AND APPLICABLE FEDERAL LAWS.
ARTICLE 10
NOTICES
All notices or other written communications hereunder shall be delivered in
accordance with Section 10.6 of the Loan Agreement.
ARTICLE 11
AMENDMENT AND RESTATEMENT
This Note is a consolidation, renewal, amendment and restatement of that
certain Promissory Note, dated October 28, 2003, from Borrower, as successor by
merger to Kimco Governors Marketplace Ltd., in favor of Wachovia Bank, National
Association in the principal sum of $21,500,000.00 (the "EXISTING NOTE") which
Existing Note has been endorsed to the
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order of Lender and is attached hereto. The current outstanding principal blance
of the Existing Note is $21,500,000.00. All required documentary stamp tax and
intangible tax in connection with the foregoing note was paid upon the
recordation of that certain Leasehold Mortgage, Assignment of Rents and Security
Agreement, dated October 28, 2003, from Borrower, as successor by merger to
Kimco Governors Marketplace Ltd., to Wachovia Bank, National Association,
recorded in Official Records Book 2980, Page 1768 of the Official Records of
Xxxx County, Florida, which mortgage has been assigned to Lender pursuant to
that certain Assignment of Note and Mortgage of approximately even date
herewith. Accordingly, no additional documentary stamp tax pursuant to Chapter
201, Florida Statutes, or intangible tax pursuant to Chapter 199, Florida
Statutes, are due in connection with this Note.
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IN WITNESS WHEREOF, Xxxxxxxx has duly executed this Note as of the day and
year first above written,
BORROWER:
INLAND WESTERN TALLAHASSEE
GOVERNOR'S ONE, L.L.C., a Delaware limited
liability company
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, its sole
member
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Asst. Secretary
Pay to the order of ___________________________, without recourse.
KEYBANK NATIONAL ASSOCIATION, a
national banking association
By:
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Print Name:
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Print Title:
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STATE OF ILLINOIS
COUNTY OF COOK
On this 13th day of August, 2004, before me, XXXXXX X. XXXXX a Notary
Public in and for said state, personally appeared _____________, who being by me
duly sworn did say that he/she is the ASST. SEC of Inland Western Retail Real
Estate Trust, Inc., a Maryland corporation, the sole member of Inland Western
Tallahassee Governor's One, L,L.C., a Delaware limited liability company, and
that the within instrument was signed and sealed in behalf of said corporation
in behalf of said limited liability company by authority of its board of
directors, and acknowledged said instrument to be the free act and deed of said
corporation in behalf of said limited liability company for the purposes therein
stated.
OFFICIAL SEAL
XXXXXX X. XXXXX
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 6-13-2007
[Notarial Seal] /s/ Xxxxxx X. Xxxxx
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Print Name: XXXXXX X. XXXXX
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My commission expires: 6-13-07
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