Exhibit 10.376
AMENDED AND RESTATED PROMISSORY NOTE
$71,500,000.00 New York, New York
September 8, 2004
AS OF THE DATE HEREOF, AND FOR VALID CONSIDERATION, BEAR ▇▇▇▇▇▇▇ COMMERCIAL
MORTGAGE, INC., a New York corporation, as payee, having an address at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Lender") has accepted an assignment
of the promissory notes listed on Schedule A attached hereto (the "Assigned
Notes"), on which there is an outstanding principal balance of $50,464,214.99,
and Lender has advanced to CAPITAL CENTRE FUNDING LLC, a Maryland limited
liability company, having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, a maker hereunder (the "Borrower") additional
loan proceeds in the amount of $21,035,785.01 (the "New Proceeds"). Borrower
represents that the Assigned Notes are valid and outstanding obligations of
Borrower. Borrower and ▇▇▇▇▇▇ hereby agree that this Note shall evidence both
the outstanding balance of the Assigned Notes and the New Proceeds, and that the
combined debt shall be consolidated, amended and restated pursuant to the terms
set forth herein.
FOR VALUE RECEIVED, Borrower hereby unconditionally promises to pay to the
order of Lender at the address listed above, or at such other place as the
holder hereof may from time to time designate in writing, the principal sum of
SEVENTY ONE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($71,500,000.00),
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, among Borrower, Capital Centre LLC, a Maryland limited
liability company ("GRANTOR") 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
▇▇▇▇▇▇▇▇ 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.
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.
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ARTICLE 3
LOAN DOCUMENTS
This Note is guarantied by that certain ▇▇▇▇▇▇▇ and Restated Limited
Guaranty Agreement, dated as of the date hereof, from Grantor in favor of
▇▇▇▇▇▇. All of the terms, covenants and conditions contained in the Loan
Agreement, 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
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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
corporation, the agreements contained herein shall remain in full force and
applicable notwithstanding any changes in the shareholders comprising, or the
officers and 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 partnership
which may be set forth in the Loan Agreement 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.
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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
COMMERCIAL LOAN
Borrower stipulates and warrants that the loan evidenced by this Note is a
commercial loan, as such term is used in Title 12 of the Commercial Law Article
of the Annotated Code of Maryland, and that all proceeds of such loan will be
used solely to acquire or carry on a business or commercial enterprise, as those
terms are used therein.
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IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ has duly executed this Note as of the day
and year first above written.
BORROWER:
CAPITAL CENTRE FUNDING LLC, a Maryland
limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Asst. Secretary
ACKNOWLEDGMENT
STATE OF Illinois )
)
COUNTY OF Cook )
I HEREBY CERTIFY, that on this 8th day of September, 2004, before me, the
undersigned Notary Public of said State, personally appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, who
acknowledged herself to be the Assistant Secretary of INLAND WESTERN RETAIL REAL
ESTATE TRUST, INC., a Maryland corporation, which is the sole member of Inland
Capital H.C. L.L.C., which is the sole manager of Capital Centre Holding LLC, a
Delaware limited liability company, which is the sole member of CAPITAL CENTRE
LLC, a Maryland limited liability company which is the sole member of Capital
Centre Funding LLC a Maryland limited liability company and acknowledged that
she executed the foregoing instrument for the purposes therein contained on
behalf of the corporation, acting as the sole member of the said limited
liability company, acting as the sole manager of Capital Centre Holding LLC,
acting as the sole member of CAPITAL CENTRE LLC, acting as the sole member of
Capital Centre Funding LLC
WITNESS my hand and Notarial Seal.
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
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Notary Public
My Commission Expires: 11-14-2004
[NOTARIAL SEAL]
"OFFICIAL SEAL"
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
NOTARY PUBLIC STATE OF ILLINOIS
My Commission Expires 11/14/2004
Schedule A
Assigned Notes
First Amended and Restated Promissory Note dated as of April 28, 2004 in the
original principal amount of $32,000,000.00 given by Capital Centre Funding, LLC
(the "Borrower") in favor of SouthTrust; and
First Amended and Restated Promissory Note dated as of April 28, 2004 in the
original principal amount of $32,000,000.00 given by Borrower in favor of
KeyBank,
