PROMISSORY NOTE
$66,000,000.00 December __, 1996
FOR VALUE RECEIVED, the undersigned, ST. CLAIR SQUARE
LIMITED PARTNERSHIP, an Illinois limited partnership, whose sole
general partner is St. Clair Square GP, Inc., an Illinois
corporation (hereinafter called "Maker"), promises to pay to the
order of XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national
banking association, (hereinafter, together with all subsequent
holders of this Note, called "Payee") on or before the ____ day
of December, 1999 (the "Maturity Date"), as hereinafter provided,
the principal sum of SIXTY-SIX MILLION AND NO/100 DOLLARS
($66,000,000.00), or so much thereof as may actually be advanced
from time to time, together with interest on the unpaid principal
balance from time to time outstanding at the rate per annum equal
to the "Base Rate" of interest as it fluctuates; provided,
however, subject to the limitations stated herein, the Maker may
elect in accordance with the procedures set forth below to have
interest accrue and be paid on all or a portion of the
outstanding principal balance hereof at a rate per annum equal to
the "Fixed Increment Rate" (as defined below).
DEFINED TERMS:
"AGENT": Payee in its capacity as Agent for the Banks (as
defined below) pursuant to an Intercreditor Agreement entered
into pursuant to the Loan Agreement (as defined below) and in its
capacity as agent for the Banks under the Security Documents (as
defined below), and shall be deemed to refer to Payee in its
individual capacity as a Bank where the context so requires.
"BANKS": As that term is defined in the Loan Agreement.
"BASE RATE": An interest rate per annum, fluctuating daily,
equal to the higher of (a) the rate announced by Payee from time
to time at its principal office in San Francisco, California as
its prime rate in effect on such day, or (b) the Federal Funds
Rate (as defined below) in effect on such day plus one-half
percent (0.5%)(i.e. 50 base points) per annum. Neither the Base
Rate nor the prime rate of Payee is necessarily intended to be
the lowest rate of interest charged by Payee in connection with
extensions of credit. Each change in the prime rate or the
Federal Funds Rate shall result in a corresponding change in the
Base Rate and such change shall be effective on the effective
date of such change in the prime rate or Federal Funds Rate.
"FEDERAL FUNDS RATE": On any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%)
equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the "Business Day" (as
defined below) next succeeding such day, provided that (a) if
such day is not a Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day,
and (ii) if no such rate is published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the
average rate quoted to Payee on such day of such transactions as
determined by Xxxxx.
"FIXED INCREMENT RATE": The "Fixed LIBO Rate" (as defined
below), plus one and one-half percent (1.50%) (i.e. 150 basis
points) per annum.
"FIXED LIBO RATE": With respect to any "Fixed Period" (as
defined below), the rate per annum which is equal to the quotient
of the average rate per annum (determined solely by Agent and
rounded upwards, if necessary, to the next higher 1/16 of 1%) at
which deposits in United States Dollars are offered to Payee by
brokers in the London interbank market as of 11:00 a.m. (London
time) two (2) Business Days prior to the first day of such Fixed
Period, in an amount equal to the "Fixed Increment" (as defined
below) so requested and for a period equal to such Fixed Period.
Each determination of the Fixed LIBO Rate by Agent shall, in
absence of manifest error, be conclusive and binding.
"RESERVE REQUIREMENT": The daily average during the Fixed
Period of the maximum aggregate reserve requirement (including
all basic, supplemental, marginal and other reserves and taking
into account any transitional adjustments or other schedule
changes in reserve requirements during the Fixed Period) which is
imposed under "Regulation D" (as defined below) against
"Eurocurrency liabilities" as defined in Regulation D. Each
determination by Agent of the Reserve Requirement shall, in the
absence of manifest error, be conclusive and binding.
"REGULATION D": Regulation D of the Board of Governors of
the Federal Reserve System from time to time in effect and shall
include any successor or other regulation relating to reserve
requirements applicable to member banks of the Federal Reserve
System.
"REGULATION K": Regulation K of the Board of Governors of
the Federal Reserve System from time to time in effect and shall
include any successor or other regulation relating to the
international and foreign activities of United States banking
organizations applicable to member banks of the Federal Reserve
System.
"LOAN": The loan advanced under this Note and evidenced
hereby and by the other Security Documents.
"EVENT OF DEFAULT": As that term is defined in the
"Mortgage" (as defined below).
"SECURITY DOCUMENTS": As that term is defined in the
Mortgage.
"FIXED INCREMENT": The portion of the outstanding principal
balance hereof specified by Maker to Agent effective as of the
applicable "Fixed Period Commencement Date" (as defined below);
provided, however, in no event shall any such Fixed Increment be
less than One Million and No/100 Dollars ($1,000,000.00).
"FIXED PERIOD": A period as designated by Maker which is
thirty (30), sixty (60), ninety (90), one hundred twenty (120),
one hundred eighty (180) or three hundred sixty (360) days,
commencing on the Fixed Period Commencement Date. Notwithstanding
the foregoing, in no event shall any Fixed Period extend beyond
the Maturity Date.
"FIXED PERIOD COMMENCEMENT DATE": The proposed commencement
of the applicable Fixed Period.
"BUSINESS DAY": (a) With respect to any advance, payment or
rate determination for a Fixed Increment, a day, other than a
Saturday or Sunday, on which Agent is open for business in San
Francisco and on which dealings in United States Dollars are
carried on in the London interbank market; and (b) for all other
purposes, any day of the week (but not a Saturday, Sunday or
holiday) on which the offices of Agent are open to the public for
carrying on substantially all of Agent's business functions.
Unless specifically referenced in this Note as a Business Day,
all references to "days" shall be to calendar days.
SELECTION OF FIXED INCREMENT RATE
If the Maker elects to have the Fixed Increment Rate apply,
it shall advise the Agent in writing of its election and the
Fixed Period and Fixed Increment for which the Maker desires said
rate to apply not later than 11:00 a.m., Pacific Standard Time or
Pacific Daylight Time (as applicable), three (3) Business Days
prior to the Fixed Period Commencement Date. Any such election
may be made only (i) once during any thirty (30) day period and
(ii) while no Event of Default is in existence and no event has
occurred which with notice and/or lapse of time would constitute
an Event of Default. After Maker has designated a Fixed Increment
to which the Fixed Increment Rate shall apply, such rate shall
apply to the Fixed Increment for the duration of the Fixed
Period. At any one time during the term hereof, no more than
three (3) Fixed Increments may be outstanding. If the Maker
elects the Fixed Increment Rate, but the applicable Fixed Period
will commence on a date which is not a Business Day, such Fixed
Period shall be deemed to commence on the next Business Day after
it would otherwise commence, and any interest which accrues
hereunder in the interim shall accrue at the Base Rate.
Notwithstanding anything contained herein to the contrary,
if the Maker elects the Fixed Increment Rate to apply but the
Payee is unable for any reason to obtain funds from Payee in the
amount of the Fixed Increment elected for the Fixed Period
elected, interest on such Fixed Increment shall accrue at the
Base Rate unless and until a new election of the Fixed Increment
Rate is made by Maker and the Payee is then able to obtain such
funds.
In the absence of an effective election by Maker of the
Fixed Increment Rate in accordance with the above procedures
prior to the expiration of the then current Fixed Period with
respect to any Fixed Increment, Payee shall be deemed to have
elected that such Fixed Increment thereafter bear interest at the
Fixed Increment Rate for a Fixed Period of thirty (30) days.
SPECIAL PROVISIONS APPLICABLE TO LIBO RATE PROVISIONS.
Notwithstanding any other provisions hereof:
A. CHANGE IN LAW: If, after the date hereof, the adoption
of any applicable law, rule or regulation, or any change therein,
or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or
compliance by Payee with any request or directive (whether or not
having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for Payee
to make, maintain or fund advances at the Fixed Increment Rate,
Payee shall forthwith give notice thereof to Agent and Maker.
Before giving any notice Payee shall designate a different LIBO
lending office if such designation will avoid the need for giving
such notice and will not be otherwise disadvantageous to Payee
(as determined in good faith by Xxxxx). Upon receipt of such
notice, Maker shall either (i) repay in full the then outstanding
principal amount of any Fixed Increment, together with accrued
interest thereon, or (ii) convert such Fixed Increments to the
Base Rate, either (a) on the last day of the then-current Fixed
Period applicable to such Fixed Increment if Payee may lawfully
continue to maintain and fund advances at the Fixed Increment
Rate to such day or (b) immediately if Payee may not lawfully
continue to fund and maintain advances at the Fixed Increment
Rate to such day.
B. INCREASED COSTS. If, after the date hereof, any
governmental authority, central bank or other comparable
authority, shall at any time impose, modify or deem applicable
any reserve (including, without limitation, the Reserve
Requirement and any other reserve imposed by the Board of
Governors of the Federal Reserve System), special deposit or
similar requirement against assets of, deposits with or for the
account of, or credit extended by, Payee, or shall impose on
Payee (or its eurodollar lending office) or the interbank
eurodollar market any other condition affecting Fixed Increments,
this Note, or Payee's obligation to permit Maker to elect to have
the Fixed Increment Rate apply to a Fixed Increment; and the
result of any of the foregoing is to increase the cost to Payee
of making or maintaining advances at the Fixed Increment Rate, or
to reduce the amount of any sum received or receivable by Payee
hereunder, by an amount deemed by Payee to be material, then,
within five (5) days after demand by Payee, Maker shall pay to
Agent, on behalf of Payee, such additional amount or amounts as
will compensate Payee for such increased cost or reduction.
Payee will use good faith and reasonable efforts to designate a
different LIBO lending office if such designation will avoid the
need for, or reduce the amount of, such compensation and will
not, in the sole opinion of Payee, be disadvantageous to Payee.
A certificate of Payee claiming compensation under this Paragraph
B and setting forth in reasonable detail the calculation of the
additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. If Payee demands
compensation under this Paragraph B, then Maker may at any time,
upon at least five (5) Business Days' prior notice to Agent and
Payee either (i) repay in full all then outstanding Fixed
Increments, together with accrued interest thereon on the date of
prepayment or (ii) convert such Fixed Increments to the Base
Rate; provided, however, that Maker shall be liable for any
"Consequential Loss" (as defined below) arising pursuant to such
actions, unless the requirement or condition giving rise to the
incurred costs is not generally applicable to lenders similar to
Payee, but rather is applicable solely to Payee.
C. PAYMENTS NOT AT END OF INTEREST PERIOD. If Maker makes
any payment of principal with respect to any Fixed Increment on
any day other than the last day of a Fixed Period applicable to
such Fixed Increment (other than any such payment required by
Paragraph A(ii)(b) above), then Maker shall reimburse Agent, on
behalf of Payee, on demand the Consequential Loss incurred by
Payee as a result of the timing of such payment. A certificate
of Payee setting forth in reasonable detail the basis for the
determination of the amount of Consequential Loss shall be
delivered to Agent and Maker by Payee and shall, in the absence
of manifest error, be conclusive and binding. Any conversion of
a Fixed Increment to the Base Rate on any day other than the last
day of the Fixed Period for such Fixed Increment shall be deemed
a payment for purposes of this Paragraph C.
D. EFFECT ON FIXED INCREMENTS. If notice has been given
pursuant to Paragraph A above requiring a Fixed Increment to be
repaid or converted, then unless and until Payee notifies Agent
and Maker that the circumstances giving rise to such repayment or
conversion no longer apply, Maker shall not have the right to
elect to have the Fixed Increment Rate apply. If Xxxxx notifies
Agent and Maker that the circumstances giving rise to such
repayment or conversion no longer apply, Maker may thereafter
elect to have the Fixed Increment Rate apply in accordance with
the terms of this Note.
E. NOTICE. Payee shall notify Agent and Maker of any
event occurring after the date hereof entitling Payee to
compensation under Paragraph B above within 45 days after Payee
obtains actual knowledge thereof; provided that if Payee fails to
give such notice to Maker within 45 days after it obtains actual
knowledge of such an event, Payee shall, with respect to
compensation payable pursuant to such Paragraph B in respect of
any costs resulting from such event, only be entitled to payment
under Paragraph B for costs incurred from and after the date 45
days prior to the date that Xxxxx gives such notice.
F. CONSEQUENTIAL LOSS. The term "Consequential Loss" shall
mean any loss, cost or expense incurred by Payee (or by Agent on
behalf of Payee) as a result of the payment or conversion of any
Fixed Increment on a day other than the last day of the Fixed
Period applicable thereto or in the redepositing, redeploying or
reinvesting the principal amount so paid or affected by the
timing of such conversion including the sum of (i) the interest
which, but for the payment or conversion Payee would have earned
in respect of such principal amount, reduced, if Payee is able to
redeposit, redeploy, or reinvest such principal amount by the
interest earned by Xxxxx as a result of so redepositing,
redeploying or reinvesting such principal amount, plus (ii) any
expense or penalty incurred by Payee on redepositing, redeploying
or reinvesting such principal amount.
GENERAL PROVISIONS:
The Maturity Date for full repayment of the Loan may be
extended by Maker for one period of two (2) years, upon the
written request of Maker given not less than ninety (90) days and
not more than one-hundred twenty (120) days prior to the Maturity
Date, such extension being subject to satisfaction of the
following:
(a) Payment at the Maturity Date by Maker of an
extension fee equal to one-fourth percent (1/4%) of the sum of
(i) the then-outstanding principal amount of this Note as of the
date of the extension, plus (ii) any additional portion of the
principal amount of this Note which Maker is entitled to request
or Payee is obligated to advance;
(b) Payment at the Maturity Date by Maker of any tax,
together with penalties and interest thereon (if any), due to
either St. Clair County or the State of Illinois in connection
with the Loan or any extension thereof;
(c) The delivery by Maker to Agent of an extension
agreement and such other documentation as Agent may reasonably
require in connection therewith, all of which shall be in form
and substance acceptable to Agent, but none of which shall impose
terms materially different than those set forth herein and in the
Security Documents;
(d) The delivery by Maker to Agent of written consent
to such extension from all guarantors of this Note and from the
owner of the Mortgaged Property (as defined in the Mortgage) if
such owner is a party other than Maker;
(e) At the time of such notice and extension, there
shall exist no uncured Event of Default hereunder or under any
other Security Documents;
(f) Maker shall deliver to Agent an opinion of counsel
in form and substance acceptable to Agent, stating that, inter
alia, the Security Documents create valid and binding obligations
of the Maker and all guarantors, and the transactions evidenced
thereby violate no provisions of applicable law;
(g) Maker shall deliver to Agent an endorsement to or
reissuance of the existing title insurance policy held by Payee
in connection with the Loan, stating that the coverage afforded
thereby, or the agreements thereunder, shall not be affected
because of such extension;
(h) On the date that any written request for extension
is given by Maker to Agent, and on the date that such extension
is to commence, the delivery by Maker to Agent of evidence
satisfactory to Agent that the following minimum leasing
requirements exist:
(i) the four anchor tenants (i.e. Sears, Xxxxxxx
& Co., Xxxxxxx Department Stores, Inc., Famous Xxxx and X.
X. Xxxxxx) are in possession of their space pursuant to
leases which are in full force and effect and are paying
rent; and
(ii) bona fide third party leases of eighty-five
percent (85%) of the rentable square footage of the
Improvements leased to mall shop tenants are in full force
and effect with tenants under said leases in possession of
their space and paying rent.
(i) An MAI appraisal of the Mortgaged Property and
Improvements (each as defined in the Mortgage) prepared by Agent
or any other party contracted by or acceptable to Agent within
sixty (60) days prior to the Maturity Date indicating a "Value"
(as that term is defined in the fourth sentence of Paragraph 6.5
of the Loan Agreement) of not less than the Value of the
Mortgaged Property and Improvements as determined by Agent and/or
Payee in approving the Loan, and indicating a then current loan
to value ratio of seventy-five percent (75%) or less;
(j) The delivery by Maker to Agent of all financial
information reasonably requested by Agent as provided for in the
Mortgage;
(k) Maker shall pay, at its sole cost and expense, all
costs incurred by Agent and/or Payee in connection with such
extension, including appraisal fees, and such other professional
services which Agent and/or Payee in good faith determines at the
time such extension is requested are necessary to satisfy any
Legal Requirement (as defined in the Mortgage) or to protect the
value of the Mortgaged Property and Improvements (including,
without limitation, inspection fees, survey and survey
recertification fees, reasonable legal fees and fees for
environmental studies and reports). Agent and/or Payee shall, at
Maker's request, give Maker a good faith estimate of the types of
professional services which will be required by Agent and/or
Payee, and the approximate costs thereof, in connection with a
contemplated extension request. The payment by Maker of these
costs and expenses shall not be credited, in any way or to any
extent, against any portion of the outstanding balance of this
Note; and
(l) The delivery of Maker to Agent of current
financial statements from all guarantors of this Note, in form
and substance reasonably acceptable to Payee.
Maker hereby agrees that neither Agent nor Xxxxx shall have
any commitment or obligation to extend the Maturity Date beyond
December __, 1999 unless Maker satisfies all of the conditions
for extension set forth in paragraphs (a) through (k) above.
Interest based on a 360-day year will be accrued on the
number of days funds are actually outstanding. Interest shall be
calculated on a daily basis and shall be payable monthly on the
first day of each and every month following the date hereof until
the Maturity Date, at which time all accrued and unpaid interest
and the unpaid principal balance hereof shall be due and payable
in full.
All payments on this Note shall, at the option of Agent, be
applied first to the payment of accrued but unpaid interest, and
any remainder shall be applied to reduction of the principal
balance hereof. All payments hereunder shall be made to Agent at
c/o Wells Fargo Bank, National Association, 000 Xxxxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, or at such other
address as Payee and Agent may from time to time designate in
writing to Maker.
Except as otherwise specifically provided in the Security
Documents, Maker and any endorsers or guarantors hereof jointly
and severally waive presentment and demand for payment, notice
of intent to accelerate maturity, notice of acceleration of
maturity, protest or notice of protest and nonpayment, bringing
of suit and diligence in taking any action to collect any sums
owing hereunder or in proceeding against any of the rights and
properties securing payment hereof. Maker and any endorsers or
guarantors hereof agree that the time for any payments hereunder
may be extended from time to time without notice and consent to
the acceptance of further security or the release of any existing
security for this Note, all without in any manner affecting their
liability under or with respect to this Note. No extension of
time for the payment of this Note or any installment hereof shall
affect the liability of Maker under this Note even though Maker
is not a party to such agreement.
If a default is made in the payment, in whole or in part, of
any sum provided for herein when due and such default is not
cured within fifteen (15) days after written notice thereof from
Agent to Maker, or if an Event of Default shall occur under any
of the Security Documents, then Agent may, at its option, without
further notice or demand, except as otherwise specifically
provided in the Security Documents, on behalf of Payee declare
the unpaid principal balance and accrued interest on this Note at
once due and payable, foreclose all deeds of trust, mortgages and
liens securing payment hereof, pursue any and all other rights,
remedies, and recourses available to Agent and/or Payee, or
pursue any combination of the foregoing, all remedies hereunder
and under the Security Documents being cumulative.
Failure to exercise any of the foregoing options shall not
constitute a waiver of the right to exercise the same or any
other option at any subsequent time in respect to any other
event. The acceptance by Agent or Payee of any payment hereunder
that is less than payment in full of all amounts due and payable
at the time of such payment shall not constitute a waiver of the
right to exercise any of the foregoing options at that time or at
any subsequent time or nullify any prior exercise of any such
option without the express written consent of Agent.
If any payment required under this Note is not paid within
fifteen (15) days after written notice has been given to Maker
that the same has become due and payable, Agent may require a
late charge for late payment to compensate for the Payee's loss
of use of funds and for the expenses of handling the delinquent
payment, in an amount not to exceed four percent (4%) of such
delinquent payment. Said late charge shall be paid in any event
not later than the due date of the next subsequent installment of
principal and/or interest. In the event the maturity of the
indebtedness hereunder is accelerated by the Agent on behalf of
Xxxxx, this paragraph shall apply only to payments overdue prior
to the time of such acceleration. This paragraph shall not be
deemed to be a waiver of Agent's right on behalf of Xxxxx to
accelerate payment of this Note under the terms hereof.
Maker shall have the right prior to the Maturity Date, upon
ten (10) days' prior written notice, to prepay all or any portion
(except any portion constituting a Fixed Increment during its
applicable Fixed Period) of the principal balance owing hereunder
from time to time without the payment of any premium or penalty;
provided, however, that (a) if such prepayment is only a partial
payment of the then outstanding principal balance hereof, such
prepayment shall be accompanied by the payment of all accrued but
unpaid interest on the portion of the outstanding principal
balance of the Note being so paid through the date the prepayment
is made, and (b) for same day credit all monies shall be received
at Agent's office at c/o Wells Fargo Bank, National Association,
000 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 on
or before 11:00 a.m., Pacific Standard Time or Pacific Daylight
Time (as applicable). All monies received after this time shall
be deemed received on the following Business Day and shall
continue to accrue interest at the Base Rate to the date funds
are deemed received.
Maker shall have the right to prepay any Fixed Increment
during its applicable Fixed Period only upon payment to Agent, on
behalf of Payee, at the time of such prepayment, of an amount
(the "Fixed Increment Liquidation Amount") equal to the excess of
(i) the interest that would have been payable by Maker for such
Fixed Increment for the remainder of the applicable Fixed Period
at the applicable Fixed Increment Rate had such prepayment not
been made by Maker, over (ii) the interest to be earned on sums
equal to the amount of such Fixed Increment for the remainder of
the applicable Fixed Period as invested by Payee in an interest
bearing obligation of Xxxxx's selection, in its sole and absolute
discretion.
In addition, in any such event, the provisions of the
immediately preceding paragraph hereto (relating to the
obligation of Maker to pay to Agent on behalf of Payee certain
amounts in the event of the prepayment of a Fixed Increment prior
to the last day of the applicable Fixed Period) shall apply with
respect to any Fixed Increment prepaid by Maker prior to the last
day of the applicable Fixed Period as a result of the
acceleration by Agent on behalf of Payee of the outstanding
principal balance hereof.
Upon the occurrence of an Event of Default, at the option of
the Agent, on behalf of Payee, all amounts payable hereunder or
under the Security Documents shall bear interest for the period
beginning with the date of occurrence of such Event of Default at
a rate of interest per annum (the "Default Rate"), payable on the
first day of each and every month, equal to three percent (3%)
above the Base Rate, as it fluctuates, or three percent (3%)
above the Fixed Increment Rate, whichever is applicable.
Notwithstanding any other provision of this Note to the
contrary, from and after the Maturity Date of this Note, or such
earlier date as the unpaid principal owing on this Note becomes
due and payable upon acceleration or otherwise pursuant to the
terms hereof, the whole of the unpaid principal and, to the
fullest extent permitted by law, interest owing on this Note,
shall thereafter bear interest until paid in full at the Default
Rate.
All amounts payable hereunder are payable in lawful money of
the United States of America. Maker agrees to pay all costs of
collection hereof when incurred, including reasonable attorneys'
fees, whether or not any legal action shall be instituted to
enforce this Note.
This Note is issued pursuant to the Loan Agreement of even
date herewith executed by Maker, Agent and the Banks party
thereto (the "Loan Agreement") and is secured, inter alia, by
that certain Mortgage, Security Agreement and Assignment of
Leases and Rents of even date herewith from Maker to Agent, for
the benefit of Agent on behalf of the Banks (the "Mortgage"),
covering certain real and personal property situated in St. Clair
County, Illinois, as more particularly described therein. All of
the agreements, conditions, covenants, warranties,
representations, provisions and stipulations made by or imposed
upon Maker under the Security Documents are hereby made a part of
this Note to the same extent and with the same force and effect
as if they were fully inserted herein, and Maker covenants and
agrees to keep and perform the same, or cause them to be kept and
performed, strictly in accordance with their terms. This Note is
given for business purposes and none of the proceeds of the Loan
or this Note will be used for personal, family or household
purposes.
If this Note is executed by more than one party, each such
party shall be jointly and severally liable for the obligations
of Maker under this Note. If the Maker is a partnership, each
general partner of Maker shall be jointly and severally liable
hereunder, and each such general partner hereby waives any
requirement of law that, upon an occurrence of an Event of
Default hereunder or under any of the Security Documents, Agent
or Xxxxx exhaust any assets of Maker before proceeding against
such general partner's assets.
MAKER AGREES THAT TIME IS OF THE ESSENCE IN THE PERFORMANCE
OF ALL OBLIGATIONS HEREUNDER.
This Note shall be governed by and construed according to
the laws of the State of Georgia.
It is expressly stipulated and agreed to be the intent of
Maker, Agent and Payee at all times to comply with the applicable
law now or hereafter governing the interest payable on this Note
or the Loan (or applicable United States federal law to the
extent that it permits the Payee to contract for, charge, take,
reserve, or receive a greater amount of interest than under
Georgia law). If the applicable law is ever revised, repealed,
or judicially interpreted so as to render usurious any amount
called for under this Note, or under any of the Security
Documents, or contracted for, charged, taken, reserved or
received with respect to the Loan, or if Agent's or Payee's
exercise of the option herein contained to accelerate the
maturity of this Note, or if any prepayment by Maker results in
Maker's having paid any interest in excess of that permitted by
applicable law, then it is Maker's, Agent's and Xxxxx's express
intent that all excess amounts theretofore collected by Agent or
Payee be credited on the principal balance of this Note (or, if
the Note has been paid in full, refunded to Maker), and the
provisions of this Note and the Security Documents immediately be
deemed reformed and the amounts thereafter collectible hereunder
and thereunder reduced, without the necessity of the execution of
any new document, so as to comply with the then applicable law,
but so as to permit the recovery of the fullest amount otherwise
called for hereunder and thereunder.
All sums paid or agreed to be paid to Agent on behalf of
Payee for the use, forbearance or detention of the indebtedness
evidenced hereby and by the other Security Documents shall, to
the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full term of such
indebtedness until payment in full so that the rate or amount of
interest on account of such indebtedness does not exceed the
usury ceiling from time to time in effect and applicable to the
Loan for so long as debt is outstanding under the Loan.
The term "Maker" as used in this Note shall mean and have
reference to, collectively, all parties and each of them directly
or indirectly obligated for the indebtedness evidenced by this
Note, whether as principal maker, endorser, guarantor, or
otherwise, together with all parties who have acquired the
property conveyed by the Mortgage or any portion or portions
thereof, together with the respective heirs, administrators,
executors, legal representatives, successors and assigns of each
of the foregoing.
All notices hereunder shall be given at the following
addresses: If to Maker, c/o St. Clair Square GP, Inc., One Park
Place, 0000 Xxx Xxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: President. If to Agent or Payee, Suite 1805, 0000
Xxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000, with a copy of all
notices to Chief Credit Officer - Real Estate Group, Xxxxx Fargo
Bank, National Association, 000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000. Either party may change their
address for notice purposes upon giving thirty (30) days' prior
notice thereof to the other party in accordance with this
paragraph. All notices given hereunder shall be in writing and
shall be considered properly given if mailed by first-class
United States mail, postage prepaid, registered or certified with
return receipt requested, if sent by national overnight courier
providing documentation of receipt, if delivered in person, or if
sent by prepaid telegram, telex or telecopy, with a copy of any
communication so sent by telegram, telex or telecopy being sent
by mail, overnight courier or personal delivery as aforesaid.
Any notice mailed as above provided shall be effective three (3)
business days after its deposit in the custody of the United
States Postal Service; all other notices shall be effective upon
receipt.
Whenever possible, each provision of this Note shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Note shall be
prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the
remaining provisions of this Note.
IN WITNESS WHEREOF, this Note has been duly executed under
seal in Chattanooga, Tennessee on the date first above written.
"MAKER"
ST. CLAIR SQUARE LIMITED
PARTNERSHIP, an Illinois limited
partnership
By: St. Clair Square GP, Inc., an
Illinois corporation, as sole
general partner of St. Clair
Square Limited Partnership
By:________________________
Xxxx X. Xxx
Its Executive Vice President
Attest:____________________
Xxxx X. Xxxxx
Its: Assisitant Secretary
(CORPORATE SEAL)
This signature page is attached to and is a part of that
certain Promissory Note in the original principal amount of
Sixty-Six Million and No/100 Dollars ($66,000,000.00) from St.
Clair Square Limited Partnership, as "Maker," to Xxxxx Fargo
Bank, National Association, as "Payee."
