Installment Note

Exhibit 10.214


INSTALLMENT NOTE


Dated as of June 30, 2004


FOR VALUE RECEIVED, the undersigned, NEWMAN DEVELOPMENT GROUP OF GILROY, L.L.C., a California limited liability company (sometimes hereinafter referred to as "Maker") promises to pay to the order of IWEST GILROY, L.L.C., a Delaware limited liability company (sometimes hereinafter referred to as "Lender"), having its principal place of business at 2901 Butterfield Road, Oak Brook, Illinois 60523, or at such other place or places as the holder hereof may from time to time designate in writing, the principal sum of TWENTY-TWO MILLION AND NO/100 DOLLARS ($22,000,000.00), or so much thereof as disbursed (the "Loan"), together with interest thereon at the rate set forth below from the date of first disbursement until maturity, unless the Default Rate, hereinafter defined, shall apply, as follows:


a. From the date of first disbursement of the proceeds of this Note until
the Initial Maturity Date, interest at a per annum rate (the "Note
Rate") equal to 6.9933 percent. Interest shall be paid monthly, in
advance, commencing on July 1, 2004 and on the first day of each month
thereafter (i.e. interest for July, 2004 is due and payable on July 1,
2004) except that interest to accrue from the date of first
disbursement of principal hereunder through June 30, 2004, both
inclusive, shall be paid upon the first disbursement of the proceeds
of this Note at the Note Rate.


b. A final balloon payment of all outstanding principal and all accrued
and unpaid interest and all other sums then due and payable under this
Note, the Deed of Trust, hereinafter defined, and the Other Loan
Documents, hereinafter defined, shall be paid on July 15, 2005
("Initial Maturity Date").


Provided no event of default or breach in any of the terms or conditions of this Note, beyond any applicable cure period, or under the "Guaranty" or any of the "Other Loan Documents" (as hereinafter defined), has ever occurred, either prior to or at the time of the Notice of Election, hereafter defined, or subsequently on or before the first day of the Extension Term, hereinafter defined, and further provided (i) Lender, in its reasonable discretion, has determined that there has been no material adverse change in the net operating income, on an annualized basis, of the Premises, hereafter defined, tenancy or terms of occupancy, (ii) Maker has provided Lender with the following information: current operating statements and financial statements for the Premises, current financial statements for Maker, a current rent roll and a pro-forma operating statement for the Premises during the extension term and for the following 12 months and (iii) the Premises has not suffered any significant damage or other casualty of $100,000 or more in aggregate or any damage by fire or casualty of less than $100,000 that is not covered by applicable insurance, unless same has been repaired at Borrower's expense, (iv) there is no condemnation commenced or threatened against the Premises which would have a material adverse effect on the value of the Premises or the Premises operations, (v) there is no environmental claim or complaint, pending or threatened, relating to the Premises, the land, the Maker or any contiguous land, other than that previously disclosed by Maker (vi) no law, regulation, ordinance, restriction or similar matter has been enacted or adapted by any federal, state or local government that would, in Lender's reasonable judgment, materially adversely affect the income, expenses, occupancy or use of the Premises, (vii) Maker is not involved in any


litigation (except solely as plaintiff or where the amount in controversy will in no event be in excess of $100,000.00), pending or threatened bankruptcy, reorganization, receivership or insolvency proceedings, and (viii) Lender has determined that there has been a material deterioration (reduction in cash flow of 10% or more) in the cash flow from the Premises as compared to the highest actual cash flow from the Premises at any time prior to such comparison, then Maker may elect to extend the Maturity Date of this Note for not more than one (1) term of twelve (12) months (the "Extension Term" and the expiration of the Extension Term being the "Extension Maturity Date") on the following terms and conditions:


1. The Extension Term election shall be exercised by Maker serving a
separate written notice (each a "Notice of Election") to the holder
hereof at least twenty (20) days, but not more than sixty (60) days,
prior to the expiration of the Initial Maturity Date;


2. As consideration to the holder hereof for granting the Extension Term,
a non-refundable fee (the "Extension Fee") in the amount of Four
Hundred Forty Thousand Dollars ($440,000.00) shall be paid to Lender
at the time such extension is granted.


3. The interest rate during the Extension Term shall be 7.9933 percent
per annum.


4. The Extension Term shall be documented as reasonably required by the
holder hereof and may include, without limitation: (i) a statement to
the holder hereof from Maker and all guarantors of this Note, which
recertifies as true and accurate all covenants, representations and
warranties contained in the Deed of Trust and in the Other Loan
Documents; and (ii) a written acknowledgment and consent from all of
the guarantors acknowledging and consenting to the Extension Term and
reaffirming their respective guaranties.


Maker acknowledges that the monthly installments required by the terms of this Note will not amortize the principal sum of the indebtedness by either the Initial Maturity Date or the Extension Maturity Date, each sometimes hereinafter referred to as a "Maturity Date", resulting in a "balloon payment" on any of such maturity dates of the then unpaid principal sum and accrued and unpaid interest thereon. The holder of this Note has made no agreement to refinance such balloon payment.


Interest (including without limitation, any interest due hereunder at the Default Rate) on unpaid principal shall be computed on the basis of a 360 day year using the actual number of days for the applicable period in any such year as follows: the interest rate shall be multiplied by the outstanding principal balance of this Note; the resulting product shall be divided by 360, with the resulting quotient multiplied by the number of days for the period for which interest is payable. All payments required to be made herein shall be made in lawful money of the United States of America.


All monthly payments shall be due and payable on the first day of the month. If any monthly payment due hereunder, including without limitation the real estate tax and insurance premium payments required by Article 31 of the Deed of Trust securing this Note, is not made


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on or before the 10th day after the date such payment is due, a late payment charge equal to 5% of the delinquent payment shall be due and payable and the interest rate hereunder shall increase to the Default Rate on the entire outstanding principal sum until such monthly payment and all applicable interest is paid, unless the Loan has been accelerated. If the final balloon payment of all outstanding principal and all accrued and unpaid interest and all other sums then due and payable under this Note, the Deed of Trust and the Other Loan Documents is not made on the applicable Maturity Date, a late payment charge equal to 5% of the delinquent payment shall be due and payable and the interest rate hereunder shall increase to the Default Rate on the entire outstanding principal sum and all accrued and unpaid interest thereon effective the applicable Maturity Date until all outstanding principal and all accrued and unpaid interest and all other sums then due and payable under this Note, the Deed of Trust and the Other Loan Documents are paid in full including, but not limited to, the payment of such increased interest and the late payment charge. No grace period is provided for the payment of principal and interest due on the Maturity Date.


Whenever a late charge is due under this Note, Maker acknowledges: that its failure to timely make the delinquent payment will cause Lender to incur additional expenses and the loss of the use of funds; that it is extremely difficult and impractical to determine such additional expenses and loss of use of funds; that the late charge represents a fair and reasonable estimate, taking in to account all circumstances existing on the date of this Note, of the additional expenses and the loss of use of funds Lender will incur by reason of such late payment; and that the late charge is in addition to, and not in lieu of, any interest payable at the Default Rate. Whenever the interest rate hereunder shall increase to the Default Rate, Maker also acknowledges: that a delinquent payment or the occurrence of an event of default will materially increase Lender's risk and/or cause Lender to incur additional expenses in servicing and processing the indebtedness evidence by this Note and its loss of the use of the money due; that it is extremely difficult and impractical to determine such additional expenses and loss of use of the money due; that the increase in the rate of interest payable under this Note to the Default Rate represents a fair and reasonable estimate, taking in to account all circumstances existing on the date of this Note, of the additional expenses Lender will incur by reason of an occurrence of an event of default and the additional compensation Lender is entitled to receive for the increased risks of any nonpayment associated therewith. The provisions of this paragraph, and the immediately preceding paragraph, are intended to govern only the determination of damages in the event of a breach in the performance of Maker to make timely payments hereunder or cure an event of default hereunder. Nothing in this Note shall be construed as in any way giving Maker the right, express or implied, to fail to make timely payments hereunder, whether upon payment of such damages or otherwise. The right of Lender to receive payment of such liquidated and actual damages, and receipt thereof, are without prejudice to the right of Lender to collect such delinquent payments and any other amounts provided to be paid hereunder or under any of the Deed of Trust or Other Loan Documents executed by Maker in favor of Lender with respect to the subject matter hereof, or to declare a default hereunder or under the Deed of Trust or any of the Other Loan Documents.


All payments required herein shall be applied first to all sums other than principal and interest due and payable under the terms of this Note, the Deed of Trust or the Other Loan Documents, hereinafter defined, next to all accrued and unpaid interest, including all interest at


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the Default Rate, with the balance of such payments, if any, applied to the outstanding principal sum due under this Note.


Any check, draft, money order or other instrument given in payment of all or any portion of this Note may be accepted by Lender and handled in collection in the customary manner at its option, but the same shall not constitute payment hereunder or diminish any rights of Lender, except to the extent that actual cash proceeds of such instrument are unconditionally received by Lender and applied to this indebtedness as herein provided. Payment in full checks are prohibited except pursuant to a separate written agreement between Maker and the holder hereof expressly permitting paid in full checks. Payments received at the Lender's office after 2:00 p.m. local time, will be credited against this Note on the next business day.


The entire outstanding principal sum together with all accrued and unpaid interest thereon and any and all other payments then due hereunder and under the Deed of Trust and Other Loan Documents may be prepaid in whole or in part without premium or penalty, at any time upon not less than ten (10) days prior written notice to the holder hereof. Partial prepayments will not defer, offset, reduce, suspend or abate any monthly installment payments due hereunder. Any prepayment hereunder must include all accrued and unpaid interest (including, without limitation, any interest at the Default Rate due hereunder) and all late payment charges that have accrued and are unpaid through the date of such prepayment, and all other sums due hereunder and under the Deed of Trust and the 0ther Loan Documents. 0nly upon payment of (i) the entire outstanding principal balance of this Note, (ii) all late payment charges, (iii) all accrued and unpaid interest (including without limitation, any interest due hereunder at the Default Rate) then due under this Note, and (iv) all other sums then due hereunder and under the Deed of Trust and the Other Loan Documents; shall this Note be deemed paid in full and the Deed of Trust and the Other Loan Documents be cancelled and released. If Maker shall fail to effect any prepayment within sixty (60) days after the written notice thereof has been received by Holder, then Maker shall pay to Holder immediately upon the expiration of said sixty-day period a prepayment termination fee in the amount of Two Thousand Five Hundred and No/100 Dollars ($2,500.00) as liquidated damages since the actual damage to Holder as a result of not receiving the anticipated prepayment shall be difficult or impossible to accurately ascertain.


The entire outstanding principal sum together with all accrued and unpaid interest thereon, and all other payments then due hereunder and under the Deed of Trust and Other Loan Documents and together with, to the extent permitted under applicable law, costs and expenses, including attorneys' fees and disbursements, incurred b ...