PROMISSORY NOTE
Exhibit 99.2
|
$106,000,000.00 |
|
|
November 22, 2004 |
FOR VALUE RECEIVED XXXXXXX PROPERTIES-XXXXXX XX CAMPUS, LLC, a Delaware limited liability company, having an address at 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, as maker ("Borrower"), hereby unconditionally promises to pay to the order of COLUMN FINANCIAL, INC., a Delaware corporation, as payee, having an address at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Lender"), or at such other place as the holder hereof may from time to time designate in writing, the principal sum of One Hundred Six Million And No/100 Dollars ($106,000,000.00), in lawful money of the United States of America with interest thereon to be computed from the date of this Note at the Applicable Interest Rate, and to be paid in accordance with the terms of this Note and that certain Loan Agreement, dated the date hereof, between Borrower and Lender (as the same may be amended, restated, replaced, supplemented, renewed, extended or otherwise modified from time to time, 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 the principal sum of this Note and interest on the unpaid principal sum of this Note from time to time outstanding at the rates and at the times set forth on Schedule I attached hereto and made a part hereof and as further 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.
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
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Lender shall never exceed the Maximum Legal Rate, (b) in calculating whether any interest exceeds the Maximum Legal Rate, 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 Maximum Legal Rate, 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.
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 be applicable, notwithstanding any changes in the individuals or entities comprising the partnership, and the term "Borrower" as used herein, shall include any alternate or successor partnership, but any predecessor partnership and its partners shall not thereby be released from any liability. If Borrower is a corporation, the agreements contained herein shall remain in full force and be 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. If Borrower is a limited liability company, the agreements herein contained shall remain in force and be applicable, notwithstanding any changes in the members comprising the limited liability company, and the term "Borrower" as used herein, shall include any alternate or successor limited liability company, but any predecessor limited liability company and its members shall not thereby be released from any liability. If Borrower is a trust, the agreements herein contained shall remain in force and be applicable, notwithstanding any changes in the trustee or the beneficiaries relating to the trust, and the term "Borrower" as used herein, shall include any alternate or successor trust, but any predecessor trust and its trustees shall not thereby be released from any liability. Nothing in the foregoing four sentences shall be construed as a consent to, or a waiver of, any prohibition or restriction on transfers of interests in
| 2 | ||
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| ||
such partnership, corporation, limited liability company or trust, as applicable, 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, 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 thereafter 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 WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY XXXXXXXX AND ACCEPTED BY XXXXXX IN THE STATE OF NEW YORK, AND THE PROCEEDS OF THIS NOTE WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS NOTE AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS NOTE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER ARISING OUT OF OR RELATING TO THIS NOTE MAY AT LENDER’S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR
| 3 | ||
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PROCEEDING, AND XXXXXXXX HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING.
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: JOINT AND SEVERAL
If more than one Person has executed this Note as "Borrower", the obligations of all such Persons hereunder shall be joint and several.
[NO FURTHER TEXT ON THIS PAGE]
| 4 | ||
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IN WITNESS WHEREOF, Xxxxxxxx has duly executed this Note as of the day and year first above written.
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BORROWER: | |||
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XXXXXXX PROPERTIES-XXXXXX XX | |||
|
CAMPUS, LLC, | |||
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a Delaware limited liability company | |||
|
By: |
/s/ Xxxxxx X. Xxxxx | ||
|
Name: |
Xxxxxx X. Xxxxx | ||
|
Title: |
Chief Financial Officer | ||
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Xxxxxxx Properties - Xxxxxx XX Campus, LLC
Debt Service Schedule | |||||||
|
Interest Rate |
5.066% |
||||||
|
Months of Interest Only |
84 |
||||||
|
Amortization (After I/O) |
1,000 |
||||||
|
Annual Constant |
5.066% |
||||||
|
Annual Payment |
5,369,960 |
||||||
|
Day Count |
Actual/360 |
360 |
|||||
|
Period |
Payment
Date |
Days In
Period |
Beginning
Balance |
Payment |
Interest |
Principal |
Ending
Balance |
|
1 |
1/11/2005 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
2 |
2/11/2005 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
3 |
3/11/2005 |
28.00 |
106,000,000 |
417,663.56 |
417,663.56 |
- |
106,000,000 |
|
4 |
4/11/2005 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
5 |
5/11/2005 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
6 |
6/11/2005 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
7 |
7/11/2005 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
8 |
8/11/2005 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
9 |
9/11/2005 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
10 |
10/11/2005 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
11 |
11/11/2005 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
12 |
12/11/2005 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
13 |
1/11/2006 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
14 |
2/11/2006 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
(Schedule is continued on following page.)
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Xxxxxxx Properties - Xxxxxx XX Campus, LLC
Debt Service Schedule
(Continued from previous page.)
|
Period |
Payment
Date |
Days In
Period |
Beginning
Balance |
Payment |
Interest |
Principal |
Ending
Balance |
|
15 |
3/11/2006 |
28.00 |
106,000,000 |
417,663.56 |
417,663.56 |
- |
106,000,000 |
|
16 |
4/11/2006 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
17 |
5/11/2006 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
18 |
6/11/2006 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
19 |
7/11/2006 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
20 |
8/11/2006 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
21 |
9/11/2006 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
22 |
10/11/2006 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
23 |
11/11/2006 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
24 |
12/11/2006 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
25 |
1/11/2007 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
26 |
2/11/2007 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
27 |
3/11/2007 |
28.00 |
106,000,000 |
417,663.56 |
417,663.56 |
- |
106,000,000 |
|
28 |
4/11/2007 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
29 |
5/11/2007 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
30 |
6/11/2007 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
31 |
7/11/2007 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
(Schedule is continued on following page.)
| 7 | ||
|
| ||
Xxxxxxx Properties - Xxxxxx XX Campus, LLC
Debt Service Schedule
(Continued from previous page.)
|
Period |
Payment
Date |
Days In
Period |
Beginning
Balance |
Payment |
Interest |
Principal |
Ending
Balance |
|
32 |
8/11/2007 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
33 |
9/11/2007 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
34 |
10/11/2007 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
35 |
11/11/2007 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
36 |
12/11/2007 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
37 |
1/11/2008 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
38 |
2/11/2008 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
39 |
3/11/2008 |
29.00 |
106,000,000 |
432,580.11 |
432,580.11 |
- |
106,000,000 |
|
40 |
4/11/2008 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
41 |
5/11/2008 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
42 |
6/11/2008 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
43 |
7/11/2008 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
44 |
8/11/2008 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
45 |
9/11/2008 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
46 |
10/11/2008 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
47 |
11/11/2008 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
48 |
12/11/2008 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
(Schedule is continued on following page.)
| 8 | ||
|
| ||
Xxxxxxx Properties - Xxxxxx XX Campus, LLC
Debt Service Schedule
(Continued from previous page.)
|
Period |
Payment
Date |
Days In
Period |
Beginning
Balance |
Payment |
Interest |
Principal |
Ending
Balance |
|
49 |
1/11/2009 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
50 |
2/11/2009 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
51 |
3/11/2009 |
28.00 |
106,000,000 |
417,663.56 |
417,663.56 |
- |
106,000,000 |
|
52 |
4/11/2009 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
53 |
5/11/2009 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
54 |
6/11/2009 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
55 |
7/11/2009 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
56 |
8/11/2009 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
57 |
9/11/2009 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
58 |
10/11/2009 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
59 |
11/11/2009 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
60 |
12/11/2009 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
61 |
1/11/2010 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
62 |
2/11/2010 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
63 |
3/11/2010 |
28.00 |
106,000,000 |
417,663.56 |
417,663.56 |
- |
106,000,000 |
|
64 |
4/11/2010 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
(Schedule is continued on following page.)
| 9 | ||
|
| ||
Xxxxxxx Properties - Xxxxxx XX Campus, LLC
Debt Service Schedule
(Continued from previous page.)
|
Period |
Payment
Date |
Days In
Period |
Beginning
Balance |
Payment |
Interest |
Principal |
Ending
Balance |
|
65 |
5/11/2010 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
66 |
6/11/2010 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
67 |
7/11/2010 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
68 |
8/11/2010 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
69 |
9/11/2010 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
70 |
10/11/2010 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
71 |
11/11/2010 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
72 |
12/11/2010 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
73 |
1/11/2011 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
74 |
2/11/2011 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
75 |
3/11/2011 |
28.00 |
106,000,000 |
417,663.56 |
417,663.56 |
- |
106,000,000 |
|
76 |
4/11/2011 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
77 |
5/11/2011 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
78 |
6/11/2011 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
79 |
7/11/2011 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
80 |
8/11/2011 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
81 |
9/11/2011 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
(Schedule is continued on following page.)
| 10 | ||
|
| ||
Xxxxxxx Properties - Xxxxxx XX Campus, LLC
Debt Service Schedule
(Continued from previous page.)
|
Period |
Payment
Date |
Days In
Period |
Beginning
Balance |
Payment |
Interest |
Principal |
Ending
Balance |
|
82 |
10/11/2011 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
|
83 |
11/11/2011 |
31.00 |
106,000,000 |
462,413.22 |
462,413.22 |
- |
106,000,000 |
|
84 |
12/11/2011 |
30.00 |
106,000,000 |
447,496.67 |
447,496.67 |
- |
106,000,000 |
11
