EXHIBIT 10.11
PROMISSORY NOTE
$3,600,000.00 U.S. Effective as of February 9, 2004
I. COVENANT TO PAY.
1.1 PROMISE TO PAY. FOR VALUE RECEIVED, BEHRINGER HARVARD XXXXXXX
XXXXXXX XX, a Texas limited partnership (herein called "MAKER", whether one or
more), promises to pay to the order of BENCHMARK BANK, a Texas state bank
[herein, together with all subsequent holders of this Promissory Note ("NOTE"),
called "PAYEE"], on or before the Maturity Date (as herein defined), as
hereinafter provided, the principal sum of THREE MILLION SIX HUNDRED THOUSAND
AND NO/100 DOLLARS ($3,600,000.00), or so much thereof as may actually be
outstanding hereunder, together with interest on the unpaid principal balance
from time to time outstanding at the rate herein specified and otherwise in
strict accordance with the terms and provisions hereof.
II. INTEREST RATE COMPUTATION.
2.1 INTEREST RATE. Interest on the principal balance of this Note
outstanding from time to time shall accrue at the rate of seven percent (7.00%)
per annum.
2.2 DEFAULT RATE. Upon the occurrence and during the continuation of
a default in the payment of any principal or interest obligations hereunder or,
otherwise, upon the occurrence and during the continuation of any Event of
Default (as defined herein), at the option of the Payee, the principal balance
of this Note then outstanding shall bear interest at the Default Rate (as
defined herein) from the date of occurrence of such Event of Default.
2.3 DEFINITIONS. As used in this Note and the Loan Documents, the
following terms shall have the respective meanings indicated below:
"BUSINESS DAY" shall mean any day on which commercial banks are not
authorized or required to close in Plano, Collin County, Texas.
"CHARGES" shall mean all fees and charges, if any, contracted for,
charged, received, taken or reserved by Payee in connection with the
transactions relating to this Note and the indebtedness evidenced hereby
or by the Loan Documents which are treated as interest under applicable
law.
"DEFAULT RATE" shall mean the Maximum Lawful Rate.
"EVENT OF DEFAULT" shall have the same meaning as that indicated for
such term in the Lien Instrument.
"LIEN INSTRUMENT" shall mean that certain Deed of Trust executed by
Maker in favor of Xxxxx X. Xxxxxxxxxx, Trustee, for the benefit of Payee
covering the Property.
"MATURITY DATE" shall mean August 9, 2004; subject, however, to the
right of acceleration as herein provided and as provided elsewhere in
the Loan Documents (hereinafter defined).
"MAXIMUM LAWFUL RATE" shall mean the maximum lawful rate of interest
which may be contracted for, charged, taken, received or reserved by
Payee in accordance with the applicable laws of the State of Texas (or
applicable United States federal law to the extent that it permits Payee
to contract for, charge, take, receive or reserve a greater amount of
interest than under Texas law), taking into account all Charges made in
connection with the loan evidenced by this Note and the Loan Documents.
"PROPERTY" shall mean that certain real and personal property owned by
Maker and situated in Dallas County, Texas as more particularly
described in the Lien Instrument.
2.4 COMPUTATION PERIOD. Except for the computation of the Maximum
Lawful Rate which shall be undertaken on the basis of a 365 or 366-day year, as
the case may be, interest on the indebtedness evidenced by this Note shall be
computed on the basis of a 360-day year and shall accrue on the actual number of
days any principal balance hereof is outstanding.
III. PAYMENTS.
3.1 PAYMENT SCHEDULE.
(a) All accrued but unpaid interest on the outstanding
principal balance of this Note shall be due and payable in monthly
installments beginning on April 1, 2004, and continuing on the first day
of each calendar month thereafter through and including the Maturity
Date.
(b) The outstanding principal balance hereof and any and all
accrued but unpaid interest hereon shall be finally due and payable in
full on the Maturity Date or upon the earlier maturity hereof, whether
by acceleration or otherwise.
3.2 APPLICATION. All payments on this Note shall, at the sole option
of Payee, be applied at any time and from time to time and in any order, to the
following: (i) the payment of accrued but unpaid interest hereon, (ii) the
payment or reimbursement of any expenses, costs or obligations (other than the
principal hereof and interest hereon) for which Maker shall be obligated or
Payee entitled pursuant to the provisions hereof or of the other Loan Documents,
and (iii) the payment of all or any portion of the principal balance then
outstanding hereunder, in either the direct or inverse order of maturity.
3.3 PLACE. All payments hereunder shall be made to Payee at its
offices located in Collin County, Texas, at the address of Payee as specified
herein or as Payee may from time to time designate in writing to Maker.
3.4 BUSINESS DAYS. If any payment of principal or interest on this
Note shall become due and payable on any day which is not a Business Day, such
payment shall be made on the next succeeding Business Day. Any such extension of
time for payment shall be included in computing interest which has accrued and
shall be payable in connection with such payment.
3.5 LEGAL TENDER. All amounts payable hereunder are payable in
lawful money or legal tender of the United States of America.
3.6 PREPAYMENT. Subject to the terms of this SECTION 3.6, Maker
shall have the right to prepay, at any time and from time to time without
premium or penalty, the entire unpaid principal balance of this Note or any
portion thereof, but must also pay the amount of then accrued but unpaid
interest on the amount of principal being so prepaid. Any such partial
prepayments of principal shall be applied in inverse order of maturity to the
last maturing installment(s) of principal. It is expressly agreed and understood
that this Note does not evidence a revolving facility in that any amount so
prepaid may not be readvanced.
IV. DEFAULT AND REMEDIES.
4.1 DEFAULT. Maker shall be in default hereunder immediately upon
the occurrence of an Event of Default.
4.2 REMEDIES. If an Event of Default shall occur, then Payee may, at
its option, without notice or demand, declare the unpaid principal balance of,
and the accrued but unpaid interest on, this Note immediately due and payable,
foreclose all liens and security interests securing payment hereof, pursue any
and all other rights, remedies and recourses available to Payee or pursue any
combination of the foregoing. All remedies hereunder, under the Loan Documents
and at law or in equity shall be cumulative.
4.3 WAIVER. Except as specifically provided in the Loan Documents,
Maker and any endorsers or guarantors hereof severally waive presentment and
demand for payment, notice of intent to accelerate maturity, notice of
acceleration of maturity, protest and notice of protest and non-payment,
bringing of suit and diligence in taking any action to collect any sums owing
hereunder or in proceeding against any of the rights and collateral securing
payment hereof. Maker and any endorsers or guarantors hereof agree (i) that the
time for any payments hereunder may be extended from time to time without notice
and consent, (ii) to the acceptance of further collateral, and/or (iii) the
release of any existing collateral for the payment of 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 or any endorser or guarantor
hereof even though the Maker or such endorser or guarantor is not a party to
such agreement.
4.4 NO WAIVER. Failure of Payee to exercise any of the options
granted herein to Payee upon the happening of one or more of the events giving
rise to such options shall not constitute a waiver of the right to exercise the
same or any other option at any subsequent time in respect to the same or any
other event. The acceptance by 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 options granted
herein to Payee at that time or at any subsequent time or nullify any prior
exercise of any such option without the express written acknowledgment of the
Payee.
4.5 COLLECTION COSTS. 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.
V. MISCELLANEOUS.
5.1 LOAN DOCUMENTS. This Note is secured, INTER ALIA, by the Lien
Instrument (this Note and the Lien Instrument, and all the other documents
evidencing, securing or pertaining to the transaction in which the indebtedness
evidenced hereby was incurred are, collectively, referred to as the "LOAN
DOCUMENTS").
5.2 NOTICES. All notices or other communications required or
permitted to be given pursuant hereto shall be in writing and shall be deemed
properly given if (i) mailed by first class United States mail, postage prepaid,
registered or certified with return receipt requested, (ii) by delivering same
in person to the intended addressee, or (iii) by delivery to an independent
third party commercial delivery service for same day or next day delivery and
providing for evidence of receipt at the office of the intended addressee.
Notice so mailed shall be effective upon its deposit with the United States
Postal Service or any successor thereto; notice sent by such a commercial
delivery service shall be effective upon delivery to such commercial delivery
service; notice given by personal delivery shall be effective only if and when
received by the addressee; and notice given by other means shall be effective
only if and when received at the designated address of the intended addressee.
Either party shall have the right to change its address for notice hereunder to
any other location within the continental United States by the giving of thirty
(30) days notice to the other party in the manner set forth herein. For purposes
of such notices, the addresses of the parties shall be as follows:
Payee: Benchmark Bank
0000 Xxxxxx Xxxxx
Xxxxx 00, Xxxxx, Xxxxx 00000
Attn: Xxxxxx Xxxxxx
Maker: Behringer Harvard Xxxxxxx Xxxxxxx XX
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx Xxxxxxxxx
5.3 GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA. THIS NOTE IS PERFORMABLE IN COLLIN COUNTY, TEXAS. Any
action or proceeding under or in connection with this Note against Maker or any
other party ever liable for payment of any sums of money payable on this Note
may be brought in any state or federal court in Collin County, Texas. Maker and
each such other party hereby irrevocably (i) submits to the nonexclusive
jurisdiction of such courts, and (ii) waives any objection it may now or
hereafter have as to the venue of any such action or proceeding brought in such
court or that such court is an inconvenient forum.
5.4 INTEREST LIMITATION. It is expressly stipulated and agreed to be
the intent of Maker and Payee at all times to comply with the applicable Texas
law governing the maximum rate or amount of interest payable on this Note or the
indebtedness evidenced hereby and by the other Loan Documents (or applicable
United States federal law to the extent that it permits Payee to contract for,
charge, take, reserve or receive a greater amount of interest than under Texas
law). If (i) the applicable law is ever judicially interpreted so as to render
usurious any amount called for under this Note or under any of the other Loan
Documents, or contracted for, charged, taken, reserved or received with respect
to the indebtedness evidenced by this Note and the other Loan Documents, or (ii)
Payee's exercise of the option herein contained to accelerate the maturity of
this Note or any prepayment by Maker results in Maker having paid any interest
in excess of that permitted by applicable law, then it is Maker's and Xxxxx's
express intent that (a) all excess amounts theretofore collected by Xxxxx be
credited on the principal balance of this Note (or, if this Note has been or
would thereby be paid in full, refunded to Maker), and (b) the provisions of
this Note and the other Loan 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
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 Payee
for the use, forbearance and detention of the indebtedness evidenced hereby and
by the other Loan 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 such indebtedness for so long as debt is
outstanding. To the extent that Payee is relying on Chapter 303, as amended, of
the Texas Finance Code to determine the Maximum Lawful Rate payable on such
indebtedness, Payee will utilize the weekly rate ceiling from time to time in
effect as provided in such Chapter 303, as amended. To the extent United States
federal law permits Payee to contract for, charge or receive a greater amount of
interest than Texas law, Payee will rely on United States federal law instead of
such Chapter 303, as amended, for the purpose of determining the Maximum Lawful
Rate. Additionally, to the extent permitted by applicable law now or hereafter
in effect, Payee may, at its option and from time to time, implement any other
method of computing the Maximum Lawful Rate under such Chapter 303, as amended,
or under other applicable law by giving notice, if required, to Maker as
provided by applicable law now or hereafter in effect. In no event shall the
provisions of Chapter 346 of the Texas Finance Code (which regulates certain
revolving credit loan accounts and revolving triparty accounts) apply to the
indebtedness evidenced hereby. Notwithstanding anything to the contrary
contained herein or in any of the other Loan Documents, it is not the intention
of Payee to accelerate the maturity of any interest that has not accrued at the
time of such acceleration or to collect unearned interest at the time of such
acceleration.
5.5 CAPTIONS. The article and section headings used in this Note are
for convenience of reference only and shall not affect, alter or define the
meaning or interpretation of the text of any article or section contained in
this Note.
5.6 JOINT AND SEVERAL LIABILITY. 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 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 in the event
of a default hereunder, Xxxxx exhaust any assets of Maker before proceeding
against such general partner's assets.
5.7 WAIVER OF RIGHT TO TRIAL BY JURY. MAKER HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT,
PROCEEDING, OR COUNTERCLAIM THAT RELATES TO OR ARISES OUT OF ANY OF THE LOAN
DOCUMENTS OR THE ACTS OR FAILURE TO ACT OF OR BY PAYEE IN THE ENFORCEMENT OF ANY
OF THE TERMS OR PROVISIONS OF THIS NOTE OR THE OTHER LOAN DOCUMENTS.
5.8 NO ORAL AGREEMENTS. THIS NOTE AND ALL THE OTHER LOAN DOCUMENTS
EMBODY THE FINAL, ENTIRE AGREEMENT OF MAKER AND PAYEE AND SUPERSEDE ANY AND ALL
PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER
WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT
BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORA-NEOUS OR SUBSEQUENT
ORAL AGREEMENTS OR DISCUSSIONS OF MAKER AND XXXXX. THERE ARE NO ORAL AGREEMENTS
BETWEEN MAKER AND PAYEE. THE PROVISIONS OF THIS NOTE AND THE LOAN DOCUMENTS MAY
BE AMENDED OR REVISED ONLY BY AN INSTRUMENT IN WRITING SIGNED BY THE MAKER AND
PAYEE.
5.9 LIMITATION ON PERSONAL LIABILITY. Anything contained herein to
the contrary notwithstanding, it is expressly understood and agreed that nothing
herein shall be construed as creating any personal liability on Maker (or, if
Maker is a partnership, any of its general partners) to pay any amount due under
this Note or any other Loan Document except that Maker (and, if Maker is a
partnership, its general partners) shall be liable for and shall indemnify and
defend Payee against, and hold Payee harmless from and against Xxxxx's costs,
expenses (including reasonable attorney fees), losses and damages caused by or
related to any of the following ("RECOURSE EVENTS") committed, permitted or
omitted by Maker, its agents, employees and/or contractors: (i) waste to or of
the Property or a failure to maintain the Property in the manner required by the
Loan Documents; (ii) fraud or material misrepresentation by Maker; (iii) failure
to pay insurance premiums, taxes, assessments, ground rent or any other lienable
impositions as required under the Loan Documents; (iv) misapplication of tenant
security deposits, insurance proceeds or condemnation proceeds; (v) failure
while in monetary default to pay to Payee all rents, income and profits of and
from the Property, net of reasonable and customary operating expenses; (vi)
breach of or failure to perform under the environmental representations,
warranties, covenants or indemnifications described in the Certificate and
Indemnification Regarding Hazardous Substances; (vii) destruction or removal of
fixtures or personal property securing this Note from the Property, unless
replaced by items of equal value; (viii) terminating, settling, amending or
entering into a lease of the Property in violation of the Loan Documents; (ix)
failure of the Property to comply with the Americans with Disabilities Act of
1990, as amended, the Fair Housing Act of 1988, as amended, or any other similar
Building Laws after any Governmental Authority has notified Maker, its agents,
employees and/or contractors of such non-compliance; (x) failure to pay to Payee
any rent, income or profits which have been prepaid more than 30 days in
advance; (xi) willful or grossly negligent violation of applicable law; (xii)
failure of Maker to pay all amounts payable under this Note in full, together
with
reasonable attorney fees, if (A) Maker transfers or encumbers the Property in
contravention of the Loan Documents, (B) Maker contests the exercise of Xxxxxx's
rights or remedies under the Loan Documents, or (C) Maker files a voluntary
petition under Chapter 11 of the Bankruptcy Code prior to the one-year
anniversary of the transfer of title to the Property to Payee by foreclosure of
deed or other conveyance in lieu of foreclosure or otherwise. Nothing set forth
herein shall restrict or impede any other right or remedy of Payee upon the
occurrence of an Event of Default; and (xiii) failure to comply with any of the
provisions of the Loan Documents relating to a Prohibited Person or EO13224.
(THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.)
EXECUTED to be effective as of the date first above written.
MAKER:
BEHRINGER HARVARD XXXXXXX XXXXXXX XX,
a Texas limited partnership
By: Behringer Harvard Xxxxxxx Xxxxxx XX, LLC,
a Delaware limited liability company,
its general partner
By: /s/ Xxxxxx X. Xxxxxxx, III
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Name: Xxxxxx X. Xxxxxxx, III
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Title: Secretary
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