FIXED RATE NOTE (B LOAN)
Exhibit
10.2
Loan No. V_49857
FIXED
RATE NOTE
(B LOAN)
(B LOAN)
| $640,000.00 | May 2, 2005 |
FOR VALUE RECEIVED, XXXXXX PLAZA I, LTD., a Texas limited partnership (hereinafter referred to
as “Borrower”), having its principal place of business at 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxx 00000, unconditionally promises to pay to the order of JPMORGAN CHASE BANK, N.A., a banking
association chartered under the laws of the United States of America having an office at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, its successors and assigns (hereinafter referred to as “Lender”),
at the office of Lender or its agent, designee, or assignee at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Loan Servicing, or at such place as Lender or its agent, designee, or assignee
may from time to time designate in writing, the principal sum of SIX HUNDRED FORTY THOUSAND AND
NO/100 DOLLARS ($640,000.00), in lawful money of the United States of America, with interest
thereon to be computed on the unpaid principal balance from time to time outstanding at the
Applicable Interest Rate (hereinafter defined) at all times prior to the occurrence of an Event of
Default (as defined in the Security Instrument [hereinafter defined]), and to be paid in
installments as set forth below. Unless otherwise herein defined, all initially capitalized terms
shall have the meanings given such terms in the Security Instrument. Notwithstanding anything in
the Security Instrument to the contrary, the term “this Note” as used herein shall mean and refer
only to this Fixed Rate Note securing this loan (the “B Loan”).
Concurrently with the execution of this Note, Xxxxxxxx has executed and delivered to Lender
that certain Fixed Rate Note for a loan (the “A Loan”) dated of even date herewith executed by
Xxxxxxxx in the original principal amount of $10,240,000.00 (the “A Note”). The indebtedness
evidenced by the A Note and the obligations created thereby are also secured by the Security
Instrument, the Assignment and the other Loan Documents securing the B Loan. Xxxxxx has been
engaged as collateral agent by Xxxxxx (the “Collateral Agent”) and the holder of the A Note to
administer the documents and collateral securing this Note and the A Note, including, without
limitation the Property (as hereinafter defined). The B Note and the right of the holder of the B
Loan to receive payments of interest, principal, and other amounts with respect to the B Loan shall
at all times be junior, subject and subordinate to the A Loan and the right of the holder of the A
Note to receive payments of interest, principal, and other amounts with respect to the A Loan,
including after acceleration.
Borrower shall make separate payments of principal and interest under the notes evidencing
the A Loan and the B Loan, as directed by the holder of the A Note and the B Note.
1. Payment Terms. Principal and interest due under this Note shall be paid as
follows:
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(a) A payment of interest only on the date hereof for the period from the date hereof
through May 30, 2005, both inclusive; and
(b) A constant payment of $6954.84, on the first day of July, 2005 and on the first day
of each calendar month thereafter up to and including the first day of May, 2015;
with payments under this Note to be applied as follows:
(i) First, to the payment of interest and other costs and charges due in
connection with this Note or the Debt, as Lender may determine in its sole
discretion; and
(ii) The balance shall be applied toward the reduction of the principal sum;
and
the balance of said principal sum, together with accrued and unpaid interest and any
other amounts due under this Note shall be due and payable on the first day of June, 2015
or upon earlier maturity hereof whether by acceleration or otherwise (the “Maturity
Date”). Interest on the principal sum of this Note shall be calculated on the basis of a
three hundred sixty (360) day year and paid for the actual number of days elapsed. All
amounts due under this Note shall be payable without setoff, counterclaim or any other
deduction whatsoever. As a result of the actual/360 calculations, in certain 31-day months,
there may be capitalized interest.
2. Interest. The term “Applicable Interest Rate” means from the date of this
Note through and including the Maturity Date, a rate of twelve and
750/l000ths percent (12.75%) per
annum.
3. Security. This Note is secured by, and Xxxxxx is entitled to the benefits of, the
Security Instrument, the Assignment, the Environmental Agreement, and the other Loan Documents
(hereinafter defined). The term “Security Instrument” means the Deed of Trust and Security
Agreement dated the date hereof given by Borrower for the use and benefit of Lender covering the
estate of Borrower in certain premises as more particularly described therein (which premises,
together with all properties, rights, titles, estates and interests now or hereafter securing the
Debt and/or other obligations of Borrower under the Loan Documents, are collectively referred to
herein as the “Property”). The term “Assignment” means the Assignment of Leases and Rents of even
date herewith executed by Xxxxxxxx in favor of Xxxxxx. The term “Environmental Agreement”
means the Environmental Indemnity Agreement of even date herewith executed by Xxxxxxxx in favor of
Xxxxxx. The term “Loan Documents” refers collectively to this Note, the Security
Instrument, the Assignment, the Environmental Agreement, and any and all other documents executed
in connection with this Note or now or hereafter executed by Xxxxxxxx and/or others and by or in
favor of Lender, which wholly or partially secure or guarantee payment of this Note or pertains to
indebtedness evidenced by this Note.
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4. Late Fee. If any installment payable under this Note (including the final
installment due on the Maturity Date) is not received by Lender prior to the seventh (7th)
calendar day after the same is due (without regard to any applicable cure and/or notice period),
Borrower shall pay to Lender upon demand an amount equal to the lesser of (a) five percent (5%) of
such unpaid sum or (b) the maximum amount permitted by applicable law to defray the expenses
incurred by Lender in handling and processing such delinquent payment and to compensate Lender for
the loss of the use of such delinquent payment, and such amount shall be secured by the Loan
Documents.
5. Default and Acceleration. So long as an Event of Default exists, Lender may, at
its option, without notice or demand to Borrower, declare the Debt immediately due and payable.
All remedies hereunder, under the Loan Documents and at law or in equity shall be cumulative. In
the event that it should become necessary to employ counsel to collect the Debt or to protect or
foreclose the security for the Debt or to defend against any claims asserted by Borrower arising
from or related to the Loan Documents, Xxxxxxxx also agrees to pay to Lender on demand all costs
of collection or defense incurred by Xxxxxx, including reasonable attorneys’ fees for the services
of counsel whether or not suit be brought.
6. Default Interest. Upon the occurrence of an Event of Default Borrower shall pay
interest on the entire unpaid principal sum and any other amounts due under the Loan Documents at
the rate equal to the lesser of (a) the maximum rate permitted by applicable law, or (b) the
greater of (i) five percent (5%) above the Applicable Interest Rate or (ii) five percent (5%) above
the Prime Rate (hereinafter defined), in effect at the time of the occurrence of the Event of
Default (the “Default Rate”). The term “Prime Rate” means the prime rate reported in the Money
Rates section of The Wall Street Journal. In the event that The Wall Street Journal should cease or
temporarily interrupt publication, the term “Prime Rate” shall mean the daily average prime rate
published in another business newspaper, or business section of a newspaper, of national standing
and general circulation chosen by Xxxxxx. In the event that a prime rate is no longer generally
published or is limited, regulated or administered by a governmental
or quasi-governmental body,
then Lender shall select a comparable interest rate index which is readily available and verifiable
to Borrower but is beyond Lender’s control. The Default Rate shall be computed from the occurrence
of the Event of Default until the actual receipt and collection of a sum of money determined by
Xxxxxx to be sufficient to cure the Event of Default. Amounts of interest accrued at the Default
Rate shall constitute a portion of the Debt, and shall be deemed secured by the Loan Documents.
This clause, however, shall not be construed as an agreement or privilege to extend the date of the
payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of
the occurrence of any Event of Default. As used herein, the term “Default Rate” shall mean (a) in
the case of an advance made or cost incurred solely on behalf of the holder of the A Note, the
Default Rate as defined in the A Note, (b) in the case of an advance made or cost incurred solely
on behalf of the holder of the B Note, the Default Rate as defined in the B Note, (c) in the case
of an advance made or cost incurred on behalf of the holder of the A Note and the holder of the B
Note, the Default Rate as defined in the A Note and the Default Rate as defined in the B Note, as
applicable, shall apply to the advance or cost in the same proportion as the then outstanding
principal balance of the B Loan bears to the principal balance of the A Loan, and (d) where
interest is payable on the loan
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principal balance at the “Default Rate”, the Default Interest Rate as defined in the B Note shall
apply to the principal balance of the B Loan and the Default Rate as defined in the A Note shall
apply to the principal balance of the A Loan.
7. Prepayment.
(a) The principal balance of this Note may not be prepaid in whole or in part (except
with respect to the application of casualty or condemnation proceeds) prior to the Maturity
Date. If following the occurrence of any Event of Default, Borrower shall tender payment to
Lender or Lender shall receive proceeds (whether through foreclosure or the exercise of the
other remedies available to Lender under the Security Instrument or the other Loan
Documents), Borrower shall pay in addition to interest accrued and unpaid on the principal
balance of this Note and all other sums then due under this Note and the other Loan
Documents a prepayment consideration in an amount equal to the greater of (A) one percent
(1%) of the outstanding principal balance of this Note at the time such payment or proceeds
are received, or (B) (x) the present value as of the date such payment or proceeds are
received of the remaining scheduled payments of principal and interest from the date such
payment or proceeds are received through the Maturity Date (including any balloon payment)
determined by discounting such payments at the Discount Rate (as hereinafter defined), less
(y) the amount of the payment or proceeds received. The term “Discount Rate” means
the rate which, when compounded monthly, is equivalent to the Treasury Rate (as hereinafter
defined), when compounded semi-annually. The term “Treasury Rate” means the yield
calculated by the linear interpolation of the yields, as reported in Federal Reserve
Statistical Release H.15-Selected Interest Rates under the heading “U.S. Government
Securities/Treasury Constant Maturities” for the week ending prior to the date the payment
or such proceeds are received, of U.S. Treasury constant maturities with maturity dates (one
longer and one shorter) most nearly approximating the Maturity Date. (In the event Release
H.I5 is no longer published, Lender shall select a comparable publication to determine the
Treasury Rate.) Lender shall notify Borrower of the amount and the basis of determination of
the required prepayment consideration, which shall be conclusive except in the case of
manifest error. Notwithstanding the foregoing, Borrower shall have the additional privilege
to prepay the entire principal balance of this Note (together with
any other sums
constituting the Debt) on any scheduled payment date occurring on or after that date which
is three (3) months preceding the Maturity Date without any fee or consideration for such
privilege.
(b) If the prepayment results from the application to the Debt of the casualty or
condemnation proceeds from the Property, no prepayment consideration
will be imposed. Partial
prepayments of principal resulting from the application of casualty or condemnation proceeds
to the Debt shall not change the amounts of subsequent monthly installments nor change the
dates on which such installments are due, unless Lender shall otherwise agree in writing.
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(c) (i) Notwithstanding any provision of this Section 7 to the contrary, at any time
after the earlier of (A) the date that is four (4) years after the date of the first monthly
payment due under Section 1(b) hereof, and (B) the later of (i) the date which is two years
after the “startup day,” within the meaning of Section 860G(a)(9) of the Internal Revenue Code of
1986, as amended from time to time or any successor statute (the “Code”), of a “real estate
mortgage investment conduit,” within the meaning of Section 860D of the Code, that holds the A Loan
and (ii) the date which is two years after the “startup day,” within the meaning of Section
860G(a)(9) of the Code, of a “real estate mortgage investment conduit,” within the meaning of
Section 860D of the Code, that holds the B Loan, and provided no Event of Default (or any event
which with the passage of time or the giving of notice, or both, could become an Event of Default)
has occurred under the Security Instrument or under any of the Loan Documents, Borrower may cause
the release of the Property (in whole but not in part) from the lien of the Security Instrument and
the other Loan Documents upon the satisfaction of the following conditions precedent:
(A) not less than thirty (30) days prior written notice to Lender specifying a
regularly scheduled payment date (the “Release Date”) on which the Defeasance
Deposit (hereinafter defined) is to be made;
(B) the payment to Lender of interest accrued and unpaid on the principal balance of
this Note to and including the Release Date;
(C) the payment to Lender of all other sums, not including scheduled interest or
principal payments, due under this Note, the Security Instrument and the other Loan
Documents;
(D) the payment to Lender of the Defeasance Deposit; and
(E) the delivery to Lender of:
(1) a security agreement, in form and substance satisfactory to Lender,
creating a first priority lien on the Defeasance Deposit and the U.S. Obligations
(hereinafter defined) purchased on behalf of Borrower with the Defeasance Deposit
in accordance with this subparagraph (the “Security Agreement”);
(2) a release of the Property from the lien of the Security Instrument (for
execution by Xxxxxx) in a form appropriate for the jurisdiction in which the
Property is located;
(3) an officer’s certificate of Borrower certifying that the requirements
set forth in this subparagraph (i) have been satisfied;
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(4) an opinion of counsel for Borrower in form satisfactory to Lender
stating, among other things, that defeasance of this Note will not cause any
adverse consequences to any REMIC holding the Loan or the holders of any
securities issued by the REMIC or result in a taxation of the income from the Loan
to such REMIC or cause a loss of REMIC status, and that Lender has a perfected
first priority security interest in the Defeasance Deposit and the U.S.
Obligations purchased by Xxxxxx on behalf of Borrower;
(5) an opinion of a certified public accountant acceptable to Lender to the
effect that the Defeasance Deposit is adequate to provide payment on or prior to,
but as close as possible to, all successive scheduled payment dates after the
Release Date upon which interest and principal payments are required under this
Note (including the amounts due on the Maturity Date) and in amounts equal to the
scheduled payments due on such dates under this Note;
(6) evidence in writing from the applicable Rating Agencies to the effect
that such release will not result in a re-qualification, reduction or withdrawal
of any rating in effect immediately prior to such defeasance for any Securities;
(7) payment of all of Xxxxxx’s expenses incurred in connection with the
defeasance including, without limitation, reasonable attorneys fees; and
(8) such other certificates, documents or instruments as Lender may
reasonably request.
In connection with the conditions set forth in subsection (c)(i)(E) above, Borrower hereby
appoints Lender as its agent and attorney-in-fact for the purpose of using the Defeasance Deposit
to purchase U.S. Obligations which provide payment on or prior to, but as close as possible to,
all successive scheduled payment dates after the Release Date upon which interest and principal
payments are required under this Note (including the amounts due on the Maturity Date) and in
amounts equal to the scheduled payments due on such dates under this Note (the “Scheduled
Defeasance Payments”). Borrower, pursuant to the Security Agreement or other appropriate
document, shall authorize and direct that the payments received from the U.S. Obligations may be
made directly to Lender and applied to satisfy the obligations of the Borrower under this Note.
(ii) Upon compliance with the requirements of this subsection (c), the Property shall be
released from the lien of the Security Instrument and the pledged U.S. Obligations shall be the
sole source of collateral securing this Note.
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Any portion of the Defeasance Deposit in excess of the amount necessary to purchase the U.S.
Obligations required by subparagraph (c)(i) above and satisfy the Borrower’s obligations under
this subsection (c) shall be remitted to the Borrower with the release of the Property from the
lien of the Security Instrument.
(iii) For purposes of this subsection (c), the following terms shall have the following
meanings:
(A)
The term “Defeasance Deposit” shall mean an amount equal to 100% of the
remaining principal amount of this Note, the Yield Maintenance Premium, any costs and
expenses incurred or to be incurred in the purchase of the U.S. Obligations necessary to
meet the Scheduled Defeasance Payments and any revenue, documentary stamp or intangible
taxes or any other tax or charge due in connection with the transfer of this Note or
otherwise required to accomplish the agreements of this subsection;
(B) The term “Yield Maintenance Premium” shall mean the amount (if any) which,
when added to the remaining principal amount of this Note, will be sufficient to purchase
U.S. Obligations providing the required Scheduled Defeasance Payments; and
(C) The term “U.S. Obligations” shall mean direct non-callable obligations of
the United States of America.
(iv) Upon the release of the Property in accordance with this subsection (c), Borrower shall,
at Xxxxxx’s request, assign all its obligations and rights under this Note, together with the
pledged Defeasance Deposit, to a successor special purpose entity designated by Xxxxxxxx and
approved by Lender in its sole discretion. Such successor entity shall execute an assumption
agreement in form and substance satisfactory to Lender in its sole discretion pursuant to which it
shall assume Borrower’s obligations under this Note and the Security Agreement In connection with
such assignment and assumption, Borrower shall (x) deliver to Lender an opinion of counsel in form
and substance and delivered by counsel satisfactory to Lender in its sole discretion stating,
among other things, that such assumption agreement is enforceable against Borrower and such
successor entity in accordance with its terms and that this Note, the Security Agreement and the
other Loan Documents, as so assumed, are enforceable against such successor entity in accordance
with their respective terms, and (y) pay all costs and expenses incurred by Lender or its agents
in connection with such assignment and assumption (including, without limitation, the review of
the proposed transferee and the preparation of the assumption agreement and related
documentation). In connection with such assignment and assumption, Borrower and any Guarantor may
be released of personal liability under the Note and the other Loan Documents, but only as to acts
or events occurring after the closing of such assignment and assumption.
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(v) Upon the release of the Property in accordance with this subsection (c),
Borrower shall have no further right to prepay this Note pursuant to the other
provisions of this Section 7 or otherwise.
(d) Application of a Prepayment. Prior to an Event of Default, except as
otherwise provided herein, any prepayment of the Loan (including, without limitation, by
virtue of the payment of release prices or the application of title awards, casualty
proceeds or condemnation awards), together with all correspondence prepayment premiums, if
any, shall be applied, first, to the principal balance of the B Loan (together with any
corresponding prepayment premium) and, then, upon payment in full of the B Loan, to the
principal balance of the A Loan (together with any correspondence prepayment premium). Any
voluntary prepayment or defeasance of the A Loan must occur concurrently with the voluntary
prepayment or defeasance of the B Loan. Any voluntary prepayment or defeasance of the B
Loan must occur concurrently with the voluntary prepayment or defeasance of the A Loan.
Unless there is a continuing Event of Default, there shall be no prepayment penalty or
premium for prepayment resulting from the application of title insurance, casualty
insurance or condemnation proceeds or awards. If during the continuance of an Event of
Default, the Lenders are entitled to receive any prepayment penalty or premium, then
principal and interest on the A Loan and the B Loan shall be paid from the amounts paid by
Borrower prior to the payment of any such prepayment penalty or
premium.
8. Savings Clause. This Note is subject to the express condition that at no time shall
Borrower be obligated or required to pay interest on the principal balance due hereunder at a rate
which could subject Lender to either civil or criminal liability as a result of being in excess of
the maximum interest rate which Borrower is permitted by applicable law to contract or agree to
pay. If by the terms of this Note, Borrower is at any time required or obligated to pay interest on
the principal balance due hereunder at a rate in excess of such maximum rate, the Applicable
Interest Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to
such maximum rate and all previous payments in excess of the maximum rate shall be deemed to have
been payments in reduction of principal and not on account of the interest due hereunder. All sums
paid or agreed to be paid to Lender for the use, forbearance, retention or detention of the Debt,
shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread
throughout the full stated term of this Note until payment in full so that the rate or amount of
interest on account of the Debt does not exceed the maximum lawful rate of interest from time to
time in effect and applicable to the Debt for so long as the Debt is outstanding. Notwithstanding
anything to the contrary contained herein or in any of the other Loan Documents, it is not the
intention of Lender 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.
9. Waivers.
(a) Except as specifically provided in the Loan Documents, Borrower and any
endorsers, sureties or guarantors hereof jointly and severally waive presentment and
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demand for payment, notice of intent to accelerate maturity, notice of acceleration of maturity,
protest and notice of protest and non-payment, all applicable exemption rights, valuation and
appraisement, notice of demand, and all other notices in connection with the delivery, acceptance,
performance, default or enforcement of the payment of this Note and the 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. Borrower and any surety, endorser or guarantor
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 by Lender of further collateral, (iii) the release by
Lender of any existing collateral for the payment of this Note, (iv) to any and all renewals,
waivers or modifications that may be granted by Lender with respect to the payment or other
provisions of this Note, and/or (v) that additional Borrowers, endorsers, guarantors or sureties
may become parties hereto all without notice to them and 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 Borrower under this Note or any endorser or
guarantor hereof even though the Borrower or such endorser or guarantor is not a party to such
agreement.
(b) Failure of Lender to exercise any of the options granted herein to Lender 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 Lender 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 Lender at that time or at any
subsequent time or nullify any prior exercise of any such option without the express written
acknowledgment of the Lender.
10. Exculpation.
(a) Notwithstanding anything in the Loan Documents to the contrary, but subject to the
qualifications below, Xxxxxx and Borrower agree that:
(i) Borrower shall be liable upon the Debt and for the other obligations arising
under the Loan Documents to the full extent (but only to the extent) of the security
therefor; provided, however, that in the event (A) of fraud, willful misconduct or
material misrepresentation by Borrower, or any of its principals, officers, managers,
members or general partners, if any, its members, if any, its principals, its affiliates,
its agents or its employees or by any Guarantor in connection with the loan evidenced by
this Note, (B) of a breach or default under Sections 4.3 or 8.2 of the
Security Instrument, or (C) the Property or any part thereof becomes an asset in a
voluntary bankruptcy or insolvency proceeding, the limitation on recourse set forth in
this Subsection 10(a) will be null and void and completely inapplicable, and this
Note shall be with full recourse to Borrower.
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(ii) If a default occurs in the timely and proper payment of all or any part of the Debt,
Lender shall not enforce the liability and obligation of Borrower to perform and observe the
obligations contained in this Note or the Security Instrument by any action or proceeding wherein
a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure
action, action for specific performance or other appropriate action or proceeding to enable Lender
to enforce and realize upon the Security Instrument, the Other Loan Documents and the interest in
the Property, the Rents and any other collateral given to Lender created by the Security
Instrument and the Other Loan Documents; provided, however, that any judgment in any
action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s
interest in the Property, in the Rents and in any other collateral given to Lender. Xxxxxx, by
accepting this Note and the Security Instrument, agrees that it shall not, except as otherwise
herein provided, sue for, seek or demand any deficiency judgment against Borrower in any action or
proceeding, under or by reason of or under or in connection with this Note, the Other Loan
Documents or the Security Instrument.
(iii) The provisions of this Subsection 10(a) shall not (A) constitute a waiver,
release or impairment of any obligation evidenced or secured by this Note, the Other Loan
Documents or the Security Instrument; (B) impair the right of Lender to name Borrower as a party
defendant in any action or suit for judicial foreclosure and sale under the Security Instrument;
(C) affect the validity or enforceability of any indemnity, guaranty, master lease or similar
instrument made in connection with this Note, the Security Instrument, or the Other Loan
Documents; (D) impair the right of Lender to obtain the appointment of a receiver; (E) impair the
enforcement of the Assignment executed in connection herewith; (F) impair the right of Lender to
enforce the provisions of Article 11 of the Security Instrument; or (G) impair the right of Lender
to obtain a deficiency judgment or judgment on this Note against Borrower if necessary to obtain
any insurance proceeds or condemnation awards to which Xxxxxx would otherwise be entitled under
the Security Instrument; provided, however, Lender shall only enforce such judgment
against the insurance proceeds and/or condemnation awards,
(iv) Notwithstanding the provisions of this Article to the contrary, Borrower shall be
personally liable to Lender for the Losses it incurs due to: (A) the misapplication or
misappropriation of Rents; (B) the misapplication or misappropriation of insurance proceeds or
condemnation awards; (C) Borrower’s failure to return or to reimburse Lender for all Personal
Property taken from the Property by or on behalf of Borrower and not replaced with Personal
Property of the same utility and of the same or greater value; (D) any act of actual waste or arson
by Borrower, any principal, affiliate, general partner or member thereof or by any Guarantor; (E)
any fees or commissions paid by Borrower to any principal, affiliate, general partner or member of
Borrower, or any Guarantor in violation of the terms of this Note, the Security Instrument or the
Other Loan Documents;
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(F) Xxxxxxxx’s failure to comply with the provisions of Article 11 of the Security
Instrument; (G) any breach of the Environmental Indemnity; or (H) any violation,
breach, or non-compliance of Borrower or the Property with the provisions of that
certain Declaration of Easements and Restrictions filed for record under Clerk’s
File No. R075370, as amended by First Amendment to Declaration of Easements and
Restrictions filed for record under Xxxxx’s File No. R778938, Official Public
Records of Real Property of Xxxxxx County, Texas (the “Declaration”), which accrue
or arise prior to the date hereof; provided, however, that upon receipt of
an estoppel certificate by Xxxxxx, in a form acceptable to Lender, from Wal-Mart
Stores, Inc., or its successor in interest under the Declaration, this
Section 10(a)(iv)(H) shall be of no further force or effect.
Section 10(a)(iv)(H) shall be of no further force or effect.
(b) Nothing herein shall be deemed to be a waiver of any right which Lender may have
under Sections 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to
file a claim for the full amount of the Debt or to require that all collateral shall
continue to secure all of the Debt, owing to Lender in accordance with this Note, the
Security Instrument and the Other Loan Documents.
(c) Xxxxxx and Borrower hereby agree that any rights, powers or remedies of enforcement
available to Lender by the terms of the Loan Documents may be exercised by the Collateral
Agent.
11. Authority. Borrower (and the undersigned representative of Borrower, if any)
represents that Borrower has full power, authority and legal right to execute, deliver and perform
its obligations pursuant to this Note and the other Loan Documents
and that this Note and the
other Loan Documents constitute legal, valid and binding obligations of Borrower. Borrower further
represents that the loan evidenced by the Loan Documents was made for business or commercial
purposes and not for personal, family or household use.
12. Notices. All notices or other communications required or permitted to be given
pursuant hereto shall be given in the manner and be effective as specified in the Security
Instrument, directed to the parties at their respective addresses as provided therein.
13. Transfer. Lender shall have the unrestricted right at any time or from time to
time to sell this Note and the loan evidenced by this Note and the Loan Documents or participation
interests therein. Borrower shall execute, acknowledge and deliver any and all instruments
requested by Xxxxxx to satisfy such purchasers or participants that the unpaid indebtedness
evidenced by this Note is outstanding upon the terms and provisions set out in this Note and the
other Loan Documents. To the extent, if any, specified in such assignment or participation, such
assignee(s) or participant(s) shall have the rights and benefits with respect to this Note and the
other Loan Documents as such assignee(s) or participant(s) would have if they were the Lender
hereunder.
14. Waiver of Trial by Jury. XXXXXXXX XXXXXX AGREES NOT TO ELECT A TRIAL BY JURY OF
ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT
ANY
| FIXED RATE NOTE (B LOAN) — Page 11 | JPMorgan Chase Bank, N.A. |
SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS NOTE OR THE OTHER LOAN DOCUMENTS, OR
ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH INCLUDING, BUT NOT LIMITED
TO, THOSE RELATING TO (A) ALLEGATIONS THAT A PARTNERSHIP EXISTS BETWEEN LENDER AND BORROWER; (B)
USURY OR PENALTIES OR DAMAGES THEREFOR; (C) ALLEGATIONS OF UNCONSCIONABLE ACTS, DECEPTIVE TRADE
PRACTICE, LACK OF GOOD FAITH OR FAIR DEALING, LACK OF COMMERCIAL REASONABLENESS, OR SPECIAL
RELATIONSHIPS (SUCH AS FIDUCIARY, TRUST OR CONFIDENTIAL RELATIONSHIP); (D) ALLEGATIONS OF
DOMINION, CONTROL, ALTER EGO, INSTRUMENTALITY, FRAUD, REAL ESTATE FRAUD, MISREPRESENTATION,
DURESS, COERCION, UNDUE INFLUENCE, INTERFERENCE OR NEGLIGENCE; (E) ALLEGATIONS OF TORTIOUS
INTERFERENCE WITH PRESENT OR PROSPECTIVE BUSINESS RELATIONSHIPS OR OF ANTITRUST; OR (F) SLANDER,
LIBEL OR DAMAGE TO REPUTATION. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY XXXXXXXX, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS
TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. XXXXXX IS HEREBY AUTHORIZED TO FILE
A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER.
15. Applicable Law. This Note shall be governed by and construed in accordance with
the laws of the state in which the real property encumbered by the Security Instrument is located
(without regard to any conflict of laws or principles) and the applicable laws of the United States
of America.
16. Jurisdiction. BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY COURT
OF COMPETENT JURISDICTION LOCATED IN THE STATE IN WHICH THE PROPERTY IS LOCATED IN CONNECTION WITH
ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE.
17. No Oral Change. The provisions of this Note and the Loan Documents may be amended
or revised only by an instrument in writing signed by the Borrower and Lender. This Note and all
the other Loan Documents embody the final, entire agreement of Xxxxxxxx and Lender 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, contemporaneous or subsequent oral agreements or discussions of Xxxxxxxx and
Xxxxxx. There are no oral agreements between Borrower and Lender.
The remainder of this page is left blank. The signature page(s) follow.
| FIXED RATE NOTE (B LOAN) — Page 12 | JPMorgan Chase Bank, N.A. |
Executed as of the day and year first above written.
| BORROWER: | ||||||||
| XXXXXX PLAZA I, LTD., | ||||||||
| a Texas limited partnership | ||||||||
| By: | XXXXXX PLAZA ONE CM, INC., | |||||||
| a Texas corporation, its General Partner |
||||||||
| By: | Xxxxxx X. Xxxxxx | |||||||
| Title: President | ||||||||
| FIXED RATE NOTE (B LOAN) — Signature Page | JPMorgan Chase Bank, N.A. |
