Contract
PROMISSORY
NOTE
(MEZZANINE
LOAN)
|
$5,000,000.00 |
New
York, New York |
|
March
15, 2005 |
FOR VALUE
RECEIVED, MP-AUSTIN
LP MEZZANINE, LLC, a
Delaware limited liability company, having its principal place of business at
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (“Borrower”), as
maker, hereby unconditionally promises to pay to the order of NOMURA
CREDIT & CAPITAL, INC., a
Delaware corporation, as lender, having an address at Two World Financial
Center, New York, New York 10281 (together with its successors and assigns,
“Lender”), or at
such other place as the holder hereof may from time to time designate in
writing, the principal sum of FIVE MILLION AND
NO/100
DOLLARS ($5,000,000.00) or so much thereof as may be advanced pursuant to that
certain Loan Agreement (Mezzanine Loan), dated as of the date hereof, between
Borrower and Lender (as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time, the “Loan
Agreement”), in
lawful money of the United States of America with interest thereon to be
computed from the date of this Promissory Note (this “Note”) at the
Applicable Interest Rate (as defined in the Loan Agreement), and to be paid in
accordance with the terms of this Note and 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 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
Subject
to the express terms of the Loan Agreement, 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 (a) on or prior to the date when due, (b) the
Maturity Date, or (c) on the happening of any other Event of
Default.
ARTICLE
3: LOAN DOCUMENTS
This Note
is secured by the Pledge Agreement and the other Loan Documents. All of the
terms, covenants and conditions contained in the Loan Agreement, the Pledge
Agreement 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 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 their 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 any 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 their members shall not thereby be released from any
liability (except as may be expressly provided under the terms of the Loan
Agreement). Nothing in the foregoing three
2
sentences
shall be construed as a consent to, or a waiver of, any prohibition or
restriction on transfers of interests in such partnership, corporation or
limited liability company, 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
shall be governed in accordance with the terms and provisions of Section 10.3 of
the Loan Agreement.
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: USURY
It is the
intent of the payee of this Note and the undersigned in the execution of this
Note and all other instruments now or hereafter securing this Note to contract
in strict compliance with applicable usury law. In furtherance thereof, the said
payee and the undersigned stipulate and agree that none of the terms and
provisions contained in this Note, or in any other instrument executed in
connection herewith, shall ever be construed to create a contract to pay for the
use, forbearance or detention of money, interest at a rate in excess of the
maximum interest rate permitted to be charged by applicable law; that neither
the undersigned nor any guarantors, endorsers or other parties now or hereafter
becoming liable for payment of this Note shall ever be obligated or required to
pay interest on this Note at a rate in excess of the maximum interest that may
be lawfully charged under applicable law; and that the provisions of this
paragraph shall control over all other provisions of this Note and any other
instruments now or hereafter executed in connection herewith which may be in
apparent conflict herewith. The holder of this Note expressly disavows any
intention to charge or collect excessive unearned interest or finance charges in
the event the maturity of this Note is accelerated. If the maturity of this Note
shall be accelerated for any reason or if the principal of this Note is paid
prior to the end of the term of this Note, and as a result thereof the interest
received for the actual period of existence of the loan evidenced by this Note
exceeds the applicable maximum lawful rate, the holder of this Note
3
shall, at
its option, either refund to the undersigned the amount of such excess or credit
the amount of such excess against the principal balance of this Note then
outstanding and thereby shall render inapplicable any and all penalties of any
kind provided by applicable law as a result of such excess interest. In the
event that the said payee or any other holder of this Note shall contract for,
charge or receive any amount or amounts and/or any other thing of value which
are determined to constitute interest which would increase the effective
interest rate on this Note to a rate in excess of that permitted to be charged
by applicable law, an amount equal to interest in excess of the lawful rate
shall, upon such determination, at the option of the holder of this Note, be
either immediately returned to the undersigned or credited against the principal
balance of this Note then outstanding, in which event any and all penalties of
any kind under applicable law as a result of such excess interest shall be
inapplicable. By execution of this Note the undersigned acknowledges that it
believes the loan evidenced by this Note to be non-usurious and agrees that if,
at any time, the undersigned should have reason to believe that such loan is in
fact usurious, it will give the holder of this Note notice of such condition and
the undersigned agrees that said holder shall have ninety (90) days in which to
make appropriate refund or other adjustment in order to correct such condition
if in fact such exists. The term “applicable law” as used in this Note shall
mean the laws of the State of Texas or the laws of the United States, whichever
laws allow the greater rate of interest, as such laws now exist or may be
changed or amended or come into effect in the future.
By
execution of this Note the undersigned acknowledges that it believes the loan
evidenced by this Note to be non-usurious and agrees that if, at any time, the
undersigned should have reason to believe that such loan is in fact usurious, it
will give the holder of this Note notice of such condition and the undersigned
agrees that said holder shall have ninety (90) days in which to make appropriate
refund or other adjustment in order to correct such condition if in fact such
exists. The term “applicable law” as used in this Note shall mean the laws of
the State of Texas or the laws of the United States, whichever laws allow the
greater rate of interest, as such laws now exist or may be changed or amended or
come into effect in the future.
[NO
FURTHER TEXT ON THIS PAGE]
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IN
WITNESS WHEREOF, Xxxxxxxx has duly executed this Promissory Note (Mezzanine
Loan) as of the day and year first above written.
|
MP-AUSTIN
LP MEZZANINE, LLC, | ||
|
a
Delaware limited liability company | ||
|
By: |
/s/
Xxxxxx X. Xxxxx | |
|
Name:
Xxxxxx X. Xxxxx | ||
|
Title:
Executive Vice President and CFO | ||
