PROMISSORY NOTE
Exhibit 10.9
Loan No.: 00-0000000
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Hidden Lakes Apartments |
$19,218,000.00
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December 28, 2006 |
FOR VALUE RECEIVED, the undersigned, APARTMENT REIT HIDDEN LAKES, LP, a Texas limited
partnership (“Borrower”), having an address at c/o Triple Net Properties, LLC, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 000, Xxxxx Xxx, Xxxxxxxxxx 00000, promises to pay to the order of WACHOVIA BANK,
NATIONAL ASSOCIATION, a national banking association (together with its successors and assigns,
“Lender”), at the office of Lender at Commercial Real Estate Services, 0000 Xxxxxxxx Xxxxx XXX — 0,
XX 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, or at such other place as Lender may designate to
Borrower in writing from time to time, the principal sum of Nineteen Million Two Hundred Eighteen
Thousand and No/100 Dollars ($19,218,000.00), together with interest on so much thereof as is from
time to time outstanding and unpaid, from the date of the advance of the principal evidenced
hereby, at the rate of five and thirty-four one-hundredths percent (5.34%) (the “Note Rate”) or the
Maximum Lawful Rate (as hereinafter defined), together with all other amounts due hereunder or
under the other Loan Documents (as defined herein), in lawful money of the United States of
America, which shall at the time of payment be legal tender in payment of all debts and dues,
public and private.
ARTICLE I. — TERMS AND CONDITIONS
1.1. Computation of Interest. Interest shall be computed hereunder based on a 360-day
year and based on the actual number of days elapsed for any period in which interest is being
calculated including, without limitation, the Interest Only Period (hereinafter defined), as more
particularly set forth on Annex 1 attached hereto and incorporated by this reference.
Interest shall accrue from the date on which funds are advanced hereunder (regardless of the time
of day) through and including the day on which funds are credited pursuant to Section 1.2
hereof.
1.2. Payment of Principal and Interest. Payments in federal funds immediately
available at the place designated for payment received by Lender prior to 2:00 p.m. local time on a
day on which Lender is open for business at said place of payment shall be credited prior to close
of business, while other payments, at the option of Lender, may not be credited until immediately
available to Lender in federal funds at the place designated for payment prior to 2:00 p.m. local
time on the next day on which Lender is open for business. Interest only shall be payable in one
hundred twenty (120) consecutive monthly installments in the amounts set forth on Annex 1,
beginning on February 11, 2007 (the “First Payment Date”), and continuing on the eleventh
(11th) day of each and every calendar month thereafter through and including December
11, 2016 (each, a “Payment Date”). On January 11, 2017 (the “Maturity Date”) (provided that in the
event that there is a Defeasance of the Loan pursuant to Section 1.5(d) hereof, the Maturity Date
shall automatically be the Lockout Expiration Date), the entire outstanding principal balance
hereof, together with all accrued but unpaid interest thereon, shall be due and payable in full.
Borrower hereby authorizes Lender to use its automated loan payment service pursuant to which
on each Payment Date Borrower shall have its monthly payments of principal (to the extent
applicable) and interest payments together with any other sums then due to Lender automatically
drawn by Lender or its servicer in accordance with that certain Auto-Draft Request Form by and
between Borrower and Lender executed in connection with the Loan (as defined in the Security
Instrument (as hereinafter defined)).
In the event that, on any Payment Date, there are insufficient funds in such account for sums
due to Lender, then Lender shall be permitted to withdraw sums from such account on any day
thereafter until such time as all payments due to Lender have been drawn from such account;
provided, however, the foregoing shall in no event limit or otherwise modify Borrower’s obligations
to make payments of principal and interest and other sums due hereunder or under any other Loan
Document.
1.3. Application of Payments. So long as no Event of Default (as hereinafter defined)
exists hereunder or under any other Loan Document, each such monthly installment shall be applied,
first, to any amounts hereafter advanced by Lender hereunder or under any other Loan Document,
second, to any late fees and other amounts payable to Lender, third, to the payment of accrued
interest and last to reduction of principal.
1.4. Payment of “Short Interest”. If the advance of the principal amount evidenced by
this Note is made on a date other than a Payment Date, Borrower shall pay to Lender
contemporaneously with the execution hereof interest at the Note Rate for a period from the date
hereof through and including the tenth (10th) day of either (x) this month, in the event
that the date hereof is on or prior to the 11th of the month, and (y) the immediately
succeeding month, in the event that the date hereof is after the 11th of the month.
1.5. Prepayment; Defeasance.
(a) This Note may not be prepaid, in whole or in part (except as otherwise specifically
provided herein), at any time prior to the Payment Date occurring three (3) Payment Dates
immediately prior to the Maturity Date (the “Lockout Expiration Date”). In the event that Xxxxxxxx
wishes to have the Property (as hereinafter defined) released from the lien of the Security
Instrument prior to the Lockout Expiration Date, Borrower’s sole option shall be a Defeasance (as
hereinafter defined) upon satisfaction of the terms and conditions set forth in Section
1.5(d) hereof. This Note may be prepaid in whole but not in part without premium or penalty on
any Payment Date occurring on or after the Lockout Expiration Date provided (i) written notice of
such prepayment is received by Lender not more than ninety (90) days and not less than thirty (30)
days prior to the date of such prepayment, and (ii) such prepayment is accompanied by all interest
accrued hereunder through and including the date of such prepayment and all other sums due
hereunder or under the other Loan Documents. If, upon any such permitted prepayment on any Payment
Date occurring on or after the Lockout Expiration Date, the aforesaid prior written notice has not
been timely received by Lender, there shall be due a prepayment fee equal to the lesser of (i)
thirty (30) days’ interest computed at the Note Rate on the outstanding principal balance of this
Note so prepaid and (ii) interest computed at the Note Rate on the outstanding principal balance of
this Note so prepaid that would have been payable for the period from, and including, the date of
prepayment through the Maturity Date, as though such prepayment had not occurred.
(b) If, prior to the Lockout Expiration Date, the indebtedness evidenced by this Note shall
have been declared due and payable by Lender pursuant to Article II hereof or the provisions of any
other Loan Document due to a default by Xxxxxxxx, then, in addition to the indebtedness evidenced
by this Note being immediately due and payable, there shall also then be immediately due and
payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter
defined) based on the entire indebtedness on the date of such acceleration. In addition to the
amounts described in the preceding sentence, in the event of any such acceleration or tender of
payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the
date of this Note, there shall also then be immediately due and payable an additional prepayment
fee of three percent (3%) of the principal balance of this Note. The term “Yield Maintenance
Premium” shall mean an amount equal to the greater of (A) two percent (2.0%) of the principal
amount being prepaid, and (B) the present value of a series of payments each equal to the Payment
Differential (as hereinafter defined) and payable on each Payment
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Date over the remaining original term of this Note and on the Maturity Date, discounted at the
Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of
such prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential”
shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve
(12) and multiplied by (iii) the principal sum outstanding under this Note after application of the
constant monthly payment due under this Note on the date of such prepayment, provided that the
Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean
an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a
maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary
issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note,
with each such yield being based on the bid price for such issue as published in the Wall Street
Journal on the date that is fourteen (14) days prior to the date of such prepayment (or, if such
bid price is not published on that date, the next preceding date on which such bid price is so
published) and converted to a monthly compounded nominal yield. In the event that any prepayment
fee is due hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount and
determination of the prepayment fee, and, provided that Lender shall have in good faith applied the
formula described above, Borrower shall not have the right to challenge the calculation or the
method of calculation set forth in any such statement in the absence of manifest error, which
calculation may be made by Lender on any day during the fifteen (15) day period preceding the date
of such prepayment. Lender shall not be obligated or required to have actually reinvested the
prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the
prepayment fee. All sums and fees payable to Lender provided for in this Section 1.6(b) are
subject to reduction, if and to the extent characterized as interest under applicable law, by the
amount (if any) which would cause interest under this Note to exceed the Maximum Lawful Rate.
(c) Partial prepayments of this Note shall not be permitted, except for partial prepayments
resulting from Xxxxxx’s election to apply insurance or condemnation proceeds to reduce the
outstanding principal balance of this Note as provided in the Security Instrument, in which event
no prepayment fee or premium shall be due unless, at the time of either Xxxxxx’s receipt of such
proceeds or the application of such proceeds to the outstanding principal balance of this Note, an
Event of Default, or an event which, with notice or the passage of time, or both, would constitute
an Event of Default, shall have occurred, which default or Event of Default is unrelated to the
applicable casualty or condemnation, in which event the applicable prepayment fee or premium shall
be due and payable based upon the amount of the prepayment. No notice of prepayment shall be
required under the circumstances specified in the preceding sentence. No principal amount repaid
may be reborrowed. Any such partial prepayments of principal shall be applied to the unpaid
principal balance evidenced hereby but such application shall not reduce the amount of the fixed
monthly installments required to be paid pursuant to Section 1.2 above. Except as
otherwise expressly provided in this Section, the prepayment fees provided above shall be due, to
the extent permitted by applicable law, under any and all circumstances where all or any portion of
this Note is paid prior to the Maturity Date, whether such prepayment is voluntary or involuntary,
including, without limitation, if such prepayment results from Lender’s exercise of its rights upon
Borrower’s default and acceleration of the Maturity Date of this Note (irrespective of whether
foreclosure proceedings have been commenced), and shall be in addition to any other sums due
hereunder or under any of the other Loan Documents. No tender of a prepayment of this Note with
respect to which a prepayment fee is due shall be effective unless such prepayment is accompanied
by the applicable prepayment fee.
(d) (i) On any Payment Date on or after the earlier to occur of (x) three (3) years following
the first Payment Date hereunder, and (y) the day immediately following the date which is two (2)
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 (a “REMIC Trust”),
that holds this
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Note, and provided no Event of Default has occurred hereunder or under any of the other Loan
Documents, at Borrower’s option, Lender shall cause the release of the Property from the lien of
the Security Instrument and the other Loan Documents (a “Defeasance”) upon the satisfaction of the
following conditions:
(A) Borrower shall give not more than ninety (90) days’ or less than sixty (60)
days’ prior written notice to Lender specifying the date Borrower intends for the
Defeasance to be consummated (the “Release Date”), which date shall be a Payment
Date.
(B) All accrued and unpaid interest and all other sums due under this Note and
under the other Loan Documents up to and including the Release Date shall be paid in
full on or prior to the Release Date.
(C) Borrower shall deliver to Lender on or prior to the Release Date:
| (1) | a sum of money in immediately available funds (the “Defeasance Deposit”) equal to the outstanding principal balance of this Note plus an amount, if any, which together with the outstanding principal balance of this Note, shall be sufficient to enable Lender to purchase, through means and sources customarily employed and available to Lender, for the account of Borrower, (x) direct, non-callable, fixed rate obligations of the United States of America or (y) non-callable, fixed rate obligations, other than U.S. Treasury Obligations, that are “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, as amended, that provide for payments prior, but as close as possible, to all successive monthly Payment Dates occurring after the Release Date and to the Lockout Expiration Date, with each such payment being equal to or greater than the amount of the corresponding installment of principal and/or interest required to be paid under this Note (including, but not limited to, the scheduled outstanding principal balance of the Loan due on the Maturity Date based upon payments of principal and interest through the Lockout Expiration Date) for the balance of the term hereof (the “Defeasance Collateral”), each of which shall be duly endorsed by the holder thereof as directed by Xxxxxx or accompanied by a written instrument of transfer in form and substance satisfactory to Lender in its sole discretion (including, without limitation, such instruments as may be required by the depository institution holding such securities or the issuer thereof, as the case may be, to effectuate book-entry transfers and pledges through the book-entry facilities of such institution) in order to perfect upon the delivery of the Defeasance Security Agreement (as hereinafter defined) the first priority security interest in the Defeasance Collateral in favor of Lender in conformity with all applicable state and federal laws governing granting of such security interests. | ||
| (2) | a pledge and security agreement, in form and substance satisfactory to Lender, creating a first priority security interest in favor of Xxxxxx in the Defeasance Collateral (the “Defeasance Security Agreement”); |
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| (3) | a certificate of Borrower certifying that all of the requirements set forth in this subsection 1.5(d)(i) have been satisfied; | ||
| (4) | one or more opinions of counsel for Borrower in form and substance and delivered by counsel which would be satisfactory to Lender stating, among other things, that (i) Lender has a perfected first priority security interest in the Defeasance Collateral and that the Defeasance Security Agreement is enforceable against Borrower in accordance with its terms, (ii) in the event of a bankruptcy proceeding or similar occurrence with respect to Borrower, none of the Defeasance Collateral nor any proceeds thereof will be property of Borrower’s estate under Section 541 of the U.S. Bankruptcy Code, as amended, or any similar statute and the grant of security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the U.S. Bankruptcy Code, as amended, or applicable state law, (iii) the release of the lien of the Security Instrument and the pledge of Defeasance Collateral will not directly or indirectly result in or cause any REMIC Trust that then holds this Note to fail to maintain its status as a REMIC Trust and (iv) the defeasance will not cause any REMIC Trust to be an “investment company” under the Investment Company Act of 1940; | ||
| (5) | evidence in writing from any applicable Rating Agency (as defined in the Security Instrument) to the effect that the Defeasance will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such Defeasance for any Securities (as hereinafter defined) issued in connection with the securitization which are then outstanding; provided, however, no evidence from a Rating Agency shall be required if this Note does not meet the then-current review requirements of such Rating Agency. | ||
| (6) | a certificate in form and scope acceptable to Lender in its sole discretion from an acceptable independent accountant certifying that the Defeasance Collateral will generate amounts sufficient to make all payments of principal and interest due under this Note through the Lockout Expiration Date and the outstanding principal balance of the Loan due on the Maturity Date based upon payments of principal and interest through the Lockout Expiration Date; | ||
| (7) | Borrower and any guarantor or indemnitor of Borrower’s obligations under the Loan Documents for which Borrower has personal liability executes and delivers to Lender such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of such personal liability and guaranty or indemnity, respectively; | ||
| (8) | such other certificates, documents or instruments as Lender may reasonably require; and | ||
| (9) | payment of all fees, costs, expenses and charges incurred by Lender in connection with the Defeasance of the Property and the purchase of the Defeasance Collateral, including, without limitation, all legal fees and |
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| costs and expenses incurred by Lender or its agents in connection with release of the Property, review of the proposed Defeasance Collateral and preparation of the Defeasance Security Agreement and related documentation, any revenue, documentary, stamp, intangible or other taxes, charges or fees due in connection with transfer of the Note, assumption of the Note, or substitution of collateral for the Property shall be paid on or before the Release Date. Without limiting Borrower’s obligations with respect thereto, Lender shall be entitled to deduct all such fees, costs, expenses and charges from the Defeasance Deposit to the extent of any portion of the Defeasance Deposit which exceeds the amount necessary to purchase the Defeasance Collateral. |
(D) In connection with the Defeasance Deposit, Borrower hereby authorizes and
directs Lender using the means and sources customarily employed and available to
Lender to use the Defeasance Deposit to purchase for the account of Borrower the
Defeasance Collateral. Furthermore, the Defeasance Collateral shall be arranged
such that payments received from such Defeasance Collateral shall be paid directly
to Lender to be applied on account of the indebtedness of this Note. Any part of
the Defeasance Deposit in excess of the amount necessary to purchase the Defeasance
Collateral and to pay the other and related costs Borrower is obligated to pay under
this Section 1.5 shall be refunded to Borrower.
(ii) Upon compliance with the requirements of subsection 1.5(d)(i), the Property shall
be released from the lien of the Security Instrument and the other Loan Documents, and the
Defeasance Collateral shall constitute collateral which shall secure this Note and all other
obligations under the Loan Documents. Lender will, at Xxxxxxxx’s expense, execute and
deliver any agreements reasonably requested by Borrower to release the lien of the Security
Instrument from the Property.
(iii) Upon the release of the Property in accordance with this Section 1.5(d),
Borrower shall assign all its obligations and rights under this Note, together with the
pledged Defeasance Collateral, to a newly created successor entity which complies with the
terms of Section 2.29 of the Security Instrument designated 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 Defeasance Security Agreement. As conditions
to such assignment and assumption, Borrower shall (x) deliver to Lender an opinion of
counsel in form and substance satisfactory to a prudent lender and delivered by counsel
satisfactory to a prudent lender 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 and the Defeasance Security Agreement as so assumed, are enforceable against
such successor entity in accordance with their respective terms, and (y) pay all costs and
expenses (including, but not limited to, legal fees) 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). Upon such assumption, Borrower shall be relieved of its obligations
hereunder, under the other Loan Documents other than as specified in Section
1.5(d)(i)(C)(7) above and under the Defeasance Security Agreement (or other Defeasance
document).
1.6. Security. The indebtedness evidenced by this Note and the obligations created
hereby are secured by, among other things, that certain mortgage, deed of trust or deed to secure
debt, security agreement and fixture filing (the “Security Instrument”) from Borrower for the
benefit of Lender, dated
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of even date herewith, covering the Property. The Security Instrument, together with this Note and
all other documents to or of which Xxxxxx is a party or beneficiary now or hereafter evidencing,
securing, guarantying, modifying or otherwise relating to the indebtedness evidenced hereby, are
herein referred to collectively as the “Loan Documents”. All of the terms and provisions of the
Loan Documents are incorporated herein by reference. Some of the Loan Documents are to be filed
for record on or about the date hereof in the appropriate public records.
ARTICLE II. — DEFAULT
2.1. Events of Default. It is hereby expressly agreed that should any default occur
in the payment of principal or interest as stipulated above and such payment is not made on the
date such payment is due, or should any other default occur under any other Loan Document and not
be cured within any applicable grace or notice period (if any), then an Event of Default (an “Event
of Default”) shall exist hereunder, and in such event the indebtedness evidenced hereby, including
all sums advanced or accrued hereunder or under any other Loan Document, and all unpaid interest
accrued thereon, shall, at the option of Lender and without notice to Borrower, at once become due
and payable and may be collected forthwith, whether or not there has been a prior demand for
payment and regardless of the stipulated date of maturity.
2.2. Late Charges. In the event that any payment is not received by Lender within ten
(10) days of the date when due (subject to any applicable grace period), then, in addition to any
default interest payments due hereunder, Borrower shall also pay to Lender a late charge in an
amount equal to three percent (3%) of the amount of such overdue payment. Notwithstanding the
foregoing, no late charge shall be due on the principal balance on the Loan as a result of the
failure to repay in full the Loan on the Maturity Date.
2.3. Default Interest Rate. So long as any Event of Default exists hereunder or under
any other Loan Document, regardless of whether or not there has been an acceleration of the
indebtedness evidenced hereby, and at all times after maturity of the indebtedness evidenced hereby
(whether by acceleration or otherwise), interest shall accrue on the outstanding principal balance
of this Note, from the date due until the date credited, at a rate per annum equal to four percent
(4%) in excess of the Note Rate, or, if such increased rate of interest may not be collected under
applicable law (as applicable), then at the Maximum Lawful Rate (as applicable, the “Default
Interest Rate”), and such default interest shall be immediately due and payable.
2.4. Borrower’s Agreements. Borrower acknowledges that it would be extremely
difficult or impracticable to determine Xxxxxx’s actual damages resulting from any late payment or
default, and such late charges and default interest are reasonable estimates of those damages and
do not constitute a penalty. The remedies of Lender in this Note or in the Loan Documents, or at
law or in equity, shall be cumulative and concurrent, and may be pursued singly, successively or
together, in Xxxxxx’s discretion.
2.5. Borrower to Pay Costs. In the event that this Note, or any part hereof, is
collected by or through an attorney-at-law, Xxxxxxxx agrees to pay all costs of collection,
including, but not limited to, reasonable attorneys’ fees.
2.6. Exculpation. Notwithstanding anything in this Note or the Loan Documents to the
contrary, but subject to the qualifications hereinbelow set forth, Xxxxxx agrees that:
(a) Borrower shall be liable upon the indebtedness evidenced hereby and for the other
obligations arising under the Loan Documents to the full extent (but only to the extent) of the
security therefor, the same being all properties (whether real or personal), rights, estates and
interests now
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or at any time hereafter securing the payment of this Note and/or the other obligations of Borrower
under the Loan Documents (collectively, the “Property”);
(b) if a default occurs in the timely and proper payment of all or any part of such
indebtedness evidenced hereby or in the timely and proper performance of the other obligations of
Borrower under the Loan Documents, any judicial proceedings brought by Lender against Borrower
shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens,
security titles, estates, assignments, rights and security interests now or at any time hereafter
securing the payment of this Note and/or the other obligations of Borrower under the Loan
Documents, and no attachment, execution or other writ of process shall be sought, issued or levied
upon any assets, properties or funds of Borrower other than the Property, except with respect to
the liability described below in this section; and
(c) in the event of a foreclosure of such liens, security titles, estates, assignments, rights
or security interests securing the payment of this Note and/or the other obligations of Borrower
under the Loan Documents, no judgment for any deficiency upon the indebtedness evidenced hereby
shall be sought or obtained by Lender against Borrower, except with respect to the liability
described below in this section; provided, however, that, notwithstanding the foregoing provisions
of this section, Borrower shall be fully and personally liable and subject to legal action (i) for
proceeds paid under any insurance policies (or paid as a result of any other claim or cause of
action against any person or entity) by reason of damage, loss or destruction to all or any portion
of the Property, to the full extent of such proceeds not previously delivered to Lender, but which,
under the terms of the Loan Documents, should have been delivered to Lender, (ii) for proceeds or
awards resulting from the condemnation or other taking in lieu of condemnation of all or any
portion of the Property, to the full extent of such proceeds or awards not previously delivered to
Lender, but which, under the terms of the Loan Documents, should have been delivered to Lender,
(iii) for all tenant security deposits or other refundable deposits paid to or held by Borrower or
any other person or entity in connection with leases of all or any portion of the Property which
are not applied in accordance with the terms of the applicable lease or other agreement, (iv) for
rent and other payments received from tenants under leases of all or any portion of the Property
paid more than one (1) month in advance, (v) for rents, issues, profits and revenues of all or any
portion of the Property received or applicable to a period after the occurrence of any Event of
Default hereunder or under the Loan Documents or any event which, with notice or the passage of
time, or both, would constitute an Event of Default, hereunder or under the Loan Documents which
are not either applied to the ordinary and necessary expenses of owning and operating the Property
or paid to Lender, (vi) for waste committed on the Property, damage to the Property as a result of
the intentional misconduct or gross negligence of Borrower or any of its principals, officers,
general partners or members, any guarantor, any indemnitor, or any agent or employee of any such
person, or any removal of all or any portion of the Property in violation of the terms of the Loan
Documents, to the full extent of the losses or damages incurred by Lender on account of such
occurrence, (vii) for failure to pay any valid taxes, assessments, mechanic’s liens, materialmen’s
liens or other liens which could create liens on any portion of the Property which would be
superior to the lien or security title of the Security Instrument or the other Loan Documents, to
the full extent of the amount claimed by any such lien claimant except, with respect to any such
taxes or assessments, to the extent that funds have been deposited with Lender pursuant to the
terms of the Security Instrument specifically for the applicable taxes or assessments and not
applied by Lender to pay such taxes and assessments, (viii) for all obligations and indemnities of
Borrower under the Loan Documents relating to Hazardous Substances (as defined in the Security
Instrument) or radon or compliance with Environmental Laws (as defined in the Security Instrument)
and regulations to the full extent of any losses or damages (including those resulting from
diminution in value of any Property) incurred by Lender and/or any of its affiliates as a result of
the existence of such Hazardous Substances or radon or failure to comply with such Environmental
Laws or regulations, or (ix) for fraud, intentional misrepresentation, failure to disclose a
material fact, any untrue statement of a material fact or omission to state a material fact in the
written materials and/or information provided to Lender or any of its affiliates
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by or on behalf of Borrower or any of its affiliates, principals, officers, general partners or
members, any guarantor, any indemnitor or any agent, employee or other person authorized or
apparently authorized to make statements, representations or disclosures on behalf of Borrower, any
affiliate, principal, officer, general partner or member of Borrower, any guarantor or any
indemnitor, to the full extent of any losses, damages and expenses of Lender and/or any of its
affiliates on account thereof. References herein to particular sections of the Loan Documents
shall be deemed references to such sections as affected by other provisions of the Loan Documents
relating thereto. Nothing contained in this Section shall (1) be deemed to be a release or
impairment of the indebtedness evidenced by this Note or the other obligations of Borrower under
the Loan Documents or the lien of the Loan Documents upon the Property, or (2) preclude Lender from
foreclosing the Loan Documents in case of any default or from enforcing any of the other rights of
Lender except as stated in this Section, or (3) limit or impair in any way whatsoever (A) the
Indemnity and Guaranty Agreement (the “Indemnity Agreement”) or (B) the Environmental Indemnity
Agreement (the “Environmental Indemnity Agreement”), each of even date herewith executed and
delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce,
waive or impair in any way whatsoever, any obligation of any party to the Indemnity Agreement or
the Environmental Indemnity Agreement.
Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability as set
forth in this Section 2.6 SHALL BECOME NULL AND VOID and shall be of no further force and
effect in the event of (i) a default by Borrower, Indemnitor (as defined in the Security
Instrument) or any general partner, manager or managing member of Borrower of any of the covenants
set forth in Section 2.9 or Section 2.29 of the Security Instrument, or (ii) if the
Property or any part thereof shall become an asset in (A) a voluntary bankruptcy or insolvency
proceeding of Borrower or Indemnitor, or (B) an involuntary bankruptcy or insolvency proceeding of
Borrower or Indemnitor in which the Borrower or the Indemnitor colludes with creditors in such
bankruptcy or insolvency proceeding and which is not dismissed within sixty (60) days of filing.
Notwithstanding anything to the contrary in this Note, the Security Instrument or any of the
other Loan Documents, Lender shall not be deemed to have waived any right which Lender may have
under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a
claim for the full amount of the indebtedness evidenced hereby or secured by the Security
Instrument or any of the other Loan Documents or to require that all collateral shall continue to
secure all of the indebtedness owing to Lender in accordance with this Note, the Security
Instrument and the other Loan Documents.
ARTICLE III. — GENERAL CONDITIONS
3.1. No Waiver; Amendment. No failure to accelerate the indebtedness evidenced hereby
by reason of default hereunder, acceptance of a partial or past due payment, or indulgences granted
from time to time shall be construed (i) as a novation of this Note or as a reinstatement of the
indebtedness evidenced hereby or as a waiver of such right of acceleration or of the right of
Lender thereafter to insist upon strict compliance with the terms of this Note, or (ii) to prevent
the exercise of such right of acceleration or any other right granted hereunder or by any
applicable laws; and Borrower hereby expressly waives the benefit of any statute or rule of law or
equity now provided, or which may hereafter be provided, which would produce a result contrary to
or in conflict with the foregoing. No extension of the time for the payment of this Note or any
installment due hereunder made by agreement with any person now or hereafter liable for the payment
of this Note shall operate to release, discharge, modify, change or affect the original liability
of Borrower under this Note, either in whole or in part, unless Xxxxxx agrees otherwise in writing.
This Note may not be changed orally, but only by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification or discharge is sought.
9
3.2. Waivers. Presentment for payment, demand, protest and notice of demand, protest
and nonpayment and all other notices are hereby waived by Xxxxxxxx. Borrower hereby further waives
and renounces, to the fullest extent permitted by law, all rights to the benefits of any
moratorium, reinstatement, marshaling, forbearance, valuation, stay, extension, redemption,
appraisement, exemption and homestead now or hereafter provided by the Constitution and laws of the
United States of America and of each state thereof, both as to itself and in and to all of its
property, real and personal, against the enforcement and collection of the obligations evidenced by
this Note or the other Loan Documents.
3.3. Limit of Validity.
(a) Definitions. As used herein, the term “Maximum Lawful Rate” shall mean the
maximum lawful rate of interest which may be contracted for, charged, taken, received or reserved
by Lender in accordance with the applicable laws of the State of Texas (or applicable United States
federal law to the extent that it permits Lender to contract for, charge, take, receive or reserve
a greater amount of interest than under Texas law), taking into account all Charges (as defined
herein) made in connection with the transaction evidenced by this Note and the other Loan
Documents. As used herein, the term “Charges” shall mean all fees, charges and/or any other things
of value, if any, contracted for, charged, received, taken or reserved by Lender in connection with
the transactions relating to this Note and the other Loan Documents, which are treated as interest
under applicable law. As used herein, the term “Related Indebtedness” shall mean any and all debt
paid or payable by Borrower to Lender pursuant to the Loan Documents or any other communication or
writing by or between Borrower and Lender related to the transaction or transactions that are the
subject matter of the Loan Documents, except such debt which has been paid or is payable by
Borrower to Lender under this Note.
(b) Ceiling Election. To the extent that Xxxxxx is relying on Chapter 303 of the
Texas Finance Code to determine the Maximum Lawful Rate payable on this Note and/or the Related
Indebtedness, Xxxxxx will utilize the weekly ceiling from time to time in effect as provided in
such Chapter 303, as amended. To the extent United States federal law permits Lender to contract
for, charge, take, receive or reserve a greater amount of interest than under Texas law, Lender
will rely on United States federal law instead of such Chapter 303 for the purpose of determining
the Maximum Lawful Rate. Additionally, to the extent permitted by applicable law now or hereafter
in effect, Lender may, at its option and from time to time, utilize any other method of
establishing the Maximum Lawful Rate under such Chapter 303 or under other applicable law by giving
notice, if required, to Borrower as provided by applicable law now or hereafter in effect.
3.4. Savings Clause. It is expressly stipulated and agreed to be the intent of
Borrower and Lender at all times to comply strictly with the applicable Texas law governing the
maximum rate or amount of interest payable on this Note or the Related Indebtedness (or applicable
United States federal law to the extent that it permits Lender to contract for, charge, take,
reserve or receive a greater amount of interest than under Texas law). If the applicable law is
ever judicially interpreted so as to render usurious any amount (i) contracted for, charged, taken,
reserved or received pursuant to this Note, any of the other Loan Documents or any other
communication or writing by or between Borrower and Lender related to the transaction or
transactions that are the subject matter of the Loan Documents, (ii) contracted for, charged or
received by reason of Lender’s exercise of the option to accelerate the maturity of this Note
and/or the Related Indebtedness, or (iii) Borrower will have paid or Lender will have received by
reason of any voluntary prepayment by Borrower of this Note and/or the Related Indebtedness, then
it is Borrower’s and Xxxxxx’s express intent that all amounts charged in excess of the Maximum
Lawful Rate shall be automatically cancelled, ab initio, and all amounts in excess of the Maximum
Lawful Rate theretofore collected by Lender shall be credited on the principal balance of this Note
and/or the Related Indebtedness (or, if this Note and all Related Indebtedness have been or would
thereby be paid in full, refunded to Borrower), and the provisions of this Note and the other Loan
Documents immediately be
10
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;
provided, however, if this Note has been paid in full before the end of the stated term of this
Note, then Borrower and Xxxxxx agree that Lender shall, with reasonable promptness after Xxxxxx
discovers or is advised by Xxxxxxxx that interest was received in an amount in excess of the
Maximum Lawful Rate, either refund such excess interest to Borrower and/or credit such excess
interest against this Note and/or any Related Indebtedness then owing by Borrower to Lender.
Borrower hereby agrees that as a condition precedent to any claim seeking usury penalties against
Xxxxxx, Xxxxxxxx will provide written notice to Xxxxxx, advising Lender in reasonable detail of the
nature and amount of the violation, and Xxxxxx shall have sixty (60) days after receipt of such
notice in which to correct such usury violation, if any, by either refunding such excess interest
to Borrower or crediting such excess interest against this Note and/or the Related Indebtedness
then owing by Borrower to Xxxxxx. All sums contracted for, charged or received by Lender for the
use, forbearance or detention of any debt evidenced by this Note and/or the Related Indebtedness
shall, to the extent permitted by applicable law, be amortized or spread, using the actuarial
method, throughout the stated term of this Note and/or the Related Indebtedness (including any and
all renewal and extension periods) until payment in full so that the rate or amount of interest on
account of this Note and/or the Related Indebtedness does not exceed the Maximum Lawful Rate from
time to time in effect and applicable to this Note and/or the Related Indebtedness for so long as
debt is outstanding In no event shall the provisions of Chapter 346 of the Texas Finance Code
(which regulates certain revolving credit loan accounts and revolving tri-party accounts) apply to
this Note and/or the Related Indebtedness. 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.
3.5. Use of Funds. Borrower hereby warrants, represents and covenants that no funds
disbursed hereunder shall be used for personal, family or household purposes.
3.6. Unconditional Payment. Borrower is and shall be obligated to pay principal,
interest and any and all other amounts which become payable hereunder or under the other Loan
Documents absolutely and unconditionally and without any abatement, postponement, diminution or
deduction and without any reduction for counterclaim or setoff. In the event that at any time any
payment received by Lender hereunder shall be deemed by a court of competent jurisdiction to have
been a voidable preference or fraudulent conveyance under any bankruptcy, insolvency or other
debtor relief law, then the obligation to make such payment shall survive any cancellation or
satisfaction of this Note or return thereof to Borrower and shall not be discharged or satisfied
with any prior payment thereof or cancellation of this Note, but shall remain a valid and binding
obligation enforceable in accordance with the terms and provisions hereof, and such payment shall
be immediately due and payable upon demand.
3.7. Governing Law. THIS NOTE SHALL BE INTERPRETED, CONSTRUED AND ENFORCED ACCORDING
TO THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED.
3.8. Waiver of Jury Trial. XXXXXXXX, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES,
RELINQUISHES AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED
UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THE DEBT EVIDENCED BY THIS NOTE OR ANY CONDUCT, ACT
OR OMISSION OF LENDER OR BORROWER, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, PARTNERS,
MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH LENDER OR BORROWER,
IN
11
EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
ARTICLE IV. — MISCELLANEOUS PROVISIONS
4.1. Successors and Assigns; Joint and Several; Interpretation. The terms and
provisions hereof shall be binding upon and inure to the benefit of Xxxxxxxx and Xxxxxx and their
respective heirs, executors, legal representatives, successors, successors-in-title and assigns,
whether by voluntary action of the parties or by operation of law. As used herein, the terms
“Borrower” and “Lender” shall be deemed to include their respective heirs, executors, legal
representatives, successors, successors-in-title and assigns, whether by voluntary action of the
parties or by operation of law. If Borrower consists of more than one person or entity, each shall
be jointly and severally liable to perform the obligations of Borrower under this Note. All
personal pronouns used herein, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural and vice versa. Titles of
articles and sections are for convenience only and in no way define, limit, amplify or describe the
scope or intent of any provisions hereof. Time is of the essence with respect to all provisions of
this Note. This Note and the other Loan Documents contain the entire agreements between the
parties hereto relating to the subject matter hereof and thereof and all prior agreements relative
hereto and thereto which are not contained herein or therein are terminated.
4.2. Taxpayer Identification. The Tax Identification Number of Apartment REIT Hidden
Lakes, LP is 00-0000000.
[The Remainder of the Page is Intentionally Blank]
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THIS NOTE AND THE OTHER LOAN DOCUMENTS EMBODY THE FINAL ENTIRE AGREEMENT AMONG THE PARTIES
HERETO 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 THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO. THIS
NOTE CONTAINS THE ENTIRE AGREEMENT BETWEEN THE PARTIES RESPECTING THE MATTERS HEREIN SET FORTH AND
SUPERSEDES ALL PRIOR AGREEMENTS, WHETHER WRITTEN OR ORAL, BETWEEN THE PARTIES RESPECTING SUCH
MATTERS. ANY AMENDMENTS OR MODIFICATIONS HERETO, IN ORDER TO BE EFFECTIVE, SHALL BE IN WRITING AND
EXECUTED BY THE PARTIES HERETO. A DETERMINATION THAT ANY PROVISION OF THIS NOTE IS UNENFORCEABLE
OR INVALID SHALL NOT AFFECT THE ENFORCEABILITY OR VALIDITY OF ANY OTHER PROVISION, AND ANY
DETERMINATION THAT THE APPLICATION OF ANY PROVISION OF THIS NOTE TO ANY PERSON OR CIRCUMSTANCE IS
ILLEGAL OR UNENFORCEABLE SHALL NOT AFFECT THE ENFORCEABILITY OR VALIDITY OF SUCH PROVISION AS IT
MAY APPLY TO ANY OTHER PERSONS OR CIRCUMSTANCES.
IN WITNESS WHEREOF, Xxxxxxxx has executed this Note as of the date first written above.
| BORROWER: | ||||||||||||
| APARTMENT REIT HIDDEN LAKES, LP, a Texas limited partnership |
||||||||||||
| By: | Apartment REIT Hidden Lakes GP, LLC, | |||||||||||
| a Delaware limited liability company, | ||||||||||||
| its General Partner | ||||||||||||
| By: | NNN Apartment REIT Holdings, L.P., | |||||||||||
| a Virginia limited partnership, | ||||||||||||
| its Manager | ||||||||||||
| By: | NNN Apartment REIT, Inc., | |||||||||||
| a Maryland corporation, | ||||||||||||
| its General Partner | ||||||||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||||||||
| Name: | Xxxxxx X. Xxxxxx | |||||||||||
| Title: | Secretary | |||||||||||
