NOTE
Exhibit
99.6
NOTE
$24,500,000.00 |
October
1, 2008
|
FOR VALUE
RECEIVED, the undersigned, Whitestone Offices LLC, a Texas limited liability
company (“Borrower”), whose Federal Tax Identification Number is 00-0000000,
promises to pay to the order of Nationwide Life Insurance Company, an Ohio
corporation, its successors and assigns (“Lender”), the principal sum of
$24,500,000.00, together with interest on the principal balance of this Note
(the “Note”), from time to time remaining unpaid, from the date of disbursement
by Lender at the applicable interest rate hereinafter set forth, together with
all other sums due hereunder or under the terms of the Deed of Trust (as
hereinafter defined) in lawful money of the United States of America which shall
be legal tender in payment of all debts at the time of such payment (the
“Loan”). Both principal and interest and all other sums due hereunder
shall be payable at the office of Lender at Xxx Xxxxxxxxxx Xxxxx, Xxxxx Xxxxx,
Xxxxxxxx, Xxxx 00000, Attention: Real Estate Investments,
or at such other place as Lender may from time to time
designate. Said principal and interest shall be paid over a term, at
the times, and in the manner set forth below:
1. Payment
Provisions.
(a) In
the event that disbursement occurs on the first day of the month, then there
shall be no payment of interim interest and the first payment due from Borrower
hereunder shall be in accordance with subsection (b) below.
(b)
Monthly installments of interest only on the unpaid principal balance of this
Note at the rate of 6.56% per annum (the “Applicable Interest Rate”) shall be
due and payable in twelve (12) consecutive monthly installments commencing on
November 1, 2008, and continuing on the first day of each calendar month
thereafter (a “Payment Date”), with each such installment to be in the sum of
$133,933.33, without deduction or set-off.
(c)
Thereafter, monthly installments of principal and interest on the unpaid
principal balance of this Note at the Applicable Interest Rate, shall be due and
payable in forty-seven (47) consecutive monthly installments commencing on
November 1, 2009, and continuing on the first day of each calendar month
thereafter, with each such installment to be in the sum of $166,345.48, without
deduction or set-off.
2. Maturity.
The unpaid principal balance of this Note, and all accrued unpaid interest
thereon (if not sooner paid), shall be due and payable in full on October 1,
2013 (the “Maturity Date”).
3. Application
of Payments. All payments shall be applied first to any late payment or
other such charges as provided in this Note or in the Deed of Trust, then to
accrued unpaid interest on this Note, and the balance, if any, shall be applied
to the reduction of the outstanding principal balance of this Note (subject to
the terms hereof). Interest due hereunder shall be calculated on the
basis of a 360-day year (composed of twelve 30-day months); provided, however,
in no event shall the rate of interest payable under the terms of this Note
exceed the maximum rate of interest permitted under applicable law.
4. Late
Payment Charge. Prior to the acceleration or maturity of this Note,
Lender may collect a late payment charge in an amount equal to 5% of any monthly
installment of principal and/or interest not received by the due date for each
month or any part thereof that the payment is delinquent; provided, however, no
late payment charge shall be due for the first late payment made during the term
of the Loan. Such late payment charge shall constitute liquidated
damages for the purpose of covering the additional administrative costs,
expenses and inconvenience incurred by Lender in handling delinquent
installments and Lender may collect such late payment charges even though it has
not given any notice to Borrower of such late payment or a cure period, if any,
has not passed; provided that such late payment charge shall not, together with
other interest to be paid on the indebtedness evidenced by this Note or
indebtedness arising under any instrument securing the payment hereof, exceed
the maximum interest permitted under applicable law. Borrower acknowledges that
the late payment charge is a fair and reasonable estimate, considering all of
the circumstances existing on the date of execution of this Note, of the cost
the Lender will incur by reason of such late payment.
5. Prepayment.
(a)
Except as hereinafter provided, Borrower shall not have the right to prepay all
or any part of the Loan at any time. Borrower shall have the right to
prepay, in full but not in part, the Loan evidenced by this Note, provided that,
as conditions precedent, Xxxxxxxx: (i) gives Lender not less than thirty (30)
days prior Written Notice (as defined in the Deed of Trust) of Borrower’s
intention to so prepay this Note; and (ii) pays to Lender the Prepayment Premium
(as hereinafter defined), if any, then due and payable to Lender as hereinafter
provided. As used herein, the term “Prepayment Premium” shall mean a
sum equal to the greater of either: (A) an amount equal to the sum of
(i) the present value of the scheduled monthly payments due under this Note from
the date of prepayment to the Maturity Date, and (ii) the present value of the
amount of principal and interest due under this Note on the Maturity Date
(assuming all scheduled monthly payments due prior to the Maturity Date were
made when due), minus (iii) the
outstanding principal balance of this Note as of the date of prepayment; or (B)
1% of the outstanding principal balance of this Note at the time of
prepayment. The present values described in (A)(i) and (A)(ii) shall
be computed on a monthly basis as of the date of prepayment discounted at the
yield-to-maturity of the U. S. Treasury Note or Bond closest in maturity to the
Maturity Date of this Note as reported by Bloomberg or another comparable
financial market resource designated by Lender on the fifth Business Day (as
hereinafter defined) preceding the date of prepayment plus twenty-five (25)
basis points. “Business Day” shall mean any day other than a
Saturday, Sunday or legal holiday on which commercial banks are authorized or
required to be closed in Columbus, Ohio. Borrower shall be obligated
to prepay this Note on the date set forth in the notice to Lender required
hereinabove, after such notice has been delivered to Lender. If all or any
portion of the Prepayment Premium calculation in this Section 5(a) shall be
amended, altered, severed, voided or determined to be not enforceable by any
court or other governmental entity, the entire voluntary prepayment privilege
set forth in this Section 5(a) shall be deemed null and void, and of no further
force and effect.
(b) In the event the
Maturity Date of the Loan evidenced by this Note is accelerated by Lender at any
time due to a default by Borrower under this Note or any of the other Loan
Documents (as hereinafter defined), Borrower shall pay to Lender (in addition to
all other amounts then due) an involuntary prepayment premium equal to 3% of the
outstanding principal balance
of the Note at the time of such default plus the Prepayment Premium in (a)(A)
above; provided, however, that in the event such Prepayment Premium is construed
to be interest under the laws of the State of Texas (the “State”) in any
circumstance, such payment shall not be required to the extent that the amount
thereof, together with other interest payable hereunder, exceeds the maximum
rate of interest that may be lawfully charged under applicable
law.
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(c) If
Lender elects to apply insurance proceeds or condemnation awards, if applicable,
to the reduction of the outstanding principal balance of this Note in the manner
provided in the Deed of Trust, provided no default has occurred under this Note,
the Deed of Trust or the other Loan Documents, no Prepayment Premium shall be
due or payable as a result of such application, and the monthly installments due
and payable hereunder shall be reduced accordingly.
(d)
During the ninety (90) day period immediately preceding the Maturity Date of
this Note, the entire outstanding principal balance and all accrued unpaid
interest on this Note may be prepaid in full, but not in part, at par, without a
Prepayment Premium.
(e) If
the prepayment of this Note occurs on a date other than a Payment Date interest
shall be calculated based upon the actual days including the date of
prepayment.
6. Additional
Conditions. This Note is secured by, among other things, a Deed of Trust
and Security Agreement (the “Deed of Trust”) and by an Assignment of Leases,
Rents and Profits (the “Assignment”) of even date herewith, encumbering certain
property described therein (collectively, the “Property”). The Deed
of Trust and the Assignment contain terms and provisions which provide grounds
for acceleration of the Loan evidenced by this Note, together with additional
remedies in the event of default hereunder or thereunder. Failure on
the part of Lender to exercise any right granted herein or in the Deed of Trust
or the Assignment or any other Loan Document shall not constitute a waiver of
such right or preclude Xxxxxx’s subsequent exercise and enforcement
thereof. This Note, the Deed of Trust, the Assignment and all other
documents and instruments executed as further evidence of, as additional
security for, or executed in connection with the Loan evidenced by this Note are
hereinafter collectively referred to as the “Loan Documents.”
Except as
otherwise provided herein, all parties to this Note, including endorsers,
sureties, indemnitors and guarantors (collectively, “Guarantor”), if any, hereby
jointly and severally waive presentment for payment, demand, protest, notice of
protest, notice of demand, notice of nonpayment, notice of dishonor, notice of
intent to accelerate the maturity of this Note, notice of acceleration of the
maturity of this Note, and any and all other notices and demands whatsoever, and
agree to remain bound hereby until the principal, interest and all other
obligations arising under this Note are paid in full, notwithstanding any
extensions of time for payment which may be granted by Xxxxxx, even though the
period of extension be indefinite, and notwithstanding any inaction by, or
failure to assert any legal rights available to Lender pursuant to the terms and
conditions of this Note.
If the
obligations evidenced by this Note, or any part thereof, are placed in the hands
of an attorney or other person for collection, whether by suit or otherwise, at
any time or from time to time, Borrower shall be liable to Lender, in each
instance, for all costs and expenses incurred in connection therewith,
including, without limitation, Reasonable Attorneys’ Fees (as hereinafter
defined).
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7. Default.
If Borrower defaults under this Note or under any of the other Loan Documents,
then in any or all of such events, at the option of Lender, the entire
outstanding principal balance of this Note, together with all accrued unpaid
interest thereon and all other obligations arising under this Note or any of the
other Loan Documents, may be accelerated by Lender and may become and be
immediately due and payable then or thereafter as Lender may elect, regardless
of the Maturity Date hereof. All such amounts and any funds advanced by Lender
for the protection of the Property and any costs of collection (including, but
not limited to, Reasonable Attorneys’ Fees and expenses) shall bear interest
after maturity, by acceleration or otherwise, at the lesser of
either: (a) the highest rate of interest then allowed by the laws of
the State or, if controlling, the laws of the United States; or (b) the then
applicable interest rate of this Note plus 5% per annum.
During
the existence of any such default, Lender may apply any sums received,
including, but not limited to, insurance proceeds or condemnation awards, to any
amount then due and owing hereunder or under the terms of any of the other Loan
Documents as Lender may determine. Neither the right nor the exercise
of the right herein granted unto Lender to apply such proceeds as aforesaid
shall serve to cure the default or preclude Lender from exercising its option to
cause the entire Loan evidenced by this Note to become immediately due and
payable by reason of Borrower’s default under the terms of this Note or any of
the other Loan Documents.
Notwithstanding any
provisions herein to the contrary, Xxxxxx’s right, power and privilege to
accelerate the maturity of the indebtedness evidenced hereby shall be
conditioned upon, with respect to any Non-Monetary Default (as hereinafter
defined), Xxxxxx having given Borrower Written Notice of the Non-Monetary
Default and a thirty (30)-day period, after the date of the Written Notice,
within which to cure the Non-Monetary Default, unless such Non-Monetary Default
cannot be cured within said thirty (30)-day time period, in which event Borrower
shall have a reasonable period of time to complete the cure, provided that
action to cure the Non-Monetary Default has commenced within said thirty
(30)-day period and Borrower is, in Xxxxxx’s sole discretion, diligently
pursuing the cure to completion, but in no event shall the cure period for the
Non-Monetary Default be longer than ninety (90) days; and (ii) with respect to
any Monetary Default (as hereinafter defined), Xxxxxx having given Borrower
Written Notice of such Monetary Default and a five (5) day period after such
notice is given within which to cure such Monetary Default; provided, however,
that Lender shall not be required to give such notice and right to cure as to
Monetary Defaults, which occur during any Loan Year (hereinafter defined) if
Lender has previously given Written Notice of a Monetary Default during such
Loan Year and provided further that such notice of and right to cure a Monetary
Default shall not waive Xxxxxx’s right to collect a late payment charge
otherwise due under this Note. Any notice required hereunder shall be given as
provided in the Deed of Trust. Lender shall have no obligation to
give Borrower notice of, or any period to cure, any Monetary Default (other than
the notice and cure period specifically provided herein) or any Incurable
Default (as hereinafter defined) prior to exercising Lender’s right, power and
privilege to accelerate the maturity of the Loan evidenced hereby, to declare
the same to be immediately due and payable, and to exercise all other rights and
remedies herein granted or otherwise available to Lender at law or in
equity. As used herein, the term “Monetary Default” shall mean any default which
can be cured by the payment of money, including but not limited to, the payment
of principal and/or interest due under this Note and the payment of taxes,
assessments and insurance premiums when due as provided in the Deed of Trust. As
used herein, the term “Non-Monetary Default” shall mean any default which is not
a Monetary Default or an Incurable Default. As used herein, the term
“Incurable Default” shall mean either: (i) any voluntary or
involuntary sale, assignment, mortgaging or transfer of the Property or
ownership interests in Borrower in violation of the covenants of the Deed of
Trust; or (ii) a breach of any provision of Section 22 of the Deed of Trust. As
used herein, the term “Loan Year” shall mean each twelve month period beginning
with October 1, 2008, and each anniversary thereof
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Notwithstanding
any provision of this Note to the contrary, during any period of default,
regardless of any cure period for such default, in each instance under this
Note, the Deed of Trust or any of the other Loan Documents in which either (i)
Borrower is permitted to take a material action without Lender’s consent, or
(ii) Lender’s consent is to be reasonably exercised, Xxxxxx’s consent shall be
required and shall be granted or withheld in Lender’s sole and absolute
discretion. Notwithstanding anything contained in the Loan Documents, Borrower
shall pay all costs and expenses in connection with any consent required by
Lender (whether or not such consent is granted), including, without limitation,
all costs, fees and expenses (including legal fees) incurred by Lender in
determining whether to grant the requested consent.
8. Savings
Clause; Severability. It is the intent of Xxxxxxxx and Xxxxxx 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, Xxxxxx and Xxxxxxxx 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
interest at a rate in excess of the maximum interest rate permitted to be
charged by applicable law. Neither Borrower nor any guarantors,
endorsers, sureties, indemnitors or other parties now or hereafter becoming
liable for payment of this Note shall ever be 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 the provisions of this section 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.
Lender 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 maximum
permitted by applicable law, Lender shall refund to Borrower the amount of such
excess 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 Lender shall collect monies which are deemed 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, all such sums deemed to
constitute interest in excess of the lawful rate shall, upon such determination,
be immediately applied to reduce the unpaid principal balance of the Note, and
if such principal balance has been repaid in full, then returned to Borrower, 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, Xxxxxxxx acknowledges that it believes the Loan evidenced by this Note to
be non-usurious and agrees that if, at any time,
Borrower should have reason to believe that such Loan is in fact usurious, it
will give Lender notice of such condition and Borrower agrees that Lender 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” or “applicable usury law” as used in this Note shall mean the
laws of the State or the laws of the United States, whichever laws allow the
greater rate of interest and do not violate the laws of the State, as such laws
now exist or may be changed or amended or come into effect in the
future. If any clauses or provisions herein contained operate or
would prospectively operate to invalidate this Note, then such clauses or
provisions only shall be held for naught, as though not herein contained and the
remainder of this Note shall remain operative and in full force and
effect.
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9. Exculpation. Except
as hereinafter provided, the liability of Borrower and any Guarantor with
respect to the payment of principal and interest hereunder shall be
“non-recourse”, and Xxxxxx’s source of satisfaction of the indebtedness and
Xxxxxxxx’s and Guarantor’s other obligations under this Note and under the other
Loan Documents shall be limited to the Property and Xxxxxx’s receipt of the
rents, issues and profits from the Property and any other security or collateral
now or hereafter held by Lender. Lender shall not seek to procure
payment out of other assets of Borrower, any Guarantor or any person or entity
comprising Borrower, nor seek any judgment (except as hereinafter provided) for
any sums that are or may be payable under this Note or any of the other Loan
Documents, including any claim or judgment (except as hereafter provided) for
any deficiency remaining after foreclosure of the Deed of Trust. The
above provisions shall not be deemed to be a release or impairment of the Loan
evidenced by this Note or the security therefor intended by the other Loan
Documents, nor be deemed to preclude Lender from exercising its rights to
foreclose the Deed of Trust or to enforce any of its other rights or remedies
under the Loan Documents, including but not limited to that certain Guaranty of
Recourse Carve-Outs of even date herewith from Whitestone REIT, a Maryland real
estate investment trust. It is expressly understood and agreed that
the aforementioned limitation on liability shall in no way affect or apply to
the continued personal liability of Borrower or any Guarantor, jointly and
severally, for any and all costs, expenses, losses and/or damages incurred by
Xxxxxx as a result of:
(a)
fraud, willful misconduct or material misrepresentation made in connection with
the Application for Mortgage Loan dated August 7, 2008, and any subsequent
amendments thereto (the “Application”), this Note, any of the other Loan
Documents or any other supporting or due diligence documentation provided by
Borrower or any Guarantor in connection therewith;
(b)
failure to pay any taxes which accrue prior to Lender taking control of the
Property or to pay assessments, charges for labor or materials or any other
charges that could result in liens on all or any portion of the Property, but
exclusive of any damages resulting from the failure by Xxxxxx to disburse any
taxes or assessments received from Borrower in escrow;
(c)
misapplication or misappropriation of (i) proceeds of insurance covering all or
any portion of the Property; (ii) proceeds of the sale, condemnation or transfer
in lieu of condemnation of all or any portion of the Property; or (iii) rentals
or other income from the Property received by or on behalf of Borrower and not
applied to satisfy Borrower’s obligations under this Note and/or under the Loan
Documents;
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(d)
causing or permitting waste, arson or other similar damage to occur in, on or
about the Property, or failing to maintain the Property in a prudent
business-like and commercially reasonable standard, excepting only ordinary wear
and tear;
(e)
failure to pay to Lender all unearned advance rentals and security deposits that
have been paid by tenants of the Property to the extent that such funds have not
been refunded to such tenants;
(f)
failure to pay any and all tenant improvement allowances owed to tenants leasing
space in the Property;
(g)
failure to pay to Lender any and all required amounts paid to Borrower by
tenants of the Property in connection with the termination of the leases of such
tenants, including any amounts paid in connection with the bankruptcies or
insolvencies of such tenants and failure to assign any claims, proofs of claims
or other rights related to the future right to receive payment of such
amounts;
(h)
claims, including, without limitation, claims of offset or abatement of rent,
made by any tenant of the Property in connection with its lease, with its
premises or with any other areas of the Property which claims relate to, arise
out of or are caused in whole or in part, by any action, default or failure of
Borrower, which occurs or begins to occur prior to the date on which Lender
takes actual day-to-day control of the Property, regardless of when such claims
may be asserted;
(i)
Borrower’s amendment, modification, termination, renewal or extension of any
existing leases, or entering into new leases of the Property in violation of the
Loan Documents;
(j)
claims made by third parties as a result of Xxxxxxxx’s failure to perform under
agreements affecting the Property;
(k) loss
by fire, casualty or acts of terrorism to the extent not compensated by
insurance proceeds collected by or remitted to Lender;
(l)
failure to return to Lender or reimburse Lender for all Fixtures and Personal
Property (as defined in the Deed of Trust) owned by Borrower taken from the
Property by or on behalf of Borrower out of the ordinary course of business and
not replaced by items of like or greater value than the original value of the
Fixtures and Personal Property so removed;
(m) all
court costs and Reasonable Attorneys’ Fees actually incurred by Xxxxxx for which
Borrower or any Guarantor is liable pursuant to the terms of the Application,
this Note or any of the other Loan Documents;
(n) (i) removal or
remediation of any hazardous or toxic chemicals, materials, substances or wastes
(collectively, “Hazardous Substances”) found on, in or under the Property in
quantities or concentrations that exceed legal limits or where removal or
remediation is required by any governmental entity or any Hazardous Substances
Laws (as defined in the Deed of Trust); to which exposure is prohibited, limited
or regulated by any federal, state, county or local authority; or which may or
could pose a hazard to the health or safety of the occupants of or visitors
to the Property (which substances are also further defined in the Deed of Trust
as “Hazardous Substances”), regardless of the source of origination (including
sources off the Property from which the substance has migrated onto the Property
or into its groundwater);
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(ii) the
restoration of the Property to comply with all governmental regulations
pertaining to Hazardous Substances found in, on or under the Property,
regardless of the source of origination; and (iii) any indemnity or other
agreement to hold Lender and the Trustee (as defined in the Deed of Trust)
harmless from and against any and all losses, liabilities, damages, injuries,
costs, fines and expenses of any and every kind arising as a result of the
presence, removal or remediation of Hazardous Substances, or from the violation
of Hazardous Substances Laws. Borrower and any Guarantor shall not be liable
hereunder if the Property becomes contaminated by Hazardous Substances
subsequent to Lender’s acquisition of the Property by foreclosure or acceptance
of a deed in lieu of foreclosure, or subsequent to any transfer of ownership of
the Property that was approved or authorized in writing by Xxxxxx, provided that
such transferee assumes in writing all obligations of Borrower and any Guarantor
under the Loan Documents pertaining to Hazardous Substances
Laws. Liability under this subsection shall extend beyond repayment
of this Note and compliance with the terms of the Deed of Trust unless at such
time Borrower provides Lender with an environmental assessment report prepared
by an environmental engineer or consultant approved by Xxxxxx which demonstrates
to Lender’s satisfaction that the Property is free of Hazardous Substances and
not in violation of Hazardous Substances Laws. The burden of proof under this
subsection with regard to establishing the date upon which such Hazardous
Substances were placed or appeared in, on or under the Property shall be upon
Borrower;
(o) (i)
any and all costs incurred in order to cause the Property to comply with
Accessibility Laws (as defined in the Deed of Trust) and (ii) any indemnity or
other agreement to hold Lender and the Trustee harmless from and against any and
all losses, liabilities, damages, injuries, costs, fines or expenses of any kind
arising as a result of non-compliance with any Accessibility Laws; provided,
however, Borrower and any Guarantor shall not be liable for compliance with any
Accessibility Laws that first become effective, or for any violation of any
Accessibility Laws resulting from alterations or improvements to the Property
that are performed, subsequent to Lender’s actually taking possession of the
Property pursuant to foreclosure of the Deed of Trust or acceptance of a deed in
lieu thereof, or subsequent to any transfer of ownership of the Property which
was approved or authorized in writing by Lender provided that such transferee
assumes in writing all obligations of Borrower and any Guarantor pertaining to
compliance with Accessibility Laws under the Loan Documents. The
burden of proof under this subsection with regard to establishing the date upon
which such non-compliance with any Accessibility Laws occurred at the Property
shall be upon Borrower;
(p)
obligations under any Letter(s) of Credit held by Xxxxxx in connection with the
Loan, this Note or any of the other Loan Documents; and
(q)
failure by Borrower to provide any Letter of Credit required to be posted
subsequent to the date of this Note required by any of the Loan
Documents.
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The
obligations of Borrower in subsections (m), (n) and (o) above shall survive the
repayment of the Loan evidenced by this Note and satisfaction of the Deed of
Trust, and the other obligations of Borrower hereunder shall terminate
upon such repayment of the Loan evidenced by this Note and satisfaction of the
Deed of Trust.
10. Full
Recourse. Notwithstanding any provisions in this Note to the contrary,
including, without limitation, the provisions set forth in the section captioned
“Exculpation” hereinabove, Borrower and any Guarantor shall be personally
liable, jointly and severally, for the entire indebtedness evidenced by this
Note (including all principal, interest and other charges) in the event (a)
Borrower or any entity comprising Borrower violates the covenant governing the
placing of subordinate financing on the Property as set forth in the Deed of
Trust; (b) Borrower or any entity comprising Borrower violates the covenant
restricting transfers of interests in the Property or transfers or changes in
ownership or controlling interest as set forth in the Deed of Trust; (c)
Borrower or any Guarantor files a petition in bankruptcy or for the appointment
of a receiver or commences under any bankruptcy or insolvency law proceedings
for Borrower’s or any Guarantor’s relief or for the compromise, extension,
arrangement or adjustment of Borrower’s or any Guarantor’s obligations; or (d)
there is filed against Borrower or any Guarantor a petition in bankruptcy or for
the appointment of a receiver, or there is commenced under any bankruptcy or
insolvency law, proceedings for Borrower’s or Guarantor’s relief, or for the
compromise, extension, arrangement or adjustment of Borrower’s or Guarantor’s
obligations which are not dismissed within thirty (30) days after the filing of
same.
11. Waiver
of Jury Trial. THE PARTIES HERETO, TO THE FULL EXTENT PERMITTED BY LAW,
EACH HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE
OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES HEREBY THE RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING, INCLUDING, WITHOUT LIMITATION,
ANY TORT ACTION, AGAINST LENDER, ITS SUCCESSORS AND ASSIGNS, BASED UPON, ARISING
OUT OF, OR IN ANY WAY RELATING TO OR IN CONNECTION WITH ANY OF THE LOAN
DOCUMENTS, THE LOAN OR ANY COURSE OF CONDUCT, ACT, OMISSION, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PERSON (INCLUDING,
WITHOUT LIMITATION, XXXXXX’S DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES,
AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH LENDER), IN CONNECTION
WITH THE LOAN OR THE LOAN DOCUMENTS INCLUDING, WITHOUT LIMITATION, IN ANY
COUNTERCLAIM WHICH ANY PARTY MAY BE PERMITTED TO ASSERT THEREUNDER, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL LENDER, ITS
SUCCESSORS, ASSIGNS OR PARTICIPANTS BE LIABLE FOR SPECIFIC PERFORMANCE, ANY
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, LOSS OF BUSINESS PROFITS OR OPPORTUNITY) AND BY ITS
EXECUTION HEREOF, BORROWER WAIVES ANY RIGHT TO CLAIM OR SEEK ANY SUCH
DAMAGES.
12. Captions.
The captions set forth at the beginning of the various paragraphs of this Note
are for convenience only and shall not be used to interpret or construe the
provisions of this Note.
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13. Attorneys’
Fees. As used herein, the phrase “Reasonable Attorneys’ Fees” shall mean
fees charged by attorneys selected by Lender based upon such attorneys’ then
prevailing hourly rates as opposed to any statutory presumption specified by any
statute then in effect in the State.
14. Applicable
Laws. This Note and the rights and obligations of the parties hereunder
shall be governed by and construed in accordance with the internal laws of the
State, without regard to principles of conflicts of laws. The parties hereto
irrevocably (a) agree that any suit, action or other legal proceeding arising
out of or relating to this Note may be brought in a court of record in the
State or in the courts of the United States of America located in the
State, (b) consent to the non-exclusive jurisdiction of each such court in any
suit, action or proceeding, and (c) waive any objection which it may have to the
laying of venue of any such suit, action or proceeding in any of such courts and
any claim that any such suit, action or proceeding has been brought in an
inconvenient forum.
15. Severability.
If any term or provision of this Note is found to be invalid or unenforceable,
such invalidity or unenforceability shall not affect the validity or
enforceability of the remaining terms and provisions of this Note or any part
thereof, which shall remain in full force and effect.
16. Modifications.
This Note may not be amended or modified except by an agreement in writing
signed by the party against whom enforcement is sought.
17. Time
of the Essence. In connection with the Loan and this Note, time shall be
of the essence.
18. Successors
and Assigns. The terms, conditions, obligations and liabilities of this
Note shall be binding upon Xxxxxxxx, its heirs, personal representatives,
successors and assigns, and shall inure to the benefit of Lender, its successors
and assigns. If Borrower is comprised of more than one person or
entity, then the liability of each such person and entity hereunder shall be
joint and several.
19. Authorization.
By its signature below, Borrower represents and warrants that the Loan
transaction contemplated by this Note and any of the other Loan Documents has
been properly authorized by Xxxxxxxx’s governing or managing body, and that the
person(s) signing on behalf of Xxxxxxxx has been duly authorized to sign for,
and hereto bind, Borrower.
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20. Secondary
Market. Lender may, at any time, sell, transfer or assign this Note, the
Deed of Trust, the Assignment and the other Loan Documents, and any or all
servicing rights with respect thereto, or grant participations therein or issue
mortgage pass-through certificates or other securities evidencing a beneficial
interest in a rated or unrated public offering or private
placement. Lender may forward to each purchaser, transferee,
assignee, servicer, participant, investor in such securities or any credit
rating agency rating such securities (collectively, the “Investor”) and each
prospective Investor, all documents and information which Lender now has or may
hereafter acquire relating to the Loan and to Borrower, any Guarantor and the
Property, whether furnished by Borrower, any such other party or otherwise, as
Lender determines necessary or desirable except as otherwise prohibited by law
or contract. 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.
21. Notices.
All notices required or permitted hereunder shall be delivered in accordance
with the provisions of Section 43 of the Deed of Trust.
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IN
WITNESS WHEREOF, Xxxxxxxx has executed this Note as of the day and year first
above written.
Whitestone
Offices LLC, a Texas limited liability company
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By Whitestone
REIT Operating Partnership,
L.P.,
a Delaware limited partnership, its sole member
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By Whitestone
REIT, a Maryland
real
estate investment trust, its general partner
|
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By//s//
Xxxx X. Xxx
|
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Xxxx
X. Xxx
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Executive
Vice President
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