EXHIBIT 99.2
PROMISSORY NOTE
$12,650,000.00 New York, New York
June 14, 2005
FOR VALUE RECEIVED, BEHRINGER HARVARD DOWNTOWN PLAZA LP, a Delaware
limited partnership, as maker, having its principal place of business at c/o
Behringer Harvard Funds, 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000
("BORROWER"), hereby unconditionally promises to pay to the order of BEAR
XXXXXXX COMMERCIAL MORTGAGE, INC., a New York corporation, as lender, having an
address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Lender"), or at such
other place as the holder hereof may from time to time designate in writing, the
principal sum of Twelve Million Six Hundred Fifty Thousand and No/100 Dollars
($12,650,000.00), in lawful money of the United States of America with interest
thereon to be computed from the date of this Note at the Interest Rate, and to
be paid in accordance with the terms of this Note and that certain Loan
Agreement, dated the date hereof, between Borrower and Lender (as the same may
hereafter be amended, restated, replaced, supplemented, renewed, extended or
otherwise modified from time to time, 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 Article 2 of 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
Except as otherwise provided in 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 on or prior to the date when due or if
not paid on the Maturity Date or on the happening of any other Event of Default.
ARTICLE 3
LOAN DOCUMENTS
This Note is secured by the Mortgage and the other Loan Documents. All
of the terms, covenants and conditions contained in the Loan Agreement, the
Mortgage 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 lawful rate or amount, (b) in calculating whether any interest exceeds
the lawful maximum, 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 lawful maximum, 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
Xxxxxxxx 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, except for such notices as are expressly provided for in
any Loan Document. 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, except as may be expressly provided in such release,
alteration, amendment or waiver. 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
-2-
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 shall not thereby be
released from any liability. (Nothing in the foregoing sentence 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 which may be set forth in the Loan Agreement, the Mortgage or any other
Loan Document.)
ARTICLE 7
TRANSFER
Upon the transfer of this Note, Borrower hereby waiving prior 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 9.3 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
(A) THIS NOTE WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY
XXXXXXXX AND ACCEPTED BY LENDER IN THE STATE OF NEW YORK, AND THE PROCEEDS OF
THIS NOTE WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES
AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING
TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, THIS NOTE AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO
PRINCIPLES OF CONFLICT LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF
AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY
AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER
JURISDICTION GOVERNS THIS NOTE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW.
-3-
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER
ARISING OUT OF OR RELATING TO THIS NOTE MAY AT XXXXXX'S OPTION BE INSTITUTED IN
ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT
TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND BORROWER WAIVES
ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM
NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR
PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT:
CT CORPORATION SYSTEM
000 XXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY
AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN
ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE
MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN
EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. XXXXXXXX (I) SHALL GIVE PROMPT
NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II)
MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT
WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE
DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL
PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN
OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.
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
JOINT AND SEVERAL
If more than one Person has executed this Note as "Borrower", the
obligations of all such Persons hereunder shall be joint and several except as
set forth in the Loan Documents.
-4-
ARTICLE 12
SPECIAL CALIFORNIA PROVISIONS
(a) PREPAYMENT. BY INITIALING BELOW, BORROWER EXPRESSLY ACKNOWLEDGES
AND UNDERSTANDS THAT, PURSUANT TO THE TERMS OF THIS NOTE, IT HAS AGREED THAT IT
HAS NO RIGHT TO PREPAY THE NOTE EXCEPT AS EXPRESSLY PERMITTED IN THE LOAN
AGREEMENT AND THAT IT SHALL BE LIABLE FOR THE PAYMENT OF THE PREPAYMENT CHARGES
FOR PREPAYMENT OF THIS NOTE UPON ACCELERATION OF THIS NOTE IN ACCORDANCE WITH
ITS TERMS. FURTHER, BY INITIALING BELOW, BORROWER WAIVES ANY RIGHTS IT MAY HAVE
UNDER SECTION 2954.10 OF THE CALIFORNIA CIVIL CODE, OR ANY SUCCESSOR STATUTE,
AND EXPRESSLY ACKNOWLEDGES AND UNDERSTANDS THAT XXXXXX HAS MADE THE LOAN IN
RELIANCE ON THE AGREEMENTS AND WAIVER OF BORROWER AND THAT LENDER WOULD NOT HAVE
MADE THE LOAN WITHOUT SUCH AGREEMENTS AND WAIVER OF BORROWER.
(b) DISCLOSURE. BORROWER HEREBY ACKNOWLEDGES THAT INTEREST ON THIS
NOTE IS TO BE CALCULATED BY LENDER ON THE BASIS OF A THREE HUNDRED SIXTY (360)
DAY YEAR AND IS FULLY AWARE THAT SUCH CALCULATIONS MAY RESULT IN AN ACCRUAL
AND/OR PAYMENT OF INTEREST IN AMOUNTS GREATER THAN CORRESPONDING INTEREST
CALCULATIONS BASED ON A THREE HUNDRED SIXTY-FIVE (365) DAY YEAR.
(c) DEFAULT. Borrower recognizes that its default in making any
payment as provided herein or in any other Loan Document as agreed to be paid
when due, or the occurrence of any other Event of Default hereunder or under any
other Loan Document, will require Lender to incur additional expense in
servicing and administering the Loan, in loss to Lender of the use of the money
due and in frustration to Lender in meeting its other financial and loan
commitments and that the damages caused thereby would be extremely difficult and
impractical to ascertain. Borrower agrees (a) that an amount equal to the late
payment charge pursuant to Section 2.3.4 of the Loan Agreement plus the accrual
of interest at the Default Rate is a reasonable estimate of the damage to Lender
in the event of a late payment, and (b) that the accrual of interest at the
Default Rate following any other Event of Default is a reasonable estimate of
the damage to Lender in the event of such other Event of Default, regardless of
whether there has been an acceleration of the Loan. Nothing in this Note shall
be construed as an obligation on the part of Lender to accept, at any time, less
than the full amount then due hereunder, or as a waiver or limitation of
Xxxxxx's right to compel prompt performance.
(d) LOSS OF NOTE. Upon notice from Lender to Borrower of the loss,
theft, destruction or mutilation of this Note and, upon receipt of indemnity
reasonably satisfactory to Borrower from Lender (except that if the Lender
initially named herein is the holder of this Note, an indemnification from the
Lender initially named herein shall be sufficient) or, in the case of mutilation
hereof, upon surrender of the mutilated Note, Borrower will make and deliver a
new note of like tenor in lieu of this Note.
(e) SALE OF LOAN. Lender, at any time and without the consent of
Borrower, may grant participations in or sell, transfer, assign and convey all
or any portion of its right, title
-5-
and interest in and to the loan evidenced by this Note, the Security Instrument
and the other Loan Documents, and any collateral given as security for the loan
evidenced by this Note.
[NO FURTHER TEXT ON THIS PAGE]
-6-
IN WITNESS WHEREOF, Xxxxxxxx has duly executed this Note as of the day
and year first above written.
Borrower:
BEHRINGER HARVARD DOWNTOWN PLAZA LP,
a Delaware limited partnership
By: Behringer Harvard Downtown Plaza
GP, LLC, a Delaware limited
liability company
By: ____________________________
Xxxxxx X. Xxxxxxx, III
Secretary
-7-
