PROMISSORY NOTE
$37,000,000 December __, 2004
FOR VALUE RECEIVED, BEHRINGER HARVARD XXXXX H, LLC, a Delaware limited
liability company having an address at 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000, and the borrowers listed on SCHEDULE 1 attached hereto, together
with certain future borrowers not a signatory to this Note on the date hereof
(collectively, the "MAKER"), hereby promises to pay to the order of CITIGROUP
GLOBAL MARKETS REALTY CORP., a New York corporation, at its principal place of
business at 000 Xxxxxxxxx Xxxxxx, Xxxxx 00, Xxx Xxxx, Xxx Xxxx 00000 (together
with its successors and assigns "PAYEE") or at such place as the holder hereof
may from time to time designate in writing, the principal sum of up to
Thirty-Seven Million and No/Dollars ($37,000,000) (the "Principal") (or such
lesser amount thereof as shall be advanced by Payee to Maker under the Loan
Agreement), in lawful money of the United States of America, with interest on
the unpaid principal balance from time to time outstanding at the Interest Rate,
in installments as follows:
A. A payment of $146,658.75 on the date hereof, representing interest
from the date of funding through January 10, 2005;
B. On February 11, 2005 (which shall be the first Payment Date
hereunder) and each Payment Date thereafter through and including the Payment
Date immediately preceding the Amortization Commencement Date, Maker shall pay
interest on the unpaid Principal accrued at the Interest Rate during the
Interest Period immediately preceding such Payment Date (the "MONTHLY INTEREST
PAYMENT AMOUNT");
C. On the Amortization Commencement Date and each Payment Date
thereafter through and including December 11, 2014 (as such date may be changed
in accordance with Section 2.2.4 of the Loan Agreement), Maker shall make
constant payments with respect to this Note in equal monthly installments of
$205,118.20 (the "MONTHLY DEBT SERVICE PAYMENT AMOUNT"); which is based on the
Interest Rate and a 360-month amortization schedule; each of such payments,
subject to the provisions of Section 3.11 of the Loan Agreement (hereinafter
defined), to be applied (A) FIRST, to the payment of interest accrued during the
preceding Interest Period and computed at the rate aforesaid; and (b) SECOND,
the balance applied toward the reduction of the principal sum; and
D. The balance of the principal sum of this Note together with all
accrued and unpaid interest thereon shall be due and payable on the Maturity
Date.
1. DEFINITIONS. Capitalized terms used but not otherwise defined
herein shall have the meanings given in that certain Loan Agreement (the "LOAN
AGREEMENT") dated the date hereof between Maker and Payee. The following terms
have the meanings set forth below:
AMORTIZATION COMMENCEMENT DATE: February 11, 2007, as such date may be
changed in accordance with Section 2.2.4 of the Loan Agreement.
BUSINESS DAY: any day other than a Saturday, Sunday or any day on which
commercial banks in New York, New York are authorized or required to close.
DEFAULT RATE: a rate per annum equal to the lesser of (i) the maximum
rate permitted by applicable law, or (ii) 5% above the Interest Rate, compounded
monthly.
INTEREST PERIOD: (i) the period from the date hereof through the first
day thereafter that is the 10th day of a calendar month and (ii) each period
thereafter from the 11th day of each calendar month through the 10th day of the
following calendar month; except that the Interest Period, if any, that would
otherwise commence before and end after the Maturity Date shall end on the
Maturity Date.
INTEREST RATE: a rate of interest equal to 5.285% per annum (or, when
applicable pursuant to this Note or any other Loan Document, the Default Rate).
MATURITY DATE: the date on which the final payment of principal of this
Note (or the Defeased Note, if applicable) becomes due and payable as therein
provided, whether at the Stated Maturity Date, by declaration of acceleration,
or otherwise.
PAYMENT DATE: the 11th day of each calendar month or, upon Xxxxx's
exercise of its right to change the Payment Date in accordance with Section
2.2.4 of the Loan Agreement, the New Payment Date (in either case, if such day
is not a Business Day, the Payment Date shall be the first Business Day
thereafter). The first Payment Date hereunder shall be February 11, 2005.
STATED MATURITY DATE: January 11, 2015, as such date may be changed in
accordance with Section 2.2.4 of the Loan Agreement.
YIELD MAINTENANCE PREMIUM: an amount which, when added to the
outstanding Principal, would be sufficient to purchase U.S. Obligations which
provide payments (a) on or prior to, but as close as possible to, all successive
scheduled payment dates under this Note through the Stated Maturity Date and (b)
in amounts equal to the Monthly Debt Service Payment Amount required under this
Note through the Stated Maturity Date together with the outstanding principal
balance of this Note as of the Stated Maturity Date assuming all such Monthly
Debt Service Payments are made (including any servicing costs associated
therewith). In no event shall the Yield Maintenance Premium be less than zero.
2. PAYMENTS AND COMPUTATIONS. Interest on the unpaid Principal
shall be computed on the basis of the actual number of days elapsed over a
360-day year. All amounts due under this Note shall be payable without setoff,
counterclaim or any other deduction whatsoever and are
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payable without relief from valuation and appraisement laws and with all costs
and charges incurred in the collection or enforcement hereof, including,
attorneys' fees and court costs.
3. LOAN DOCUMENTS. This Note is evidence of that certain loan made
by Payee to Maker contemporaneously herewith and is executed pursuant to the
terms and conditions of the Loan Agreement. This Note is secured by and entitled
to the benefits of, among other things, the Mortgage and the other Loan
Documents. Reference is made to the Loan Documents for a description of the
nature and extent of the security afforded thereby, the rights of the holder
hereof in respect of such security, the terms and conditions upon which this
Note is secured and the rights and duties of the holder of this Note. No
reference herein to and no provision of any other Loan Document shall alter or
impair the obligation of Maker, which is absolute and unconditional (except for
Section 10.1 of the Loan Agreement), to pay the principal of and interest on
this Note at the time and place and at the rates and in the monies and funds
described herein. All of the agreements, conditions, covenants, provisions and
stipulations contained in the Loan Documents to be kept and performed by Maker
are by this reference hereby made part of this Note to the same extent and with
the same force and effect as if they were fully set forth in this Note, and
Maker covenants and agrees to keep and perform the same, or cause the same to be
kept and performed, in accordance with their terms.
4. LOAN ACCELERATION; PREPAYMENT. The Debt, shall without notice
become immediately due and payable at the option of Payee if any payment
required in this Note is not paid on the date on which it is due or upon the
happening of any other Event of Default. Maker shall have no right to prepay or
defease all or any portion of the Principal except in accordance with Sections
2.3.2, 2.3.3, 2.3.4 and 2.4 of the Loan Agreement. If prior to the second
Payment Date prior to the Stated Maturity Date (i) Maker shall (notwithstanding
such prohibition of prepayment) tender, and Payee shall, in its sole discretion,
elect to accept, payment of the Debt, or (ii) the Debt is accelerated by reason
of an Event of Default, then the Debt shall include, and Payee shall be entitled
to receive, in addition to the outstanding principal and accrued interest and
other sums due under the Loan Documents, an amount equal to the Yield
Maintenance Premium, if any, that would be required in connection with a
Defeasance if a Defeasance were to occur at the time of Payee's acceptance of
such tender or other receipt of the Debt (through foreclosure or otherwise), as
the case may be. The principal balance of this Note is subject to mandatory
prepayment, without premium or penalty, in certain instances of Insured Casualty
or Condemnation, as more particularly set forth in Sections 2.3.2 and 7.4.2 of
the Loan Agreement. Except during the continuance of an Event of Default, all
proceeds of any repayment, including permitted prepayments, of Principal shall
be applied in accordance with Section 2.3.1 of the Loan Agreement. During the
continuance of an Event of Default, all proceeds of repayment, including any
payment or recovery on the Property (whether through foreclosure, deed-in-lieu
of foreclosure, or otherwise) shall, unless otherwise provided in the Loan
Documents, be applied in such order and in such manner as Payee shall elect in
Xxxxx's discretion.
5. DEFAULT RATE. After the occurrence and during the continuance of
an Event of Default, the entire unpaid Debt shall bear interest at the Default
Rate, and shall be payable upon demand from time to time, to the extent
permitted by applicable law.
6. LATE PAYMENT CHARGE. Subject to Section 2.5.3 of the Loan
Agreement, if any Monthly Debt Service Payment Amount is not paid by Maker on
the date on which it is due, Maker shall pay to Payee upon demand an amount
equal to the lesser of 5% of such unpaid sum
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or the maximum amount permitted by applicable law, in order to defray the
expense incurred by Payee in handling and processing such delinquent payment and
to compensate Payee for the loss of the use of such delinquent payment.
7. AMENDMENTS. 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 Maker or Payee, 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. Whenever used, the
singular number shall include the plural, the plural the singular, and the words
"PAYEE" and "MAKER" shall include their respective successors, assigns, heirs,
executors and administrators. If Maker consists of more than one person or
party, the obligations and liabilities of each such person or party shall be
joint and several.
8. WAIVER. Maker 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, protest, notice of protest, notice of
nonpayment, notice of intent to accelerate the maturity hereof and of
acceleration. No release of any security for the Debt or any person liable for
payment of the Debt, no extension of time for payment of this Note or any
installment hereof, and no alteration, amendment or waiver of any provision of
the Loan Documents made by agreement between Payee and any other person or party
shall release, modify, amend, waive, extend, change, discharge, terminate or
affect the liability of Maker, and any other person or party who may become
liable under the Loan Documents, for the payment of all or any part of the Debt.
9. EXCULPATION. It is expressly agreed that recourse against Maker
for failure to perform and observe its obligations contained in this Note shall
be limited as and to the extent provided in Section 10.1 of the Loan Agreement.
10. NOTICES. All notices or other communications required or
permitted to be given pursuant hereto shall be given in the manner specified in
the Loan Agreement directed to the parties at their respective addresses as
PROVIDED therein.
11. JOINT AND SEVERAL.
11.1. MAKER. Each Person constituting Maker hereunder shall
have joint and several liability for the obligations of Maker hereunder
except as otherwise provided in the Loan Documents.
11.2. FUTURE BORROWERS. Pursuant to Section 5.26.2 of the Loan
Agreement, one or more Borrowers not a signatory to this Note on the
date hereof may assume, on a joint and several basis, the obligations of
Maker under the Loan Documents. Any such future Borrower shall
automatically become a "maker" of this Note and such Borrower shall be
deemed to be a maker hereunder and jointly and severally liable under
this Note, and each existing Maker hereby irrevocably consents thereto.
12. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
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(WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS) AND THE APPLICABLE LAWS OF
THE UNITED STATES OF AMERICA.
13. COUNTERPARTS. This Note may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, Xxxxx has executed this Promissory Note as of the
day and year first written.
Behringer Harvard Xxxxx H, LLC, a Delaware
limited liability company
By:______________________________________
Xxxxxx X. Xxxxxxx, III, Secretary
TIC Xxxxx 1, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 2, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 4, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 5, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 6, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 8, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 9, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 10, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 11, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 13, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 15, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 16, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 17, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 18, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 19, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 23, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 24, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 25, LLC, a Delaware limited
liability company
By:______________________________________
