EXHIBIT 10(d)
PROMISSORY NOTE
$77,000,000.00 New York, New York
December 6, 2002
FOR VALUE RECEIVED XXXXX POST OAK LIMITED PARTNERSHIP, a Delaware limited
partnership, as maker, having its principal place of business at 000 Xxxxx Xxxx,
Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 ("Borrower"), hereby unconditionally
promises to pay to the order of COLUMN FINANCIAL, INC., as lender, having an
address at 00 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 SEVENTY SEVEN MILLION AND NO/100 DOLLARS ($77,000,000.00), in
lawful money of the United States of America with interest thereon to be
computed from the date of this Note at the Applicable 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 (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
The Debt s: hall 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
Borrower and all others who may become liable for the payment of all or any
part of the Debt do hereby severally waive presentment and demand for payment,
notice of dishonor, notice of intention to accelerate, notice of acceleration,
protest and notice of protest and non-payment and all other notices of any kind.
No release of any security for the Debt or extension of time for payment of this
Note or any installment hereof, and no alteration, amendment or waiver of any
provision of this Note, the Loan Agreement or the other Loan Documents made by
agreement between Lender or any other Person shall release, modify, amend,
waive, extend, change, discharge, terminate or affect the liability of Borrower,
and any other Person who may become liable for the payment of all or any part of
the Debt, under this Note, the Loan Agreement or the other Loan Documents. No
notice to or demand on Borrower shall be deemed to be a waiver of the obligation
of Borrower or of the right of Lender to take further action without further
notice or demand as provided for in this Note, the Loan Agreement or the other
Loan Documents. If Borrower is a partnership, the agreements herein contained
shall remain in force and be applicable, notwithstanding any changes in the
individuals or entities comprising the partnership, and the term "Borrower," as
used herein, shall include any alternate or successor partnership, but any
predecessor partnership shall not thereby be released from any liability. If
Borrower is a corporation, the agreements contained herein shall remain in full
force and be applicable notwithstanding any changes in the shareholders
comprising, or the officers and directors relating to, the corporation, and the
term "Borrower" as used herein, shall include any alternative or successor
corporation, but any predecessor corporation shall not be relieved of liability
hereunder. If any Borrower is a limited liability company, the agreements herein
contained shall remain in force and be applicable, notwithstanding any changes
in the members comprising the limited liability company, and the term "Borrower"
as used herein, shall include any alternate or successor limited liability
company, but any predecessor limited liability company 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 notice of any such
transfer, Lender may deliver all the collateral mortgaged, granted, pledged or
assigned pursuant to the Loan Documents, or any part thereof, to the transferee
who shall thereupon become vested with all the rights herein or under applicable
law given to Lender with respect thereto, and Lender shall thereafter forever be
relieved and fully discharged from any liability or responsibility in the
matter; but Lender shall retain all rights hereby given to it with respect to
any liabilities and the collateral not so transferred.
ARTICLE 8 : EXCULPATION
The provisions of Section 9.4 of the Loan Agreement are hereby incorporated
by reference into this Note to the same extent and with the same force as if
fully set forth herein.
ARTICLE 9 : GOVERNING LAW
This Note shall be governed in accordance with the terms and provisions of
Section 10.3 of the Loan Agreement.
ARTICLE 10 : NOTICES
All notices or other written communications hereunder shall be delivered in
accordance with Section 10.6 of the Loan Agreement.
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IN WITNESS WHEREOF, Xxxxxxxx has duly executed this Note as of the day and
year first above written.
BORROWER:
XXXXX POST OAK LIMITED PARTNERSHIP,
a Delaware limited partnership
By: XXXXX POST OAK, INC., a Delaware
corporation, its general partner
By: /S/ Xxxxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President
