PROMISSORY NOTE B
|
$13,800,000.00 |
March
15, 2005 |
RECITALS
Maker
(hereinafter defined) and Payee (hereinafter defined) are parties to that
certain Loan Agreement dated as of the date hereof (the "Loan
Agreement") relating
to a secured mortgage loan in the original principal amount of $75,540,000.00
(the "Loan").
The Loan
is collectively evidenced by this Promissory Note B in the original principal
amount of $13,800,000.00 and that certain Promissory Note A dated as of the date
hereof in the original principal amount of $61,740,000.00 made by Maker and
payable to Payee.
FOR VALUE
RECEIVED, XXXXXXX PROPERTIES - 801 N. BRAND,
a Delaware limited liability company, having its principal place of business at
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 ("Maker"),
hereby
promises to pay to the order of GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC., a
Delaware corporation, at its principal place of business at 000 Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxx 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 THIRTEEN MILLION EIGHT HUNDRED THOUSAND DOLLARS and No/00
Dollars ($13,800,000.00) (the "Principal"), 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 $50,493.05 on the date hereof, representing interest from the date of funding
through April 5, 2005;
B. On May
6, 2005 (which shall be the first Payment Date hereunder) and each Payment Date
thereafter through and including the Maturity Date, the interest only on the
Principal at the Interest Rate shall be payable in monthly installments (each
such installment, the "Monthly
Debt Service Payment Amount"); each of
such payments, subject to the provisions of Section 2.2 and Section 3.9 of the
Loan Agreement, to be applied to the payment of interest computed at the
Interest Rate; and
C. 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.
Section
1. Definitions.
Capitalized terms used but not otherwise defined herein shall have the meanings
given in the Loan Agreement. The following terms have the meanings set forth
below:
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.
Interest
Period: (i)
the
period from the date hereof through the first day thereafter that is the
5th
day of a
calendar month and (ii) each period thereafter from the 6th
day of
each calendar month through the 5th
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. Notwithstanding the foregoing, if Payee exercises its right to
change the Payment Date to a New Payment Date in accordance with Section 2.2.4
of the Loan Agreement, then from and after such election, each Interest Period
shall be the period from the New Payment Date (as defined under Section 2.2.4 of
the Loan Agreement) in each calendar month through the day in the next
succeeding calendar month immediately preceding the New Payment Date in such
calendar month.
Interest
Rate: a rate of
interest equal to 5.727% 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
6th
day of
each calendar month or, upon Payee'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 (as defined in the Loan Agreement) (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 May 6, 2005.
Stated
Maturity Date: April 6,
2015, as such date may be changed in accordance with Section 2.2.4 of the Loan
Agreement.
Yield
Maintenance
Premium: an amount
equal to the greater of (i) one percent of the outstanding principal balance of
the Loan at the time of prepayment or (ii) 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.
Section
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
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.
Section
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,
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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 and as
provided under Section 2.3.3 and elsewhere under 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.
Section
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 and continuance 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 Permitted Prepayment Date (i) Maker shall
(notwithstanding such prohibition of prepayment) tender, and Payee shall, in its
sole discretion, elect to accept, prepayment of the Debt (except as expressly
set forth in Section 2.3.2 of the Loan Agreement), or (ii) the Debt is
accelerated by reason of an Event of Default which is continuing, 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 or
pursuant to Section 2.3.3 of the Loan Agreement 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 Payee's discretion.
Section
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, to
the extent permitted by applicable law, within ten (10) days after the date
Payee makes written demand therefor, and, if not so paid, shall be added to the
Debt.
Section
6. Late
Payment Charge. If any
Principal, interest or other sum due under any Loan Document is not paid by
Maker on the date on which it is due, Maker shall pay to Payee, within ten (10)
days after the date Payee makes written demand therefor, an amount equal to the
lesser of 5% of such unpaid sum or the maximum amount permitted by
applicable
3
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, and, if not so paid, shall be added to the
Debt.
Section
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.
Section
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.
Section
9. Exculpation. It is
expressly agreed that recourse against Maker for failure to perform and observe
its obligation contained in this Note shall be limited as and to the extent
provided in Section 10.1 of the Loan Agreement.
Section
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.
Section
11. Special
Prepayment Provision. Except
as otherwise expressly provided in Section 4 hereof or in Section 2.3.2, 2.3.3
or 2.3.4 of the Loan Agreement, the Yield Maintenance Premium shall be due, to
the extent permitted by applicable law, under any and all circumstances where
all or any portion of the Loan is paid prior to the Permitted Prepayment Date as
a result of an involuntary prepayment or a voluntary prepayment, and if such
prepayment occurs during the continuance of an Event of Default (irrespective of
whether foreclosure proceedings have been commenced), and shall be in addition
to any other fees or sums due hereunder or under any of the other Loan
Documents. THE YIELD
MAINTENANCE PREMIUM REQUIRED BY THIS SECTION 11 IS ACKNOWLEDGED BY MAKER TO BE
PARTIAL COMPENSATION TO LENDER FOR THE COST OF REINVESTING THE LOAN PROCEEDS AND
FOR THE LOSS OF THE CONTRACTED RATE OF RETURN ON THE LOAN. FURTHERMORE, MAKER
ACKNOWLEDGES THAT THE LOSS THAT MAY BE SUSTAINED BY LENDER AS A RESULT OF SUCH
PREPAYMENT BY MAKER IS NOT SUSCEPTIBLE OF PRECISE CALCULATION AND THE YIELD
MAINTENANCE PREMIUM REPRESENTS THE GOOD FAITH
4
EFFORT OF
MAKER AND LENDER TO COMPENSATE LENDER FOR SUCH LOSS. EXCEPT AS
EXPRESSLY PERMITTED IN THIS SECTION 11, MAKER EXPRESSLY WAIVES
ALL RIGHTS IT MAY HAVE UNDER CALIFORNIA CIVIL CODE SECTION 2954.10 (OR
OTHERWISE) TO PREPAY THE LOAN PRIOR TO THE PERMITTED PREPAYMENT DATE, IN WHOLE
OR IN PART, WITHOUT PENALTY, WHETHER VOLUNTARILY OR UPON ACCELERATION OF THE
MATURITY DATE OF THE LOAN, AND AGREES THAT IF, FOR ANY REASON A PREPAYMENT OF
ALL OR ANY OF THE LOAN IS MADE PRIOR TO THE PERMITTED PREPAYMENT DATE, WHETHER
VOLUNTARILY OR UPON OR FOLLOWING
ANY ACCELERATION OF THE MATURITY DATE OF THE LOAN BY LENDER
ON ACCOUNT OF ANY DEFAULT BY MAKER UNDER ANY LOAN DOCUMENT, THEN MAKER SHALL BE
OBLIGATED TO PAY (EXCEPT AS PROVIDED UNDER SECTION 2.3.2 OF THE LOAN AGREEMENT),
CONCURRENTLY THEREWITH, THE YIELD MAINTENANCE PREMIUM OR DEFAULT YIELD
MAINTENANCE PREMIUM, AS APPLICABLE, SPECIFIED ABOVE. BY INITIALING THIS
PROVISION IN THE SPACE PROVIDED BELOW, MAKER DECLARES THAT LENDER'S AGREEMENT TO
MAKE THE LOAN AT THE . INTEREST RATE AND ON THE OTHER TERMS SET FORTH HEREIN
CONSTITUTES ADEQUATE AND VALUABLE CONSIDERATION, GIVEN INDIVIDUAL WEIGHT BY
MAKER, FOR THIS WAIVER AND AGREEMENT.
ML
Initials
Section
12.
Governing
Law. THIS
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK
(WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS) AND THE
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
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IN
WITNESS WHEREOF, Maker has executed this Promissory Note as of the day and year
first xxxxxx.
|
MAKER: | ||
|
XXXXXXX
PROPERTIES - 801 N. BRAND, LLC,
a
Delaware limited liability company | ||
|
By: |
/s/
Xxxx Lammas | |
|
Name:
Xxxx Lammas | ||
|
Title:
Vice President & Secretary | ||
