Contract
Loan No.
1457323
FOR
VALUE RECEIVED XXXXXXX
PROPERTIES - SAN DIEGO TECH CENTER, LLC, a
Delaware limited liability company, having an address at 000 Xxxxx Xxxxx Xxxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx 00000, as maker (“Borrower”),
hereby unconditionally promises to pay to the order of COLUMN
FINANCIAL, INC., a
Delaware corporation, as payee, 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 One
Hundred Thirty-Three Million And
No/100 Dollars ($133,000,000.00), 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 (as the same may 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 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
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 Xxxxxx shall never exceed the Maximum Legal Rate, (b) in
calculating whether any interest
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exceeds
the Maximum Legal Rate, 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 Maximum Legal Rate,
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 and its 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
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 and its members shall not thereby be
released from any liability. If Borrower is a trust, the agreements herein
contained shall remain in force and be applicable, notwithstanding any changes
in the trustee or the beneficiaries relating to the trust, and the term
“Borrower” as used
herein, shall include any alternate or successor trust, but any predecessor
trust and its trustees shall not thereby be released from any liability. Nothing
in the foregoing four sentences shall be construed as a consent to, or a waiver
of, any prohibition or restriction on transfers of interests in
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such
partnership, corporation, limited liability company or trust, as applicable,
which may be set forth in the Loan Agreement 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 WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY XXXXXXXX AND ACCEPTED
BY XXXXXX 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.
ANY
LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER ARISING OUT OF OR
RELATING TO THIS NOTE MAY AT LENDER’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
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PROCEEDING,
AND XXXXXXXX HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN
ANY SUIT, ACTION OR PROCEEDING.
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.
[NO
FURTHER TEXT ON THIS PAGE]
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IN
WITNESS WHEREOF, Xxxxxxxx
has duly executed this Note as of the day and year first above
written.
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BORROWER: | ||
|
XXXXXXX
PROPERTIES - SAN DIEGO TECH CENTER, LLC, | ||
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a
Delaware limited liability company | ||
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By: |
/s/
Xxxx X. Xxxxxxx | |
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Name:
Xxxx X. Xxxxxxx | ||
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Title:
Assistant Vice President | ||
