EXHIBIT 10.33
PROMISSORY NOTE
$5,000,000.00
May 13, 2002
FOR VALUE RECEIVED, the undersigned, XXXXXXXX CENTENNIAL PARTNERS,
L.P., a Texas limited partnership, and ASHWOOD AMERICAN PARTNERS MC DALLAS,
L.P., a Texas limited partnership (collectively, "MEZZANINE BORROWER"), each
located at 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000 hereby jointly and
severally unconditionally promise to pay to the order of XXXX-XXXX PROPERTY
TRUST, a Maryland business trust, located at c/o Xxxx-Xxxx Realty Corporation,
00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("MEZZANINE LENDER"), to such
account as Mezzanine Lender may direct in a written notice to Xxxxxxxxx
Xxxxxxxx, in lawful money of the United States of America and by wire transfer
of immediately available funds, the principal amount of FIVE MILLION DOLLARS
($5,000,000), in the amounts and on each Payment Date as set forth in Section
2.5 of that certain Mezzanine Loan Agreement, dated as of the date hereof (the
"MEZZANINE LOAN AGREEMENT") between Mezzanine Borrower and Mezzanine Lender,
with a final payment of the unpaid principal amount hereof, together with unpaid
interest accrued hereon and all other amounts due hereunder on the Maturity
Date. The undersigned further agrees to pay interest in like money to such
account on the unpaid principal amount hereof from time to time from the date
hereof on the dates and at the applicable rate per annum as provided in
Article II of the Mezzanine Loan Agreement until paid in full (both before and
after judgment).
This Note is the "NOTE" referred to in the Mezzanine Loan Agreement
and is entitled to the benefits thereof and subject to the terms thereof.
Capitalized terms used herein but not defined in this Note have the meanings
ascribed to them in the Mezzanine Loan Agreement.
Upon the occurrence of any one or more of the Events of Default
specified in the Mezzanine Loan Agreement, all amounts then remaining unpaid on
this Note shall become, or may be declared to be, immediately due and payable
all as provided therein.
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
Mezzanine Borrower or Mezzanine 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. Whenever used,
the singular number shall include the plural, the plural the singular, and the
words "Mezzanine Lender" and "Mezzanine Borrower" shall include their respective
successors, assigns, heirs, executors and administrators.
Except for any notices required under the Mezzanine Loan Agreement,
Xxxxxxxxx Borrower and all others who may become liable for the payment of all
or any part of the indebtedness hereunder 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 indebtedness hereunder or any
person liable for payment of the indebtedness hereunder, no extension of time
for payment of this Note or any installment hereof, and no alteration, amendment
or waiver of any provision of the Mezzanine Loan Documents made by agreement
between Mezzanine Lender and any other Person shall release, modify, amend,
waive, extend, change, discharge, terminate or affect the liability of Mezzanine
Borrower, and any other Person who may become liable under the Mezzanine Loan
Documents for the payment of all or any part of the indebtedness hereunder.
Mezzanine Borrower represents that Mezzanine Borrower has full power,
authority and legal right to execute, deliver and perform its obligations
pursuant to this Note, the Mezzanine Loan Agreement and the other Mezzanine Loan
Documents and that this Note, the Mezzanine Loan Agreement and the other
Mezzanine Loan Documents constitute valid and binding obligations of Mezzanine
Borrower and the Affiliates of Mezzanine Borrower which are parties thereto.
All notices or other communications required or permitted to be given
pursuant hereto shall be given in the manner specified in the Mezzanine Loan
Agreement directed to the parties at their respective addresses as provided
therein.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW JERSEY APPLICABLE TO AGREEMENTS
MADE AND INTENDED TO BE PERFORMED IN THE STATE OF NEW JERSEY, WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Xxxxxxxxx Xxxxxxxx has caused this Note to be
executed and delivered as of the day first above written.
MEZZANINE BORROWER:
XXXXXXXX CENTENNIAL PARTNERS, L.P.,
a Texas limited partnership
By: XXXXXXXX CENTENNIAL, LLC, a
Texas limited liability company
By: /s/ Xxxxxx X. Xxxxx
-------------------------
Name: Xxxxxx X. Xxxxx
Title:
ASHWOOD AMERICAN PARTNERS MC
DALLAS, L.P., a Texas limited partnership
By: A/A INVESTORS-MC DALLAS, L.L.C.,
a Texas limited liability company
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title:
