Exhibit 10.21
District of Columbia
Loan No. C-332339
CONSOLIDATED, AMENDED AND RESTATED
PROMISSORY NOTE
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$183,700,000.00 As of March 19, 1999
THIS CONSOLIDATED, AMENDED AND RESTATED PROMISSORY NOTE (this "Note")
is made by XXXX REALTY, L.P., a Delaware limited partnership, hereinafter called
"Borrower", for the benefit of THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a
Wisconsin corporation, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000,
who, together with any subsequent holder of this Note, is hereinafter referred
to as "Lender", in substitution for and in replacement of, but not in repayment
of, the following notes, all of which Xxxxxx holds (which notes are hereinafter
referred to as the "Existing Notes"):
1. Promissory Note dated February 1, 1993 in the original principal
amount of $80,000,000.00 made by Xxxxxxxx and payable to the
order of Lender, as amended by that certain First Amendment to
Promissory Note dated October 12, 1995 between Borrower and
Lender and by that certain Second Amendment to Promissory Note
dated April 26, 1996 between Borrower and Lender.
2. Promissory Note dated September 16, 1993 in the original
principal amount of $40,000,000.00 made by Xxxx Realty Square 106
Partnership ("Square 106") and payable to the order of Lender, as
amended by that certain First Amendment to Promissory Note dated
April 26, 1996 between Square 106 and Lender.
3. Promissory Note dated April 15, 1994 in the original principal
amount of $10,000,000.00 made by Square 106 and payable to the
order of Lender, as amended by that certain First Amendment to
Promissory Note dated October 12, 1995 between Square 106 and
Lender and by that certain Second Amendment to Promissory Note
dated April 26, 1996 between Square 106 and Lender.
4. Promissory Note dated October 12, 1995 in the original principal
amount of $40,000,000 made by Xxxxxxxx and payable to the order
of Lender, as amended by that certain First Amendment
to Promissory Note dated April 26, 1996 between Xxxxxxxx and
Lender.
The Existing Notes and the respective principal amount of indebtedness evidenced
thereby and additional indebtedness of Borrower to Lender are hereby combined
and consolidated to constitute one indebtedness in the principal amount of ONE
HUNDRED EIGHTY-THREE MILLION SEVEN HUNDRED THOUSAND DOLLARS ($183,700,000.00).
The manner and timing of payment and the other terms, covenants, agreements and
provisions of the Existing Notes are hereby modified, amended and restated in
their entirety so that henceforth the terms, provisions, covenants and
agreements thereof shall be as set forth herein, and in the event of any
conflict in the terms, provisions, covenants or agreements between the Existing
Notes and this Note, this Note shall prevail. The Existing Notes are attached
hereto and shall be negotiated only with this Note.
For value received, Borrower promises to pay to the order of Lender,
at 000 X. Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 or at such other place as
Lender shall designate in writing, in coin or currency which, at the time or
times of payment, is legal tender for public and private debts in the United
States, the principal sum of ONE HUNDRED EIGHTY-THREE MILLION SEVEN HUNDRED
THOUSAND DOLLARS or so much thereof as shall have been advanced from time to
time plus interest on the outstanding principal balance at the rate and payable
as follows:
Interest shall accrue from the date of advance until maturity at
the rate of eight and twelve hundredths percent (8.12%) per annum (the
"Interest Rate").
Accrued interest only on the amount advanced shall be paid in
arrears on the first day of the month following the date hereof and on
the first day of each month thereafter until and including the
Amortization Period Commencement Date. On the first day of the month
following the Amortization Period Commencement Date, and on the first
day of each month thereafter until maturity, installments of principal
and interest shall be paid in an amount equal to the unpaid principal
balance of this Note on the Amortization Period Commencement Date
multiplied by .00779782431. Installments shall be made directly to
Lender by electronic transfer of funds using the Automated Clearing
House System. All installments shall be applied first in payment of
interest, calculated monthly on the unpaid principal balance, and the
remainder of each installment shall be applied in payment of
principal. The entire unpaid principal balance plus accrued
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interest thereon shall be due and payable on April 1, 2009 (the
"Maturity Date").
As used herein, "Amortization Period Commencement Date" means
April 1, 2001.
Borrower shall have the right, upon thirty (30) days advance written
notice, beginning on April 1, 2002 of making a partial prepayment (a "Partial
Prepayment") or a full prepayment (a "Full Prepayment") of this Note with a
prepayment fee. A Partial Prepayment may only be made in connection with a
Partial Release (as hereinafter defined). The prepayment fee represents
consideration to Lender for loss of yield and reinvestment costs and shall also
be payable whenever prepayment occurs as a result of a condemnation or sale
under threat of condemnation of all or substantially all of the Property.
In the event of a Full Prepayment, the fee shall be the greater of Yield
Maintenance or 1% of the outstanding principal balance of this Note.
In the event of a Partial Prepayment, the fee shall be equal to the product of
(i) a fraction, the numerator of which is the amount of principal being prepaid
and the denominator of which is the outstanding principal balance of this Note
immediately prior to such prepayment, and (ii) the prepayment fee that would be
payable if there were a Full Prepayment at such time.
As used herein, "Yield Maintenance" means the amount, if any, by which
(i) the present value of the Then Remaining Payments (as hereinafter
defined) calculated using a periodic discount rate (corresponding
to the payment frequency under this Note) which, when compounded
for such number of payment periods in a year, equals the per
annum effective yield of the Most Recently Auctioned United
States Treasury Obligation having a maturity date equal to the
Maturity Date (or, if there is no such equal maturity date, then
the linearly interpolated per annum effective yield of the two
Most Recently Auctioned United States Treasury Obligations having
maturity dates most nearly equivalent to the Maturity Date) as
reported by The Wall Street Journal five business days prior to
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the date of prepayment; exceeds
(ii) the outstanding principal balance of this Note (exclusive of all
accrued interest).
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If such United States Treasury obligation yields shall not be reported as of
such time or the yields as of such time shall not be ascertainable, then the
periodic discount rate shall be equal to the Treasury Constant Maturity Series
yields reported, for the latest day for which such yields shall have been so
reported, as of five business days preceding the prepayment date, in Federal
Reserve Statistical Release H.15 (519) (or any comparable successor publication)
for actively traded United States Treasury obligations having a constant
maturity most nearly equivalent to the Maturity Date.
All parties at any time liable, whether primarily or secondarily, for
payment of indebtedness evidenced hereby, for themselves, their heirs, legal
representatives, successors and assigns, respectively, expressly waive
presentment for payment, notice of dishonor, protest, notice of protest, and
diligence in collection; consent to the extension by Lender of the time of said
payments or any part thereof; further consent that the Property or any part
thereof may be released by Xxxxxx, without in any way modifying, altering,
releasing, affecting, or limiting their respective liability or the lien of the
Lien Instrument; and agree to pay reasonable attorneys' fees and expenses of
collection in case this Note is placed in the hands of an attorney for
collection or suit is brought hereon and any attorneys' fees and expenses
incurred by Lender to enforce or preserve its rights under any of the Loan
Documents (as defined in the Lien Instrument) in any bankruptcy or insolvency
proceeding.
Any principal, interest or other amounts payable under any of the Loan
Documents, not paid when due (without regard to any notice and/or cure
provisions contained in any of the Loan Documents), including principal becoming
due by reason of acceleration by Xxxxxx of the entire unpaid balance of this
Note, shall bear interest from the due date thereof until paid at the Default
Rate. As used herein, "Default Rate" means the lower of a rate equal to the
interest rate in effect at the time of the default as herein provided plus 5%
per annum or the maximum rate permitted by law.
No provision of this Note shall require the payment or permit the
collection of interest, including any fees paid which are construed under
applicable law to be interest, in excess of the maximum permitted by law. If
any such excess interest is collected or herein provided for, or shall be
adjudicated to have been collected or be so provided for herein, the provisions
of this paragraph shall govern, and Borrower shall not be obligated to pay the
amount of such interest to the extent that it is in excess of the amount
permitted by law. Any such excess collected shall, at the option of Lender,
unless otherwise required by applicable law, be immediately refunded to Borrower
or credited on the principal of this Note immediately upon Xxxxxx's awareness of
the collection of such excess.
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Notwithstanding any provision contained herein or in the Lien
Instrument to the contrary, if Lender shall take action to enforce the
collection of the indebtedness evidenced hereby or secured by the Lien
Instrument (collectively, the "Indebtedness"), its recourse, except as provided
below, shall be limited to the Property or the proceeds from the sale of the
Property, the proceeds from the sale of the assets of Borrower, and the proceeds
realized by Xxxxxx in exercising its rights and remedies (i) under the Absolute
Assignment (as defined in the Lien Instrument), (ii) under the Guarantee of
Recourse Obligations of even date herewith executed by CarrAmerica Realty
Corporation for the benefit of Lender, (iii) under any of the other Loan
Documents (as defined in the Lien Instrument) and (iv) in any other collateral
securing the Indebtedness. If such proceeds are insufficient to pay the
Indebtedness, Xxxxxx will never institute any action, suit, claim or demand in
law or in equity against the partners of Borrower for or on account of such
deficiency; provided, however, that the provisions contained in this paragraph
(i) shall not in any way affect or impair the validity or
enforceability of the Indebtedness or the Lien Instrument; and
(ii) shall not prevent Xxxxxx from seeking and obtaining a judgment
against the general partner(s) of Borrower as well as Xxxxxxxx,
and the general partner(s) of Borrower as well as Borrower shall
be personally liable, for the Recourse Obligations.
As used herein, the term "Recourse Obligations" means
(a) Rents and other income from the Property from and after the date
which is forty-five (45) days prior to the occurrence of an Event of
Default, which Event of Default remains uncured prior to the
foreclosure sale of the Property pursuant to the Lien Instrument or
the conveyance of the Property to Lender in lieu of foreclosure, which
rents and other income have not been applied to the payment of
principal and interest on this Note or to reasonable operating
expenses of the Property,
(b) Amounts necessary to repair any damage to the Property caused by
the intentional acts or omissions of Borrower or those acting on
behalf of Xxxxxxxx,
(c) Insurance loss and condemnation proceeds released to Borrower but
not applied in accordance with any agreement between Borrower and
Lender as to their application and consistent with the terms and
provisions of the Lien Instrument,
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(d) The amount of insurance loss proceeds which would have been
available with respect to a casualty on the Property, but were not
available due to the default by Borrower in carrying all insurance
required by Xxxxxx,
(e) Damages suffered by Xxxxxx as a result of fraud or
misrepresentation in connection with the Indebtedness by Borrower or
any other person or entity acting on behalf of Xxxxxxxx,
(f) Amounts necessary to pay real estate taxes, special assessments
and insurance premiums with respect to the Property either paid by
Xxxxxx and not reimbursed prior to, or remaining due or delinquent on,
either (i) the later of (A) the date on which title vests in the
purchaser at the foreclosure sale of the Property pursuant to the Lien
Instrument or (B) the date on which Borrower's statutory right of
redemption shall expire or be waived or (ii) the date of the
conveyance of the Property to Lender in lieu of foreclosure, and
(g) All outstanding amounts due under the Indebtedness, including
principal, interest, and other charges if there shall be a violation
of any of the provisions of the Lien Instrument following the caption
entitled "Due on Sale".
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This Note, the interpretation hereof and the rights, obligations,
duties and liabilities hereunder shall be governed and controlled by the laws of
the District of Columbia.
XXXX REALTY, L.P., a Delaware limited partnership
By: CarrAmerica Realty Corporation, a
Maryland corporation, general partner
By: /s/ Xxxx X. Xxxxxx
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(corporate seal) Name: Xxxx X. Xxxxxx
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Title: Senior Vice President
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Attest: /s/ Xxxxx X. Xxxxxx
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