EXHIBIT 10.24
PROMISSORY NOTE
$20,000,000 June 30, 2004
FOR VALUE RECEIVED, BEHRINGER HARVARD ST. LOUIS PLACE S, LLC, a
Delaware limited liability company having an address at 0000 Xxxxx Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 and BEHRINGER HARVARD ST. LOUIS PLACE H,
LLC, a Delaware limited liability company having an address at 0000 Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, together with certain future
borrowers not a signatory to this Agreement on the date hereof (collectively,
the "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 Twenty Million and No/Dollars
($20,000,000) (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 $3,376.67 on the date hereof, representing interest
from the date of funding through June 30, 2004;
B. On August 1, 2004 (which shall be the first Payment Date hereunder)
and each Payment Date thereafter through and including June 1, 2011, the
Principal and interest thereon at the Interest Rate shall be payable in equal
monthly installments of $120,914.89 (the "MONTHLY DEBT SERVICE PAYMENT AMOUNT");
which is based on the Interest Rate and a 360-month amortization schedule; each
of such payments, subject to the provisions of Section 3.11 of the Loan
Agreement (hereinafter defined), to be applied (a) to the payment of interest
computed at the rate aforesaid; and (b) the balance applied toward the reduction
of the principal sum; 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.
1. DEFINITIONS. Capitalized terms used but not otherwise defined herein
shall have the meanings given in that certain Loan Agreement (the "LOAN
AGREEMENT") dated the date hereof between Maker and Payee. 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,
compounded monthly.
INTEREST PERIOD: (i) the period from the date hereof through
the first day thereafter that is the last day of a calendar month and (ii) each
period thereafter from the 1st day of each calendar month through the last day
of each such 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.
INTEREST RATE: a rate of interest equal to 6.078% 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 1st 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 (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 August 1, 2004.
STATED MATURITY DATE: July 1, 2011, as such date may be
changed in accordance with Section 2.2.4 of the Loan Agreement.
YIELD MAINTENANCE PREMIUM: 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.
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.
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, 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), 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
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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.
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 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 second Payment Date prior
to the Stated Maturity Date (i) Maker shall (notwithstanding such prohibition of
prepayment) tender, and Payee shall, in its sole discretion, elect to accept,
payment of the Debt, or (ii) the Debt is accelerated by reason of an Event of
Default, 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 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.
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 upon demand from time to time, to the extent
permitted by applicable law.
6. LATE PAYMENT CHARGE. If any Monthly Debt Service Payment Amount is
not paid by Maker on the date on which it is due, Maker shall pay to Payee upon
demand an amount equal to the lesser of 5% of such unpaid sum or the maximum
amount permitted by applicable 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.
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.
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
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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.
9. EXCULPATION. It is expressly agreed that recourse against Maker for
failure to perform and observe its obligations contained in this Note shall be
limited as and to the extent provided in Section 10.1 of the Loan Agreement.
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.
11. JOINT AND SEVERAL.
11.1. MAKER. Each Person constituting Maker hereunder shall
have joint and several liability for the obligations of Maker
hereunder.
11.2. FUTURE BORROWERS. Pursuant to Section 5.26.2 of the Loan
Agreement, one or more Borrowers not a signatory to this Note on the
date hereof may assume, on a joint and several basis, the obligations
of Maker under the Loan Documents. Any such future Borrower shall
automatically become a "maker" of this Note and such Borrower shall be
deemed to be a maker hereunder and jointly and severally liable under
this Note, and each existing Maker hereby irrevocably consents thereto.
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.
13. COUNTERPARTS. This Note may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, Maker has executed this Promissory Note as of the
day and year first written.
MAKER:
BEHRINGER HARVARD ST. LOUIS PLACE
S, LLC, a Delaware limited liability company
By:_________________________________
Name:
Title:
BEHRINGER HARVARD ST. LOUIS PLAC
H, LLC, a Delaware limited liability company
By:________________________________
Name:
Title:
