Exhibit 99.5
PROMISSORY NOTE
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(Floating Rate)
$4,550,000.00 April ___, 2005
For value received, BEHRINGER HARVARD NORTHWEST HIGHWAY LP, a Texas
limited partnership, as principal ("BORROWER"), promises to pay to the order of
THE FROST NATIONAL BANK, a national banking association ("Lender") at P.O. Box
1600, San Antonio, Texas 78296, or at such other address as Lender shall from
time to time specify in writing, the principal sum of FOUR MILLION FIVE HUNDRED
FIFTY THOUSAND AND NO/100 DOLLARS ($4,550,000.00), in legal and lawful money of
the United States of America, with interest on the outstanding principal from
the date advanced until paid at the rate set out below. Interest shall be
computed on a per annum basis of a year of 360 days and for the actual number of
days elapsed, unless such calculation would result in a rate greater than the
highest rate permitted by applicable law, in which case interest shall be
computed on a per annum basis of a year of 365 days or 366 days in a leap year,
as the case may be.
1. PAYMENT TERMS.
(a) Interest only shall be due and payable monthly as it accrues on
the _____ day of each and every calendar month, beginning in May, 2005, and
continuing regularly and monthly on the same day of each succeeding month
thereafter until April ___, 2007, when the entire amount hereof, principal and
interest then remaining unpaid, shall be then due and payable; interest being
calculated on the unpaid principal each day principal is outstanding and all
payments made credited to any collection costs and late charges, to the
discharge of the interest accrued and to the reduction of the principal, in such
order as Lender shall determine.
(b) Principal, in one or more payments, (in addition to all interest
and other sums due and payable under the terms of this Note) shall be due and
payable in an aggregate total amount equal to NINE HUNDRED TEN THOUSAND AND NO
1/100 DOLLARS ($910,000.00) on or before the first anniversary of the Completion
Date (as defined in the Loan Agreement).
2. LATE CHARGE. If a payment is made 10 days or more late, Borrower
will be charged, in addition to interest, a delinquency charge of (i) 5% of the
unpaid portion of the regularly scheduled payment, or (ii) $250.00, whichever is
less. Additionally, upon maturity of this Note, if the outstanding principal
balance (plus all accrued but unpaid interest) is not paid within 10 days of the
maturity date, Borrower will be charged a delinquency charge of (i) 5% of the
sum of the outstanding principal balance (plus all accrued but unpaid interest),
or (ii) $250.00, whichever is less. Xxxxxxxx agrees with Lender that the charges
set forth herein are reasonable compensation to Lender for the handling of such
late payments.
3. INTEREST RATE. The Loan shall bear interest on the outstanding
principal amount thereof at a rate per annum equal to the lesser of (i) the
Highest Lawful Rate and (ii) the London Interbank Offered Rate (defined below)
plus two percent (2%), interest being calculated on the unpaid
PROMISSORY NOTE (FLOATING RATE) Page 1
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Exhibit 99.5
principal each day principal is outstanding and all payments made credited to
any collection costs and late charges, to the discharge of the interest accrued
and to the reduction of the principal, in such order as Lender shall determine.
" LONDON INTERBANK OFFERED RATE" means the London Interbank Offered Rate
(LIBOR) for three months as quoted in the most recently published issue
of THE WALL STREET JOURNAL (Central Edition) in the "Money Rates"
column, with said rate to be adjusted to reflect any change in the
London Interbank Offered Rate at the time of any such change. If the
London Interbank Offered Rate ceases to be made available by THE WALL
STREET JOURNAL (Central Edition) publisher, or any successor to the
publisher of THE WALL STREET JOURNAL (Central Edition), the interest
rate will be determined by the Lender using a comparable index. If more
than one London Interbank Offered Rate for three months is quoted, the
highest rate shall apply. The London Interbank Offered Rate is a
reference rate and does not necessarily represent the lowest or best
rate actually charged by Lender or any other bank to any customer.
4. DEFAULT RATE. Matured unpaid principal and interest shall bear
interest from date of maturity until paid at (a) the highest rate permitted by
applicable law, or (b) if no such maximum rate is established by applicable law,
at the rate stated above plus five percent (5%) per annum.
5. PREPAYMENT. Borrower reserves the right to prepay, prior to
maturity, all or any part of the principal of this Note without penalty. Any
prepayments shall be applied first to accrued interest and then to principal.
Borrower will provide written notice to the holder of this Note of any such
prepayment of all or any part of the principal at the time thereof. All payments
and prepayments of principal or interest on this Note shall be made in lawful
money of the United States of America in immediately available funds, at the
address of Lender indicated above, or such other place as the holder of this
Note shall designate in writing to Borrower. All partial prepayments of
principal shall be applied to the last installments payable in their inverse
order of maturity.
6. DEFAULT. It is expressly provided that upon default in the
punctual payment of this Note or any part hereof, principal or interest, as the
same shall become due and payable, and such default continues for a period of
five (5) days after written notice to Borrower given in accordance with the
provisions of this Note, or upon the occurrence of an event of default specified
in any of the other Loan Documents (as defined below), and such default
continues for a period of twenty (20) days after written notice to Borrower
given in accordance with the provisions of this Note, the holder of this Note
may, at its option, without further notice or demand, (i) declare the
outstanding principal balance of and accrued but unpaid interest on this Note at
once due and payable, (ii) refuse to advance any additional amounts under this
Note, (iii) foreclose all liens securing payment hereof, (iv) pursue any and all
other rights, remedies and recourses available to the holder hereof, including
but not limited to any such rights, remedies or recourses under the Loan
Documents, at law or in equity, or (v) pursue any combination of the foregoing;
and in the event default is made in the prompt payment of this Note when due or
declared due, and the same is placed in the hands of an attorney for collection,
or suit is brought on same, or the same is collected through probate, bankruptcy
or other judicial proceedings, then the Borrower agrees and promises to pay all
costs of collection, including reasonable attorney's fees.
7. JOINT AND SEVERAL LIABILITY; WAIVER. Each maker, signer, surety
and endorser hereof, as well as all heirs, successors and legal representatives
of said parties, shall be directly and primarily, jointly and severally, liable
for the payment of all indebtedness hereunder. Lender may release or modify the
obligations of any of the foregoing persons or entities, or guarantors hereof,
in connection with this loan without affecting the obligations of the others.
Except as specifically
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Exhibit 99.5
provided herein, all such persons or entities expressly waive presentment and
demand for payment, notice of default, notice of intent to accelerate maturity,
notice of acceleration of maturity, protest, notice of protest, notice of
dishonor, and all other notices and demands for which waiver is not prohibited
by law, and diligence in the collection hereof; and agree to all renewals,
extensions, indulgences, partial payments, releases or exchanges of collateral,
or taking of additional collateral, with or without notice, before or after
maturity. No delay or omission of Lender in exercising any right hereunder shall
be a waiver of such right or any other right under this Note.
8. NO USURY INTENDED; USURY SAVINGS CLAUSE. In no event shall
interest contracted for, charged or received hereunder, plus any other charges
in connection herewith which constitute interest, exceed the maximum interest
permitted by applicable law. The amounts of such interest or other charges
previously paid to the holder of the Note in excess of the amounts permitted by
applicable law shall be applied by the holder of the Note to reduce the
principal of the indebtedness evidenced by the Note, or, at the option of the
holder of the Note, be refunded. To the extent permitted by applicable law,
determination of the legal maximum amount of interest shall at all times be made
by amortizing, prorating, allocating and spreading in equal parts during the
period of the full stated term of the loan and indebtedness, all interest at any
time contracted for, charged or received from the Borrower hereof in connection
with the loan and indebtedness evidenced hereby, so that the actual rate of
interest on account of such indebtedness is uniform throughout the term hereof.
9. SECURITY. This Note has been executed and delivered pursuant to
that certain Construction Loan Agreement of even date herewith by and between
Xxxxxxxx and Lender ("LOAN AGREEMENT"), and is secured by, INTER ALIA, the
following:
(a) a Deed of Trust, Security Agreement - Financing
Statement of even date herewith from Borrower in favor of Xxxxx X.
Xxxxx, Trustee for the benefit of the Lender, covering certain real
property situated in Dallas County, Texas, as more particularly
described therein;
(b) an Assignment of Construction Contracts, Architect's
Agreement and other permits and agreements in connection with the
Property; and
(c) a Guaranty Agreement of even date herewith from
Behringer Harvard Short- Term Opportunity Fund I LP in favor of Xxxxxx.
This Note, the Loan Agreement and all other documents evidencing, securing,
governing, guaranteeing and/or pertaining to this Note, including but not
limited to those documents described above, are hereinafter collectively
referred to as the "LOAN DOCUMENTS." The holder of this Note is entitled to the
benefits and security provided in the Loan Documents.
10. TEXAS FINANCE CODE. In no event shall Chapter 346 of the Texas
Finance Code (which regulates certain revolving loan accounts and revolving
tri-party accounts) apply to this Note. To the extent that Chapter 303 of the
Texas Finance Code is applicable to this Note, the "weekly ceiling" specified in
such chapter is the applicable ceiling; provided that, if any applicable law
permits greater interest, the law permitting the greatest interest shall apply.
11. GOVERNING LAW, VENUE. This Note is being executed and delivered,
and is intended to be performed in the State of Texas. Except to the extent that
the laws of the United States may apply to the terms hereof, the substantive
laws of the State of Texas shall govern the validity, construction, enforcement
and interpretation of this Note. In the event of a dispute involving this
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Exhibit 99.5
Note or any other instruments executed in connection herewith, the undersigned
irrevocably agrees that venue for such dispute shall lie in any court of
competent jurisdiction in Bexar County, Texas.
12. PURPOSE OF LOAN. Xxxxxxxx agrees that no advances under this
Note shall be used for personal, family or household purposes, and that all
advances hereunder shall be used solely for business, commercial, investment, or
other similar purposes.
13. CAPTIONS. The captions in this Note are inserted for convenience
only and are not to be used to limit the terms herein.
14. FINANCIAL INFORMATION. Xxxxxxxx agrees to promptly furnish such
financial information and statements, including financial statements in a format
acceptable to Lender, lists of assets and liabilities, agings of receivables and
payables, inventory schedules, budgets, forecasts, tax returns, and other
reports with respect to Xxxxxxxx's financial condition and business operations
as Lender may request from time to time. This provision shall not alter the
obligation of Borrower to deliver to Lender any other financial statements or
reports pursuant to the terms of any other loan documents executed in connection
with this Note.
15. NOTICES. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing, and shall be deemed to be
given or delivered when actually received by the party to whom directed, or, if
earlier and regardless of whether actually received, upon deposit in a regularly
maintained receptacle for the United States mail, registered or certified,
postage fully prepaid, addressed to the party to whom directed at its address
set forth below or at such other address for notice delivery as such party may
have specified previously by notice actually received by the other party:
If to Borrower: Behringer Harvard Northwest Highway LP
Attn: ___________________________
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
With copy to: Xxxxxx & Xxxxxxx, L.L.P.
Attn: Xxxxxxx X. Xxxxxx
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
If to Lender: The Frost National Bank
P.O. Box 1600
San Antonio, Texas 78296
Attn: Mr. Xxxx Xxxx
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Exhibit 99.5
BORROWER:
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BEHRINGER HARVARD NORTHWEST HIGHWAY LP, A TEXAS LIMITED
PARTNERSHIP
BY: BEHRINGER HARVARD NORTHWEST HIGHWAY GP, LLC, A TEXAS
LIMITED LIABILITY COMPANY, ITS GENERAL PARTNER
BY: _____________________________________________
NAME: __________________________________________
TITLE: __________________________________________
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