Exhibit 10.29
TIAA Appl. #MD-534
M - 0004 54100
PROMISSORY NOTE
---------------
$85,000,000 Columbia, Maryland
Dated: Oct. 22, 1998
FOR VALUE RECEIVED, CORPORATE OFFICE PROPERTIES, L.P. ("Borrower"), a
Delaware limited partnership, having its principal place of business at 0000
Xxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxx. Maryland 21045, promises to pay to
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA ("Lender"), a New York
corporation, or order, at Lender's offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 or at such other place as Lender designates in writing, the principal
sum of EIGHTY-FIVE MILLION DOLLARS ($85,000,000) (the principal sum or so much
of the principal sum as may be advanced and outstanding from time to time, the
"Principal"), in lawful money of the United States of America, with interest on
the Principal from the date of this Promissory Note (this "Note") through and
including the date of repayment in full of the Principal at the fixed rate of
six and 89/100ths percent (6.89%) per annum (the "Fixed Interest Rate").
This Note is guaranteed by, inter alia, a Conditional Payment Guaranty
(the "Conditional Guaranty") from NBP One, LLC, NBP-131-133-141, LLC, Three
Centre Park, LLC, Lakeview at Greens, LLC and Corporate Gatespring LLC, jointly
and severally (collectively, the "Conditional Guarantors") dated of even date
herewith. The Conditional Guaranty is secured by, among other things, the
Indemnity Deed of Trust, Assignment of Leases and Rents and Security Agreement
(the "Deed of Trust") also dated as of the date of this Note, but made by the
Conditional Guarantors for the benefit of the Lender as security for the
Conditional Guaranty. All capitalized terms not expressly defined in this note
will have the definitions set forth in the Deed of Trust.
Section 1. Payments of Principal and Fixed Interest.
(a) "Advances of Principal" shall mean the advances of Principal funded
by the Lender under this Note in the following order:
(i) $76,200,000 ("First Disbursement"); and
(ii) $8,800,000 ("Second Disbursement").
"Principal," when used herein, shall be the total amount advanced under both the
First Disbursement and the Second Disbursement.
(b) Borrower will make monthly installment payments ("Debt Service
Payments") as follows:
(i) On November 1, 1998, a payment of accrued interest on the
Advance of Principal made hereunder as the First Disbursement at the
Fixed Interest Rate;
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(ii) On December 1, 1998, a payment in the amount of Five
Hundred Thirty Three Thousand Two Hundred Thirty and 47/100 Dollars
($533,230.47), which will be applied first to interest on the First
Disbursement at the Fixed Interest Rate; and then to the Advance of
Principal under the First Disbursement
(iii) On January 1, 1999, payments:
(A) in the amount of Five Hundred Thirty Three
Thousand Two Hundred Thirty and 47/100 Dollars ($533,230.47),
which will be applied first to interest on the First
Disbursement, and then to the Advance of Principal under the
First Disbursement; plus
(B) a payment of accrued interest on the Advance of
Principal made hereunder as the Second Disbursement, which is
expected to be funded in December 1998, at the Fixed Interest
Rate;
(iv) On February 1, 1999, and on the first day of each
succeeding calendar month through and including October 1, 2008,
payments in the amount of Five Hundred Ninety Four Thousand Nine
Hundred Sixty Six and 42/100 Dollars ($594,966.42), each of which will
be applied first to interest on the Principal at the Fixed Interest
Rate and then to the Principal.
(c) On November 1, 2008 (the "Maturity Date"), Borrower will pay the
Principal in full together with accrued interest at the Fixed Interest Rate and
all other amounts due under the Loan Documents.
Borrower acknowledges that the monthly payment provided for in
clause(b)(vi), above, will not fully repay the Principal and that a balloon
payment of the entire unpaid, Principal balance, together with accrued interest
and other amounts due, will be due on the Maturity Date.
Section 2. Prepayment Provisions.
(a) The following definitions apply:
"Discount Rate" means the yield on a U.S. Treasury issue selected by Xxxxxx, as
published in The Wall Street Journal, two weeks prior to prepayment, having a
maturity date corresponding (or most closely corresponding, if not identical) to
the Maturity Date, and, if applicable, a coupon rate corresponding (or most
closely corresponding, if not identical) to the Fixed Interest Rate.
"Default Discount Rate" means the Discount Rate less 300 basis points until
December 1, 2003, and thereafter the Discount Rate.
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"Discounted Value" means the Discounted Value of a Note Payment based on the
following formula:
NP
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(1 + R/12)n = Discounted Value
NP = Amount of Note Payment
R = Discount Rate or Default Discount Rate as the case may be.
n = The number of months between the date of prepayment
and the scheduled date of the Note Payment being
discounted rounded to the nearest integer.
"Evasion Percentage" = four percent (4%), until December 1, 2003, and thereafter
one percent (1%).
"Note Payments" means (i) the scheduled Debt Service Payments for the period
from the date of prepayment through the Maturity Date and (ii) the scheduled
repayment of Principal, if any, on the Maturity Date.
"Prepayment Date Principal" means the Principal on the date of prepayment.
(b) This Note may not be prepaid in full or in part before November 30,
2003. Commencing on December 1, 2003, provided there is no Event of Default,
Borrower may prepay this Note in full, but not in part (except pursuant to
Section 12.4(b) of the Deed of Trust), on the first day of any calendar month,
upon 60 days prior notice to Lender and upon payment in full of the Debt which
will include a payment (the "Prepayment Premium") equal to the greater of (i) an
amount equal to the product of one percent (1%) times the Prepayment Date
Principal and (ii) the amount by which the sum of the Discounted Values of Note
Payments, calculated at the Discount Rate, exceeds the Prepayment Date
Principal. Provided there is no Event of Default, this Note may be prepaid in
full without payment of the Prepayment Premium during the last 90 days of the
Term.
(c) After an Acceleration or upon any other prepayment not permitted by
the Loan Documents, any tender of payment of the amount necessary to satisfy the
Debt accelerated, any decree of foreclosure, any statement of the amount due at
the time of foreclosure (including foreclosure by power of sale) and any tender
of payment made during any redemption period after foreclosure, will include, in
lieu of the Prepayment Premium, a payment (the "Evasion Premium") equal to the
greater of (i) an amount equal to the product of the Evasion Percentage times
the Prepayment Date Principal, and (ii) the amount by which the sum of the
Discounted Values of the Note Payments, calculated at the Default Discount Rate,
exceeds the Prepayment Date Principal.
(d) Borrower acknowledges that:
(i) a prepayment will cause damage to Lender;
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(ii) the Evasion Premium is intended to compensate Lender for the loss
of its investment and the expense incurred and time and effort
associated with making the Loan, which will not be fully repaid if the
Loan is prepaid;
(iii) it will be extremely difficult and impractical to ascertain the
extent of Xxxxxx's damages caused by a prepayment after an Event of
Default or any other prepayment not permitted by the Loan Documents;
and
(iv) the Evasion Premium represents Lender and Xxxxxxxx's reasonable
estimate of Xxxxxx's damages for the prepayment and is not a penalty.
Section 3. Guaranty; Security for Guaranty. Borrower's obligations
under this Note and the other Loan Documents (the "Borrower's Obligations") are
guaranteed pursuant to the Conditional Guaranty by the Conditional Guarantors.
The obligations of the Conditional Guarantors under the Guaranty are secured by
the Deed of Trust by the Conditional Guarantor to Xxxxxxx X. Xxxxxx and Xxxxxxx
X. Xxxxxx, as trustees, for the benefit of the Lender encumbering certain real
properties located in Xxxx Xxxxxxx County, Xxxxxx County and Prince Xxxxxx's
County, Maryland, and other property of the Conditional Guarantors as more
particularly described therein (the "Property"), and by an Indemnity Assignment
of Leases and Rents (the "Assignment") of even date herewith by the Conditional
Guarantors for the benefit of the Lender. The Deed of Trust and the Assignment
contain terms and provisions which provide grounds for acceleration of the Debt
together with additional remedies in the event of default thereunder. Failure on
the part of Lender to exercise any right granted herein or in the aforesaid Deed
of Trust or Assignment shall not constitute a waiver of such right or preclude
the subsequent exercise and enforcement thereof. This Note, the Conditional
Guaranty, the Deed of Trust and all documents now or hereafter executed by
Borrower or Conditional Guarantors or held by Lender or Trustees relating to the
Loan, including all amendments, are herein collectively referred to as the "Loan
Documents".
Section 4. Events of Default.
(a) It is an "Event of Default" under this Note:
(i) if Borrower fails to pay any amount due, as and when required,
under this Note or any other Loan Document and the failure continues
for a period of 5 days; or
(ii) if an Event of Default occurs under any other Loan Document.
(b) If an Event of Default occurs, Lender may declare all or any
portion of the Debt immediately due and payable ("Acceleration") and exercise
any of the other Remedies.
Section 5. Default Rate. Interest on the Principal will accrue at the
Default Interest Rate from the date an Event of Default occurs.
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Section 6. Late Charges.
(a) If Borrower fails to pay any Debt Service Payment when due and the
failure continues for a period of 5 days or more or fails to pay any amount due
under the Loan Documents on the Maturity Date, Borrower agrees to pay to Lender
an amount (a "Late Charge") equal to five cents ($.05) for each one dollar
($1.00) of the delinquent payment.
(b) Borrower acknowledges that:
(i) a delinquent payment will cause damage to Lender;
(ii) the Late Charge is intended to compensate Lender for loss of use
of the delinquent payment and the expense incurred and time and effort
associated with recovering the delinquent payment;
(iii) it will be extremely difficult and impractical to ascertain the
extent of Xxxxxx's damages caused by the delinquency; and
(iv) the Late Charge represents Xxxxxx and Xxxxxxxx's reasonable
estimate of Xxxxxx's damages from the delinquency and is not a penalty.
Section 7. Limitation of Liability. (a) Notwithstanding any provision
in this Note to the contrary, except as set forth in subsections (b) through (e)
below, if Lender seeks to enforce the collection of the Principal, the Interest,
the Late Charges, the Prepayment Premiums, the Expenses, any additional advances
made by Lender in connection with the Loan and all other amounts payable under
the Loan Documents (the "Debt"), Xxxxxx will first declare a default under this
Note and exercise its remedies under the Conditional Guaranty and under the Deed
of Trust instead of instituting suit on this Note. If following a sale of all of
the parcels comprising the Property under the Deed of Trust a lesser sum is
realized therefrom than that due under the then outstanding Debt, Lender will
not institute any Proceeding against Borrower or Xxxxxxxx's general partners or
principals, if any, for or on account of the deficiency, and Lender shall not
have recourse against Borrower or Borrower's general partner for any portion of
the Debt, except in each instance as set forth in subsections (b) through (e)
below.
(b) The limitation of liability in subsection (a) will not affect or
impair (i) Lender's rights and remedies under the other Loan Documents,
including Xxxxxx's right as mortgagee or secured party to commence an action
to foreclose any lien or security interest Lender has under the Loan
Documents against any parcel remaining encumbered thereby or any additional
collateral held; (ii) the validity of the Loan Documents, the Borrower's
Obligations, the obligations of the Conditional Guarantors under the Loan
Documents to which they are a party (the "Guarantors' Obligations"); or (iii)
Lender's right to present and collect on any letter of credit or other credit
enhancement document held by Xxxxxx in connection with the Borrower's
Obligations.
(c) The following are excluded and excepted from the
limitation of liability in subsection (a) and Xxxxxx may recover personally
against Borrower and its general partners, for the following:
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(i) all losses suffered and liabilities and expenses incurred
by Lender relating to any fraud or intentional
misrepresentation or omission by Borrower or Conditional
Guarantors or any of their partners, members, officers,
directors, shareholders or principals in connection with (A)
the performance of any of the conditions to Lender making the
loan evidenced hereby (the "Loan"); (B) any inducements to
Lender to make the Loan; (C) the execution and delivery of the
Loan Documents; (D) any certificates, representations or
warranties given in connection with the Loan; or (E)
Xxxxxxxx's performance of the Borrower's Obligations or
Guarantors' performance of the Guarantors' Obligations;
(ii) all Rents derived from the Property after a default under
the Loan Documents which default is a basis of a Proceeding by
Lender to enforce collection of the Debt and all moneys that,
on the date such a default occurs, are on deposit in one or
more accounts used by or on behalf of Conditional Guarantors
(or any of them) relating to the operation of the Property,
except to the extent properly applied to payment of Debt
Service Payments, Impositions, Insurance Premiums and any
reasonable and customary expenses incurred by Conditional
Guarantors in the operation, maintenance and leasing of the
Property or delivered to Lender;
(iii) the cost of remediation of any Environmental Activity
affecting the Property and any other losses suffered and
liabilities and expenses incurred by Xxxxxx relating to a
default under the Article of the Deed of Trust entitled
"Environmental";
(iv) all security deposits collected by Conditional Guarantors
or any of Conditional Guarantors' predecessors and not
refunded to Tenants in accordance with their respective
Leases, applied in accordance with the Leases or Law or
delivered to Lender, and all advance rents (more than thirty
(30) days in advance) collected by Conditional Guarantors or
any of Conditional Guarantors' predecessors and not applied in
accordance with the Leases or delivered to Lender;
(v) the replacement cost of any Fixtures or Personal Property
removed from the Property after an Event of Default occurs;
(vi) all losses suffered and liabilities and expenses incurred
by Xxxxxx relating to any acts or omissions by Conditional
Guarantors that result in waste (including economic and
non-physical waste) on the Property;
(vii) all losses suffered and expenses incurred by Lender by
virtue of a failure of Conditional Guarantors (or any one or
more of them) to comply with the requirements of Section
5.6(b) and (c) of the Deed of Trust;
(viii) all protective advances and other payments made by
Lender pursuant to express provisions of the Loan Documents to
protect Xxxxxx's security interest in the Property or to
protect the assignment of the property described in and
effected
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by the Assignment, but only to the extent that the Rents would
have been sufficient to permit Conditional Guarantors to make
the payment and Conditional Guarantors failed to do so;
(ix) any misappropriation of the proceeds of the Loan, to the
extent the proceeds of the Loan are not used to repay prior
liens, including mechanics' liens affecting the Property as of
the date hereof, and all mechanics' or similar liens relating
to work performed on or materials delivered to the Property
prior to Lender exercising its Remedies, but only to the
extent Lender had advanced funds to pay for the work or
materials;
(x) all Proceeds that are not applied in accordance with the
Deed of Trust or not paid to Lender as required under the Deed
of Trust; and
(xi) all losses suffered and liabilities and expenses incurred
by Lender or Trustees in connection with the imposition or
collection by any Government or any person, at any time, of
any recordation tax, transfer tax or any other charge relating
to or on account of the recordation of the Deed of Trust or
Xxxxxx's lien thereunder.
(d) Nothing under subparagraph (a) above will be deemed to be a
waiver of any right which Lender may have under Section 506(a), 506(b),
1111(b) or any other provisions of the Bankruptcy Code or under any other Law
relating to bankruptcy or insolvency to file a claim for the full amount of
the Debt or to require that any collateral securing any or all of the
Borrower's Obligations and the Guarantors' Obligations will continue to
secure such obligations in accordance with the Loan Documents.
(e) Notwithstanding the foregoing, it is expressly understood and
agreed that the aforesaid limitation of liability will in no way affect or
apply to Borrower, and Borrower will be liable for the Debt, if Borrower or
any of Conditional Guarantors, or any of their general partners, members or
officers, as the case may be, or any person, seeks to set aside the Guaranty
as a preference in any bankruptcy or similar proceeding.
Section 8. WAIVERS. BORROWER WAIVES PRESENTMENT FOR PAYMENT, DEMAND,
DISHONOR AND NOTICE OF ANY OF THE FOREGOING. BORROWER FURTHER WAIVES ANY
PROTEST, LACK OF DILIGENCE OR DELAY IN COLLECTION OF THE DEBT OR ENFORCEMENT OF
THE LOAN DOCUMENTS. BORROWER AND ALL ENDORSERS, SURETIES AND GUARANTORS OF THE
BORROWER'S OBLIGATIONS CONSENT TO ANY EXTENSIONS OF TIME, RENEWALS, WAIVERS AND
MODIFICATIONS THAT LENDER MAY GRANT WITH RESPECT TO THE BORROWER'S OBLIGATIONS
AND TO THE RELEASE OF ANY SECURITY FOR THE CONDITIONAL GUARANTY AND AGREE THAT
ADDITIONAL MAKERS MAY BECOME PARTIES TO THIS NOTE AND ADDITIONAL ENDORSERS,
GUARANTORS OR SURETIES MAY BE ADDED WITHOUT NOTICE AND WITHOUT AFFECTING THE
LIABILITY OF THE ORIGINAL MAKER OR ANY ORIGINAL ENDORSER, SURETY OR GUARANTOR.
BORROWER, BY ITS EXECUTION OF THIS NOTE, AND XXXXXX, BY ITS ACCEPTANCE HEREOF,
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EACH HEREBY VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EACH MAY HAVE TO A
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS NOTE. IN ADDITION:
SECTION 8.1. WAIVER OF STATUTE OF LIMITATIONS. BORROWER WAIVES THE
RIGHT TO CLAIM ANY STATUTE OF LIMITATIONS AS A DEFENSE TO XXXXXXXX'S PAYMENT
AND PERFORMANCE OF THE BORROWER'S OBLIGATIONS.
SECTION 8.2. WAIVER OF NOTICE. XXXXXXXX WAIVES THE RIGHT TO RECEIVE
ANY NOTICE FROM LENDER WITH RESPECT TO THE LOAN DOCUMENTS EXCEPT FOR THOSE
NOTICES THAT XXXXXX IS EXPRESSLY REQUIRED TO DELIVER PURSUANT TO THE LOAN
DOCUMENTS.
SECTION 8.3. [INTENTIONALLY DELETED]
SECTION 8.4. GENERAL WAIVER. XXXXXXXX ACKNOWLEDGES THAT (A) BORROWER
AND XXXXXXXX'S PARTNERS, MEMBERS OR PRINCIPALS, AS THE CASE MAY BE, ARE
KNOWLEDGEABLE BORROWERS OF COMMERCIAL FUNDS AND EXPERIENCED REAL ESTATE
DEVELOPERS OR INVESTORS WHO UNDERSTAND FULLY THE EFFECT OF THE ABOVE
PROVISIONS; (B) LENDER WOULD NOT MAKE THE LOAN WITHOUT THE PROVISIONS OF THIS
SECTION; (C) THE LOAN IS A COMMERCIAL OR BUSINESS LOAN UNDER THE LAWS OF THE
STATE OR COMMONWEALTH WHERE THE PROPERTY IS LOCATED NEGOTIATED BY XXXXXX AND
BORROWER AND THEIR RESPECTIVE ATTORNEYS AT ARMS LENGTH; AND (D) ALL WAIVERS
BY XXXXXXXX IN THIS SECTION HAVE BEEN MADE VOLUNTARILY, INTELLIGENTLY AND
KNOWINGLY, AFTER XXXXXXXX FIRST HAS BEEN INFORMED BY COUNSEL OF XXXXXXXX'S
OWN CHOOSING AS TO POSSIBLE ALTERNATIVE RIGHTS, AND HAS BEEN MADE AS AN
INTENTIONAL RELINQUISHMENT AND ABANDONMENT OF A KNOWN RIGHT AND PRIVILEGE.
THE FOREGOING ACKNOWLEDGMENT IS MADE WITH THE INTENT THAT LENDER AND ANY
SUBSEQUENT HOLDER OF THE NOTE WILL RELY ON THE ACKNOWLEDGMENT.
Section 9. Commercial Loan. Borrower warrants that the Loan is a
commercial loan within the meanings of Section 12-101 et seq. of the Commercial
Law Article of the Annotated Code of Maryland (1990 Repl. Vol., as amended).
Section 10. Usury Limitations. Xxxxxxxx and Xxxxxx intend to comply
with all Laws with respect to the charging and receiving of interest. Any
amounts charged or received by Lender for the use or forbearance of the
Principal to the extent permitted by Law, will be amortized and spread
throughout the Term until payment in full so that the rate or amount of interest
charged or received by Xxxxxx on account the Principal does not exceed the
Maximum Interest Rate. If any amount charged or received under the Loan
Documents that is deemed to be interest is determined to be in excess of the
amount permitted to be charged or received at the
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Maximum Interest Rate, the excess will be deemed to be a prepayment of Principal
when paid, without premium, and any portion of the excess not capable of being
so applied will be refunded to Borrower. If during the Term the Maximum Interest
Rate, if any, is eliminated, then for purposes of the Loan, there will be no
Maximum Interest Rate.
Section 11. Applicable Law. This Note is governed by and will be
construed in accordance with the Laws of the State of Maryland.
Section 12. Time of the Essence. Time is of the essence with respect to
the payment and performance of the Borrower's Obligations.
Section 13. Cross-Default. A default under any other note now or
hereafter secured by the Loan Documents or under any loan document related to
such other note constitutes a default under this Note and under the other Loan
Documents. When the default under the other note constitutes an Event of Default
under that note or the related loan document, an Event of Default also will
exist under this Note and the other Loan Documents.
Section 14. [INTENTIONALLY DELETED]
Section 15. Construction. Unless expressly provided otherwise in this
Note, this Note will be construed in accordance with the Exhibit attached to
this Note entitled "Rules of Construction".
Section 16. Miscellaneous Provisions.
(a) Payment of Expenses. Borrower is obligated to pay all fees and
expenses (the "Expenses") incurred by Lender that are otherwise payable in
connection with the Loan or Borrower, including reasonable attorneys' fees and
expenses and any fees and expenses relating to the (i) the preparation,
execution, acknowledgment, delivery and recording or filing the Loan Documents;
(ii) any Proceeding or other claim asserted against Lender; (iii) any
inspection, assessment, survey and tests permitted under the Loan Documents;
(iv) any destruction event under the Deed of Trust; (v) the preservation of
Lender's security and exercise of any rights or Remedies available at Law, in
equity or otherwise; and (vi) the Leases and the Property Documents. Borrower
will pay the Expenses immediately on demand, together with any applicable
interest, Premiums or penalties. If Xxxxxx pays any of the Expenses, Xxxxxxxx
will reimburse Lender the amount paid by Xxxxxx immediately upon demand,
together with interest on such amount at the Default Interest Rate from the date
which is five (5) days after the date of which Xxxxxx demanded payment through
and including the date Borrower reimburses Lender. The Expenses together with
any applicable interest, Premiums or penalties constitute a portion of the Debt.
(b) Duty to Defend. If Lender or any of its trustees, officers,
participants, employees or affiliates is a party in any Proceeding relating to
the Borrower or the Loan, Borrower will indemnify and hold harmless the party
and will defend the party and attorneys and other professionals retained by
Borrower and approved by Xxxxxx. Lender may elect to engage its own attorneys
and other professionals, at Xxxxxxxx's expense, to defend or to assist in the
defense of the party. In all events, case strategy will be determined by Lender
if Lender so elects and no Proceeding will be settled without Lender's prior
approval which may be withheld in its
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sole discretion.
(c) Notices. Notices shall be given as provided in the Deed of Trust,
except that any notice made to Borrower shall be made at the address set forth
above.
(d) Xxxxxx's Discretion. Whenever under this Note any matter is
required to be satisfactory to Lender, Xxxxxx's approval, determination or
election will be made in Xxxxxx's reasonable discretion unless expressly
provided to the contrary.
(e) Unenforceable Provisions. If any provision of this Note is found to
be illegal or unenforceable or would operate to invalidate any other part of
this Note, then the provision will be deemed expunged and this Note will be
construed as though the provision was not contained herein, and the remainder of
the Note shall remain in full force and effect.
(f) Relationship between Xxxxxxxx and Xxxxxx.
(i) Lender is not a partner of or joint venturer with Borrower
or any other entity as a result of the Loan; the relationship between Xxxxxx
and Xxxxxxxx is strictly that of creditor and debtor. Each Loan Document is
an agreement between the parties to that Loan Document for the mutual benefit
of those parties, and no entities other than the parties to that Loan
Document will be a third party beneficiary or will have any claim against
Lender or Borrower by virtue of the Loan Document. As between Lender and
Borrower, any actions taken by Lender under the Loan Documents will be taken
for Xxxxxx's protection only, and Xxxxxx has not and will not be deemed to
have assumed any responsibility to Borrower or to any other entity by virtue
of Xxxxxx's actions.
(ii) All conditions to Xxxxxxxx's performance of its Obligations
under the Loan Documents are imposed solely for the benefit of Xxxxxx. No
entity other than Lender will have standing to require satisfaction of the
conditions in accordance with the provisions or will be entitled to assume
that Xxxxxxxx will refuse to perform its Obligations in the absence of strict
compliance with any of the conditions.
(g) Service of Process. Borrower irrevocably consents to service of
process by registered or certified mail, postage prepaid, return receipt
requested, to Borrower at its address set forth above.
(h) Entire Agreement. Oral agreements or commitments between Borrower
and Lender to lend money, to extend credit or to forbear from enforcing
repayment of the Debt, including promises to extend or renew the Debt, are not
enforceable. Any agreements between Borrower and Lender relating to the Loan are
contained in the Loan Documents, which contain the complete and exclusive
statement of the agreements between Borrower and Lender, and except as Borrower
and Xxxxxx may later agree in writing to amend the Loan Documents. The language
of each Loan Document will be construed as a whole according to its fair meaning
and will not be construed against the draftsman.
(i) No Oral Amendment. The Loan Documents may not be amended, waived or
terminated orally or by any act or omission made individually by Borrower or
Lender but may be amended, waived or terminated only by a written document
signed by a party against which enforcement of the amendment, waiver or
termination is sought.
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(j) Time of the Essence. Time is of the essence with respect to
Xxxxxxxx's payment and performance of the Obligations.
(k) Successors and Assigns. This Note binds the parties hereto and
their respective successors, assigns, heirs, administrators, executors, agents
and representatives and inure to the benefit of Xxxxxx and its successors,
assigns, heirs, administrators, executors, agents and representatives.
Section 17. Joint and Several Liability; Successors and Assigns. If
Borrower consists of more than one entity, the obligations and liabilities of
each such entity will be joint and several. This Note binds Borrower and its
successors, assigns, heirs, administrators, executors, agents and
representatives and inures to the benefit of Xxxxxx and its successors, assigns,
heirs, administrators, executors, agents and representatives.
Section 18. Absolute Obligation. Except for the Section of this Note
entitled "Limitation of Liability", no reference in this Note to the other Loan
Documents and no other provision of this Note or of the other Loan Documents
will impair or alter the obligation of Borrower, which is absolute and
unconditional, to pay the Principal, interest at the Fixed Interest Rate and any
other amounts due and payable under this Note, as and when required.
IN WITNESS WHEREOF, Xxxxxxxx has executed and delivered this Note as of
the date first set forth above.
WITNESS/ATTEST: CORPORATE OFFICE PROPERTIES, L.P.
By: Corporate Office Properties Trust,
its general partner
Xxxxx X Xxxxxx by: Xxxxx X. Xxxxxxx Xx. (SEAL)
------------------------- ------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Senior Vice President
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Exhibit A
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RULES OF CONSTRUCTION
(a) References in any Loan Document to numbered Articles or Sections
are references to the Articles and Sections of that Loan Document. References in
any Loan Document to lettered Exhibits are references to the Exhibits attached
to that Loan Document, all of which are incorporated in and constitute a part of
that Loan Document. Article, Section and Exhibit captions used in any Loan
Document are for reference only and do not describe or limit the substance,
scope or intent of that Loan Document or the individual Articles, Sections or
Exhibits of that Loan Document.
(b) The terms "include", "including" and similar terms are construed as
if followed by the phrase "without limitation".
(c) The terms "Land", "Improvements", "Fixtures and Personal Property",
"Condemnation Awards", "Insurance Proceeds" and "Property" are construed as if
followed by the phrase "or any part thereof".
(d) Any agreement by or duty imposed on Borrower or a Conditional
Guarantor in any Loan Document to perform any obligation or to refrain from any
act or omission constitutes a covenant running with the ownership or occupancy
of the Land and the Improvements, which will bind all parties hereto and their
respective successors and assigns, and all lessees, subtenants and assigns of
same, and all occupants and subsequent owners of the Property, and will inure to
the benefit of Lender and all subsequent holders of the Note and the Deed of
Trust and includes a covenant by Xxxxxxxx and the Conditional Guarantors to
cause their respective partners, members, principals, agents, representatives
and employees to perform the obligation or to refrain from the act or omission
in accordance with the Loan Documents. Any statement or disclosure contained in
any Loan Document about facts or circumstances relating to the Property,
Borrower, Conditional Guarantors, or the Loan constitutes a representation and
warranty by Borrower and the Conditional Guarantors made as of the date of the
Loan Document in which the statement or disclosure is contained.
(e) The term "to Xxxxxxxx's knowledge" is construed as meaning to the
best of Xxxxxxxx's knowledge after diligent inquiry.
(f) The singular of any word includes the plural and the plural
includes the singular. The use of any gender includes all genders.
(g) The terms "person", "party" and "entity" include natural persons,
firms, partnerships, limited liability companies and partnerships, corporations
and any other public or private legal entity.
(h) The term "provisions" includes terms, covenants, conditions,
agreements and requirements.
(i) The term "amend" includes modify, supplement, extend, replace or
substitute and the term "amendment" includes modification, supplement,
extension, replacement and substitution.
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(j) Reference to any specific Law or to any document or agreement,
including the Note, the Conditional Guaranty, the Deed of Trust, any of the
other Loan Documents, and any Property Documents includes any future amendments
to the same, as the case may be.
(k) No inference in favor of or against a party with respect to any
provision in any Loan Document may be drawn from the fact that the party drafted
the Loan Document.
(l) The term "certificate" means the sworn, notarized statement of the
entity giving the certificate, made by a duly authorized person satisfactory to
Lender affirming the truth and accuracy of every statement in the certificate.
Any document that is "certified" means the document has been appended to a
certificate of the entity certifying the document that affirms the truth and
accuracy of everything in the document being certified. In all instances the
entity issuing a certificate must be satisfactory to Lender.
(m) Any appointment of Xxxxxx as Xxxxxxxx's attorney-in-fact is
irrevocable and coupled with an interest. Xxxxxx xxx appoint a substitute
attorney-in-fact. Borrower ratifies all actions taken by the attorney-in-fact
but, nevertheless, if Xxxxxx requests, Xxxxxxxx will specifically ratify any
action taken by the attorney-in-fact by executing and delivering to the
attorney-in-fact or to any entity designated by the attorney-in-fact all
documents necessary to effect the ratification.
(n) Any document, instrument or agreement to be delivered by Borrower
will be in form and content satisfactory to Lender.
(o) All obligations, rights, remedies and waivers contained in the Loan
Documents will be construed as being limited only to the extent required to be
enforceable under the Law.
(p) The unmodified word "days" means calendar days.
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