LOAN AGREEMENT
THIS LOAN AGREEMENT is made by and between FIRST AMERICAN BANK, SSB, a
Texas state savings bank ("Lender"), whose address is One Lincoln Park, 0000
Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, and BEHRINGER HARVARD
HOLDINGS, LLC, a Delaware limited liability company ("BORROWER"), whose address
is 0000 X. Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000.
ARTICLE I
DEFINITIONS AND USE OF TERMS
1.01. CERTAIN DEFINITIONS. As used herein, the following terms have
the meanings indicated, unless the context otherwise requires:
"ADVANCE" means a disbursement by Lender of any of the proceeds of the
Loan.
"AGREEMENT" means this Loan Agreement, as the same may from time to time
be amended or supplemented.
"AVAILABILITY" means the sum of $12,600,000.00, reduced by the unpaid
principal balance of the Loan at that time.
"BORROWER" means all parties named Borrower in the first paragraph of
this Agreement.
"BUSINESS DAY" means a day other than a Saturday, Sunday or a day on
which the Lender is closed for the transaction of business.
"CLOSING DATE" means the date of this Agreement.
"COLLATERAL" means all property securing the Loan, as described in the
Security Agreement.
"DEBTOR RELIEF LAWS" means any applicable liquidation, conservatorship,
bankruptcy, moratorium, arrangement, insolvency, reorganization, or
other similar laws, domestic or foreign, including but not limited to
those in Title 11 of the United States Code, as amended from time to
time, affecting the rights or remedies of creditors generally, as in
effect from time to time.
"DEFAULT" has the meaning set forth in ARTICLE V and in any other
provision hereof using the term.
"FINANCIAL STATEMENTS" means the financial information of Borrower and
of Guarantor furnished to Lender.
"GOVERNMENTAL AUTHORITY" means the United States of America, the state,
the county, the city or any other political subdivision in which any
part of the Collateral is located, and any court or political
subdivision, agency, or instrumentality having jurisdiction over
Borrower, Guarantor, or the Collateral.
"GUARANTOR" means Behringer Harvard REIT I, Inc.
"GUARANTY" means the continuing guaranty of the Obligations executed by
the Guarantor.
"LENDER" means Lender named in the first paragraph of this Agreement and
its successors and assigns, in whole or in part.
"LOAN" means the loan made by Lender to Borrower in the maximum amount
of $12,600,000.00, and all renewals or extensions thereof, if
applicable.
"LOAN DOCUMENTS" means this Agreement, the Note, the Guaranty, the
Security Agreement, and such other documents evidencing, securing or
pertaining to the Loan as shall from time to time be executed and
delivered to Lender by Borrower, Guarantor or any other party pursuant
to this Agreement, and any future amendments or supplements hereto or
thereto.
"MATERIAL ADVERSE CHANGE" means any occurrence or combination of
occurrences which could reasonably be expected to be material and
adverse to the financial condition or business operation of Borrower or
Guarantor or which could reasonably be expected to cause a Default.
"MAXIMUM RATE" means the maximum nonusurious interest rate, if any, that
at any time or from time to time may be contracted for, taken, reserved,
charged, or received on the indebtedness evidenced by the Loan, or
either of them, under the laws, which are presently in effect, of the
United States of America and the State of Texas applicable to the
Borrower and such indebtedness or, to the extent allowed by law, under
such applicable laws of the United States of America and the State of
Texas which may hereafter be in effect and which allow a higher maximum
nonusurious interest rate than applicable laws now allow. For purposes
of determining the Maximum Rate under the laws of the State of Texas,
the applicable rate ceiling shall be (a) the "weekly ceiling" described
in and computed in accordance with the provisions of Section 303.303 of
the Texas Finance Code, as amended, or (b) if the parties subsequently
contract as allowed by Texas law, the quarterly ceiling or annualized
ceiling computed pursuant to Section 303.008 of the Texas Finance Code,
as amended; provided, however, if at any time the "weekly ceiling," the
quarterly ceiling or the annualized ceiling shall be less than 18.0% per
annum or more than 24% per annum, the provisions of Section 303.009(a)
and (b) of the Texas Finance Code, as amended, shall control for
purposes of such determination, as applicable. The Maximum Rate shall be
applied by taking into account all amounts characterized by applicable
law as interest on the indebtedness evidenced by the Loan, so that the
aggregate of all interest does not exceed the maximum nonusurious amount
permitted by applicable law.
"NOTE" means the Promissory Note made by Borrower payable to the order
of Lender in the maximum amount of $12,600,000.00 and evidencing the
Loan.
"OBLIGATIONS" means all present and future indebtedness, obligations and
liabilities of Borrower to Lender arising pursuant to this Agreement or
any of the other Loan Documents or otherwise, and any renewals,
extensions or amendments thereof, or any part thereof, regardless of
whether such indebtedness, obligations and liabilities are direct,
indirect, fixed, contingent, liquidated, unliquidated, joint, several or
joint and several.
"PERSON" means any individual, firm, corporation, association,
partnership, joint venture, trust, other entity, unincorporated
organization or Governmental Authority.
"PRINCIPAL DEBT" means the aggregate unpaid balance of all Advances of
the Loan and all other principal indebtedness, if any, under the Note at
the time in question.
"PROCEEDS" means all products and proceeds of any collateral, and all
proceeds of such products and proceeds, including, without limitation,
all cash and credit balances, all payments under any indemnity, warranty
or guaranty payable with respect to any Collateral, all awards for
taking by eminent domain, all proceeds of any fire or other insurance,
and all money and other property obtained as a result of any claims
against third parties or any legal action or proceeding with respect to
any Collateral.
"PRIME RATE" means the variable rate of interest per annum established
from time to time by THE WALL STREET JOURNAL (Southwest Edition) in
Section C thereof under the heading "Money Rates," as the base rate of
interest for corporate loans at larger commercial banks (or, if more
than one such rate is published, the higher or highest of the rates so
published). If such Prime Rate is no longer published by THE WALL STREET
JOURNAL, then Lender shall substitute for such rate a prime rate of
interest quoted for corporate loans at a large commercial bank
designated by Lender, in its sole discretion, for the Prime Rate
initially specified herein.
"RIGHTS" means rights, remedies, powers and privileges.
"SECURITY AGREEMENT" means, collectively, the security agreements and
pledges provided by the Borrower, the Guarantor or any other Person
securing the payment and performance of the Obligations, covering any of
the Collateral and the proceeds of the Collateral.
1.02. HEADINGS. The headings, captions, and arrangements used in any
of the Loan Documents are, unless specified otherwise, for convenience only and
shall not be deemed to limit, amplify, or modify the terms of the Loan Documents
nor to affect the meaning thereof.
1.03. NUMBER AND GENDER OF WORDS. Whenever herein the singular number
is used, the same shall include the plural where appropriate, and words of any
gender shall include each other gender where appropriate. References herein to
Borrower or to Guarantor shall mean, jointly and severally, each Person
comprising same.
1.04. MONEY. Unless stipulated otherwise, all references herein or in
any of the Loan Documents to "Dollars," "money," "payments," or other similar
financial or monetary terms are references to currency of the United States of
America.
1.05. ARTICLES, SECTIONS AND EXHIBITS. All references herein to
Articles and Sections are, unless specified otherwise, references to articles
and sections of this Agreement. All references herein to an "Exhibit," "Annex"
or "Schedule" are references to exhibits, annexes or schedules attached hereto,
all of which are made a part hereof for all purposes, the same as if set forth
herein verbatim, it being understood that if any exhibit, annex or schedule
attached hereto, which is to be executed and delivered, contains blanks, the
same shall be completed correctly and in accordance with the terms and
provisions contained and as contemplated herein prior to or at the time of the
execution and delivery thereof. The words "herein," "hereof," "hereunder" and
other similar compounds of the word "here" when used in this Agreement shall
refer to the entire Agreement and not to any particular provision or section.
ARTICLE II
COMMITMENT TO LEND; ADVANCES; PAYMENTS
2.01. COMMITMENT TO LEND. Subject to and upon the terms, covenants,
and conditions hereof, Lender hereby agrees to make the Loan to the Borrower.
The Loan shall be evidenced by the Note and shall not exceed the sum of
$12,600,000.00. Lender's commitment hereunder is not revolving and any principal
payment or prepayment hereunder may not be reborrowed.
2.02. INTEREST. Interest at the rates specified in the Note shall be
computed on the Principal Debt which exists from time to time on each such note,
and shall be computed with respect to each Advance made on each such note only
from the date of each such Advance made on such note. In no event shall any
interest provided on the Loan exceed the Maximum Rate.
2.03. PROCEDURE FOR BORROWING. Borrower shall request any Advance on
the Loan in writing, in the form of advance request attached hereto as EXHIBIT
"A". Lender shall not be required to make any Advance on the Loan until all
conditions to each Advance, as specified in SECTION 2.04 hereof, shall have been
fulfilled to the satisfaction of Lender. Each request for an Advance on the Loan
shall be submitted by Borrower to Lender a reasonable time (but not less than
one (1) Business Day) prior to the requested date (which must be a Business Day)
of the Advance. Except as Lender may otherwise determine from time to time, each
Advance will be made at Lender's principal office.
2.04. CONDITIONS TO INITIAL ADVANCE. As conditions precedent to the
initial Advance of the Loan, Borrower must satisfy the conditions required
hereby and execute and deliver to the Lender, and if appropriate record in the
proper records with all filing and recording fees paid, the documents,
certificates, and other items referred to in EXHIBIT "B".
2.05. CONDITIONS TO ADVANCES ON LOAN. As conditions precedent to each
Advance on the Loan, in addition to all other requirements herein, Borrower must
satisfy the following requirements:
(a) There shall then exist no Default nor shall there have occurred
any event which, with the giving of notice or the lapse of time,
or both, could become a Default.
(b) The representations and warranties made in this Agreement shall
be true and correct on and as of the date of each Advance, and
the request for an Advance shall constitute the representation
and warranty by Borrower that such representations and
warranties are true and correct at such time.
(c) The sum of the Principal Debt plus the amount of the requested
Advance on the Loan shall not be in excess of the Availability.
2.06. NO WAIVER. No Advance shall constitute a waiver of any condition
precedent to the obligation of Lender to make any further Advance or preclude
Lender from thereafter declaring the failure of Borrower to satisfy such
condition precedent to be a Default.
2.07. CONDITIONS PRECEDENT FOR THE BENEFIT OF LENDER. All conditions
precedent to the obligation of Lender to make any Advance are imposed hereby
solely for the benefit of Lender, and no other party may require satisfaction of
any such condition precedent or be entitled to assume that Lender will refuse to
make any Advance in the absence of strict compliance with such conditions
precedent. Any
requirement of this Agreement may be waived by Lender, in whole or in part, at
any time. Any requirement herein of submission of evidence of the existence or
nonexistence of a fact means that the fact shall exist or not exist, as the case
may be, and without waiving any condition or any obligation of Borrower, Lender
may at all times independently establish to its satisfaction such existence or
nonexistence.
2.08. REGULATORY RESTRICTIONS. Notwithstanding anything in this
Agreement or the other Loan Documents to the contrary, in no event shall Lender
be required to disburse, nor shall Borrower be entitled to demand that Lender
disburse, all or any portion of the Loan if the amount of the Loan would, in
Lender's sole and absolute discretion, cause Lender to exceed the lending limit
to a single Borrower under any applicable state or federal law, regulation or
ruling. If Lender determines, in its sole and absolute discretion, at any time
(including after any portion or all of any such Loan has been disbursed) that
the transaction evidenced by this Agreement and the other Loan Documents
violates such lending limit restriction, then the Lender shall have the right to
immediately declare the applicable Loan to be due and payable, and shall,
thereafter, have no further obligations to disburse any further proceeds of such
Loan. In such event, Borrower shall be required to immediately pay all
outstanding Obligations on such Loan and shall have no further rights and
privileges under this Agreement and the other Loan Documents to obtain other or
further advances on such Loan.
2.09. PAYMENTS. The Borrower shall repay the Loan, plus all accrued
and unpaid interest thereon, in accordance with the terms and conditions of the
Note.
ARTICLE III
BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES.
3.01 BOOKS AND RECORDS. Borrower shall maintain, at all times,
correct and complete books, records and accounts in which complete, correct and
timely entries are made of its transactions in accordance with generally
accepted accounting standards.
3.02 FINANCIAL INFORMATION. Borrower shall promptly furnish to Lender
all such financial information as Lender shall reasonably request, and notify
its auditors and accountants that Lender is authorized to obtain such
information directly from them.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER
Borrower hereby represents and warrants as follows:
4.01. FINANCIAL STATEMENTS. The Financial Statements are true, correct
and complete as of the dates specified therein and fully and accurately present
the financial condition of Borrower and of Guarantor as of the dates specified.
Since the date of the Financial Statements, no Material Adverse Change has
occurred in the financial condition of Borrower or Guarantor nor, except as
heretofore disclosed in writing to Lender, has Borrower or Guarantor incurred
any material liability, direct or indirect, fixed or contingent. Borrower is
solvent.
4.02. SUITS, ACTIONS, ETC. There are no actions, suits or proceedings
pending or to the knowledge of Borrower threatened before or by any Governmental
Authority against or affecting Borrower, Guarantor or the Collateral, or
involving the validity, enforceability or priority of any of the Loan Documents
which is reasonably expected by any such party to result in a Material Adverse
Change. Neither Borrower nor Guarantor is, and the consummation of the
transactions contemplated hereby and the performance or satisfaction of any of
the terms or conditions hereof and of the other Loan Documents will not cause
Borrower or Guarantor to be, in violation of or in default with respect to any
requirement of any Governmental Authority or in default (or provide cause for
acceleration of indebtedness) under any mortgage, deed of trust, lease,
promissory note, loan agreement, credit agreement, partnership agreement or
other agreement or restriction to which Borrower or Guarantor is a party or by
which Borrower or Guarantor or the Collateral may be bound or affected.
4.03. STATUS OF BORROWER; VALID AND BINDING OBLIGATION. Each Person
comprising the Borrower is and shall until the Obligations are fully discharged
continue to be (a) duly organized and validly existing and in good standing
under the laws of the state of its organization; (b) in compliance with all
conditions prerequisite to its lawfully doing business in the State of Texas;
and (c) possessed of all power and authority necessary to enter into and perform
Borrower's obligations under the Loan Documents and to make the borrowings
contemplated hereby. All of the Loan Documents, and all other documents referred
to herein to which Borrower or Guarantor is a party, upon execution and delivery
will constitute valid and binding obligations of Borrower or Guarantor, as the
case may be, enforceable in accordance with their terms except as the
enforcement thereof may be limited by Debtor Relief Laws.
4.04. PURPOSE OF LOAN. The proceeds of the Loan will be used for
business purposes of the Borrower. Such proceeds are not and will not be used,
directly or indirectly, for personal, family, household or agricultural
purposes.
4.05. NO FAILURE TO DISCLOSE. No representation or warranty made by
Borrower under this Agreement and no document, instrument or certificate
furnished, to be furnished or caused to be furnished by Borrower or Guarantor to
Lender in anticipation of or pursuant to this Agreement contains or will contain
any untrue statement of a material fact or omits or will omit to state a
material fact necessary to make the statements contained therein not misleading.
4.06. USE OF PROCEEDS. The proceeds of the Loan shall be used solely
to fund the acquisition of real estate properties held for subsequent transfer
to affiliates or third parties (each a "Project"). Borrower shall notify Lender
each time that it makes a borrowing under this Note of the Project to which it
relates and certify that the borrowing is being made in compliance with this
Section 4.06. Lender shall have no obligation to verify the use of such
proceeds.
ARTICLE V
DEFAULT
5.01. DEFAULT. The term "DEFAULT," as used herein, shall include the
occurrence of any one or more events of default under any of the Loan Documents.
ARTICLE VI
GENERAL TERMS AND CONDITIONS
6.01. NOTICES. All notices, demands, requests and other communications
required or permitted hereunder, or under any other Loan Document except as
otherwise provided therein, shall be in writing and shall be deemed to be given
and delivered when received, or if earlier and regardless of whether or not
actually received (except where actual receipt is specified herein or in any
other Loan Document), three (3) days following deposit of such notice in a
regularly maintained receptacle for the United States mail, registered or
certified, postage fully prepaid, return receipt requested, addressed to
Borrower or Lender, as the case may be, at its address specified on the first
page of this Agreement or at such other address as such party may have specified
theretofore by notice delivered in accordance with this SECTION 9.01 and
actually received by the other party. To the extent actual receipt is required,
rejection or other refusal to accept or the inability to deliver because of
changed address of which no notice was received shall be deemed to be receipt of
the notice, demand, request or other communication.
6.02. CONTINUATION AND SURVIVAL. All covenants, agreements,
representations and warranties made in or pursuant to this Agreement shall be
deemed continuing and made at and as of the date of this Agreement and at and as
of all times thereafter. All statements contained in any certificate, Financial
Statement, legal opinion or other instrument delivered by or on behalf of
Borrower or Guarantor pursuant to or in connection with any of the Loan
Documents shall constitute additional representations and warranties made under
this Agreement. All covenants, agreements, representations and warranties made
in or pursuant to this Agreement shall survive until payment in full of all sums
owing and performance of all Obligations hereunder by Borrower to Lender and
shall not be waived by the execution and delivery of this Agreement, any Advance
hereunder, any investigation by Lender, or any other event except a specific
written waiver by Lender.
6.03. MODIFICATIONS. No provision of this Agreement or the other Loan
Documents may be modified, waived or terminated except by instrument in writing
(referring specifically to the particular instrument) executed by the party
against whom the modification, waiver or termination is sought to be enforced.
6.04. INVALID PROVISIONS. If any one or more of the provisions of this
Agreement, or the applicability of any such provision to a specific situation,
shall be held invalid or unenforceable, such provision shall be modified to the
minimum extent necessary to make it or its application valid and enforceable,
and the validity and enforceability of all other provisions of this Agreement
and all other applications of any such provision shall not be affected thereby.
6.05. ELECTION OF REMEDIES. Lender shall have all of the Rights
granted in the Loan Documents or otherwise and all of those available at law or
in equity, and these same Rights shall be cumulative and may be pursued
separately, successively or concurrently against Borrower, Guarantor or any
property covered under the Loan Documents at the sole discretion of Lender. The
exercise or failure to exercise any of the same shall not constitute a waiver or
release thereof or of any other Right, and the same shall be nonexclusive.
6.06. LOAN DOCUMENTS. All documents, certificates, insurance policies
and other items required under this Agreement to be executed or delivered to
Lender must be in form, scope and substance satisfactory to Lender. All
documents evidencing, guaranteeing, securing or pertaining to the Loan
shall be prepared by counsel selected by Lender.
6.07. APPLICABLE LAW. This Agreement and the other Loan Documents have
been executed and delivered in the State of Texas, the repayment of the Loan is
performable in Dallas County, Texas.
6.08. COUNTERPART EXECUTION. This Agreement may be executed in several
counterparts, each of which shall be fully effective as an original and all of
which together shall constitute one and the same instrument.
EXECUTED AND DELIVERED on the ____ day of October, 2004.
LENDER:
FIRST AMERICAN BANK, SSB,
a Texas state savings bank
By:_____________________________
Name:___________________________
Title:__________________________
BORROWER:
BEHRINGER HARVARD HOLDINGS, LLC,
a Delaware limited liability company
By:_____________________________
Name:___________________________
Title:__________________________
EXHIBIT "A"
REQUEST FOR ADVANCE
TO: FIRST AMERICAN BANK ("LENDER")
FROM: BEHRINGER HARVARD HOLDINGS, LLC
DATE: ____________________
RE: $12,600,000 LOAN
THIS REQUEST FOR ADVANCE is prepared and delivered pursuant to that
certain Loan Agreement (the "Loan Agreement") dated October ___, 2004, by and
between Lender and Borrower. All terms with their initial letter capitalized
shall have the same meaning herein as such term is defined in the Loan
Agreement.
1. Please be advised that the Borrower wishes to borrow under and
pursuant to the Loan Agreement and the Note, the principal sum of
$______________ on ___________________, 20__, (an "Advance") which, when
borrowed, shall cause the sum of the principal balance of the Advances made by
the Lender under the Loan to be $----------------.
2. The Advance shall be used for the following
Project:______________________________ (the "Applicable Project").
3. Borrower hereby certifies that:
a. upon making the Advance, the principal balance of the
outstanding Advances made by the Lender will be equal to
or less than the Availability;
b. the representations and warranties made in the Loan
Agreement and the Loan Documents are true and correct in
all material respects as of the date hereof;
c. no Default under the Loan Documents has occurred and is
continuing or would be caused by the Advance requested
hereby;
d. Borrower has performed and complied in all material
respects with all agreements and conditions required to
be performed or complied with by it under the Loan
Documents;
e. all necessary authorizations and approvals contemplated
by the Loan Documents have been duly obtained and are in
full force and effect;
f. the proceeds of the requested Advance shall be used to
fund acquisition and syndication costs and deposits with
respect to the Applicable Project; and
g. The Advance is being made in compliance with Section
4.06 of the Loan Agreement.
BEHRINGER HARVARD HOLDINGS, LLC,
a Delaware limited liability company
By: _____________________________
Name: _____________________________
Title: _____________________________
APPROVED BY:
BEHRINGER HARVARD REIT I, INC.
By: ____________________________
Name:___________________________
Title:__________________________
EXHIBIT "B"
A. The Note, dated the Closing Date.
B. The Security Agreement, dated the Closing Date.
C. The Guaranty, dated the Closing Date.
D. Financing Statements (Form UCC-1 or as required by Lender) with
respect to the security interests granted in the Loan Documents, together with
evidence of the priority of the respective security interests perfected thereby.
E. Financial Statements of the Borrower and the Guarantor.
F. A true and complete copy of the Articles of Organization of each
Person comprising the Borrower, all amendments thereto, certified by the
Secretary of State of the state of incorporation of such Person, together with a
true and correct copy of the Regulations of the Borrower, and all amendments
thereto, certified by Borrower's Secretary, and accompanied by:
(a) Current certificate of corporate existence and a current
certificate of good standing issued by the applicable
Governmental Authorities, confirming the filing of all required
franchise tax reports and the payment of all franchise taxes
due.
(b) A certified corporate resolution of the Members of the Borrower
approving the Loan Documents, authorizing the transactions
contemplated by this Agreement and an incumbency certificate
naming all of the officers of the Borrower indicating which of
such officers are authorized to execute and deliver the Loan
Documents on behalf of the Borrower.
G. A true and complete copy of the Articles of Incorporation of
each Person comprising the Guarantor, certified by the Secretary of State of the
state of incorporation of such Person, together with a true and correct copy of
the Bylaws of the Guarantor, and all amendments thereto, certified by
Guarantor's Secretary, and accompanied by:
(a) Current certificate of corporate existence and a current
certificate of good standing issued by the applicable
Governmental Authorities, confirming the filing of all required
franchise tax reports and the payment of all franchise taxes
due.
(b) A certified corporate resolution of the Board of Directors of
the Borrower approving the Loan Documents, authorizing the
transactions contemplated by this Agreement and an incumbency
certificate naming all of the officers of the Guarantor
indicating which of such officers are authorized to execute and
deliver the Loan Documents on behalf of the Guarantor.
H. Such other satisfactory evidence as Lender shall require that
all necessary action on the part of Borrower and Guarantor has been taken with
respect to the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby so that this Agreement and all other Loan
Documents to be executed and delivered by or on behalf of Borrower or any
Guarantor will be valid and binding upon Borrower, Guarantor and any other
Person executing and delivering such documents, as the case may be.
