PROMISSORY NOTE
$3,785,000.00 Dallas, Texas June 5, 1998
FOR VALUE RECEIVED, LA PLAZA CENTER FUND X LIMITED PARTNERSHIP, a
Nevada limited partnership ("Maker"), hereby promises to pay to the order of
NATIONSBANK, N.A., a national banking association ("Lender"), at its banking
house in the City of Dallas, Dallas County, Texas, the principal sum of THREE
MILLION SEVEN HUNDRED EIGHTY-FIVE THOUSAND AND NO/100 DOLLARS ($3,785,000.00)
(the "Maximum Principal Amount") (or the unpaid balance of all principal
advanced against this Note, if that amount is less), together with interest on
the unpaid principal balance of this Note from day to day outstanding, as
hereinafter provided.
1. Definitions. When used in this Note, the following terms
shall have the following meanings:
(a) "Adjusted LIBOR Rate" means a rate per annum equal to the
quotient (rounded upwards, if necessary, to the next higher
one/one-hundredth [1/100] of one percent [1%]) obtained by dividing (i)
the applicable "Euro-Dollar" (as such term is hereafter defined) by
(ii) 1.00 minus the "Euro-Dollar Reserve Percentage" (as such term is
hereafter defined) and increased by the amount of any impositions,
assessments or other reserves (collectively, the "Assessments") to
which Lender or any participant (a "Participant") in the Loan may be or
become subject, including, but not limited to, the cost of Federal
Deposit Insurance Corporation insurance or other insurance, and other
fees, assessments and surcharges allocable to Lender's sale of the
certificate(s) of deposit that establish the Euro-Dollar with respect
to a particular Matching Funds Election; provided that the Adjusted
LIBOR Rate shall automatically be adjusted from time to time during the
term of a Matching Funds Election to account for any fluctuations in
the Euro-Dollar Reserve Percentage and the other costs to Lender of
such Assessments.
(b) "Advance" means a disbursement by Lender, whether by
journal entry, deposit to Maker's account, check to third party or
otherwise of any of the proceeds of the Loan.
(c) "Election" means a Matching Funds Election.
(d) "Euro-Dollar Business Days" means any domestic
business day on which commercial banks are open for international
business (including dealings in U.S. dollar deposits) in London.
(e) "Euro-Dollar Rate" means the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in U.S. dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of any interest
period for a term comparable to such interest period. If for any reason
such rate is not available, the term "Eurodollar Rate" shall mean the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) appearing on Reuters Screen LIBO Page as the London interbank
offered rate for deposits in U.S. dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of an interest
period for a term comparable to such interest period; provided,
however, if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such
rates.
(f) "Euro-Dollar Reserve Percentage" means for any day during
the term of this Note, that percentage (expressed as a decimal) that is
in effect on such day, as the same is prescribed by the Board of
Governors of the Federal Reserve System (or its successor) for
determining the maximum reserve requirement for Lender or any
Participant in respect of "Euro-currency liabilities" (or in respect of
any other category of liabilities which includes deposits, by reference
to which the interest rate on a borrowing is determined, or any
category of extensions of credit or other assets which includes loans
by a non-United States office of any bank to United States residents).
(g) "Formula Rate" means the per annum interest rate,
calculated for the applicable day, equal to the "Prime Rate" (as such
term is hereafter defined) for that day, computed for the actual number
of calendar days elapsed during which the principal of this Note is
outstanding but as if each year consisted of 360 days, subject to the
controlling terms of Section 2(d) hereinbelow.
(h) "Initial Advance" means the advance of a $3,185,000.00
portion of the Maximum Principal Amount to be made at the time of the
execution of this Note and the other Loan Documents.
(i) "Matching Funds Election" means an election by Maker to
cause a portion of the proceeds of the Loan to be segregated into a
separate account and to bear interest at the applicable "Matching Funds
Rate" rather than the "Stated Rate" (as such terms are hereafter
defined) for the term of the Election.
(j) "Matching Funds Principal" means the portion of the
proceeds of the Loan advanced to Maker which is segregated into an
account pursuant to an effective Election.
(k) "Matching Funds Rate" means a rate one hundred
seventy-five (175) basis points (the "LIBOR Rate Adjustment") per annum
in excess of the Adjusted LIBOR Rate as it exists from time to time.
(l) "Maturity Date" means the first to occur of (i) June 5,
2001; (ii) the date on which the entity comprising the Maker ceases to
exist; or (iii) the date on which Maker makes a Disposition [as defined
in the Mortgage (hereinafter defined)] of all or any portion of the
Property (hereinafter defined), other than a Permitted Disposition.
(m) "Maximum Lawful Rate" shall have the meaning ascribed
to such term in Section 14 hereof.
(n) Outstanding Principal Balance" means the portion of the
Maximum Principal Amount then advanced and outstanding and payable from
Maker to Lender in accordance with this Note. The Outstanding Principal
Balance shall be reduced by any Principal Reduction Payment and
interest earned on the Principal Reduction Account, as described
hereinbelow.
(o) "Past Due Rate" means, on any day, a rate per annum equal
to the lesser of (a) the Maximum Lawful Rate, or (b) the Stated Rate
plus four percent (4%) per annum computed for the actual number of
calendar days elapsed during which such a past due amount is
outstanding.
(p) "Prime Rate" means that variable rate of interest per
annum established and announced by Lender at its principal office in
Dallas, Texas from time to time as its "prime rate." Such rate is set
by Lender as a general reference rate of interest, taking into account
such factors as Lender may deem appropriate, it being understood that
it is not necessarily the lowest or best rate actually charged to any
customer or a favored rate and that Lender may make various business or
other loans at rates of interest having no relationship to that rate.
(q) "Required Leases" means (i) the amendment to the existing
lease agreement between Maker and the Office of Civil Rights, amended
to reflect the finishing out of its space in accordance with the
provisions of Section 8 of this Note, and (ii) either (A) the amendment
to the existing lease agreement between Maker and the Environmental
Protection Agency, an agency of the United States of America, amended
to reflect an expansion of its existing space in accordance with the
provisions of Section 8 of this Note, or (B) the lease agreement
between Maker and a prospective tenant that is approved by Lender and
containing terms and with provisions acceptable to Lender in all
respects in Lender's sole and absolute discretion and in accordance
with the provisions of Section 8 of this Note.
(r) "Stated Rate" means, on any day, a rate per annum equal to
and calculated on the basis of the Formula Rate. If on any day the
Stated Rate shall exceed the maximum permitted by application of the
Maximum Lawful Rate in effect on that day, the Stated Rate shall be
fixed at the maximum permitted by application of the Maximum Lawful
Rate on that day and on each day thereafter until the total amount of
interest accrued at the fixed Stated Rate on the unpaid balance of this
Note equals the total amount of interest which would have accrued if
there were no limitation by the Maximum Lawful Rate and the Stated Rate
had not been so fixed.
(s) "Tenant Improvement Advances" means the advances of the
remaining $600,000.00 undisbursed portion of the Maximum Principal
Amount to be made, if at all, at the time Maker satisfies the
conditions set forth in Section 8 of this Note.
2 Interest. As hereinafter provided, the principal balance of
this Note may be segregated into separate accounts and shall bear interest as
follows:
(a) At any time when the principal balance of this Note as is
not subject to an effective Election, such balance shall constitute one
account (the "Stated Rate Account") and shall bear interest prior to an
Event of Default or maturity at a varying rate per annum equal to the
lesser of (i) the Maximum Lawful Rate, or (ii) the Stated Rate.
(b) The principal balance of this Note which may from time to
time be subject to an effective Election shall constitute a separate
account (the "Matching Funds Account") and shall bear interest prior to
an Event of Default or maturity at a rate per annum equal to the lesser
of (i) the Maximum Lawful Rate, or (ii) the Matching Funds Rate
applicable to such Election.
(c) Any principal of, and to the extent permitted by
applicable law any interest on, this Note which is not paid when due
shall bear interest at a varying rate per annum equal to the Past Due
Rate from the date due and payable until paid.
(d) Subject always to limitation by the Maximum Lawful Rate,
interest on this Note shall be calculated on the basis of the 360-day
method, which computes a daily amount of interest for a hypothetical
year of 360 days, then multiplies such amount by the actual number of
days elapsed in an interest calculation period.
(e) Without notice to Maker or anyone else, the Prime Rate and
the Maximum Lawful Rate shall each automatically fluctuate upward and
downward as and in the amount by which the Lender's prime rate and such
maximum nonusurious rate of interest permitted by applicable law,
respectively, fluctuate, subject always to limitation of the Stated
Rate and the Past Due Rate by the Maximum Lawful Rate.
3 Payment of Principal and Interest.
(a) Accrued but unpaid interest shall be due and payable (i)
in monthly installments beginning on August 1, 1998, (ii) continuing on
the first (1st) day of each consecutive calendar month thereafter
before maturity, and (iii) at the final maturity of this Note. Maker
agrees and acknowledges that Lender has no obligation to give notice to
Maker of the amount of interest which is due and payable each month.
Maker further agrees and acknowledges that Maker is solely responsible
for, and shall not be relieved of, its obligation to pay such interest
on the first day of each month until maturity of this Note,
notwithstanding the fact that notice of such amount may not have been
sent by Lender and/or received by Maker even if Lender regularly gives
such notice.
(b) The entire principal balance of this Note then unpaid and
all interest then outstanding shall be due and payable on the Maturity
Date or upon any earlier termination of this Note.
(c) Whenever any payment shall be due under this Note on a day
which is not a "Business Day" (as such term is hereafter defined), the
date on which such payment is due shall be extended to the next
succeeding Business Day. "Business Day" means a day other than a
Saturday, Sunday or other day on which national banks in Dallas, Texas
are authorized or required to be closed.
(d) All principal, interest and other sums payable under this
Note shall be paid, not later than 2:00 o'clock p.m. (Dallas, Texas
time) on the day when due, in immediately available funds and in lawful
money of the United States of America. Funds received after 2:00
o'clock p.m. (Dallas, Texas time) shall be treated for all purposes as
having been received by Lender on the Business Day next following the
date of receipt of such funds. Any payment under this Note or under any
other "Loan Document" (as such term is hereafter defined) other than in
the required amount in good, unrestricted U.S. funds immediately
available to the holder hereof shall not, regardless of any receipt or
credit issued therefor, constitute payment until the required amount is
actually received by the holder hereof in such funds and shall be made
and accepted subject to the condition that any check or draft may be
handled for collection in accordance with the practice of the
collecting bank or banks.
(e) Except to the extent specific provisions are set forth in
this Note or another Loan Document with respect to application of
payments, all payments received by the holder hereof shall be applied,
to the extent thereof, to the "secured indebtedness" (as defined in the
Mortgage) in the order and manner which the holder hereof shall deem
appropriate, any instructions from Maker to the contrary
notwithstanding. All payments made as scheduled on this Note shall be
applied, to the extent thereof, first to accrued but unpaid interest
and the balance to unpaid principal. All prepayments on this Note shall
be applied, to the extent thereof, first to accrued but unpaid interest
which is then past due under the terms of this Note and the balance to
the remaining principal installments. Nothing herein shall limit or
impair any rights of the holder hereof to apply as provided in the Loan
Documents any past due payments, any proceeds from the disposition of
any collateral by foreclosure or other collections after an Event of
Default. Except to the extent specific provisions are set forth in this
Note or another Loan Document with respect to application of payments,
all payments received by the holder hereof shall be applied, to the
extent thereof, to the indebtedness secured by the Mortgage in such
order and manner as the holder hereof shall deem appropriate, any
instructions from Maker or anyone else to the contrary notwithstanding.
4 Prepayment. Maker may at any time pay the full amount or any part of
this Note without payment of any premium or fee; provided, however, that if
Maker prepays any portion of the Matching Funds Account prior to the expiration
of the term of the Matching Funds Election applicable to such portion, Maker
shall pay Lender the prepayment penalty hereinafter described in Section 7
hereof. All prepayments shall be applied first to accrued interest, the balance
to principal.
5 Mortgage. This Note has been issued in connection with and is secured
by, among other things, a certain Deed of Trust, Assignment, Security Agreement
and Financing Statement of even date herewith executed by Maker for the benefit
of Lender, covering and affecting certain property (the "Property") located in
Las Vegas, Nevada, more fully described therein (which, as it may have been or
may be amended, restated, modified or supplemented from time to time, herein
called the "Mortgage"). Lender is entitled to the benefits of and security
provided for in the Mortgage. This Note, the Mortgage, any guaranty executed in
connection therewith and any other document now or hereafter evidencing,
securing, guaranteeing or executed in connection with the loan currently
evidenced by this Note are, as the same have been or may be amended, restated,
modified or supplemented from time to time, herein sometimes called individually
a "Loan Document" and together the "Loan Documents." Terms used herein with
initial capital letters and not defined herein, if any, have the meanings given
them in the Mortgage. Any notice required or which any party desires to give
under this Note shall be given and effective as provided in the Mortgage.
6 Matching Funds Election.
(a) From time to time during the term of the Loan, so long as
no Event of Default has occurred and is continuing, Maker may elect to
cause a portion of the Loan proceeds, which portion must be in the
amount of $200,000.00 or more, to bear interest at the Matching Funds
Rate rather than the Stated Rate; provided, however, that (i) Maker may
not exercise an Election at any time when the Matching Funds Rate would
exceed the Maximum Lawful Rate, (ii) no more than three (3) Elections
may be in force at any time regarding the Loan. Upon the effective date
of the Election, the portion of the Loan proceeds as to which the
Election is exercised shall be segregated into a separate account and
shall bear interest prior to an Event of Default or maturity from the
effective date of the Election to the end of the term of the Election
at the Matching Funds Rate applicable on the effective date of the
Election; provided that the Matching Funds Rate shall be adjusted from
time to time during the term of the Election in accordance with any
fluctuations in the Adjusted LIBOR Rate caused solely by fluctuations
in the Euro-Dollar Reserve Percentage and the Assessments referenced in
Section l(a)(ii) hereinabove.
(b) Maker shall inform Lender when Maker wishes to exercise an
Election, and Lender shall advise Maker as to the then applicable
Matching Funds Rates and the available periods for which Maker may
exercise the Election. To exercise the Election, Maker shall advise
Lender by 1:00 p.m. (Dallas, Texas time) at least three (3) days prior
to the desired effective date of the Election of (i) the amount of the
Matching Funds Principal as to which Maker wishes to exercise the
Election, (ii) the desired effective date of the election, and (iii)
the desired term of the Election, which term shall be a 30, 60, 90 day
period, provided that the term of an Election for the Adjusted LIBOR
Rate must not end on a day other than a Euro-Dollar Business Day, and
no Election may end on a day that is later than the stated maturity
date of this Note. The Election shall become effective three (3)
Euro-Dollar Business Days following the date of Maker's advising Lender
of the particular terms of the Election. On or before the effective
date of the Election, Maker shall execute and deliver to Lender a
written confirmation of (i) the amount of the Matching Funds Principal
subject to the Election, (ii) the term of the Election and (iii) the
initial Matching Funds Rate applicable to the Election.
(c) Maker may not extend an Election beyond the original term
thereof at the Matching Funds Rate applicable during the original term.
However, at the end of the term of an Election, Maker may make an
additional Election to cause the Matching Funds Principal subject to
the expired Election to bear interest at the Matching Funds Rate
applicable on the day of the expiration of the prior Election for the
term of the new Election by so advising Lender three (3) Euro-Dollar
Business Days before the expiration of the prior Election, and giving
to Lender a written confirmation by the effective date of the new
Election in the manner specified above accompanied by the payment of an
additional fee if any is required by this Note. Otherwise, upon the
expiration of the prior Election, the Matching Funds Principal subject
to the expired Election shall be returned to the same account as the
Loan proceeds which bear interest at the Stated Rate and shall again
bear interest prior to an Event of Default or maturity at the Stated
Rate.
(d) Notwithstanding any other provision of this Note, if (i)
any change in applicable law, rule or regulation or in the
interpretation or administration thereof shall make it unlawful for
Lender to issue certificates of deposit or impair or restrict Lender's
ability to do so for terms and at rates which permit Lender to respond
to an Election by obtaining funds at the Adjusted LIBOR Rate, or (ii)
Lender reasonably determines that by reason of circumstances affecting
the Interbank euro-dollar market generally, either adequate or
reasonable means do not exist for ascertaining the Adjusted LIBOR Rate
for any period, or (iii) Lender reasonably determines that it is
impracticable for Lender to obtain funds against which to match
Matching Funds Principal in connection with an Election (by purchasing
U.S. Dollars in the Interbank euro-dollar market); then, in any of the
foregoing instances, Maker's right to make any further Elections or to
continue any Elections then in force shall be suspended for the
duration of such illegality or impairment or restriction.
7 Prepayment of Matching Funds Principal. If Maker prepays the
Matching Funds Principal prior to the expiration of the term of the Matching
Funds Election applicable thereto, Maker shall pay Lender a prepayment fee in an
amount calculated as follows:
D x (A-B) x C
-----
360
A = the 360-day interest yield (as of the beginning of the term of the
applicable Matching Funds Election and expressed as a decimal) on a U.S.
Government Treasury bill, note or bond (a "Treasury Obligation") selected by
Lender in Lender's reasonable discretion and having, as of the beginning of the
term of the applicable Election, a remaining term until its maturity
approximately equal to the term of the Election.
B = the 360-day interest yield (as of the Business Day immediately
preceding the prepayment date and expressed as a decimal) on a Treasury
Obligation selected by Lender in Lender's reasonable discretion and having, as
of the Business Day preceding the prepayment date, a term approximately equal to
the unexpired term of the term of the applicable Matching Funds Election.
C = the number of calendar days from the date of prepayment to the date
on which the applicable Matching Funds Election would have expired but for the
prepayment.
D = the amount of the Matching Funds Principal that is being prepaid.
The amount so determined shall then be discounted to its present value as of the
date of prepayment; the interest rate used to compute such discount shall be the
rate used in item B in the above formula. In no event shall the result of A-B be
less than 0.00.
The Treasury Obligation selected by Lender shall be from among those
included in the over the counter quotations supplied to The Wall Street Journal
by the Federal Reserve Bank of New York City based on transactions of $1,000,000
or more.
It is expressly understood that all provisions of this Note, including
but not limited to the provisions regarding the charging of interest at a
Matching Funds Rate for the term of an Election, are subject to the provisions
hereof limiting the amount of interest contracted for, charged, received or
collected hereunder to the maximum amount permitted under applicable law.
8 Funding: The obligation of Lender to make any Tenant
Improvement Advances shall be subject to the prior or simultaneous occurrence or
satisfaction of each of the following conditions:
(a) Enforceability: The Loan Documents shall remain
outstanding and enforceable in accordance with their terms, all as
required hereunder.
(b) Each of the Required Leases shall have been fully executed
in form previously stated to Lender and Lender shall have received a
copy of same;
(c) No Event of Default (as defined herein) or other event
which invokes monetary obligations which, with the giving of notice or
the passing of time, or both would constitute an Event of Default has
occurred;
(d) Cost Breakdown: Maker shall furnish to Lender a proposed
completion and draw schedule and a breakdown of all construction costs
including, but not limited to, commitment, legal, architect and real
estate agents' fees and direct construction items required to be paid
to satisfactorily complete the proposed improvements in accordance with
the terms of the Required Leases (the "Improvements"), free and clear
of liens or claims for liens for material supplied and for labor
services performed in connection with construction of the Improvements,
which schedule and breakdown shall be subject to the approval of the
Lender and any inspector or consultant (the "Inspecting Person") Lender
may designate from time to time and who shall inspect the Improvements
from time to time for the benefit of Lender. The Inspecting Person
shall be any person or entity designated by Lender, the fees of which
shall be paid by Maker.
(e) Plans and Specifications: Maker shall furnish Lender with
a set of Plans and Specifications (herein so called) reasonably
satisfactory to Lender and prepared by an architect reasonably
acceptable to Lender. The Plans and Specifications shall be approved by
the tenants of the Required Leases, all applicable governmental
authorities, and Maker's general contractor (and Maker shall furnish to
Lender satisfactory evidence of such approval). There will be no
material deviation from the Plans and Specifications, and no change
orders will be made without the prior written consent of Lender.
(f) Construction Contract: Lender shall be furnished
with an A.I.A. form construction contract for the completion of
the Improvements in accordance with the approved Plans and
Specifications, which contract shall be, in form and content,
reasonably satisfactory to Lender and approved by the tenant of the
Required Leases.
(g) Title: If requested by Lender, Lender shall have received
a title report dated within two (2) days of the requested advance
showing no state of facts objectionable to Lender, including, but not
limited to, a showing that title to the Mortgaged Property is vested in
Maker and that no claim for mechanics' or materialmen's liens has been
filed against the Mortgaged Property.
(h) Request for Payment: Lender shall have received from Maker
(i) a written request for an advance, in such form as Lender shall
reasonably require, (ii) the approval by the tenants of the Required
Leases of the construction with respect to the applicable portion of
the Improvements subject to such Required Lease, and (iii) from Maker's
architect a certificate on A.I.A. form G 702 (or such other forms
reasonably required by Lender), completed, executed and sworn to by
Maker (and such other inspector and consultant as Lender may require),
stating that the requested amount does not exceed ninety percent (90%)
[or such other lesser percentage as Lender may require] of the then
unpaid cost of construction of the Improvements since the last
certificate furnished pursuant to the provisions hereof; and that said
construction was performed in substantial accordance with the Plans and
Specification.
(i) Final Advance: Prior to the last Advance under the Loan,
the Lender shall be furnished with the following items all in form and
content acceptable to Lender, in Lender's sole discretion: (i) Final
certificate from the approved contractor, inspector and any other
consultant that Lender may require that the Improvements have been
completed in substantial accordance with the Plans and Specifications
and that the Improvements, and the operation thereof, are in compliance
with all applicable building codes, zoning ordinances and other rules
and regulations promulgated by the applicable regulatory and
governmental authorities and that all bills and expenses in connection
with the construction of the Improvements have been paid or that
arrangements satisfactory to Lender have been made for the payment
thereof; (ii) A certified copy of a certificate of occupancy issued by
the appropriate governmental authority; (iii) Any other certificates of
approval, acceptances or compliance required or as determined necessary
by Lender, in Lender's reasonable discretion, from or by the city,
county, state or federal departments or authorities having jurisdiction
over the Mortgaged Property and/or Improvements; (iv) Evidence that the
tenants of the Required Leases have approved all construction and are
obligated to have made the first payment of rent under the Required
Leases in the amount as required under the Required Leases as amended,
as of the date of this Note and such evidence of such rental payment in
the form of a copy of a tenant check in such amount and an executed
estoppel certificate acceptable to Lender in all respects.
If, at any time Lender shall, in its reasonable discretion, deem that the
undisbursed funds available under the Loan are insufficient to meet the costs of
completing construction of the Improvements, Lender may refuse to make any
additional advances to Maker until such time as Maker shall have deposited with
Lender sufficient additional funds to cover such deficiency as Lender shall so
deem to exist, which funds will be disbursed by Lender to Maker pursuant to the
terms and conditions hereof as if they constituted a portion of the Loan being
committed to hereunder. Maker agrees upon fifteen (15) days' written demand by
Lender to deposit with Lender any such additional funds.
Notwithstanding anything contained herein to the contrary, in the event
that either (i) the conditions contained in this Section 8(b) are not satisfied
on or before December 31, 1998, or (ii) all of the conditions of this Section 8
are not satisifed on or before April 30, 1999, the Lender will make no further
Tenant Improvement Advances subsequent to such date. No principal amount repaid
by Maker may be reborrowed by Maker.
9 Loan Limitation. Notwithstanding anything in this Agreement
to the contrary, the amount of the Loan, at the time of the initial disbursement
of the proceeds of the Loan, shall not exceed an amount equal to the lesser of
the following: (i) the amount equal to sixty percent (60%) of the fair market
value of the Mortgaged Property, as reflected in an appraisal acceptable to
Lender; or (ii) the amount which would allow a Debt Coverage Ratio (hereinafter
defined) of not less than 1.40 to 1.00, as calculated in accordance with the
other terms and provisions therefor as herein required. In calculating the debt
service coverage ratio specified above, the calculation shall be based on annual
(or, if applicable, annualized) Net Operating Income (hereinafter defined) and
applicable debt service for the corresponding annual (or annualized) period
(being all principal and interest payments required or anticipated, if
annualized, pursuant to the Note). As used herein, the following terms shall
have the following meanings:
(a) "Operating Expenses" for each such applicable annual
period shall mean all reasonable expenses in an amount equal to the
greater of (i) those specific sums set forth in the annual operating
budget for the Mortgaged Property for the applicable calendar period,
or (ii) those amounts actually incurred and paid by Owner with respect
to the ownership, operation, management, leasing and occupancy of the
Mortgaged Property determined on a cash basis, except as otherwise
specified herein, including, but not limited to, any and all of the
following (but without duplication of any item):
(i) ad valorem taxes calculated on an accrual basis
(and not on the cash basis) of accounting for the calendar
period; such accrual accounting for ad valorem taxes shall be
based upon taxes actually assessed for the current calendar
year, or if such assessment for the current year has not been
made, then until such assessment has been made (and with any
retroactive adjustments for prior calendar months as may
ultimately be needed when the actual assessments has been
made), ad valorem taxes for the calendar period shall be
estimated to be an amount equal to one hundred percent (100%)
of the assessment for the immediately preceding calendar
period;
(ii) foreign, U.S., state and local sales, use
or other taxes (except for taxes measured by net income);
(iii) special assessments or similar charges
against the Mortgaged Property;
(iv) costs of utilities, air conditioning and
heating for the Mortgaged Property to the extent not paid by
lessees or tenants;
(v) maintenance and repair costs for the Mortgaged
Property, including the replenishment of any reserve
account(s) required by Lender pursuant to the Loan Documents
and assuming, at a minimum, an annual capital expenditure of
$0.25 per square foot of net leasable area;
(vi) the greater of actual management fees under any
management agreement for the Property or an assumed annual
management fee of four percent (4%) of the annual Gross Income
of the Property;
(vii) all salaries, wages and other benefits to
"on-site" employees of Owner or its property manager
(excluding all salaries, wages and other benefits of officers
and supervisory personnel, and other general overhead expenses
of Owner and its property manager) employed in connection with
the leasing, maintenance and management of the Mortgaged
Property;
(viii) insurance premiums calculated on an accrual
basis (and not on the cash basis) of accounting for the
calendar period; such accrual accounting for insurance
premiums shall be based upon the insurance premiums for the
Mortgaged Property which was last billed to Owner, adjusted to
an annualized premium if necessary, and multiplied by one
hundred percent (100%);
(ix) costs, including leasing commissions, allowances
and incentives, advertising, marketing and promotion costs, to
obtain new leases or to extend or renew existing leases, and
the costs of work performed and materials provided to ready
tenant space in the Property for new or renewal occupancy
under leases;
(x) outside accounting and audit fees and costs and
administrative expenses in each case reasonably incurred by
Owner in connection with the direct operation and management
of the Mortgaged Property;
(xi) any payments, and any related interest thereon,
to lessees or tenants of the Mortgaged Property with respect
to security deposits or other deposits required to be paid to
tenants but only to the extent any such security deposits and
related interest thereon have been previously included in
Gross Income; and
(xii) to the extent not included in any other
Operating Expense category, the sums actually paid by Owner
into any tax accounts or other reserve account(s) for the time
period in question and approved by Lender.
Notwithstanding anything to the contrary as being included in the definition of
Operating Expenses, there shall be excluded from Operating Expenses the
following: (i) depreciation and any other non-cash deduction allowed to Owner
for income tax purposes; (ii) any compensation or fees paid to leasing agents,
brokers or other third parties or affiliates of Owner which are in excess of
reasonable and necessary compensation or fees which would be payable to
unrelated third parties in arms' length transactions for similar services in the
area in which the Mortgaged Property is located; (iii) all salaries, wages and
other benefits to "off-site" employees and all other general "off-site" overhead
expenses of Owner, its property manager or other professional manager of the
Mortgaged Property; (iv) any and all payments of ad valorem taxes for either
real or personal property (except for the accrual amount allowed pursuant to
subpart (i) above); (v) any and all payments of insurance premiums (except for
the accrual amount allowed pursuant to subpart (viii) above); (vi) the initial
funding of the reserve account and any subsequent replenishment thereof up to or
exceeding the amount required pursuant to the Loan Documents; (vii) any and all
principal, interest or other costs paid under or with respect to the Loan, and
the subordinate loans or with respect to any other financings with respect to
the Mortgaged Property, whether unsecured or secured by all or any portion of
the Mortgaged Property; and (viii) capital improvements (only to the extent not
paid from any reserve account).
(b) "Gross Income" for each such applicable annual period
shall mean rentals, revenues and other recurring forms of
consideration, received by, or paid to or for the account of or for the
benefit of, Owner resulting from or attributable to the operation,
leasing and occupancy of the Mortgaged Property determined on a cash
basis (except as specified herein) and using for all calculations
hereunder the greater of (i) actual vacancy of the Mortgaged Property
at the time of such calculation or (ii) a vacancy factor of seven
percent (7%), including, but not limited to, the following:
(i) rents by any lessees or tenants of the
Mortgaged Property;
(ii) rents and receipts evidenced by or for the
benefit of Owner with respect to the full or partial
reimbursement of Operating Expenses from any lessee or tenant
of the Mortgaged Property;
(iii) proceeds received by or for the benefit of
Owner in connection with any rental loss or business
interruption insurance with respect to the Mortgaged Property;
(iv) any other fees, payment or rents collected
by, for or on behalf of Owner with respect to the leasing and
operating the Mortgaged Property;
(v) any refunds of deposits for obtaining, using
or maintaining utility services for all or any portion of the
Mortgaged Property;
(vi) interest, if any, earned by Owner on
security and other type deposits of and advance rentals paid
by, any lessees or tenants of the Mortgaged Property; and
(vii) the amount of any security and other type
deposits and advance rentals relating to the Mortgaged
Property which have been forfeited.
Notwithstanding anything included within the above definition of Gross Income,
there shall be excluded from Gross Income the following: (i) any security or
other deposits of lessees and tenants (even when applied to sums due under
leases); (ii) rents and receipts received by or for the benefit of Owner with
respect to services provided by Owner to lessees relating to the Mortgaged
Property; (iii) the proceeds of any financing or refinancing with respect to all
or any part of the Mortgaged Property which has been previously approved in
writing by Lender; (iv) the proceeds of any sale or other capital transaction
(excluding leases for occupancy purposes only) of all or any portion of the
Mortgaged Property; (v) any insurance or condemnation proceeds paid with respect
to the Mortgaged Property to the extent such proceeds are available and are used
to restore or rebuild the Mortgaged Property as may be permitted in accordance
with the terms of the Mortgage, except for rental loss or business interruption
insurance; (vi) any insurance and condemnation proceeds applied in reduction of
the principal of the Note in accordance with the terms of the Loan Documents;
and (vii) any Collateral Account Payment (hereinafter defined) on deposit with
Lender in the Collateral Account (hereinafter defined); provided, however,
nothing set forth herein shall in any manner imply Lender's consent to a sale,
refinancing or other capital transaction.
(c) "Net Operating Income" for the applicable annual period
shall mean all Gross Income for such annual period less all Operating
Expenses for such corresponding annual period, as determined or
approved by Lender.
(d) "Debt Coverage Ratio" means the ratio of (i) Net Operating
Income from the Property for any calendar month in question, as
verified to Lender, to (ii) the greater of (A) the amount of principal
and interest that would be due monthly on a promissory note with an
outstanding principal balance equal to the Outstanding Principal
Balance and an obligation of Maker to pay equal monthly installments of
principal and interest calculated by amortizing the Outstanding
Principal Balance over twenty (20) years at a rate of interest equal to
the higher of (1) nine percent (9%) per annum or (2) the per annum rate
equal to the Treasury Note Rate plus 250 basis points, or (B) the
actual monthly interest payment due under the Note for the calendar
month in question. In determining the Outstanding Principal Balance for
the purposes of this Section 8 of the Note, no monies deposited in any
Accounts (hereinafter defined) or any interest earned thereon shall be
considered to reduce the Outstanding Principal Balance unless and until
such deposits and interest have actually been applied to the Loan in
accordance with Section 9 of this Note. As used herein, the term
"Treasury Note Rate" means the latest Treasury Constant Maturity Series
yields reported, as of the first day of the calendar month in question,
in the Federal Reserve Statistical Release H.15 (519) (or any
comparable successor publication) for actively traded U.S. Treasury
securities having a constant maturity equal to seven (7) years. Such
implied yield shall be determined, if necessary, by (i) converting U.S.
Treasury bill quotations to bond-equivalent yields in accordance with
accepted financial practice and (ii) interpolating linearly between
reported yields.
10 Additional Financial Covenants.
(a) Maker shall establish an interest bearing principal
reduction account (the "Principal Reduction Account") with Lender.
Concurrently herewith, Maker shall execute and deliver to Lender a
"Security Agreement" (herein so called) granting to Lender a security
interest in the Principal Reduction Account and the Collateral Account
(hereinafter defined; the Principal Reduction Account and the
Collateral Account are sometimes hereinafter collectively referred to
as the "Accounts"), including all monies deposited in the Accounts at
any time and all interest earned thereon. On June 1, 1999, Maker shall
deposit into the Principal Reduction Account monies, which shall not
include any proceeds of the loan evidenced by the Note, in an amount
equal to five percent (5.0%) of the Outstanding Principal Balance (the
"Principal Reduction Payment"). On each of September 30, 1998 and
December 31, 1998, March 31, June 30, September 30 and December 31
1999, and March 31, June 30, September 30, and December 31, 2000, Maker
shall deposit into the Principal Reduction Account a Principal
Reduction Payment equal to one and 25/100 percent (1.25%) of the
Outstanding Principal Balance. Interest earned on deposits in the
Principal Reduction Account may be used as a part of the next-due
Principal Reduction Payment. Provided there has been no Event of
Default (as hereinafter defined), then (i) on each of July 15, 1999 and
July 15, 2000, as applicable, Lender shall apply all sums then on
deposit in the Principal Reduction Account (together with all interest
earned thereon that has not already been used as part of a Principal
Reduction Payment) to the Loan to reduce the amount of the Outstanding
Principal Balance on the Note and (ii) all Principal Reduction Payments
made in the year 2000 and interest earned thereon will be applied to
reduce the Outstanding Principal Balance on the Note at the end of the
Term; provided, however, if an Event of Default has occurred, then upon
any such Event of Default, Lender may exercise all remedies available
to Lender under the Security Agreement or any other Loan Document,
including using the funds on deposit in the Principal Reduction Account
and all interest thereon at Lender's discretion for any purpose
permitted under the Loan Documents.
(b) Maker shall provide to Lender, on a monthly basis, the
financial and operating information required by the Mortgage. If, at
the end of any quarter of a calendar year, such data indicates that the
Debt Coverage Ratio for the Property is less than 1.40 to 1.00, then
Lender shall so notify Maker and, within five (5) business days of such
notice, Maker (i) shall establish with Lender a collateral account (the
"Collateral Account") and (ii) shall deposit into the Collateral
Account sufficient funds, which shall not include any proceeds of the
loan evidenced by the Note, such that if such funds were to be applied
to reduce the Outstanding Principal Balance, the Debt Coverage Ratio
would return to a ratio equal to or greater than 1.40 to 1.00 (the
"Collateral Account Payment"). A Collateral Account Payment shall not
be applied to reduce the Outstanding Principal Balance, but, unless an
Event of Default has occurred, shall be held by Lender pursuant to the
terms of the Security Agreement and this Note. If the Debt Coverage
Ratio for the Property at the end of the next calendar year quarter (or
any subsequent quarter) is equal to or greater than 1.40 to 1.00, then
within twenty (20) days after Lender's determination of such ratio,
Lender shall refund to Maker any Collateral Account Payment then on
deposit in the Collateral Account. If during any subsequent quarter of
a calendar year the Debt Coverage Ratio is again less than 1.40 to
1.00, Maker shall make an additional Collateral Account Payment in an
amount such that if such Collateral Account Payment were to be applied
to reduce the Outstanding Principal Balance, the Debt Coverage Ratio
would return to a ratio equal to or greater than 1.40 to 1.00;
provided, however, that so long as no Event of Default has occurred,
any funds then being held in the Collateral Account shall be applied to
reduce the amount of such subsequent Collateral Account Payment. The
Security Agreement shall also grant to Lender a security interest in
all funds deposited in the Collateral Account and all interest earned
thereon. If an Event of Default has occurred, Lender may exercise all
remedies available to Lender under the Security Agreement, including
using the funds in the Collateral Account and all interest thereon at
Lender's discretion for any purpose permitted under the Loan Documents.
If no Event of Default has occurred, upon the end of the Term or
earlier payment in full to Lender of the Outstanding Principal Balance
under this Note, any monies then on deposit in the Collateral Account
and any interest earned thereon shall, at Maker's election, (i) be
applied to reduce such Outstanding Principal Balance or (ii) be paid by
Lender to Maker.
11 Events of Default. The occurrence of any one of the following
shall be a default under this Note ("Event of Default"):
(a) Any principal and interest payment and any other sum of
money due under this Note, including any Earnings Deposit, any
Principal Reduction Payment or any obligation involving the payment of
money by Maker under the Loan Documents is not paid within five (5)
days after written notice from Lender that such payment is due;
provided that such five (5) day grace period shall not be applicable to
sums due and payable at the Maturity Date or upon prepayment, by
acceleration or otherwise; or
(b) The Debt Coverage Ratio for the Property falls below
1.25 to 1.00; or
(c) The occurrence of any other default, breach or Event of
Default (however such term is defined therein or whether or not such
term is defined) under any Loan Document and such default or Event of
Default is not cured within any applicable notice and cure periods
provided therein.
Any Event of Default under this Note shall constitute a default
(however such term is defined therein or whether or not such term is defined
therein) under each of the Loan Documents, and any default, breach, or event of
default (however such term is defined therein or whether or not such term is
defined therein) under any of the Loan Documents shall constitute an Event of
Default under this Note and under each of the Loan Documents. Upon the
occurrence of an Event of Default, the holder hereof shall have the right to
declare the unpaid principal balance and accrued but unpaid interest on this
Note at once due and payable (and upon such declaration, the same shall be at
once due and payable), to foreclose any liens and security interests securing
payment hereof and to exercise any of its other rights, powers and remedies
under this Note, under any other Loan Document, or at law or in equity.
12 No Waiver by Holder. Neither the failure by the holder
hereof to exercise, nor delay by the holder hereof in exercising, the right to
accelerate the maturity of this Note or any other right, power or remedy upon
any Event of Default shall be construed as a waiver of such Event of Default or
as a waiver of the right to exercise any such right, power or remedy at any
time. No single or partial exercise by the holder hereof of any right, power or
remedy shall exhaust the same or shall preclude any other or further exercise
thereof, and every such right, power or remedy may be exercised at any time and
from time to time. All remedies provided for in this Note and in any other Loan
Document are cumulative of each other and of any and all other remedies existing
at law or in equity, and the holder hereof shall, in addition to the remedies
provided herein or in any other Loan Document, be entitled to avail itself of
all such other remedies as may now or hereafter exist at law or in equity for
the collection of the indebtedness owing hereunder, and the resort to any remedy
provided for hereunder or under any such other Loan Document or provided for by
law or in equity shall not prevent the concurrent or subsequent employment of
any other appropriate remedy or remedies. Without limiting the generality of the
foregoing provisions, the acceptance by the holder hereof from time to time of
any payment under this Note which is past due or which is less than the payment
in full of all amounts due and payable at the time of such payment, shall not
(i) constitute a waiver of or impair or extinguish the rights of the holder
hereof to accelerate the maturity of this Note or to exercise any other right,
power or remedy at the time or at any subsequent time, or nullify any prior
exercise of any such right, power or remedy, or (ii) constitute a waiver of the
requirement of punctual payment and performance, or a novation in any respect.
13 Collection of Costs. If any holder of this Note retains an
attorney in connection with any Event of Default or at maturity or to collect,
enforce, or defend this Note or any other Loan Document in any lawsuit or in any
probate, reorganization, bankruptcy or other proceeding, or if Maker sues any
holder in connection with this Note or any other Loan Document and does not
prevail, then Maker agrees to pay to each such holder, in addition to principal
and interest, all reasonable costs and expenses incurred by such holder in
trying to collect this Note or in any such suit or proceeding, including
reasonable attorneys' fees.
14 Interest Provisions.
(a) Savings Clause. It is expressly stipulated and agreed to
be the intent of Maker and Lender at all times to comply strictly with
the applicable Texas law governing the maximum rate or amount of
interest payable on this Note or the Related Indebtedness (or
applicable United States federal law to the extent that it permits
Lender to contract for, charge, take, reserve or receive a greater
amount of interest than under Texas law). If the applicable law is ever
judicially interpreted so as to render usurious any amount (i)
contracted for, charged, taken, reserved or received pursuant to this
Note, any of the other Loan Documents or any other communication or
writing by or between Maker and Lender related to the transaction or
transactions that are the subject matter of the Loan Documents, (ii)
contracted for, charged or received by reason of Lender's exercise of
the option to accelerate the maturity of this Note and/or Related
Indebtedness, or (iii) Maker will have paid or Lender will have
received by reason of any voluntary prepayment by Borrower of this Note
and/or Related Indebtedness, then it is Maker's and Lender's express
intent that all amounts charged in excess of the Maximum Lawful Rate
shall be automatically cancelled, ab initio, and all amounts in excess
of the Maximum Lawful Rate theretofore collected by Lender shall be
credited on the principal balance of this Note and/or the Related
Indebtedness (or, if this Note and all Related Indebtedness have been
or would thereby be paid in full, refunded to Maker), and the
provisions of this Note and the other Loan Documents immediately be
deemed reformed and the amounts thereafter collectible hereunder and
thereunder reduced, without the necessity of the execution of any new
document, so as to comply with the applicable law, but so as to permit
the recovery of the fullest amount otherwise called for hereunder and
thereunder; provided, however, if this Note has been paid in full
before the end of the stated term of this Note, then Maker and Lender
agree that Lender shall, with reasonable promptness after Lender
discovers or is advised by Maker that interest was received in an
amount in excess of the Maximum Lawful Rate, either refund such excess
interest to Maker and/or credit such excess interest against this Note
and/or any Related Indebtedness then owing by Maker to Lender. Maker
hereby agrees that as a condition precedent to any claim seeking usury
penalties against Lender, Maker will provide written notice to Lender,
advising Lender in reasonable detail of the nature and amount of the
violation, and Lender shall have sixty (60) days after receipt of such
notice in which to correct such usury violation, if any, by either
refunding such excess interest to Maker or crediting such excess
interest against this Note and/or any Related Indebtedness then owing
by Maker to Lender. All sums contracted for, charged or received by
Lender for the use, forbearance or detention of any debt evidenced by
this Note and/or any Related Indebtedness shall, to the extent
permitted by applicable law, be amortized or spread, using the
actuarial method, throughout the stated term of this Note and/or the
Related Indebtedness (including any and all renewal and extension
periods) until payment in full so that the rate or amount of interest
on account of this Note and/or any Related Indebtedness does not exceed
the Maximum Lawful Rate from time to time in effect and applicable to
this Note and/or any Related Indebtedness for so long as debt is
outstanding. In no event shall the provisions of Chapter 346 of the
Texas Finance Code (which regulates certain revolving credit loan
accounts and revolving triparty accounts) apply to this Note and/or any
Related Indebtedness. Notwithstanding anything to the contrary
contained herein or in any of the other Loan Documents, it is not the
intention of Lender to accelerate the maturity of any interest that has
not accrued at the time of such acceleration or to collect unearned
interest at the time of such acceleration.
(b0 Definitions. As used herein, the term "Maximum Lawful
Rate" shall mean the maximum lawful rate of interest which may be
contracted for, charged, taken, received or reserved by Lender in
accordance with the applicable laws of the State of Texas (or
applicable United States federal law to the extent that it permits
Lender to contract for, charge, take, receive or reserve a greater
amount of interest than under Texas law), taking into account all
Charges (as herein defined) made in connection with the transaction
evidenced by this Note and the other Loan Documents. As used herein,
the term "Charges" shall mean all fees, charges and/or any other things
of value, if any, contracted for, charged, received, taken or reserved
by Lender in connection with the transactions relating to this Note and
the other Loan Documents, which are treated as interest under
applicable law. As used herein, the term "Related Indebtedness" shall
mean any and all debt paid or payable by Maker to Lender pursuant to
the Loan Documents or any other communication or writing by or between
Maker and Lender related to the transaction or transactions that are
the subject matter of the Loan Documents except such debt which has
been paid or is payable by Maker to Lender under the Note.
(c0 Ceiling Election. To the extent that Lender is relying on
Chapter 1D of the Texas Credit Title to determine the Maximum Lawful
Rate payable on this Note and/or this Note and/or the Related
Indebtedness, Lender will utilize the weekly ceiling from time to time
in effect as provided in such Chapter 1D, as amended. To the extent
United States federal law permits Lender to contract for, charge, take,
receive or reserve a greater amount of interest than under Texas law,
Lender will rely on United States federal law instead of such Chapter
1D for the purpose of determining the Maximum Lawful Rate.
Additionally, to the extent permitted by applicable law now or
hereafter in effect, Lender may, at its option and from time to time,
utilize any other method of establishing the Maximum Lawful Rate under
such Chapter 1D or under other applicable law by giving notice, if
required, to Maker as provided by applicable law now or hereafter in
effect.
15. Joint and Several Liability. If more than one person or entity
executes this Note as Maker, all of said parties shall be jointly and severally
liable for payment of the indebtedness evidenced hereby. Maker and all sureties,
endorsers, guarantors and any other party now or hereafter liable for the
payment of this Note in whole or in part, hereby severally (i) waive demand,
presentment for payment, notice of dishonor and of nonpayment, protest, notice
of protest, notice of intent to accelerate, notice of acceleration and all other
notice (except only for any notices which are specifically required by this Note
or any other Loan Document), filing of suit and diligence in collecting this
Note or enforcing any of the security therefor; (ii) agree to any substitution,
subordination, exchange or release of any such security or the release of any
party primarily or secondarily liable hereon; (iii) agree that the holder hereof
shall not be required first to institute suit or exhaust its remedies hereon
against Maker or others liable or to become liable hereon or to enforce its
rights against them or any security therefor; (iv) consent to any extension or
postponement of time of payment of this Note for any period or periods of time
and to any partial payments, before or after maturity, and to any other
indulgences with respect hereto, without notice thereof to, any of them; and (v)
submit (and waive all rights to object) to non-exclusive personal jurisdiction
in the State of Texas, and venue in Dallas County, Texas, for the enforcement of
any and all obligations under the Loan Documents.
16. Amendments. This Note may not be changed, amended or modified
except in a writing expressly intended for such purposes and executed by the
party against whom enforcement of the change, amendment or modification is
sought.
17. Purpose of Loan. The loan evidenced by this Note is made
solely for business purposes and is not for personal, family, household or
agricultural purposes.
18. Participation. The holder of this Note may, from time to time,
sell or offer to sell the loan evidenced by this Note, or interests therein, to
one or more assignees or participants and is hereby authorized to disseminate
any information it now has or hereafter obtains pertaining to the loan evidenced
by this Note including, without limitation, any security for this Note and
credit information on Maker, any of its principals and any guarantor of this
Note to any assignee or participant or prospective assignee or prospective
participant, the holder's affiliates including NationsBanc Montgomery
Securities, Inc. in the case of Lender, any regulatory body having jurisdiction
over the holder, and to any other parties as necessary or appropriate in
holder's reasonable judgment. Maker shall execute, acknowledge and deliver any
and all instruments reasonably requested by Lender in connection therewith, and
to the extent, if any, specified in any such assignment or participation, such
companies, assignee(s), and participant(s) shall have the rights and benefits
with respect to this Note and the other Loan Documents as such person(s) would
have had if such person(s) had been Lender hereunder.
19. Successors and Assigns. The terms, provisions, covenants and
conditions of this Note shall be binding upon Maker and the heirs, devisees,
representatives, successors and assigns of Maker.
20. Governing Law. THIS NOTE, AND ITS VALIDITY, ENFORCEMENT
AND INTERPRETATION, SHALL BE GOVERNED BY LAWS OF THE STATE OF TEXAS (WITHOUT
REGARD TO ANY CONFLICT OF LAWS PRINCIPLES) AND APPLICABLE UNITED STATES FEDERAL
LAW. MAKER HEREBY ACKNOWLEDGES THAT ITS BUSINESS OFFICE IS IN DALLAS COUNTY,
TEXAS, AND THAT THE NOTE IS PAYABLE IN DALLAS COUNTY, TEXAS; THEREFORE, MAKER
HEREBY CONFIRMS AND AGREES THAT ALL LEGAL ACTIONS INVOLVING THE VALIDITY OR
ENFORCEMENT OF THIS NOTE (INCLUDING, BUT NOT LIMITED TO, ANY BANKRUPTCY
PROCEEDINGS INVOLVING MAKER) SHALL HAVE JURISDICTION AND VENUE IN DALLAS COUNTY,
TEXAS.
21. Time of Essence. Time shall be of the essence in this Note
with respect to all of Maker's obligations hereunder.
22. Captions. The paragraph headings used in this Note are for
convenience of reference only and shall not affect the meaning or interpretation
of this Note.
23. Limited Recourse. Subject to the exceptions and qualifications
described below, Maker shall not be personally liable for the payment of the
indebtedness evidenced by or created or arising under this Note and any judgment
or decree in any action brought to enforce the obligation of Maker to pay such
indebtedness shall be enforceable against Maker only to the extent of its
interest in the Mortgaged Property (as defined in the Mortgage) and any such
judgment or decree shall not be subject to execution upon or be a lien upon the
assets of Maker other than its interest in such Mortgaged Property. The
foregoing limitation of personal liability shall be subject to the following
exceptions and qualifications:
(a) Maker shall be fully and personally liable for the following:
(i) failure to pay taxes, assessments and any other charges
which could result in liens against any portion of the
Mortgaged Property; (ii) fraud or material misrepresentation;
(iii) retention by Maker of any payments, rental income or
other funds arising with respect to any of the Mortgaged
Property which, under the terms of the Loan Documents, should
have been paid to Lender; (iv) all insurance proceeds,
condemnation awards or other similar funds or payments
attributable to the Mortgaged Property which, under the terms
of the Loan Documents, should have been paid to Lender; (v)
failure to protect and maintain the Mortgaged Property in
accordance with the terms of the Loan Documents; and (vi) the
failure of the Loan Documents to constitute a first and prior
lien, assignment, pledge or security interest in or upon the
Mortgaged Property, subject only to the matters permitted by
the Loan Documents.
(b) Nothing contained in this paragraph shall affect or limit the
ability of the holder hereof to enforce any of its rights or
remedies with respect to the Mortgaged Property.
(c) Nothing contained in this paragraph shall affect or limit the
rights of the holder hereof to proceed against any person or
entity, including Maker, any partner in Maker or any other
party, with respect to the enforcement of any guarantees of
payment, guarantees of performance and completion, hazardous
materials indemnification agreements or other similar rights.
24. Statute of Frauds Notice. THE LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OR
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, Maker has duly executed this Note effective as of
the date first above written.
MAKER:
LA PLAZA CENTER FUND X
LIMITED PARTNERSHIP,
a Nevada limited partnership
By: La Plaza Fund X Corp.,
a Texas corporation,
its general partner
By:_____________________________
Name: ______________________
Title: ______________________