EXHIBIT 10.3
PROMISSORY NOTE
$98,660,000.00 New York, New York
December 3, 2004
FOR VALUE RECEIVED, CAPE PLACE (DE), LLC, CLAYTON PLACE (DE), LLC, CLEMSON
PLACE (DE), LLC, JACKSONVILLE PLACE (DE), LLC, MACON PLACE (DE), LLC, MARTIN
PLACE (DE), LLC, MURRAY PLACE (DE), LLC, RIVER PLACE (DE), LLC, and TROY PLACE
(DE), LLC, each a Delaware limited liability company, each having its principal
place of business at c/o Place Properties, L.P., Two Live Oak-Suite 1400, 3445
Peachtree Road NE, Atlanta, Georgia 30326 ( collectively, the "BORROWER"), as
maker, hereby unconditionally promises to pay to the order of GREENWICH CAPITAL
FINANCIAL PRODUCTS, INC., as lender, having an address at 600 Steamboat Road,
Greenwich, Connecticut 06830 ("LENDER"), or at such other place as the holder
hereof may from time to time designate in writing, the principal sum of
NINETY-EIGHT MILLION SIX HUNDRED SIXTY THOUSAND AND NO/100s DOLLARS
($98,660,000.00), or so much thereof as is advanced, in lawful money of the
United States of America, with interest thereon to be computed from the date of
this Note at the Interest Rate, and to be paid in accordance with the terms of
this Note and that certain Loan and Security Agreement dated the date hereof
between Borrower and Lender (as amended, restated, supplemented or otherwise
modified from time to time, the "LOAN AGREEMENT"). All capitalized terms not
defined herein shall have the respective meanings set forth in the Loan
Agreement.
ARTICLE 1: PAYMENT TERMS
Borrower agrees to pay the principal sum of this Promissory Note (this
"Note") and interest on the unpaid principal sum of this Note from time to time
outstanding at the rates and at the times specified in ARTICLE II of the Loan
Agreement and the outstanding balance of the principal sum of this Note and all
accrued and unpaid interest thereon shall be due and payable on the Maturity
Date.
ARTICLE 2: DEFAULT AND ACCELERATION
The Indebtedness and all other Obligations shall without notice become
immediately due and payable at the option of Lender (except as otherwise set
forth in ARTICLE VIII of the Loan Agreement or the other Loan Documents) if any
payment required in this Note is not paid on or prior to the date when due or if
not paid on the Maturity Date or on the happening of any other Event of Default.
ARTICLE 3: LOAN DOCUMENTS
This Note is being executed and delivered pursuant to the Loan Agreement
and is secured by, among other things, those certain Mortgages/Deeds of
Trust/Deeds to Secure Debt, Assignment of Leases and Rents, Security Agreement
and Fixture Filings, each dated as of the date hereof (collectively, the
"INSTRUMENT") executed by Borrower, encumbering each Borrower's fee simple
interest in and to certain real properties and improvements, as more
particularly described therein (collectively, the "PROPERTY"), those certain
Assignments of Leases and Rents, each dated as of the date hereof (collectively,
the "ASSIGNMENT OF LEASES"), executed by each Borrower and all other Loan
Documents. All of the terms, covenants and conditions contained in the Loan
Agreement, the Instrument, the Assignment of Leases and the other Loan Documents
are hereby made part of this Note to the same extent and with the same force as
if they were fully set forth herein. In the event of a conflict or inconsistency
between the terms of this Note and the Loan Agreement, the Instrument, the
Assignment of Leases or the other Loan Documents, the terms and provisions of
the Loan Agreement shall govern.
ARTICLE 4: SAVINGS CLAUSE
Notwithstanding anything to the contrary, (a) all agreements and
communications between Borrower and Lender are hereby and shall automatically be
limited so that, after taking into account all amounts deemed interest, the
interest contracted for, charged or received by Lender shall never exceed the
maximum lawful rate or amount, (b) in calculating whether any interest exceeds
the lawful maximum, all such interest shall be amortized, prorated, allocated
and spread over the full amount and term of all principal indebtedness of
Borrower to Lender, and (c) if through any contingency or event, Lender receives
or is deemed to receive interest in excess of the lawful maximum, any such
excess shall be deemed to have been applied toward payment of the principal of
any and all then outstanding indebtedness of Borrower to Lender, or if there is
no such indebtedness, shall promptly be returned to Borrower.
ARTICLE 5: NO ORAL CHANGE
This Note may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
Borrower or Lender, but only by an agreement in writing signed by the party
against whom enforcement of any modification, amendment, waiver, extension,
change, discharge or termination is sought.
ARTICLE 6: WAIVERS
Borrower and all others who may become liable for the payment of all or
any part of the Loan do hereby severally waive presentment and demand for
payment, notice of dishonor, notice of intention to accelerate, notice of
acceleration, protest and notice of protest and nonpayment and all other notices
of any kind. No release of any security for the Loan or extension of time for
payment of this Note or any installment hereof, and no alteration, amendment or
waiver of any provision of this Note, the Loan Agreement, the Instrument, the
Assignment of Leases or the other Loan Documents made by agreement between
Lender or any other Person shall release, modify, amend, waive, extend, change,
discharge, terminate or affect the liability of Borrower or any other Person who
may become liable for the payment of all or any part of the Loan under this
Note, the Loan Agreement, the Instrument, the Assignment of Leases or the other
Loan Documents. No notice to or demand on Borrower shall be deemed to be a
waiver of the obligation of Borrower or of the right of Lender to take further
action without further notice or demand as provided for in this Note, the Loan
Agreement, the Instrument, the Assignment of Leases or the other Loan Documents.
If Borrower is a partnership or limited liability company, the agreements herein
contained shall remain in force and be applicable, notwithstanding any changes
in the individuals comprising the partnership or limited liability company, and
the term
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"Borrower," as used herein, shall include any alternate or successor partnership
or limited liability company, but any predecessor partnership or limited
liability company and their partners or members shall not thereby be
released from any liability. If Borrower is a corporation, the agreements
contained herein shall remain in full force and be applicable notwithstanding
any changes in the shareholders comprising, or the officers and directors
relating to, the corporation, and the term "Borrower," as used herein, shall
include any alternative or successor corporation, but any predecessor
corporation shall not be relieved of liability hereunder. (Nothing in the
foregoing sentence shall be construed as a consent to, or a waiver of, any
prohibition or restriction on transfers of interests in such partnership,
limited liability company or corporation, which may be set forth in the Loan
Agreement or any other Loan Document.)
ARTICLE 7: TRANSFER
Upon the transfer of this Note, Lender may deliver all the collateral
granted, pledged or assigned pursuant to the Loan Documents, or any part
thereof, to the transferee who shall thereupon become vested with all the rights
and obligations herein or under applicable law given to Lender with respect
thereto, and Lender shall thereafter forever be relieved and fully discharged
from any liability or responsibility in the matter; but Lender shall retain all
rights and obligations hereby given to it with respect to any liabilities and
the collateral not so transferred.
ARTICLE 8: EXCULPATION
The provisions of ARTICLE XII of the Loan Agreement are hereby
incorporated by reference into this Note to the same extent and with the same
force as if fully set forth herein.
ARTICLE 9: GOVERNING LAW
(A) THIS NOTE AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF
CONFLICT LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE
FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY
WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS
NOTE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
(B) EACH OF BORROWER AND LENDER HEREBY CONSENTS TO THE JURISDICTION OF ANY
STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK
OR WITHIN THE COUNTY AND STATE IN WHICH THE PROPERTY IS LOCATED AND IRREVOCABLY
AGREES THAT, SUBJECT TO LENDER'S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL BE
LITIGATED IN SUCH COURTS. BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH THE
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
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JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH THIS AGREEMENT, THE NOTE, SUCH OTHER LOAN DOCUMENTS OR SUCH
OBLIGATION. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF LENDER TO BRING PROCEEDINGS
AGAINST ANY BORROWER PARTY IN THE COURTS OF ANY OTHER JURISDICTION.
ARTICLE 10: NOTICES
All notices or other written communications hereunder shall be delivered
in accordance with SECTION 13.5 of the Loan Agreement.
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IN WITNESS WHEREOF,'this Note has been executed as of the date first above
written.
BORROWER:
CAPE PLACE (DE), LLC,
a Delaware limited liability company
By: /s/ Cecil M. Phillips
------------------------------
Name: Cecil M. Phillips
Title: President
CLAYTON PLACE (DE), LLC,
a Delaware limited liability company
By: /s/ Cecil M. Phillips
------------------------------
Name: Cecil M. Phillips
Title: President
CLEMSON PLACE (DE), LLC,
a Delaware limited liability company
By: /s/ Cecil M. Phillips
------------------------------
Name: Cecil M. Phillips
Title: President
JACKSONVILLE PLACE (DE), LLC,
a Delaware limited liability company
By: /s/ Cecil M. Phillips
------------------------------
Name: Cecil M. Phillips
Title: President
MACON PLACE (DE), LLC,
a Delaware limited liability company
By: /s/ Cecil M. Phillips
------------------------------
Name: Cecil M. Phillips
Title: President
[ADDITIONAL SIGNATURE PAGE FOLLOWS]
MARTIN PLACE (DE), LLC,
a Delaware limited liability company
By: /s/ Cecil M. Phillips
---------------------------
Name: Cecil M. Phillips
Title: President
MURRAY PLACE (DE), LLC,
a Delaware limited liability company
By: /s/ Cecil M. Phillips
---------------------------
Name: Cecil M. Phillips
Title: President
RIVER PLACE (DE), LLC,
a Delaware limited liability company
By: /s/ Cecil M. Phillips
---------------------------
Name: Cecil M. Phillips
Title: President
TROY PLACE (DE), LLC,
a Delaware limited liability company
By: /s/ Cecil M. Phillips
---------------------------
Name: Cecil M. Phillips
Title: President