FORM OF AMENDED, RESTATED AND CONSOLIDATED PROMISSORY NOTE
Exhibit
10.4
FORM
OF AMENDED, RESTATED AND CONSOLIDATED PROMISSORY NOTE
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$____________
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January 15,
2010
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Loan
No. ___________
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THIS AMENDED, RESTATED AND
CONSOLIDATED PROMISSORY NOTE is made by ▇▇▇▇-▇▇▇▇ REALTY, L.P., a Delaware limited
partnership (“Borrower”)
to the order of THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA, a New Jersey corporation (“Lender”, which shall also mean
successors and assigns who become holders of this Note).
W I T N E S S E T
H:
WHEREAS, Borrower is the maker
of, or has assumed the obligations of the maker of, that certain Amended and
Restated Promissory Note dated as of November 12, 2004 in the original
principal amount of _____________ ($__________) and payable to the order of
Lender, and of that_____________ ($__________) and payable to the order of
Lender (collectively, the “Existing Note”; the loan evidenced by the Existing
Note is herein referred to as the “Existing Loan”);
WHEREAS, the Existing Loan was
made pursuant to that certain Amended and Restated Loan Agreement dated as of
November 12, 2004 (the “Existing Loan Agreement”) by and among, inter alia,
Lender and Borrower relating to seven (7) cross-collateralized and
cross-defaulted loans in the aggregate principal amount of $150,000,000.00;
and
WHEREAS, as of the date
hereof, The Prudential Insurance Company of America, a New Jersey corporation
(“Prudential”), has assigned to VPCM, LLC, a Virginia limited liability company
(“VPCM”), an undivided interest in and to the Existing Loan and Existing Note
and the other documents that further evidence or secure the indebtedness
evidenced thereby, so that Prudential and VPCM shall be co-lenders with respect
to such indebtedness; and
WHEREAS, Borrower and Lender
have agreed, pursuant to that certain Amended and Restated Loan Agreement dated
of even date herewith (the “Loan Agreement”) by and among, inter alia, Lender,
VPCM, and Borrower relating to seven (7) cross-collateralized and
cross-defaulted loans in the aggregate principal amount of $150,000,000.00
(individually, a “Crossed Loan”, and collectively, the “Crossed Loans”), each of
which Crossed Loans consists of a loan made by Prudential and a loan made by
VPCM as co-lenders with respect to such indebtedness, which amount includes the
Loan (as hereinafter defined) evidenced by this Note, to refinance the seven (7)
cross-collateralized and cross-defaulted loans referenced in the Existing Loan
Agreement, to amend and restate the terms thereof, and to re-allocate the loan
amounts among the seven (7) Crossed Loans representing additional advances to
certain borrowers under the Loan Agreement and corresponding reductions of loan
amounts to other borrowers under the Loan Agreement; and
WHEREAS, Borrower and Lender
have agreed in the manner hereinafter set forth to divide the Existing Note and
Existing Loan into two notes and loans, one in the amount of and evidenced by
this Note and one in the amount of $__________ evidenced by that certain
Amended, Restated and Consolidated Promissory Note (the “Companion Note”) in
favor of VPCM from Borrower in such amount and secured by the Instrument (as
hereinafter defined), and to reduce the amount of the indebtedness to Borrower
by the principal amount of $__________ under the loan now evidenced by this Note
and under the loan now evidenced by the Companion Note in the amount of
$$__________, which amount reflects a reallocation of the loan amounts from the
Existing Loan to Borrower to certain of the other six (6) Crossed Loans governed
by the Existing Loan Agreement and represents a repayment by Borrower to effect
such reduction, and (i) to amend the Note Rate on the Existing Note and
Existing Loan, and on the Companion Note and the loan evidenced thereby, to six
and twenty five hundredths percent (6.25%) per annum, (ii) to extend the
maturity date of the Loan evidenced by the Existing Note, and of the loan
evidenced by the Companion Note, to January 15, 2017, and (iii) to
modify certain other terms and provisions of the Existing Note by amending and
restating the terms thereof into this new Amended, Restated and Consolidated
Promissory Note in the principal sum of _____________ ($__________) (the “Loan”)
with a corresponding amendment and restatement evidenced by the Companion Note;
and
NOW, THEREFORE, in
consideration of the foregoing recitals, which are incorporated into the
operative provisions of this Note by this reference, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
conclusively acknowledged, Borrower hereby covenants and agrees with Lender as
follows:
A. Outstanding
Indebtedness. The aggregate outstanding indebtedness evidenced
by the Existing Note as so adjusted, if applicable, as set forth above, is
_____________ ($__________), it being understood that no interest under the
Existing Note is accrued and unpaid for the period prior to the date hereof, but
that interest shall accrue from and after the date hereof at the rate or rates
herein provided; and the aggregate outstanding indebtedness evidenced by the
portion of the Existing Note amended and restated hereby is _____________
($__________), it being understood that the remaining portion of the aggregate
outstanding indebtedness evidenced by the Existing Note as so adjusted, if
applicable, as set forth above, is amended and restated by the Companion Note in
the amount of $_________.
B. Amendment
and Restatement of Existing Note. All of the terms, covenants
and provisions of the Existing Note are hereby modified, amended and restated
herein and in the Companion Note so that henceforth such terms, covenants and
provisions shall be those set forth in this Amended, Restated and Consolidated
Promissory Note and the Companion Note, and the Existing Note, as so modified,
amended and restated in their entirety, are hereby ratified and confirmed in all
respects by Borrower.
C. Borrower's
Promise to Pay. FOR VALUE RECEIVED, Borrower
promises to pay to the order of Lender, at c/o Prudential Asset Resources,
Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: Asset Management Department; Reference Loan
No. _______ and ________, the principal sum of _____________ ($__________),
with interest on the unpaid balance (“Balance”) at the rate of six
and twenty five hundredths percent (6.25%) per annum (“Note Rate”) from and including
the date hereof (“Funding Date”) until and including
Maturity (defined below). Capitalized terms used without definition
shall have the meanings ascribed to them in the Instrument (defined
below).
1. Regular
Payments. Principal and interest shall be payable as
follows:
(a) Interest
only shall be paid in arrears in thirty (30) monthly installments of
_____________ ($__________) each, commencing on February 15, 2010 and
continuing on the fifteenth (15th) day of each succeeding month to and including
July 15, 2012. Each payment due date under Paragraphs 1(a)
and 1(b) of this Note is referred to as a “Due Date”.
(b) Principal
and interest shall be paid in fifty three (53) monthly installments of
_____________ ($__________) each commencing on August 15, 2012 and
continuing on the fifteenth (15th) day of each succeeding month to and including
December 15, 2016.
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(c) The
entire Obligations (as defined in the Instrument (defined below)) shall be due
and payable on January 15, 2017 (“Maturity
Date”). “Maturity” shall mean the
Maturity Date or earlier date that the Obligations may be due and payable by
acceleration by Lender as provided in the Documents.
(d) Interest
on the Balance for any full month shall be calculated on the basis of a three
hundred sixty (360) day year consisting of twelve (12) months of thirty (30)
days each. For any partial month, interest shall be due in an amount
equal to (i) the Balance multiplied by (ii) the Note Rate divided by
(iii) 360 multiplied by (iv) the number of days during such partial
month that any Balance is outstanding to (but excluding) the date of
payment.
2. Late Payment and Default
Interest.
(a) Late
Charge. If any scheduled payment due under this Note is not
fully paid by its Due Date (other than the principal payment due on the Maturity
Date), a charge of $100.00 per day (the “Daily Charge”) shall be
assessed for each day that elapses from and after the Due Date until such
payment is made in full (including the date payment is made), subject, however,
if, as set forth below, Borrower is then entitled to the “Daily Charge Grace
Period”, that such failure continues for two (2) days after such Due Date (the
“Daily Charge Grace
Period”); provided, however, that if Borrower receives the
benefit of such Daily Charge Grace Period within any twelve (12) month period,
Borrower shall have no further right to the Daily Charge Grace Period during
that twelve (12) month period; provided, further, however, that if
any such payment, together with all accrued Daily Charges, is not fully paid by
the fourteenth (14th) day following the applicable Due Date, a late charge equal
to the lesser of (i) four percent (4%) of such payment or (ii) the
maximum amount allowed by law (the “Late Charge”) shall be
assessed and shall be immediately due and payable. The Late Charge
shall be payable in lieu of Daily Charges that shall have
accrued. The Late Charge may be assessed only once on each overdue
payment. These charges shall be paid to defray the expenses incurred
by Lender in handling and processing such delinquent payment(s) and to
compensate Lender for the loss of the use of such funds. The Daily
Charge and Late Charge shall be secured by the Documents. The
imposition of the Daily Charge, Late Charge, and/or requirement that interest be
paid at the Default Rate (defined below) shall not be construed in any way to
(i) excuse Borrower from its obligation to make each payment under this
Note promptly when due or (ii) preclude Lender from exercising any rights
or remedies available under the Documents upon an Event of Default.
(b) Acceleration. Upon
any Event of Default, Lender may declare the Balance, unpaid accrued interest,
the Prepayment Premium (defined below) and all other Obligations immediately due
and payable in full.
(c) Default
Rate. Upon an Event of Default or at Maturity, whether by
acceleration (due to a voluntary or involuntary default) or otherwise, the
entire Obligations (excluding accrued but unpaid interest if prohibited by law)
shall bear interest at the Default Rate. The “Default Rate” shall be the
lesser of (i) the maximum rate allowed by law or (ii) five percent
(5%) plus the greater of (A) the Note Rate or (B) the prime rate (for
corporate loans at large United States money center commercial banks) published
in The Wall Street Journal on the first Business Day (defined below) of the
month in which the Event of Default or Maturity occurs and on the first Business
Day of every month thereafter. The term “Business Day” shall mean each
Monday through Friday except for days in which commercial banks are not
authorized to open or are required by law to close in New York, New
York.
3. Application of
Payments. Until an Event of Default occurs, all payments
received under this Note shall be applied in the following order: (a) to
unpaid Daily Charges, Late Charges and costs of
collection; (b) to any Prepayment Premium
due; (c) to interest due on the Balance; and
(d) then to the Balance. After an Event of Default, all payments
shall be applied in any order determined by Lender in its sole
discretion.
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4. Prepayment. This
Note may be prepaid on any date, in whole or in part, upon at least thirty (30)
days’ prior written notice to Lender and upon payment of all accrued interest
(and other Obligations due under the Documents) and a prepayment premium (“Prepayment Premium”) equal to
the greater of (a) one percent (1%) of the principal amount being prepaid
multiplied by the quotient of the number of full months remaining until the
Maturity Date, calculated as of the prepayment date, divided by the number of
full months comprising the term of this Note, or (b) the Present Value of
the Loan (defined below) less the amount of principal and accrued interest (if
any) being prepaid, calculated as of the prepayment date. The
Prepayment Premium shall be due and payable, except as provided in the
Instrument or as limited by law, upon any prepayment of this Note, whether
voluntary or involuntary, and Lender shall not be obligated to accept any
prepayment of this Note unless it is accompanied by the Prepayment Premium, all
accrued interest and all other Obligations due under the
Documents. Lender shall notify Borrower of the amount of and the
calculation used to determine the Prepayment Premium. Borrower agrees
that (a) Lender shall not be obligated to actually reinvest the amount
prepaid in any Treasury obligation and (b) the Prepayment Premium is
directly related to the damages that Lender will suffer as a result of the
prepayment. The “Present Value of the Loan”
shall be determined by discounting all scheduled payments remaining to the
Maturity Date attributable to the amount being prepaid at the Discount Rate
(defined below). If prepayment occurs on a date other than a Due
Date, the actual number of days remaining from the date of prepayment to the
next Due Date will be used to discount within this period. The “Discount Rate” is the rate
which, when compounded monthly, is equivalent to the Treasury Rate (defined
below), when compounded semi-annually. The “Treasury Rate” is the
semi-annual yield on the Treasury Constant Maturity Series with maturity equal
to the remaining weighted average life of the Loan, for the week prior to the
prepayment date, as reported in Federal Reserve Statistical
Release H.15 - Selected Interest Rates, conclusively determined by
Lender (absent a clear mathematical calculation error) on the prepayment
date. The rate will be determined by linear interpolation between the
yields reported in Release H.15, if necessary. If
Release H.15 is no longer published, Lender shall select a comparable
publication to determine the Treasury Rate. Borrower agrees that
Lender shall not be obligated actually to reinvest the amount prepaid in any
Treasury obligations as a condition precedent to receiving the Prepayment
Premium. Notwithstanding the foregoing, no Prepayment Premium shall
be due if this Note is prepaid during the last sixty (60) days prior to the
Maturity Date.
With
respect to the foregoing provisions, Borrower hereby expressly agrees as
follows:
(a) The
Note Rate provided herein has been determined based on the sum of (i) the
Treasury Rate in effect at the time the Note Rate was determined under the Loan
application submitted to Lender, plus (ii) an interest rate spread over
such Treasury Rate, which together represent Lender’s agreed-upon return for
making the proceeds of the Loan hereunder available to Borrower over the term of
such Loan.
(b) The
determination of the Note Rate, and in particular the aforesaid interest rate
spread, were based on the expectation and agreement of Borrower and Lender that
the principal sums advanced hereunder would not be prepaid during the term of
this Note, or if any such prepayment occurs, the Prepayment Premium (calculated
in the manner set forth above) would apply (except as expressly permitted by
this Note).
(c) The
Lender’s business involves making financial commitments to others based in part
on the returns it expects to receive from this Note and other similar loans made
by Lender, and Lender’s financial performance as a business depends not only on
the returns from each loan or investment it makes but also upon the aggregate
amounts of the loans and investments it is able to make over any given period of
time.
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(d) In
the event of a prepayment hereunder, Lender will be required to redeploy the
funds received into other loans or investments, which (i) may not provide a
return to Lender comparable to the return Lender anticipates based on the Note
Rate and (ii) may reduce the total amount of loans or investments Lender is
able to make during the term of the Loan, which in turn may impair the
profitability of Lender’s business. Therefore, in order to compensate
Lender for the potential impact and risks to its business of prepayments under
this Note, Lender has limited Borrower’s right to prepay this Note and has
offered the method of calculation of the Prepayment Premium set forth
above.
(e) Borrower
acknowledges that (i) Lender could have determined that it would not permit
any prepayments under the Note during its term, and therefore, in electing to
permit prepayments hereunder, Lender is entitled to determine and negotiate the
terms on which it will accept prepayments of its loans, and (ii) Borrower
could have elected to negotiate more permissive prepayment provisions and/or a
more favorable manner of calculating the Prepayment Premium, but in such event
the applicable interest rate spread, and therefore the Note Rate, would have
been higher to compensate Lender for the potential loss of income on account of
the risk that Borrower might elect to prepay this Note at an earlier time and/or
for a lesser Prepayment Premium than set forth herein.
Therefore,
in consideration of Lender’s agreement to the Note Rate set forth herein, and in
recognition of Lender’s reliance on the prepayment provisions of this Note
(including the method of calculating the Prepayment Premium), Borrower agrees
that the manner of calculation of the Prepayment Premium set forth in this Note
represents bargained-for compensation to Lender for granting to Borrower the
privilege of prepaying this Note on the terms set forth herein and for the
potential loss of future income to Lender arising from having to redeploy the
amounts prepaid under this Note into other loans or investments. As
such, the Prepayment Premium constitutes reasonable compensation to Lender for
making the Loan on the terms reflected in this Note and does not represent any
form of damages (liquidated or otherwise), nor does it represent a
penalty.
5. No
Usury. Under no circumstances shall the aggregate amount paid
or to be paid as interest under this Note exceed the highest lawful rate
permitted under applicable usury law (“Maximum Rate”). If
under any circumstances the aggregate amounts paid on this Note shall include
interest payments which would exceed the Maximum Rate, Borrower stipulates that
payment and collection of interest in excess of the Maximum Rate (“Excess Amount”) shall be
deemed the result of a mistake by both Borrower and Lender and Lender shall
promptly credit the Excess Amount against the Balance (without Prepayment
Premium or other premium) or refund to Borrower any portion of the Excess Amount
which cannot be so credited.
6. Security and Documents
Incorporated. This Note is the Note referred to and secured by
the Amended, Restated and Consolidated Mortgage and Security Agreement of even
date herewith between Borrower, as mortgagor, and Lender and VPCM, as mortgagee,
to be recorded in the real estate records of Bergen County, New Jersey (the
“Instrument”) and is
secured by the Property. In addition, this Note is secured by all
other mortgages, deeds of trust and other collateral described in and referenced
in the Loan Agreement. Borrower shall observe and perform all of the
terms and conditions in the Documents. The Documents are incorporated
into this Note as if fully set forth in this Note.
7. Treatment of
Payments. All payments under this Note shall be made, without
offset or deduction, (a) in lawful money of the United States of America at
the office of Lender or at such other place (and in the manner) Lender may
specify by written notice to Borrower, (b) in immediately available federal
funds, and (c) if received by Lender prior to 2:00 p.m. Eastern Time at
such place, shall be credited on that day, or, if received by Lender on or after
2:00 p.m. Eastern Time at such place, shall, at Lender’s option, be credited on
the next Business Day. Initially (unless waived by Lender), and until
Lender shall direct Borrower otherwise, Borrower shall make all payments due
under this Note in the manner set forth in Section 3.13 of the Instrument,
and in the event of full compliance by Borrower thereunder, Borrower shall have
no liability for any Late Charges, and it shall not constitute a default or
Event of Default hereunder or under any of the other Documents, if Lender fails
to initiate payment due through the Automated Clearing House network (or similar
electronic process) for settlement on the Due Date in a timely
manner. If any Due Date falls on a day which is not a Business Day,
then the Due Date shall be deemed to have fallen on the next succeeding Business
Day.
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8. Limited Recourse
Liability. Except to the extent set forth in Paragraph 8
and Paragraph 9 of this Note, neither Borrower nor any general or limited
partner(s) or member(s) of Borrower nor any officers, directors, shareholders,
unitholders, general or limited partners, members, employees or agents of
Borrower or its general partners or members shall have any personal liability
for the Loan or any Obligations. Notwithstanding the preceding
sentence, Lender may bring a foreclosure action or other appropriate action to
enforce the Documents or realize upon and protect the Property (including,
without limitation, naming Borrower and any other necessary parties in the
actions) and
IN ADDITION BORROWER, ANY
GENERAL PARTNER(S) OF BORROWER, ▇▇▇▇-▇▇▇▇ REALTY CORPORATION AND ▇▇▇▇-▇▇▇▇
REALTY, L.P. (SOMETIMES HEREIN REFERRED TO, SINGULARLY OR COLLECTIVELY,
AS THE “RECOURSE
PARTIES”) SHALL HAVE JOINT AND SEVERAL PERSONAL LIABILITY
FOR:
(a) any
amounts accrued and/or payable under any indemnities, guaranties, master leases
or similar instruments (which indemnities, guaranties, master leases, and
instruments consist, as of Closing, of the following
instruments: that certain Environmental and ERISA Indemnity
Agreement, that certain Recourse Liabilities Guaranty, and that certain Partial
Recourse Guaranty, each dated as of even date herewith, and Sections 8.03,
8.04, 8.05, 8.06 and 8.07 of the Instrument) furnished in connection with the
Loan, but excluding indemnities arising solely under Section 8.02 of the
Instrument;
(b) subject
to Section 4(b) of that certain Cash Management Agreement between Borrower,
Lender and VPCM of even date herewith (the “Cash Management Agreement”), the
amount of any assessments and taxes (accrued and/or payable prior to the
completion by Lender of a foreclosure on the Property or acceptance by Lender of
a deed or other conveyance of the Property in lieu of such foreclosure,
including the pro-rata share of current real estate taxes) with respect to the
Property;
(c) the
amount of any security deposits, rents prepaid more than one (1) month in
advance, or prepaid expenses of tenants to the extent not turned over to
(i) Lender upon foreclosure, sale (pursuant to power of sale), or
conveyance in lieu thereof, or (ii) a receiver or trustee for the Property
after appointment;
(d) the
amount of any insurance proceeds or condemnation awards neither turned over to
Lender nor used in compliance with the Documents;
(e) damages
suffered or incurred by Lender as a result of Borrower (i) entering into a
new Lease, (ii) entering into an amendment or termination of an existing
Lease, or (iii) accepting a termination, cancellation or surrender of an
existing Lease (other than with respect to a Lease with a Major Tenant which is
addressed in Paragraph 9(d) below) in breach of the leasing restrictions
set forth in Section 7 of the Assignment; provided, however, that in the
case of clauses (ii) and (iii) above, the Recourse Parties liability shall be
limited to the greater of:
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(1)
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the
present value (calculated at the Discount Rate) of the aggregate total
dollar amount (if any) by which (A) rental income and/or other tenant
obligations prior to the amendment or termination of the Lease exceeds
(B) rental income and/or other tenant obligations after the amendment
or termination of such Lease; and
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(2)
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any
amendment or termination fee or other consideration paid by or on behalf
of a tenant;
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provided,
however, that, in such event, such liability shall be limited to the Crossed
Loan (or Crossed Loans) applicable to the Individual Property (or Individual
Properties) in which the Lease is located;
(f) subject
to Section 4(b) of the Cash Management Agreement, damages suffered or
incurred by Lender by reason of any waste of the Property;
(g) the
amount of any rents or other income from the Property received by any of the
Recourse Parties after a default under the Documents and not otherwise applied
to the indebtedness under this Note or to the current (not deferred) operating
expenses of the Property; PROVIDED, HOWEVER, THAT THE RECOURSE
PARTIES SHALL HAVE PERSONAL LIABILITY for amounts paid as expenses to a person
or entity related to or affiliated with any of the Recourse Parties except for
(A) reasonable salaries for on-site employees, (B) a reasonable
allocation of the salaries of off-site employees for accounting and management,
and (C) out-of-pocket expenses of Borrower’s management company relating to
the Property, but in no event shall such expenses include any profit or be
greater than prevailing market rates for any such services;
(h) the
face amount of any letter of credit required under the Documents or otherwise in
connection with the Loan that (i) Borrower fails to maintain or
(ii) as to which Borrower fails to replace such letter of credit with, or
post in lieu of such letter of credit, a cash deposit paid to Lender and held by
Lender as additional collateral under the Documents;
(i) the
amount of any security deposit (a “Security Deposit”) cashed or
applied by Borrower or any termination fee, cancellation fee or any other fee
(collectively, a “Lease
Termination Fee”) received by Borrower (x) in connection with a
lease termination, cancellation, surrender or expiration (but Lease Termination
Fees shall not include the application of, or surrender of, lease security
deposits at the scheduled expiration of the applicable lease in lieu of the
payment of the corresponding amount of rentals) within one hundred twenty (120)
days prior to or after an Event of Default under the Documents, (y) which
is greater than one (1) month’s base rent for the Lease to which the Security
Deposit and/or Lease Termination Fee applies, and (z) which is not either
(A) paid to Lender (or an escrow agent selected by Lender) to be disbursed
for the payment of Lender approved (or deemed approved) (1) tenant
improvements and/or (2) market leasing commissions, or, (B) if the
applicable Lease Termination Fees total less than $1,000,000 (with respect to
all of the Crossed Loans and properties that are the subject of the Loan
Agreement) in the aggregate during any such one hundred twenty (120) day period,
actually disbursed by Borrower for the payment of the Obligations (any Lease
Termination Fees that total more than $1,000,000 with respect to all of the
Crossed Loans and properties that are the subject of the Loan Agreement in the
aggregate during any such one hundred twenty (120) day period must, to the
extent in excess of such $1,000,000 aggregate threshold, be paid to Lender for
escrow as set forth in clause (A) to avoid recourse liability resulting under
this clause (i));
(j) following
a default under the Documents, all attorneys’ fees, including allocated costs of
Lender’s staff attorneys, and other expenses incurred by Lender in enforcing the
Documents if Borrower contests, delays, or otherwise hinders or opposes
(including, without limitation, the filing of a bankruptcy by Borrower or any
owners of any equity interests therein) any of Lender’s enforcement
actions; provided, however, that if in such action Borrower
successfully proves that no default occurred under the Documents, Borrower shall
not be required to reimburse Lender for such attorneys’ fees, allocated costs
and other expenses; and
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(k) damages
suffered or incurred by Lender as a result of Borrower’s breach or violation of
Sections 2.10or 3.21 of the Instrument.
(l) the
“Recourse Guaranteed Amount”, as defined in the Partial Recourse Guaranty of
even date herewith from ▇▇▇▇-▇▇▇▇ Realty, L.P. (“Recourse Guarantor”), which
recourse liability shall be recourse to Borrower, jointly and severally with
Recourse Guarantor, to the same extent that Recourse Guarantor has recourse
liability for the Loan (all indebtedness evidenced by the Note and all
obligations set forth in the Documents) under the Partial Recourse Guaranty, as
Borrower covenants and agrees that the Loan shall be recourse to Borrower,
jointly and severally with Recourse Guarantor, to the same extent that Recourse
Guarantor has recourse liability for the Loan under the Partial Recourse
Guaranty, and that Borrower’s recourse under the Documents with respect to such
liability under the Partial Recourse Guaranty shall be reduced and/or released
at the same time and on the same terms as provided above for Recourse Guarantor;
and
(m) if,
pursuant to any lease under Section 3.4(c)(iii) of the Loan Agreement,
Borrower shall elect not to pay in full all leasing commissions for the initial
term of such lease (Borrower being required to pay all commissions when due), to
the extent of all leasing commissions for the initial term of such lease that
are not paid in full;
(n) Borrower
and the Recourse Parties shall, as set forth in Section 8.6 of the Loan
Agreement, have recourse liability for any Additional Parking Costs;
and
(o) Borrower
and the Recourse Parties shall, as set forth in Section 8.7 of the Loan
Agreement, have recourse liability for any ▇▇▇▇▇▇ Title Loss.
9. Full Recourse
Liability. Notwithstanding the provisions of Paragraph 8
of this Note, the RECOURSE
PARTIES SHALL HAVE JOINT AND SEVERAL PERSONAL LIABILITY for all
indebtedness evidenced by this Note and all Obligations set forth in the
Documents if:
(a) there
shall be any breach or violation of Article V of the Instrument; or
(b) there
shall be any fraud or material misrepresentation by any of the Recourse Parties
in connection with the Property, the Documents, the Loan Application, or any
other aspect of the Loan; or
(c) the
Property or any part thereof shall become an asset in (i) a voluntary
bankruptcy or insolvency proceeding or (ii) an involuntary bankruptcy or
insolvency proceeding which is not dismissed within ninety (90) days of
filing; provided, however, that this Paragraph 9(c) shall not
apply if (A) an involuntary bankruptcy is filed by Lender, or (B) the
involuntary filing was initiated by a third-party creditor independent of any
collusive action, participation or collusive communication by (1) Borrower,
(2) any partner, shareholder or member of Borrower or Borrower’s general
partner or managing member, or (3) any of the Recourse Parties;
or
(d) any
of the Recourse Parties (i) enters into a Lease with a Major Tenant,
(ii) enters into an amendment or termination of any Lease with a Major
Tenant, or (iii) accepts the termination, cancellation or surrender of any
Lease with a Major Tenant, in breach of the leasing restrictions set forth in
Section 7 of the Assignment; provided, however, that, in such event, such
liability shall be limited to the Crossed Loan (or Crossed Loans) applicable to
the Individual Property (or Individual Properties) in which the Lease is
located, except that in the event that the damages suffered or incurred by
Lender as a result of any of the Recourse Parties taking any such action
described in clauses (i), (ii) or (iii) above exceeds the amount of such Crossed
Loan (or Crossed Loans) applicable to the Individual Property (or Individual
Properties) in which the Lease is located, then the Recourse Parties shall have
joint and several personal liability for all such damages suffered or incurred
by Lender as a result of any of the Recourse Parties taking any such action
described in clauses (i), (ii) or (iii) above.
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10. Joint and Several
Liability. This Note shall be the joint and several obligation
of all makers, endorsers, guarantors and sureties, and shall be binding upon
them and their respective successors and assigns and shall inure to the benefit
of Lender and its successors and assigns.
11. Unconditional
Payment. Borrower is and shall be obligated to pay principal,
interest and any and all other amounts which became payable hereunder or under
the other Documents absolutely and unconditionally and without abatement,
postponement, diminution or deduction and without any reduction for counterclaim
or setoff. In the event that at any time any payment received by
Lender hereunder shall be deemed by a court of competent jurisdiction to have
been a voidable preference or fraudulent conveyance under any bankruptcy,
insolvency or other debtor relief law, then the obligation to make such payment
shall survive any cancellation or satisfaction of this Note or return thereof to
Borrower and shall not be discharged or satisfied with any prior payment thereof
or cancellation of this Note, but shall remain a valid and binding obligation
enforceable in accordance with the terms and provisions hereof, and such payment
shall be immediately due and payable upon demand.
12. Certain
Waivers. Borrower and all others who may become liable for the
payment of all or any part of the Obligations do hereby severally waive
presentment and demand for payment, notice of dishonor, protest and notice of
protest, notice of non-payment and notice of intent to accelerate the maturity
hereof (and of such acceleration). No release of any security for the
Obligations 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 Instrument or the other Documents shall release, modify, amend, waive,
extend, change, discharge, terminate or affect the liability of Borrower, and
any other who may become liable for the payment of all or any part of the
Obligations, under this Note, the Instrument and the other Documents, except to
the extent expressly altered, amended or changed thereby.
13. WAIVER OF
TRIAL BY JURY. EACH OF BORROWER AND
LENDER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM FILED BY EITHER PARTY, WHETHER
IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE LOAN, THE
DOCUMENTS, OR ANY ALLEGED ACTS OR OMISSIONS OF LENDER OR BORROWER IN CONNECTION
THEREWITH.
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IN WITNESS WHEREOF, this Note
has been duly executed by Borrower as of the date first set forth
above.
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BORROWER:
▇▇▇▇-▇▇▇▇ REALTY, L.P.,
a Delaware limited partnership
By:
▇▇▇▇-▇▇▇▇ REALTY CORPORATION, a Maryland corporation, General
Partner
By:
____________________
Name: ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Title: Executive
Vice President and Chief Financial Officer
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