SECURED PROMISSORY NOTE (REVOLVING)
Exhibit
10.1
(REVOLVING)
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$15,000,000.00
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December
4, 2008
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For Value
Received, FSP PHOENIX
TOWER LIMITED PARTNERSHIP, a Texas limited partnership ("Maker"),
hereby unconditionally promises to pay to the order of FRANKLIN STREET PROPERTIES
CORP., a Maryland corporation (the payee and each successor holder of
this Note being herein called the "Lender"),
in lawful money of the United States of America and in immediately available
funds, the principal sum of FIFTEEN MILLION DOLLARS AND 00/100 ($15,000,000.00),
or, if less, the aggregate unpaid principal amount of all Advances (defined
below) (the "Loan"),
together with accrued and unpaid interest thereon, each due and payable on the
dates and in the manner set forth below.
1. Advances; Borrowing Procedure;
Termination Borrowing Conditions.
(a) Advances. From time
to time prior to the Maturity Date (defined below), and so long as no Event of
Default (defined below) exists, the Lender shall, subject to the terms and
conditions hereof, make advances (the "Advances")
to the Maker, and the Maker may borrow, repay and reborrow funds from the Lender
hereunder, provided that the
aggregate principal amount of all Advances outstanding at any time shall in no
event exceed $15,000,000.00. The Lender shall, and
is hereby authorized to, record on the schedule attached hereto, or to otherwise
record in accordance with its usual practice, the date and amount of each
Advance and the date and amount of each principal payment hereunder, provided,
however, that any failure to so record any Advance or payment shall not in any
manner affect the obligation of the Maker to repay any Advance in accordance
with the terms hereof.
(b) Borrowing
Procedure. To obtain an Advance, the Maker must (i) notify
Lender (which notice shall be irrevocable) by 2:00 p.m. Eastern Standard Time
not less than three (3) Business Days prior to the proposed date on which the
Advance is to be made by delivering to Lender a completed Advance Form in the
form attached hereto as Exhibit
A, and (ii)
pay Lender a fee (the "Advance
Fee") in an amount equal to 0.50% of the applicable Advance; provided,
however, that the Advance Fee may be funded from the proceeds of the applicable
Advance. Each Advance shall be in the minimum amount of $25,000.00,
and no more than two (2) Advances shall be requested or made in any calendar
month. Lender shall credit Advances to Maker’s deposit account as
described on Exhibit
B hereto. Lender may make Advances under this Note based on
instructions from Maker. Maker shall indemnify Lender for any loss
Lender suffers due to such reliance.
(c) Termination. ▇▇▇▇▇▇’s
obligation to make any Advance hereunder shall terminate on the earlier of (i)
the occurrence of an Event of Default, (ii) November 30, 2011, or (iii) there
has been, in ▇▇▇▇▇▇’s discretion, a Material Adverse Change. As used
herein, a “Material Adverse
Change” means: (a) a material impairment in the perfection or priority of
Lender’s liens, mortgages and security interests pursuant to the Mortgage
Documents (defined below), or in the value of any assets intended to be secured
thereby, or in the ability of the Lender to enforce any of its rights and
remedies under this Note or the Mortgage Documents; (b) a material adverse
change in the ownership, management, business, operations, assets, properties or
condition (financial or otherwise) of Maker; or (c) a material impairment of the
prospect of repayment of any portion of the obligations hereunder or any of the
Mortgage Documents or the ability of the Maker to perform any obligations
hereunder or thereunder. ▇▇▇▇▇▇ shall not be required to make any
Advances hereunder at any time that there is an uncured default or Event of
Default hereunder.
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(d) Conditions Precedent to Initial
Advance. ▇▇▇▇▇▇’s obligation to make the initial Advance
hereunder is subject to the condition precedent that ▇▇▇▇▇▇ shall have received,
in form and substance satisfactory to Lender, such documents, and completion of
such other matters, as Lender may reasonably deem necessary or appropriate,
including, without limitation, the following:
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i.
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timely
receipt of an Advance Form in the form attached hereto as Exhibit
A;
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ii.
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payment
of the Advance Fee;
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iii.
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executed
original of this Note;
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iv.
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a
certificate of the general partner of Maker with respect to Maker’s
certificate of limited partnership and agreement of limited partnership,
which certificate shall also include evidence that FSP Phoenix Tower
Corp., in its capacity as the sole member of the general partner of Maker
and in its capacity as the sole limited partner of Maker, has authorized
the execution, delivery and performance of this Note, the Mortgage
Documents, and all transactions related thereto;
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v.
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executed
originals of each Mortgage Document;
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vi.
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a
Certificate of Good Standing/Legal Existence for Maker in the State of
Texas, a Certificate of Good Standing/Legal Existence for FSP Phoenix
Tower LLC in the State of Delaware and evidence that it is qualified to
transact business in the State of Texas, and a Certificate of Good
Standing/Legal Existence for FSP Phoenix Tower Corp. in the State of
Delaware;
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vii.
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evidence
that the applicable Mortgage Documents have been duly recorded;
and
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viii.
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all
other documents and legal matters in connection with the transactions
contemplated by this Note and the Mortgage Documents shall have been
delivered, executed, or recorded, and all other matters shall have been
completed, all in form and substance satisfactory to
Lender.
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(e) Conditions Precedent to all
Advances. ▇▇▇▇▇▇’s obligation to make each Advance is subject
to the following:
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i.
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timely
receipt of an Advance Form in the form attached hereto as Exhibit
A;
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ii.
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payment
of the Advance Fee;
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iii.
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the
representations and warranties in Section 7 shall be true on the date of
the Advance Form and on the effective date of each Advance, and no default
or Event of Default shall have occurred and be continuing, or result from
the Advance. Each Advance is Maker’s representation and warranty on that
date that the representations and warranties in Section 7 remain true in
all respects, and that no default or Event of Default shall have occurred
and be continuing. For the avoidance of doubt, the Lender shall
have no obligation to make any Advance during any cure periods provided
for in Section 9 hereof;
and
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iv.
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all
other documents and legal matters in connection with the Advance and the
transactions contemplated by this Note and the Mortgage Documents shall
have been delivered, executed, or recorded, and all other matters shall
have been completed, all in form and substance satisfactory to
Lender.
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(f) Covenant to
Deliver. Maker agrees (not as a condition but as a covenant)
to deliver to Lender each item required to be delivered to Lender as a condition
to each Advance. Maker expressly agrees that any Advance made prior
to the receipt by Lender of any such item shall not constitute a waiver by
Lender of Maker’s obligation to deliver such item, and any Advance in the
absence of a required item shall be in Lender’s sole discretion.
2. Principal
Repayment. The outstanding principal amount of the Loan,
together with any accrued but unpaid interest, shall be due and payable on the
earlier to occur of (i) November 30, 2011 and (ii) the date on which an Event of
Default shall have occurred (such date first to occur being referred to herein
as the "Maturity
Date"). This Note may be prepaid in whole or in part at any
time without premium or penalty.
3. Interest Rate and
Payments. The Maker promises to pay interest only on each
Advance monthly in arrears, with the first such payment due and payable on the
first day of the first full calendar month following the date of such Advance,
and subsequent payments due and payable on the first day of each calendar month
thereafter, until all unpaid principal of the applicable Advance is paid in
full. The Maker further promises to pay interest only on the
outstanding principal amount of each Advance from the date of such Advance until
payment in full of such Advance at a per annum interest rate equal to (i) from
the date hereof to the Maturity Date, at the LIBOR Rate (defined below), (ii)
from and after the Maturity Date, or during the continuance of an Event of
Default, at the rate set forth in clause (i) plus five percent (5.0%) (the “Default
Rate”), or (iii) if less than the rates applicable under both clauses (i)
and (ii), the maximum rate permissible by law. As used herein, the
“LIBOR
Rate” means the per annum rate of interest reported in the Wall Street Journal (“WSJ”) as
the “Latest”, “One month”, “London interbank offered rate, or Libor” plus
three hundred (300) basis points; provided, however, that if the LIBOR Rate is
no longer available, or is no longer published in the WSJ, Lender will choose a
new rate that is based upon comparable information and provide prompt notice
thereof to Maker. Regardless of whether an Advance is actually made
on the first day of a calendar month, interest on each Advance shall accrue on
the unpaid principal balance of such Advance at the LIBOR Rate in effect on the
first day of the calendar month in which such Advance is
made. Thereafter, the LIBOR Rate applicable to each Advance shall
automatically change to the LIBOR Rate in effect on the first day of each
subsequent calendar month until the applicable Advance is repaid in
full.
4. Place of
Payment. All amounts payable hereunder shall be payable in
immediately available funds at the office of the Lender, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, unless another place of payment shall
be specified in writing by the Lender.
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5. Application of
Payments. Payment on this Note shall be applied first to costs
and expenses due hereunder, then to accrued interest, and thereafter to the
outstanding principal balance hereof. Any principal repayment or
interest payment hereunder not paid when due, whether on the Maturity Date, by
acceleration or otherwise, shall bear interest at the rate set forth in clause
(ii) of Section 3 hereof (or, if such rate exceeds the maximum rate permitted by
law, then at such maximum rate permitted by law) until paid in
full.
6. Secured Note. This
Note is the “Note” referred to in, and is executed and delivered in connection
with, that certain Deed of Trust, Assignment of Rents and Leases, Security
Agreement and Fixture Filing dated as of even date herewith between the Maker
and the Lender (as the same may from time to time be amended, modified or
supplemented or restated, the "Mortgage"
and together with any other documents, instruments and agreements made in
connection therewith, the “Mortgage
Documents”). Additional
rights of the Lender are set forth in the Mortgage Documents. The full amount of
this Note (including, without limitation, all principal, interest and expenses)
is secured by the pursuant to the terms of the Mortgage Documents.
7. Representations and
Warranties. The Maker represents and warrants to the Lender
that:
(a) the
Maker is duly organized, validly existing, and in good standing under the laws
of its jurisdiction of formation and is duly qualified and in good standing in
every other jurisdiction where the nature of its business or the location or
ownership of its properties requires such qualification;
(b) the
Maker has the full partnership power and authority to execute and deliver this
Note and the Mortgage Documents and to perform all of the obligations hereunder
and thereunder, and all necessary partnership action has been taken to execute
and deliver this Note and the Mortgage Documents, to make the borrowings
hereunder and to grant the mortgages and liens pursuant to the Mortgage
Documents;
(c) this
Note and each of the Mortgage Documents constitutes the legal, valid, and
binding obligations of the Maker, enforceable against the Maker in accordance
with its respective terms, subject to applicable bankruptcy, insolvency,
reorganization or similar laws generally affecting the enforcement of the rights
of creditors;
(d) the
execution, delivery and performance by the Maker of this Note and the Mortgage
Documents do not (i) violate any provisions of the Maker's Certificate of
Limited Partnership, Agreement of Limited Partnership or any contract,
agreement, law, regulation, order, decree or writ to which the Maker or any of
its properties are subject, or (ii) require the consent or approval of any
person, entity or authority, including, without limitation, any regulatory
authority or governmental body of the United States of America or any state
thereof or any political subdivision of any of the foregoing; and
(e) No
Material Adverse Change shall have occurred and be continuing since the date of
this Note.
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8. Negative
Covenants. The Maker shall not do any of the following without
first obtaining the prior written consent of the Lender:
(a) create,
incur, assume, guaranty, become liable with respect to (contingently or
otherwise), or permit to be outstanding any indebtedness (including, without
limitation, any indebtedness evidenced by any notes, instruments or agreements
or in connection with any capitalized lease or any contingent obligation) or in
respect of any other financing arrangements, except for the obligations under
this Note and obligations incurred by the Maker in the ordinary course of
business;
(b) create,
permit or suffer to exist, and shall defend against and take such other action
as is necessary to remove, any mortgage, lien, deed of trust, charge, pledge,
security interest, license or other encumbrance on or in the assets or property
of the Maker, or in any portion thereof except (i) for those pursuant to the
Mortgage Documents, and (ii) as permitted pursuant to the Mortgage
Documents;
(c) sell,
lease, transfer or otherwise dispose of any assets or property of the Maker, or
attempt to or contract to do so except for (i) leases (and amendments and
modifications to leases) of real estate in the ordinary course of business and
(ii) other dispositions of property that do not exceed $50,000.00 in any one
transaction or an aggregate of $150,000.00 in any series of transactions;
and
(d) dissolve
or liquidate, or merge or consolidate with any other entity, or acquire all or
substantially all of the stock or assets of any other entity.
9. Default. Each of
the following events shall be an "Event of
Default" hereunder:
(a) the
Maker fails to pay any of the principal, interest or any other amounts payable
under this Note when and as the same becomes due and payable including, without
limitation, the Advance Fee.
(b) the
Maker files any petition or action for relief under any bankruptcy,
reorganization, insolvency or moratorium law or any other law for the relief of,
or relating to, Makers, now or hereafter in effect, or seeks the appointment of
a custodian, receiver, trustee (or other similar official) of the Maker or all
or any substantial portion of the Maker's assets, or makes any assignment for
the benefit of creditors or takes any action in furtherance of any of the
foregoing, or fails to generally pay its debts as they become due.
(c) an
involuntary petition is filed, or any proceeding or case is commenced, against
the Maker (unless such proceeding or case is dismissed or discharged within
sixty (60) days of the filing or commencement thereof) under any bankruptcy,
reorganization, arrangement, insolvency, adjustment of debt, liquidation or
moratorium statute now or hereafter in effect, or a custodian, receiver,
trustee, assignee for the benefit of creditors (or other similar official) is
applied for, appointed for the Maker or to take possession, custody or control
of any property of the Maker, or an order for relief is entered against the
Maker in any of the foregoing.
(d) the
Maker shall fail in any material respect to perform any covenant, condition or
agreement under this Note or the Mortgage Documents.
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(e) any
representation or warranty made or deemed made by the Maker under this Note
shall have been false or misleading in any material respect when made or deemed
made.
(f) the
occurrence of a breach or default under any agreement, instrument or document to
which the Maker is a party or by which it is bound, involving any obligation
which singly or in the aggregate is more than $250,000 and is reasonably likely
to result in a Material Adverse Change.
(g) one
or more judgments or other claims or awards involving an aggregate amount of
$250,000, or more, is entered against the Maker, and the same is not released,
discharged, bonded against, or stayed pending appeal before the date which is
thirty (30) days after the date of entry thereof, if such judgments or other
claims or awards are reasonably likely to result in a Material Adverse
Change.
(h) a
Material Adverse Change shall have occurred.
10. Remedies. Upon the
occurrence and during the continuance of an Event of Default
hereunder:
(a) all
unpaid principal, accrued interest and other amounts owing hereunder shall, at
the option of the Lender, and, in the case of an Event of Default pursuant to
Section 9 (b) or (c) above, automatically, be immediately due, payable and
collectible by the Lender pursuant to applicable law;
(b) any
and all unpaid principal, interest or other amounts due under this Note shall
thereafter bear interest at the maximum rate set forth in Section 3 hereof;
and
(c) the
Lender may exercise any and all rights and remedies it may have under this Note,
the other Mortgage Documents, or under applicable law.
All
rights and remedies shall be cumulative and not exclusive. The
failure of the holder hereof to exercise all or any of its rights, remedies,
powers or privileges hereunder, under the Mortgage Documents or any other
agreement or applicable law in any instance shall not constitute a waiver
thereof in that or any other instance.
11. Expenses. The Maker
agrees to and shall pay to the Lender on demand, any and all expenses,
including, without limitation, reasonable attorney's fees and disbursements,
incurred or paid by the Lender in connection herewith, including, without
limitation, such fees, costs and expenses incurred for collection or enforcement
of amounts outstanding hereunder, for protecting, preserving or enforcing the
Lender's rights or remedies (including fees, costs and expenses relating to any
proceedings with respect to the bankruptcy, reorganization, insolvency,
readjustment of debt, workout, dissolution or liquidation of the Maker or any
party to any agreement or instrument securing or guaranteeing this
Note).
12. Waiver. The Maker,
for itself and its legal representatives, successors and assigns, hereby
expressly waives demand, protest, presentment, notice of dishonor, notice of
acceptance, and notice of protest, and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Note and agrees that any extension, renewal or postponement of the time of
payment or any other indulgence to, or release of any person now or hereafter
obligated for the payment of this Note shall not affect the Maker's liability
hereunder.
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13. Governing Law; Consent to
Jurisdiction. This Note is intended to take effect as a sealed
instrument and shall be governed by, and construed in accordance with, the laws
(and not the laws of conflict) of the Commonwealth of
Massachusetts. The Maker hereby irrevocably submits to the
jurisdiction of the courts of the Commonwealth of Massachusetts and the United
States District Court for the Commonwealth of Massachusetts for the purpose of
any suit, action or other proceeding arising out of or relating to this Note or
any mortgage Document and
the Maker hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in any such court and irrevocably waives
any objection it may now or hereafter have as to the venue of any such suit,
action or proceeding brought in any such court or that such court is an
inconvenient forum. Nothing herein shall limit the right of the
Lender to bring proceedings against the Maker in the courts of any other
jurisdiction. Any judicial proceeding by the Maker against the Lender
or any affiliate of the Lender involving, directly or indirectly, any matter in
any way arising out of, related to, or connected with this Note or any mortgage
Document shall be brought only in a court in the Commonwealth of
Massachusetts.
14. Successors and
Assigns. This Note and all obligations of the Maker hereunder
shall be binding upon the successors and assigns of the Maker, and shall,
together with the rights and remedies of the Lender hereunder, inure to the
benefit of the Lender, any future holder of this Note and their respective
successors and assigns, provided, however, the Maker may not transfer or assign
its rights or obligations hereunder without the express written consent of the
Lender, and any purported transfer or assignment by the Maker without the
Lender's written consent shall be null and void. The Lender may assign,
transfer, participate or endorse its rights under this Note and the other
Mortgage Documents without the consent or approval of the Maker, and all such
rights shall inure to the Lender's successors and assigns. No sales
of participations, other sales, assignments, transfers, endorsements or other
dispositions of any rights hereunder or any portion thereof or interest therein
shall in any manner affect the obligations of the Maker under this
Note. Upon request, the Maker shall, at its own expense, execute and
deliver to the assignee of this Note, a replacement Note of equal and like tenor
in an amount assigned to and assumed by such assignee. The Lender may at any
time pledge this Note to any of its secured lenders as collateral for any of the
Lender's obligations.
15. Waiver of Jury Trial and Certain
Damages. The Maker and the Lender each waives its right to a
jury trial with respect to any action or claim arising out of any dispute in
connection with this Note, any rights or obligations hereunder or the
performance of any such rights or obligations. Except as prohibited
by law, the Maker waives any right which it may have to claim or recover in any
litigation referred to in the preceding sentence any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages. The Maker (i) certifies that neither the Lender nor
any representative, agent or attorney of the Lender has represented, expressly
or otherwise, that the Lender would not, in the event of litigation, seek to
enforce the foregoing waivers and (ii) acknowledges that, in entering into the
Note, the Lender is relying upon, among other things, the foregoing waivers and
certifications.
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16. Indemnification. The
Maker agrees to indemnify and hold harmless the Lender from and against any and
all claims, actions and suits, whether groundless or otherwise, and from and
against any and all liabilities, losses, damages and expenses of every nature
and character arising out of this Note or any of the other Mortgage Documents or
the transactions contemplated hereby and thereby including, without limitation,
(a) any brokerage, leasing, finders or similar fees, (b) any disbursement of the
proceeds of any of the Advances, (c) any condition of the properties securing
the Note whether related to the quality of construction or otherwise, (d) any
actual or proposed use by the Maker of the proceeds of any of the Advances, (e)
any actual or alleged violation of any requirements of law or project approvals,
(f) any action taken by Lender to enforce its rights and remedies under this
Note or the Mortgage Documents, or (g) the Maker entering into or
performing this Note or any of the other Mortgage Documents, in each case
including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation, litigation or other
proceeding, and in each case except to the extent such claims, actions, suits,
liabilities, losses, damages or costs arise due Lender’s gross negligence or
intentional misconduct. In litigation, or the preparation therefor,
the Lender shall be entitled to select its own counsel and, in addition to the
foregoing indemnity, the Maker agrees to pay within thirty (30) days the
reasonable fees and expenses of such counsel. The obligations of the
Maker under this Section shall survive the repayment of the Loan and shall
continue in full force and effect so long as the possibility of such claim,
action or suit exists. If, and to the extent that the obligations of
the Maker under this Section are unenforceable for any reason, the Maker hereby
agrees to make the maximum contribution to the payment in satisfaction of such
obligations which is permissible under applicable law.
17. Entire Agreement; Amendments;
Invalidity. This Note and the Mortgage Documents constitute
the entire agreement and understanding of the parties, and supersede and replace
in their entirety any prior discussions, agreements, etc., all of which are
merged herein and therein. None of the terms of this Note may be
amended or otherwise modified except by an instrument executed by each of the
Maker and the Lender. If any term of this Note shall be held to be invalid,
illegal or unenforceable, the validity of all other terms hereof shall in no way
be affected thereby, and this Note shall be construed and be enforceable as if
such invalid, illegal or unenforceable term had not been included
herein.
18. Nonrecourse.
Notwithstanding anything to the contrary contained in this Note or in any
instrument securing this Note, the directors, officers and shareholders of Maker
shall have no personal liability for payment of the indebtedness evidenced
hereby or for the payment of sums or the performance of obligations required
herein.
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In Witness
Whereof, this Note has been duly executed as an instrument under seal as
of the date first set forth above.
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Maker:
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FSP
PHOENIX TOWER LIMITED PARTNERSHIP
By:
FSP Phoenix Tower LLC, its general partner
By:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Attest:
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Assistant Secretary
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SCHEDULE
OF LOAN AND PAYMENTS OF PRINCIPAL
TO
SECURED PROMISSORY NOTE (REVOLVING)
OF
FSP PHOENIX TOWER LIMITED PARTNERSHIP
DATED
DECEMBER 4, 2008
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Principal
Amount
of
Advance
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Date
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Advance
Fee
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Principal
Amount
Paid
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Unpaid
Balance
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EXHIBIT
A
ADVANCE
FORM
Date:
_____________________
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Loan
Advance Request
Amount
of Advance Requested $___________.
Amount
of Advance Fee Applicable to Requested Advance
$______________.
Date
of Requested Advance:
All
of the representations and warranties of FSP Phoenix Tower Limited
Partnership, (the “Company”) in the Secured Promissory Note (Revolving)
made by the Company in favor of Franklin Street Properties Corp. dated as
of December 4, 2008 (the “Note”) are true, correct and complete on the
date of this request for an advance. No default or Event of
Default (as defined in the Note) has occurred and is continuing under the
Note or any of the other Mortgage Documents (as defined in the
Note).
FSP
PHOENIX TOWER LIMITED PARTNERSHIP
By: FSP
Phoenix Tower LLC, its general partner
By: ___________________
Name:
Title:
Phone
Number: __________________
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EXHIBIT
B
DEPOSITORY BANK AND WIRE
DETAILS
WIRE
INSTRUCTIONS TO TRUST DEPT:
Citizens/PROV
One
Citizens Plaza
Providence,
RI 02903
ABA
#▇▇▇▇▇▇▇▇▇
Further
Credit Trust Dept.
DDA
#159 04 938 Trust A/C
#2011184
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