Exhibit 10.56
MERS MIN: 8000101-0000002626-9
PROMISSORY NOTE
$5,940,000.00 New York, New York
March 2, 2006
FOR VALUE RECEIVED, XXXX MT SPRING TX, LP, a Delaware limited
partnership, having its principal place of business at 0000 X. Xxxxxxxxx Xxxx,
Xxx. 000, Xxxxxxx, Xxxxxxx 00000, a maker hereunder (referred to herein as
"BORROWER"), hereby unconditionally promises to pay to the order of BEAR XXXXXXX
COMMERCIAL MORTGAGE, INC., a New York corporation, as payee, having an address
at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("LENDER"), or at such other
place as the holder hereof may from time to time designate in writing, the
principal sum of FIVE MILLION NINE HUNDRED FORTY THOUSAND AND 00/100 DOLLARS
($5,940,000.00), 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
Agreement, dated as of the date hereof, between Borrower and Lender (the "LOAN
AGREEMENT"). All capitalized terms not defined herein shall have the respective
meanings set forth in the Loan Agreement.
ARTICLE 1
PAYMENT TERMS
Xxxxxxxx agrees to pay the principal sum of 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 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. This Note shall be the "Note" as
defined in the Loan Agreement.
ARTICLE 2
DEFAULT AND ACCELERATION
The Debt shall without notice become immediately due and payable at
the option of Lender if any payment required in this Note is not paid within
five (5) days of 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 secured by the Mortgage and the other Loan Documents. All
of the terms, covenants and conditions contained in the Loan Agreement, the
Mortgage 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 terms and provisions of the Loan Agreement shall govern.
ARTICLE 4
SAVINGS CLAUSE
Notwithstanding anything to the contrary contained in this Note or the
Mortgage, neither the Applicable Interest Rate nor the Default Rate shall at any
time exceed the Maximum Rate. The term "Maximum Rate," as used herein, shall
mean, on any day, the highest nonusurious rate of interest (if any) permitted by
applicable law on such day. For purposes of Chapter 303 of the Texas Finance
Code, as it may from time to time be amended, the Maximum Rate shall be the
"weekly ceiling" as defined in Section 303.002 of said Code and as computed in
accordance with Section 303.003 of said Code, from time to time in effect;
provided, however, that to the extent
permitted by applicable law, Lender reserves the right to change, from time to
time by further notice and disclosure to Borrower, the ceiling on which the
Maximum Rate is based under Chapter 303 of said Code; and, provided further,
that the "highest nonusurious rate of interest permitted by applicable law" for
purposes of this Note or the Mortgage shall not be limited to the applicable
rate ceiling under Chapter 303 of said Code if federal laws or other state laws
now or hereafter in effect and applicable to this Note or the Mortgage (and the
interest contracted for, charged and collected hereunder) shall permit a higher
rate of interest. In no event shall the Loan be considered a revolving credit
account as defined in Chapter 346 of the Texas Finance Code, as may be hereafter
amended or recodified.
It is the intention of the parties hereto to comply with the usury laws of
the State of Texas and the United States of America. The parties hereto do not
intend to contract for, charge or receive any interest or other charge which is
usurious, and by execution of this Note or the Mortgage, Xxxxxxxx agrees that
Xxxxxx has no such intent. This Note, the Mortgage, the other Loan Documents and
all other agreements between Borrower and Lender or any other holder hereof,
which are now existing or hereafter arising, whether written or oral, are hereby
expressly limited so that in no event whatsoever, whether by reason of
acceleration of maturity hereof, or otherwise, shall the amount paid, or agreed
to be paid, to Lender or any other holder hereof for the use, forbearance or
detention of the money to be due hereunder or otherwise, or for the payment or
performance of any covenant or obligation contained herein or in any other
document evidencing, securing or pertaining to the Debt, exceed the Maximum
Rate. If from any circumstance whatsoever fulfillment of any provisions hereof
or other document, at the time performance of such provisions shall be due,
shall involve transcending the valid limits prescribed by law, then ipso facto,
the obligation to be fulfilled shall be reduced to the Maximum Rate, and if from
any such circumstance Lender or any other holder shall ever receive as interest
or otherwise an amount which will exceed the Maximum Rate, such amount which
would be excessive interest shall be applied to the reduction of the principal
amount owing hereunder (without prepayment premium or penalty) or on account of
any other principal indebtedness of Borrower to the holder and not to the
payment of interest, or if such excessive interest exceeds the unpaid balance of
principal hereof and such other indebtedness, such excess shall be refunded to
Borrower. All sums paid and agreed to be paid to Lender or any other holder for
use, forbearance or detention of the indebtedness of Borrower shall, to the
extent permitted by applicable law, be amortized, prorated, allocated, and
spread throughout the period until payment in full on the Note (or any renewals,
extensions and rearrangement thereof) so that the actual rate of interest on
account of the Debt is uniform throughout the term of this Note (and all
renewals, extensions and rearrangements hereof) and does not exceed the Maximum
Rate. The terms and provisions of this Article 4 shall control and supersede any
other provision of this Note or the other Loan Documents.
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 Debt 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 non-payment and all other
notices of any kind except with respect to matters for which any of the Loan
Documents specifically provides for the giving of notice by Xxxxxx to Borrower.
No release of any security for the Debt 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 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,
and any other Person who may become liable for the payment of all or any part of
the Debt, under this Note, the Loan Agreement 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 or the other Loan Documents. If Borrower is a
partnership, the agreements herein contained shall remain in force and
applicable, notwithstanding any changes in the individuals comprising the
partnership, and the term "Borrower," as used herein, shall include any
alternate or successor partnership, but any predecessor partnership and their
partners shall not thereby be released from any liability. If Borrower is a
limited liability company, the agreements herein contained shall remain in force
and applicable, notwithstanding any changes in the members comprising the
company, and the term "Borrower," as used herein, shall include any alternate or
successor company, but any predecessor company shall not thereby be released
from any liability. If Borrower is a corporation, the agreements contained
herein shall remain in full force and 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 entity which may be set forth in the Loan
Agreement, the Mortgage or any other Loan Document.)
ARTICLE 7
TRANSFER
Upon the transfer of this Note, Borrower hereby waiving notice of any
such transfer except as provided in the Loan Agreement, Lender may deliver all
the collateral mortgaged, 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 herein or under applicable law given to Lender with
respect thereto, and Lender shall from that date forward forever be relieved and
fully discharged from any liability or responsibility in the matter; but Lender
shall retain all rights hereby given to it with respect to any liabilities and
the collateral not so transferred.
ARTICLE 8
EXCULPATION
The provisions of Section 9.3 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
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT ENTERED INTO PURSUANT TO
THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND SHALL IN ALL RESPECTS
BE GOVERNED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE IN
WHICH THE PROPERTY IS LOCATED AND APPLICABLE FEDERAL LAWS.
ARTICLE 10
NOTICES
All notices or other written communications hereunder shall be
delivered in accordance with Section 10.6 of the Loan Agreement.
[NO FURTHER TEXT ON THIS PAGE]
IN WITNESS WHEREOF, Xxxxxxxx has duly executed this Note as of the day
and year first above written.
BORROWER:
XXXX MT SPRING TX, LP, a Delaware limited partnership
By: Xxxx XX CCPT II, LLC, a Delaware limited liability
company, its General Partner
By: Xxxx REIT Advisors II, LLC, a Delaware limited
liability company, its Manager
By: /s/ Xxxx X. Xxxx
------------------------------------------
Xxxx X. Xxxx
Senior Vice President
ACKNOWLEDGMENT
STATE OF Arizona
COUNTY OF Maricopa
This instrument was acknowledged before me on March 1, 2006, by Xxxx X.
Xxxx, Senior Vice President of Xxxx XXXX Advisors II, LLC, a Delaware limited
liability company, the manager of Xxxx XX CCPT II, LLC, a Delaware limited
liability company, the general partner of Xxxx Mt Spring TX, LP, a Delaware
limited partnership, on behalf of said entities.
/s/ Xxxxx Xxxxxx
----------------------------------------
Notary Public, State of Arizona
My Commission Expires:
2/26/09
