Exhibit 10.2
PROMISSORY
NOTE
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U.S. $23,500,000.00
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Effective as of
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December 31, 2008
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1.1.
Promise to Pay . FOR VALUE RECEIVED, Behringer Harvard
1875 Lawrence, LLC, a Delaware limited liability company (“
Borrower ”), at 15601 Dallas Parkway, Suite 600,
Addison, Texas 75001, promises to pay to the order of Mutual of
Omaha Bank, a federally chartered savings bank [herein, together
with all subsequent holders of this Promissory Note (“
Note ”), called “ Lender ”], at
4455 LBJ Freeway, Suite 907, Dallas, Texas 75244, on or before
the Maturity Date (as herein defined), as hereinafter provided, the
principal sum of TWENTY-THREE MILLION FIVE HUNDRED THOUSAND AND
NO/100 DOLLARS ($23,500,000.00), or so much thereof as may be
outstanding hereunder, together with interest on the unpaid
principal balance from time to time outstanding at the rate herein
specified and otherwise in strict accordance with the terms and
provisions hereof.
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II.
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INTEREST RATE COMPUTATION.
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2.1.
Interest Rate . Interest shall accrue on the unpaid
principal balance of this Note from the date hereof at the LIBOR
Market Index Rate plus two and one-half percent (2.50%) per annum
(“ Interest Rate ”), as that rate may change
from day to day in accordance with changes in the LIBOR Market
Index Rate, provided, in no event shall the Interest Rate be less
than six and one quarter percent (6.25%) per annum.
“LIBOR Market Index Rate”, for any day, means the
floating interest rate per annum for one (1) month U.S. dollar
deposits as reported on Telerate page 3750 as of
11:00 a.m., London time, on such day, or if such day is not a
London business day, then the immediately preceding London business
day (or if not so reported, then as determined by Bank from another
recognized source or interbank quotation).
2.2.
Default Rate . Upon the occurrence and during the
continuation of a default in the payment of any principal or
interest obligations hereunder or, otherwise, upon the occurrence
and during the continuation of any Event of Default (as defined
herein), at the option of Lender, the principal balance of this
Note then outstanding shall bear interest for the period beginning
with the date of occurrence of such default at the Default Rate (as
defined herein).
2.3.
Definitions . As used in this Note and the Loan
Documents, the following terms shall have the respective meanings
indicated below:
1
“ Advance ” shall
mean an advance made by Lender to Borrower pursuant to the Loan
Documents.
“ Amortization Term
” shall mean twenty-five (25) years.
“ Business Day ”
shall mean any day on which the Lender is open and on which
commercial banks in Texas are not authorized or required to be
closed.
“ Charges ” shall
mean all fees and charges, if any, contracted for, charged,
received, taken or reserved by Lender in connection with the
transactions relating to this Note and the indebtedness evidenced
hereby or by the Loan Documents which are treated as interest under
applicable law.
“ Default Rate ”
shall mean the lesser of (a) the Maximum Lawful Rate; or
(b) the sum of the Interest Rate set forth in Section 2.1
above plus five percent (5%).
“ Event of Default
” shall have the same meaning as that indicated for such term
in the Loan Agreement.
“ Lien Instrument
” shall mean that certain Mortgage or Deed of Trust of even
date herewith, executed by Borrower, covering the Mortgaged
Property.
“ Loan Agreement
” shall mean that certain Loan Agreement dated effective as
of the date hereof, by and between Borrower, as borrower, and
Lender, as lender, relative to the indebtedness evidenced by this
Note and related obligations.
“ Loan Documents
” shall collectively mean this Note, the Loan Agreement, the
Lien Instrument, and all other documents evidencing, securing or
otherwise supporting the transaction in which the indebtedness
evidenced hereby was incurred.
“ Maturity Date ”
shall mean the Original Maturity Date; subject, however, to the
right of acceleration as herein provided and as provided in the
Loan Documents.
“ 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 made in connection with the loan evidenced by this Note and
the Loan Documents.
“ Mortgaged Property
” shall mean the Property as defined in the Lien
Instrument.
2
“ Original Maturity
Date ” shall mean the date that is four (4) years
from the effective date hereof.
“ Outstanding Principal
Balance ” shall mean the amount of principal then
advanced and outstanding and payable from Borrower to Lender in
accordance with this Note.
“ Payment Date ”
shall mean the first (1st) day of each calendar month.
“ Principal Reduction
Payment ” shall mean a principal and interest payment
installment in an amount equal to the sum that would be owing for
such calendar month based upon a twenty-five (25) year mortgage
amortization of the amount of the Outstanding Principal Balance on
the first day of the twenty-fifth (25 th ) calendar
month from the date of this Note and at the Interest Rate set forth
in Section 2.1 hereof on such day.
Any capitalized term used in this
Note and not otherwise defined herein shall have the meaning
ascribed to each such term in the Loan Agreement. All terms
used herein, whether or not defined in this Section 2.3
, and whether used in singular or plural form, shall be deemed to
refer to the object of such term whether such is singular or plural
in nature, as the context may suggest or require.
2.4.
Computation Period . Except for the computation of the
Maximum Lawful Rate which shall be undertaken on the basis of a 365
or 366 day year, as the case may be, interest on the indebtedness
evidenced by this Note shall be computed on the basis of a 360 day
year and shall accrue on the actual number of days any principal
balance hereof is outstanding, including the date of disbursement
but excluding the date of payment.
3.1.
Payment Schedule
. This Note shall be due and
payable as follows:
(a)
Commencing on the Payment Date of the first calendar month
following the date of this Note and continuing thereafter on the
Payment Date of each successive calendar month through and
including twenty-four (24) months from the date of this Note,
Borrower shall pay Lender successive monthly installments of all
accrued and unpaid interest;
(b)
Commencing on the Payment Date of the twenty-fifth (25
th ) calendar month from the date of this Note, and
continuing thereafter on the Payment Date of each successive
calendar month until the Maturity Date, Borrower shall pay Lender
successive monthly installments of the Principal Reduction
Payment. If the Interest Rate changes as of the first (1
st ) day of the thirty-sixth (36 th )
calendar month from the date of this Note, from the rate in effect
the first (1 st ) day of the twenty-fifth (25
th ) month as set forth above, Lender shall recalculate
the Principal Reduction Payment so that the remaining monthly
installments would amortize the Outstanding Principal Balance at
the then applicable
3
Interest Rate
over the remaining Amortization Term. Lender shall notify
Borrower of any such recalculation and Borrower agrees to pay the
Principal Reduction Payment as they may be recalculated by Lender,
and acknowledges that a recalculation of the Principal Reduction
Payment shall not affect the Maturity Date or the other terms and
provisions of this Note; and
(c)
The Outstanding Principal Balance and any and all accrued but
unpaid interest thereon shall be due and payable in full on the
Maturity Date or upon earlier maturity hereof, whether by
acceleration or otherwise.
3.2.
Application
. All payments on this Note
shall, at the sole option of Lender, be applied at any time and
from time to time and in any order, to the following:
(a) the payment or reimbursement of any expenses, costs or
obligations (other than the principal hereof and interest hereon)
for which Borrower shall be obligated or Lender entitled pursuant
to the provisions hereof or of the other Loan Documents,
(b) the payment of accrued but unpaid interest hereon, and
(c) the payment of
