Maryland
|
000-50256
|
76-0594970
|
||
(State
or Other Jurisdiction of Incorporation)
|
(Commission
File Number)
|
(I.R.S.
Employer
Identification
No.)
|
o
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
o
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
o
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
|
o
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
|
Date:
February 9, 2009
|
WHITESTONE
REIT
|
||
By:
|
/s/
David K. Holeman
|
||
David
K. Holeman
|
|||
Chief
Financial Officer
|
2.
|
DEBT. For
value received, Borrower promises to pay to the order of Lender, the
Principal Sum with interest on unpaid principal from the Date of
Disbursement at the Interest Rate. Interest shall be calculated on a
360-day year of twelve 30-day months.
|
||
3.
|
PAYMENTS. Borrower
shall pay the Monthly Payment to Lender commencing on the First Payment
Date and continuing on each monthly anniversary thereof until the Maturity
Date. If a payment date is a non-business day, the Monthly Payment shall
be due on the next business day. On the Interest Only Payment
Date, Borrower shall pay the interest then due and accrued from the Date
of Disbursement.
|
||
On
the Maturity Date, Borrower shall pay to Lender the entire then unpaid
balance of principal and interest. Lender shall have no
obligation, express or implied, to refinance the “balloon payment” then
due.
|
|||
All
payments shall be made in lawful money of the United States of America, in
immediately available funds, at Lender's Payment Address, or at such other
place as Lender may from time to time designate in
writing.
|
|||
4.
|
LATE CHARGE AND ADDITIONAL INTEREST. Borrower
recognizes that if it does not make the Monthly Payments when due, Lender
will incur additional administrative expenses in servicing the loan, will
lose the use of the money due and will be frustrated in meeting its other
financial and loan commitments. Lender and Borrower acknowledge
that different methods could be used to calculate Lender's actual damages
if the Monthly Payment is not made when due. To avoid disputes over which
method shall apply, Borrower agrees that a late charge equal to four
percent (4%) of each Monthly Payment which is not made when due is a
reasonable method for calculating said damages. Borrower shall
pay such late charge to Lender immediately after the due date for each
Monthly Payment which is not made when due. The payment of such
late charge shall not affect Lender's other rights and remedies under this
Note and the other Loan Documents.
|
||
All
expenditures by Lender pursuant to the Loan Documents, other than advances
of the Principal Sum, which are not reimbursed by Borrower immediately
upon demand; all amounts remaining due and unpaid after the Maturity Date;
and any amounts due and unpaid after an Event of Default (including late
charges) shall bear interest at the Default Rate until such amounts are
paid to Lender. Such payments shall be in addition to the late charge
described above.
|
|||
5.
|
APPLICATION OF PAYMENTS.
Unless Lender elects otherwise, all sums received by Lender
in payment hereunder shall be applied first to late charges, costs of
collection or enforcement, all expenditures made by Lender pursuant to the
Loan Documents, and any other similar amounts due, if any, under this Note
and the other Loan Documents, then to amounts due pursuant to Paragraph 13
of this Note, then to interest which is due and payable under this Note
and the remainder to principal due and payable under this
Note. If an Event of Default has occurred and is continuing,
such payments may be applied to sums due hereunder or under the other Loan
Documents in any order and combination that Lender may, in its sole
discretion, determine.
|
6.
|
WAIVERS. Borrower
waives presentment for payment, demand, notice of nonpayment, notice of
intention to accelerate the maturity of this Note, diligence in
collection, commencement of suit against any obligor, notice of protest,
and protest of this Note and all other notices in connection with the
delivery, acceptance, performance, default or enforcement of the payment
of this Note, before or after maturity of this Note, with or without
notice to Borrower, and agrees that Borrower's liability shall not be in
any manner affected by any indulgence, extension of time, renewal, waiver
or modification granted or consented to by Lender. Borrower
consents to any and all extensions of time, renewals, waivers or
modifications that may be granted by Lender with respect to the payment or
other provisions of this Note, and to any substitution, exchange or
release of the collateral for this Note, or any part thereof, with or
without substitution of said collateral, and agrees to the addition or
release of any guarantor, all whether primarily or secondarily liable,
before or after maturity of this Note, with or without notice to Borrower,
and without affecting Borrower's liability under this
Note.
|
||
7.
|
NO USURY.
It
is the intent of Lender and Borrower in the execution of this Note and all
other Loan Documents to contract in strict compliance with applicable
usury law. In furtherance thereof, Lender and Borrower
stipulate and agree that none of the terms and provisions contained in
this Note, or in any other Loan Documents, shall ever be construed to
create a contract to pay for the use, forbearance or detention of money,
interest at a rate in excess of the maximum interest rate permitted to be
charged by applicable law; that neither the Borrower nor any guarantors,
endorsers or other parties now or hereafter becoming liable for payment of
this Note shall ever be obligated or required to pay interest on this Note
at a rate in excess of the maximum interest that may be lawfully charged
under applicable law; and that the provisions of this Paragraph 7 shall
control over all other provisions of this Note and any other Loan
Documents which may be in apparent conflict herewith. Lender
expressly disavows any intention to charge or collect excessive unearned
interest or finance charges in the event the maturity of this Note is
accelerated. If the maturity of this Note shall be accelerated
for any reason or if the principal of this Note is paid prior to the end
of the term of this Note, and as a result thereof the interest received
for the actual period of existence of the loan evidenced by this Note
exceeds the applicable maximum lawful rate, Lender shall, at its option,
either refund to Borrower the amount of such excess or credit the amount
of such excess against the principal balance of this Note then outstanding
and thereby shall render inapplicable any and all penalties of any kind
provided by applicable law as a result of such excess
interest. In the event that Lender shall contract for, charge
or receive any amount or amounts and/or any other thing of value which are
determined to constitute interest which would increase the effective
interest rate on this Note to a rate in excess of that permitted to be
charged by applicable law, an amount equal to interest in excess of the
lawful rate shall, upon such determination, at the option of Lender, be
either immediately returned to Borrower or credited against the principal
balance of this Note then outstanding, in which event any and all
penalties of any kind under applicable law as a result of such excess
interest shall be inapplicable. By execution of this Note,
Borrower acknowledges that it believes the loan evidenced by this Note to
be non-usurious and agrees that if, at any time, Borrower should have
reason to believe that such loan is in fact usurious, it will give Lender
notice of such condition and Borrower agrees that Lender shall have sixty
(60) days in which to make appropriate refund or other adjustment in order
to correct such condition if in fact such exists. The term
“applicable law” as used in this Note shall mean the laws of the State of
Texas or the laws of the United States, whichever laws allow the greater
rate of interest, as such laws now exist or may be changed or amended or
come into effect in the future.
|
If
the Interest Rate is greater than the Treasury Yield, the difference
between the Interest Rate and the Treasury Yield shall be divided by
twelve (12) and multiplied by the then unpaid Principal Sum to determine
the monthly payment differential. The present value of the
series of monthly payment differentials for the number of whole and
partial months from the date of prepayment to the Maturity Date shall be
calculated using the Treasury Yield as the discount rate, compounded
monthly. The resulting sum of all the discounted monthly
payment differentials shall be the Discounted Yield Maintenance Prepayment
Fee.
|
|||
If
the Interest Rate is equal to or less than the Treasury Yield, the
prepayment premium shall be one percent (1%) of the then unpaid
Principal Sum.
|
|||
14.
|
ACCELERATION INDEMNIFICATION.
If the Maturity Date is accelerated by Lender because of the
occurrence of an Event of Default, Lender will sustain damages due to the
loss of its investment. Borrower therefore agrees to pay, at
the time of acceleration, in addition to all other sums due under this
Note and the other Loan Documents, as liquidated damages, an acceleration
premium in an amount equal to the greater of:
|
||
(a)
|
three
percent (3%) of the then unpaid Principal Sum; or
|
||
(b)
|
the
Discounted Yield Maintenance Prepayment Fee, as defined in Paragraph 13 of
this Note.
|
||
15.
|
NONRECOURSE DEBT.
Borrower shall be liable upon the indebtedness evidenced by this Note, for
all sums to accrue or to become payable thereon and for performance of all
covenants contained in this Note or in any of the other Loan Documents, to
the extent, but only to the extent, of Lender's security for the same,
including, without limitation, all properties, rights, estates and
interests covered by the Mortgage and the other Loan
Documents. No attachment, execution or other writ or process
shall be sought, issued or levied upon any assets, properties or funds of
Borrower other than the properties, rights, estates and interests
described in the Mortgage and the other Loan Documents. In the
event of foreclosure of such liens, mortgages or security interests, by
private power of sale or otherwise, no judgment for any deficiency upon
such indebtedness, sums and amounts shall be sought or obtained by Lender
against Borrower. Subject to the foregoing, nothing herein contained shall
be construed to prevent Lender from exercising and enforcing any other
remedy relating to the Property allowed at law or in equity or by any
statute or by the terms of any of the Loan
Documents.
|
19.
|
REGISTRATION. This
Note shall be deemed to be in registered form at Lender's sole
election. Such election may be made at any time without
endorsement of this Note or any other action by
Borrower. Borrower shall recognize any such election and, upon
request by Lender, shall cooperate with Lender at Lender's expense to
facilitate the consummation of such election.
|
||
20.
|
WAIVER OF JURY TRIAL. BORROWER AND
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER, ON
OR IN RESPECT OF ANY MATTER WHATSOEVER ARISING OUT OF, OR IN ANY WAY
CONNECTED WITH, THIS NOTE OR ANY OF THE OTHER LOAN DOCUMENTS, OR THE
RELATIONSHIP OF BORROWER AND LENDER HEREUNDER OR
THEREUNDER.
|
||
21.
|
CAPTIONS.
All paragraph and subparagraph captions are for convenience of reference
only and shall not affect the construction of any provision
herein.
|
WHITESTONE CENTERS LLC, | |||||
a Texas limited liability company | |||||
By:
|
Whitestone
REIT Operating Partnership, L.P., a
Delaware
limited partnership,
its
sole member
|
||||
By:
|
Whitestone
REIT, a Maryland real estate
investment
trust, its general partner
|
||||
By:
|
/s/ John J. Dee | ||||
Name:
John
J. Dee
|
|||||
Title:
Executive
Vice President
|
STATE
OF TEXAS
|
§
|
|
§
|
||
COUNTY
OF HARRIS
|
§
|
/s/ Priscilla A. Gonzalez | ||
Notary
Public, State of Texas
|
||
Priscilla A. Gonzalez | ||
(printed
name)
|
My
Commission Expires:
|
|
6/18/2011
|
2.
|
DEBT. For
value received, Borrower promises to pay to the order of Lender, the
Principal Sum with interest on unpaid principal from the Date of
Disbursement at the Interest Rate. Interest shall be calculated on a
360-day year of twelve 30-day months.
|
||
3.
|
PAYMENTS. Borrower
shall pay the Monthly Payment to Lender commencing on the First Payment
Date and continuing on each monthly anniversary thereof until the Maturity
Date. If a payment date is a non-business day, the Monthly Payment shall
be due on the next business day. On the Interest Only Payment
Date, Borrower shall pay the interest then due and accrued from the Date
of Disbursement.
|
||
On
the Maturity Date, Borrower shall pay to Lender the entire then unpaid
balance of principal and interest. Lender shall have no
obligation, express or implied, to refinance the “balloon payment” then
due.
|
|||
All
payments shall be made in lawful money of the United States of America, in
immediately available funds, at Lender's Payment Address, or at such other
place as Lender may from time to time designate in
writing.
|
|||
4.
|
LATE CHARGE AND ADDITIONAL INTEREST. Borrower
recognizes that if it does not make the Monthly Payments when due, Lender
will incur additional administrative expenses in servicing the loan, will
lose the use of the money due and will be frustrated in meeting its other
financial and loan commitments. Lender and Borrower acknowledge
that different methods could be used to calculate Lender's actual damages
if the Monthly Payment is not made when due. To avoid disputes over which
method shall apply, Borrower agrees that a late charge equal to four
percent (4%) of each Monthly Payment which is not made when due is a
reasonable method for calculating said damages. Borrower shall
pay such late charge to Lender immediately after the due date for each
Monthly Payment which is not made when due. The payment of such
late charge shall not affect Lender's other rights and remedies under this
Note and the other Loan Documents.
|
||
All
expenditures by Lender pursuant to the Loan Documents, other than advances
of the Principal Sum, which are not reimbursed by Borrower immediately
upon demand; all amounts remaining due and unpaid after the Maturity Date;
and any amounts due and unpaid after an Event of Default (including late
charges) shall bear interest at the Default Rate until such amounts are
paid to Lender. Such payments shall be in addition to the late charge
described above.
|
|||
5.
|
APPLICATION OF PAYMENTS.
Unless Lender elects otherwise, all sums received by Lender
in payment hereunder shall be applied first to late charges, costs of
collection or enforcement, all expenditures made by Lender pursuant to the
Loan Documents, and any other similar amounts due, if any, under this Note
and the other Loan Documents, then to amounts due pursuant to Paragraph 13
of this Note, then to interest which is due and payable under this Note
and the remainder to principal due and payable under this
Note. If an Event of Default has occurred and is continuing,
such payments may be applied to sums due hereunder or under the other Loan
Documents in any order and combination that Lender may, in its sole
discretion, determine.
|
6.
|
WAIVERS. Borrower
waives presentment for payment, demand, notice of nonpayment, notice of
intention to accelerate the maturity of this Note, diligence in
collection, commencement of suit against any obligor, notice of protest,
and protest of this Note and all other notices in connection with the
delivery, acceptance, performance, default or enforcement of the payment
of this Note, before or after maturity of this Note, with or without
notice to Borrower, and agrees that Borrower's liability shall not be in
any manner affected by any indulgence, extension of time, renewal, waiver
or modification granted or consented to by Lender. Borrower
consents to any and all extensions of time, renewals, waivers or
modifications that may be granted by Lender with respect to the payment or
other provisions of this Note, and to any substitution, exchange or
release of the collateral for this Note, or any part thereof, with or
without substitution of said collateral, and agrees to the addition or
release of any guarantor, all whether primarily or secondarily liable,
before or after maturity of this Note, with or without notice to Borrower,
and without affecting Borrower's liability under this
Note.
|
||
7.
|
NO USURY.
It
is the intent of Lender and Borrower in the execution of this Note and all
other Loan Documents to contract in strict compliance with applicable
usury law. In furtherance thereof, Lender and Borrower
stipulate and agree that none of the terms and provisions contained in
this Note, or in any other Loan Documents, shall ever be construed to
create a contract to pay for the use, forbearance or detention of money,
interest at a rate in excess of the maximum interest rate permitted to be
charged by applicable law; that neither the Borrower nor any guarantors,
endorsers or other parties now or hereafter becoming liable for payment of
this Note shall ever be obligated or required to pay interest on this Note
at a rate in excess of the maximum interest that may be lawfully charged
under applicable law; and that the provisions of this Paragraph 7 shall
control over all other provisions of this Note and any other Loan
Documents which may be in apparent conflict herewith. Lender
expressly disavows any intention to charge or collect excessive unearned
interest or finance charges in the event the maturity of this Note is
accelerated. If the maturity of this Note shall be accelerated
for any reason or if the principal of this Note is paid prior to the end
of the term of this Note, and as a result thereof the interest received
for the actual period of existence of the loan evidenced by this Note
exceeds the applicable maximum lawful rate, Lender shall, at its option,
either refund to Borrower the amount of such excess or credit the amount
of such excess against the principal balance of this Note then outstanding
and thereby shall render inapplicable any and all penalties of any kind
provided by applicable law as a result of such excess
interest. In the event that Lender shall contract for, charge
or receive any amount or amounts and/or any other thing of value which are
determined to constitute interest which would increase the effective
interest rate on this Note to a rate in excess of that permitted to be
charged by applicable law, an amount equal to interest in excess of the
lawful rate shall, upon such determination, at the option of Lender, be
either immediately returned to Borrower or credited against the principal
balance of this Note then outstanding, in which event any and all
penalties of any kind under applicable law as a result of such excess
interest shall be inapplicable. By execution of this Note,
Borrower acknowledges that it believes the loan evidenced by this Note to
be non-usurious and agrees that if, at any time, Borrower should have
reason to believe that such loan is in fact usurious, it will give Lender
notice of such condition and Borrower agrees that Lender shall have sixty
(60) days in which to make appropriate refund or other adjustment in order
to correct such condition if in fact such exists. The term
“applicable law” as used in this Note shall mean the laws of the State of
Texas or the laws of the United States, whichever laws allow the greater
rate of interest, as such laws now exist or may be changed or amended or
come into effect in the future.
|
If
the Interest Rate is greater than the Treasury Yield, the difference
between the Interest Rate and the Treasury Yield shall be divided by
twelve (12) and multiplied by the then unpaid Principal Sum to determine
the monthly payment differential. The present value of the
series of monthly payment differentials for the number of whole and
partial months from the date of prepayment to the Maturity Date shall be
calculated using the Treasury Yield as the discount rate, compounded
monthly. The resulting sum of all the discounted monthly
payment differentials shall be the Discounted Yield Maintenance Prepayment
Fee.
|
|||
If
the Interest Rate is equal to or less than the Treasury Yield, the
prepayment premium shall be one percent (1%) of the then unpaid
Principal Sum.
|
|||
14.
|
ACCELERATION INDEMNIFICATION.
If the Maturity Date is accelerated by Lender because of the
occurrence of an Event of Default, Lender will sustain damages due to the
loss of its investment. Borrower therefore agrees to pay, at
the time of acceleration, in addition to all other sums due under this
Note and the other Loan Documents, as liquidated damages, an acceleration
premium in an amount equal to the greater of:
|
||
(a)
|
three
percent (3%) of the then unpaid Principal Sum; or
|
||
(b)
|
the
Discounted Yield Maintenance Prepayment Fee, as defined in Paragraph 13 of
this Note.
|
||
15.
|
NONRECOURSE DEBT.
Borrower shall be liable upon the indebtedness evidenced by this Note, for
all sums to accrue or to become payable thereon and for performance of all
covenants contained in this Note or in any of the other Loan Documents, to
the extent, but only to the extent, of Lender's security for the same,
including, without limitation, all properties, rights, estates and
interests covered by the Mortgage and the other Loan
Documents. No attachment, execution or other writ or process
shall be sought, issued or levied upon any assets, properties or funds of
Borrower other than the properties, rights, estates and interests
described in the Mortgage and the other Loan Documents. In the
event of foreclosure of such liens, mortgages or security interests, by
private power of sale or otherwise, no judgment for any deficiency upon
such indebtedness, sums and amounts shall be sought or obtained by Lender
against Borrower. Subject to the foregoing, nothing herein contained shall
be construed to prevent Lender from exercising and enforcing any other
remedy relating to the Property allowed at law or in equity or by any
statute or by the terms of any of the Loan
Documents.
|
19.
|
REGISTRATION. This
Note shall be deemed to be in registered form at Lender's sole
election. Such election may be made at any time without
endorsement of this Note or any other action by
Borrower. Borrower shall recognize any such election and, upon
request by Lender, shall cooperate with Lender at Lender's expense to
facilitate the consummation of such election.
|
||
20.
|
WAIVER OF JURY TRIAL. BORROWER AND
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER, ON
OR IN RESPECT OF ANY MATTER WHATSOEVER ARISING OUT OF, OR IN ANY WAY
CONNECTED WITH, THIS NOTE OR ANY OF THE OTHER LOAN DOCUMENTS, OR THE
RELATIONSHIP OF BORROWER AND LENDER HEREUNDER OR
THEREUNDER.
|
||
21.
|
CAPTIONS.
All paragraph and subparagraph captions are for convenience of reference
only and shall not affect the construction of any provision
herein.
|
WHITESTONE CENTERS LLC, | |||||
a Texas limited liability company | |||||
By:
|
Whitestone
REIT Operating Partnership, L.P., a
Delaware
limited partnership,
its
sole member
|
||||
By:
|
Whitestone
REIT, a Maryland real estate
investment
trust, its general partner
|
||||
By:
|
/s/ John J. Dee | ||||
Name:
John
J. Dee
|
|||||
Title:
Executive
Vice President
|
STATE
OF TEXAS
|
§
|
|
§
|
||
COUNTY
OF HARRIS
|
§
|
/s/ Priscilla A. Gonzalez | ||
Notary
Public, State of Texas
|
||
Priscilla A. Gonzalez | ||
(printed
name)
|
My
Commission Expires:
|
|
6/18/2011
|
1.16. Loan Documents, Insurance
Proceeds, Laws, Taking Proceeds, Secured Debt, Property, and Event of
Default: shall have the same meanings as in the
Mortgage.
|
|||
2.
|
DEBT. For
value received, Borrower promises to pay to the order of Lender, the
Principal Sum with interest on unpaid principal from the Date of
Disbursement at the Interest Rate. Interest shall be calculated on a
360-day year of twelve 30-day months.
|
||
|
|||
3.
|
PAYMENTS. Borrower shall pay the
Monthly Payment to Lender commencing on the First Payment Date and
continuing on each monthly anniversary thereof until the Maturity Date. If
a payment date is a non-business day, the Monthly Payment shall be due on
the next business day. On the Interest Only Payment Date,
Borrower shall pay the interest then due and accrued from the Date of
Disbursement.
|
||
|
|||
On
the Maturity Date, Borrower shall pay to Lender the entire then unpaid
balance of principal and interest. Lender shall have no
obligation, express or implied, to refinance the “balloon payment” then
due.
|
|||
All
payments shall be made in lawful money of the United States of America, in
immediately available funds, at Lender's Payment Address, or at such other
place as Lender may from time to time designate in
writing.
|
|||
4.
|
LATE CHARGE AND ADDITIONAL INTEREST. Borrower recognizes that
if it does not make the Monthly Payments when due, Lender will incur
additional administrative expenses in servicing the loan, will lose the
use of the money due and will be frustrated in meeting its other financial
and loan commitments. Lender and Borrower acknowledge that
different methods could be used to calculate Lender's actual damages if
the Monthly Payment is not made when due. To avoid disputes over which
method shall apply, Borrower agrees that a late charge equal to four
percent (4%) of each Monthly Payment which is not made when due is a
reasonable method for calculating said damages. Borrower shall
pay such late charge to Lender immediately after the due date for each
Monthly Payment which is not made when due. The payment of such
late charge shall not affect Lender's other rights and remedies under this
Note and the other Loan Documents.
|
||
|
|||
All
expenditures by Lender pursuant to the Loan Documents, other than advances
of the Principal Sum, which are not reimbursed by Borrower immediately
upon demand; all amounts remaining due and unpaid after the Maturity Date;
and any amounts due and unpaid after an Event of Default (including late
charges) shall bear interest at the Default Rate until such amounts are
paid to Lender. Such payments shall be in addition to the late charge
described above.
|
|||
5.
|
APPLICATION OF PAYMENTS.
Unless Lender elects
otherwise, all sums received by Lender in payment hereunder shall be
applied first to late charges, costs of collection or enforcement, all
expenditures made by Lender pursuant to the Loan Documents, and any other
similar amounts due, if any, under this Note and the other Loan Documents,
then to amounts due pursuant to Paragraph 13 of this Note, then to
interest which is due and payable under this Note and the remainder to
principal due and payable under this Note. If an Event of
Default has occurred and is continuing, such payments may be applied to
sums due hereunder or under the other Loan Documents in any order and
combination that Lender may, in its sole discretion,
determine.
|
6.
|
WAIVERS. Borrower waives
presentment for payment, demand, notice of nonpayment, notice of intention
to accelerate the maturity of this Note, diligence in collection,
commencement of suit against any obligor, notice of protest, and protest
of this Note and all other notices in connection with the delivery,
acceptance, performance, default or enforcement of the payment of this
Note, before or after maturity of this Note, with or without notice to
Borrower, and agrees that Borrower's liability shall not be in any manner
affected by any indulgence, extension of time, renewal, waiver or
modification granted or consented to by Lender. Borrower
consents to any and all extensions of time, renewals, waivers or
modifications that may be granted by Lender with respect to the payment or
other provisions of this Note, and to any substitution, exchange or
release of the collateral for this Note, or any part thereof, with or
without substitution of said collateral, and agrees to the addition or
release of any guarantor, all whether primarily or secondarily liable,
before or after maturity of this Note, with or without notice to Borrower,
and without affecting Borrower's liability under this
Note.
|
||
|
|||
7.
|
NO USURY.
It is the intent of Lender
and Borrower in the execution of this Note and all other Loan Documents to
contract in strict compliance with applicable usury law. In
furtherance thereof, Lender and Borrower stipulate and agree that none of
the terms and provisions contained in this Note, or in any other Loan
Documents, shall ever be construed to create a contract to pay for the
use, forbearance or detention of money, interest at a rate in excess of
the maximum interest rate permitted to be charged by applicable law; that
neither the Borrower nor any guarantors, endorsers or other parties now or
hereafter becoming liable for payment of this Note shall ever be obligated
or required to pay interest on this Note at a rate in excess of the
maximum interest that may be lawfully charged under applicable law; and
that the provisions of this Paragraph 7 shall control over all other
provisions of this Note and any other Loan Documents which may be in
apparent conflict herewith. Lender expressly disavows any
intention to charge or collect excessive unearned interest or finance
charges in the event the maturity of this Note is
accelerated. If the maturity of this Note shall be accelerated
for any reason or if the principal of this Note is paid prior to the end
of the term of this Note, and as a result thereof the interest received
for the actual period of existence of the loan evidenced by this Note
exceeds the applicable maximum lawful rate, Lender shall, at its option,
either refund to Borrower the amount of such excess or credit the amount
of such excess against the principal balance of this Note then outstanding
and thereby shall render inapplicable any and all penalties of any kind
provided by applicable law as a result of such excess
interest. In the event that Lender shall contract for, charge
or receive any amount or amounts and/or any other thing of value which are
determined to constitute interest which would increase the effective
interest rate on this Note to a rate in excess of that permitted to be
charged by applicable law, an amount equal to interest in excess of the
lawful rate shall, upon such determination, at the option of Lender, be
either immediately returned to Borrower or credited against the principal
balance of this Note then outstanding, in which event any and all
penalties of any kind under applicable law as a result of such excess
interest shall be inapplicable. By execution of this Note,
Borrower acknowledges that it believes the loan evidenced by this Note to
be non-usurious and agrees that if, at any time, Borrower should have
reason to believe that such loan is in fact usurious, it will give Lender
notice of such condition and Borrower agrees that Lender shall have sixty
(60) days in which to make appropriate refund or other adjustment in order
to correct such condition if in fact such exists. The term
“applicable law” as used in this Note shall mean the laws of the State of
Texas or the laws of the United States, whichever laws allow the greater
rate of interest, as such laws now exist or may be changed or amended or
come into effect in the
future.
|
8.
|
ACCELERATION AND OTHER REMEDIES. The rights and remedies of
Lender are set forth in the other Loan Documents and include, without
limitation, the right to declare the Secured Debt, including the principal
balance of this Note and accrued interest, immediately due and payable in
case of an Event of Default.
|
||
|
|||
9.
|
JOINT AND SEVERAL LIABILITY. If there is more than one
Borrower and/or Guarantor, the obligations and covenants of each Borrower
and/or Guarantor shall be joint and
several.
|
||
|
|||
10.
|
AMENDMENTS. This Note may not be
changed or amended orally, but only by an agreement in writing, signed by
the party against whom enforcement is
sought.
|
||
|
|||
11.
|
GOVERNING LAW. This Note shall be
governed by and construed in accordance with the laws of the state in
which the Property is located.
|
||
|
|||
12.
|
PREPAYMENT. Borrower shall have no
right to prepay, and Lender shall have no obligation to accept tendered
payments of, any portion of the unpaid Principal Sum outstanding under
this Note prior to the beginning of the Permitted Prepayment Period.
Borrower may prepay the entire unpaid Principal Sum (but not any lesser
amount) (the “Amount Prepaid”), with accrued interest thereon to the date
of prepayment, on any date on which a Monthly Payment is due after the
beginning of the Permitted Prepayment Period, upon thirty (30)
days' prior written notice to Lender of its intention to prepay, provided
that Borrower pays, at the time of prepayment and in addition thereto, the
amounts required to be paid pursuant to Paragraph 13 of this Note and all
other sums due under this Note and the other Loan Documents. The date
fixed for prepayment in such notice shall become the Maturity Date, except
that for the purpose of calculating the amounts payable pursuant to
Paragraph 13 of this Note, the Maturity Date shall mean the date set forth
in Paragraph 1.9 of this Note.
|
||
|
|||
13.
|
PREPAYMENT INDEMNIFICATION. Borrower shall indemnify
Lender against any loss, damage and expense Lender incurs if the unpaid
Principal Sum is paid prior to the Maturity Date for any reason except (i)
a payment of the entire unpaid Principal Sum, with accrued and unpaid
interest, made within ninety (90) days of the Maturity Date or (ii) any
application by Lender of Insurance Proceeds or Taking Proceeds to
reduction of the Secured Debt pursuant to the other Loan
Documents. Lender and Borrower acknowledge that different
methods could be used to calculate Lender's actual damages if the unpaid
Principal Sum is paid prior to the Maturity Date. To avoid disputes over
which method shall apply, Borrower agrees that the following is a
reasonable method to calculate damages in such case, and Borrower shall
pay to Lender a prepayment premium in an amount equal to the greater
of:
|
(a)
|
one
percent (1%) of the then unpaid Principal Sum; or
|
||
(b)
|
the
Discounted Yield Maintenance Prepayment Fee, as hereinafter
defined. For purposes of this Paragraph 13, the term “Treasury
Security” shall mean the non-callable U.S. Treasury bill, note or bond
having a maturity date most closely equivalent to the Maturity
Date. If more than one such non-callable bill, note or bond
matures in the same month as the Maturity Date, the bill, note or bond
with a coupon interest rate closest to the Interest Rate shall be the
Treasury Security. For purposes of this Paragraph 13, the term
“Treasury Yield” shall mean the per annum yield to maturity of the
Treasury Security, as published in the Wall Street Journal on the fifth
(5th) business day prior to the date of prepayment.
|
||
If
the Interest Rate is greater than the Treasury Yield, the difference
between the Interest Rate and the Treasury Yield shall be divided by
twelve (12) and multiplied by the then unpaid Principal Sum to determine
the monthly payment differential. The present value of the
series of monthly payment differentials for the number of whole and
partial months from the date of prepayment to the Maturity Date shall be
calculated using the Treasury Yield as the discount rate, compounded
monthly. The resulting sum of all the discounted monthly
payment differentials shall be the Discounted Yield Maintenance Prepayment
Fee.
|
|||
If
the Interest Rate is equal to or less than the Treasury Yield, the
prepayment premium shall be one percent (1%) of the then unpaid
Principal Sum.
|
|||
14.
|
ACCELERATION INDEMNIFICATION. If the Maturity Date is
accelerated by Lender because of the occurrence of an Event of Default,
Lender will sustain damages due to the loss of its
investment. Borrower therefore agrees to pay, at the time of
acceleration, in addition to all other sums due under this Note and the
other Loan Documents, as liquidated damages, an acceleration premium in an
amount equal to the greater of:
|
||
|
|||
(a)
|
three
percent (3%) of the then unpaid Principal Sum; or
|
||
(b)
|
the
Discounted Yield Maintenance Prepayment Fee, as defined in Paragraph 13 of
this Note.
|
||
15.
|
NONRECOURSE DEBT. Borrower shall
be liable upon the indebtedness evidenced by this Note, for all sums to
accrue or to become payable thereon and for performance of all covenants
contained in this Note or in any of the other Loan Documents, to the
extent, but only to the extent, of Lender's security for the same,
including, without limitation, all properties, rights, estates and
interests covered by the Mortgage and the other Loan
Documents. No attachment, execution or other writ or process
shall be sought, issued or levied upon any assets, properties or funds of
Borrower other than the properties, rights, estates and interests
described in the Mortgage and the other Loan Documents. In the
event of foreclosure of such liens, mortgages or security interests, by
private power of sale or otherwise, no judgment for any deficiency upon
such indebtedness, sums and amounts shall be sought or obtained by Lender
against Borrower. Subject to the foregoing, nothing herein contained shall
be construed to prevent Lender from exercising and enforcing any other
remedy relating to the Property allowed at law or in equity or by any
statute or by the terms of any of the Loan
Documents.
|
19.
|
REGISTRATION. This Note shall be deemed
to be in registered form at Lender's sole election. Such
election may be made at any time without endorsement of this Note or any
other action by Borrower. Borrower shall recognize any such
election and, upon request by Lender, shall cooperate with Lender at
Lender's expense to facilitate the consummation of such
election.
|
||
|
|||
20.
|
WAIVER OF JURY TRIAL. BORROWER
AND LENDER HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER, ON
OR IN RESPECT OF ANY MATTER WHATSOEVER ARISING OUT OF, OR IN ANY WAY
CONNECTED WITH, THIS NOTE OR ANY OF THE OTHER LOAN DOCUMENTS, OR THE
RELATIONSHIP OF BORROWER AND LENDER HEREUNDER OR
THEREUNDER.
|
||
|
|||
21.
|
CAPTIONS. All paragraph and
subparagraph captions are for convenience of reference only and shall not
affect the construction of any provision
herein.
|
||
|
WHITESTONE CENTERS LLC, | |||||
a Texas limited liability company | |||||
By:
|
Whitestone
REIT Operating Partnership, L.P., a
Delaware
limited partnership,
its
sole member
|
||||
By:
|
Whitestone
REIT, a Maryland real estate
investment
trust, its general partner
|
||||
By:
|
/s/ John J. Dee | ||||
Name:
John
J. Dee
|
|||||
Title:
Executive
Vice President
|
STATE
OF TEXAS
|
§
|
|
§
|
||
COUNTY
OF HARRIS
|
§
|
/s/ Priscilla A. Gonzalez | ||
Notary
Public, State of Texas
|
||
Priscilla A. Gonzalez | ||
(printed
name)
|
My
Commission Expires:
|
|
6/18/2011
|
2.
|
DEBT. For
value received, Borrower promises to pay to the order of Lender, the
Principal Sum with interest on unpaid principal from the Date of
Disbursement at the Interest Rate. Interest shall be calculated on a
360-day year of twelve 30-day months.
|
||
3.
|
PAYMENTS. Borrower
shall pay the Monthly Payment to Lender commencing on the First Payment
Date and continuing on each monthly anniversary thereof until the Maturity
Date. If a payment date is a non-business day, the Monthly Payment shall
be due on the next business day. On the Interest Only Payment
Date, Borrower shall pay the interest then due and accrued from the Date
of Disbursement.
|
||
On
the Maturity Date, Borrower shall pay to Lender the entire then unpaid
balance of principal and interest. Lender shall have no
obligation, express or implied, to refinance the “balloon payment” then
due.
|
|||
All
payments shall be made in lawful money of the United States of America, in
immediately available funds, at Lender's Payment Address, or at such other
place as Lender may from time to time designate in
writing.
|
|||
4.
|
LATE CHARGE AND ADDITIONAL INTEREST. Borrower
recognizes that if it does not make the Monthly Payments when due, Lender
will incur additional administrative expenses in servicing the loan, will
lose the use of the money due and will be frustrated in meeting its other
financial and loan commitments. Lender and Borrower acknowledge
that different methods could be used to calculate Lender's actual damages
if the Monthly Payment is not made when due. To avoid disputes over which
method shall apply, Borrower agrees that a late charge equal to four
percent (4%) of each Monthly Payment which is not made when due is a
reasonable method for calculating said damages. Borrower shall
pay such late charge to Lender immediately after the due date for each
Monthly Payment which is not made when due. The payment of such
late charge shall not affect Lender's other rights and remedies under this
Note and the other Loan Documents.
|
||
All
expenditures by Lender pursuant to the Loan Documents, other than advances
of the Principal Sum, which are not reimbursed by Borrower immediately
upon demand; all amounts remaining due and unpaid after the Maturity Date;
and any amounts due and unpaid after an Event of Default (including late
charges) shall bear interest at the Default Rate until such amounts are
paid to Lender. Such payments shall be in addition to the late charge
described above.
|
|||
5.
|
APPLICATION OF PAYMENTS.
Unless Lender elects otherwise, all sums received by Lender
in payment hereunder shall be applied first to late charges, costs of
collection or enforcement, all expenditures made by Lender pursuant to the
Loan Documents, and any other similar amounts due, if any, under this Note
and the other Loan Documents, then to amounts due pursuant to Paragraph 13
of this Note, then to interest which is due and payable under this Note
and the remainder to principal due and payable under this
Note. If an Event of Default has occurred and is continuing,
such payments may be applied to sums due hereunder or under the other Loan
Documents in any order and combination that Lender may, in its sole
discretion, determine.
|
6.
|
WAIVERS. Borrower
waives presentment for payment, demand, notice of nonpayment, notice of
intention to accelerate the maturity of this Note, diligence in
collection, commencement of suit against any obligor, notice of protest,
and protest of this Note and all other notices in connection with the
delivery, acceptance, performance, default or enforcement of the payment
of this Note, before or after maturity of this Note, with or without
notice to Borrower, and agrees that Borrower's liability shall not be in
any manner affected by any indulgence, extension of time, renewal, waiver
or modification granted or consented to by Lender. Borrower
consents to any and all extensions of time, renewals, waivers or
modifications that may be granted by Lender with respect to the payment or
other provisions of this Note, and to any substitution, exchange or
release of the collateral for this Note, or any part thereof, with or
without substitution of said collateral, and agrees to the addition or
release of any guarantor, all whether primarily or secondarily liable,
before or after maturity of this Note, with or without notice to Borrower,
and without affecting Borrower's liability under this
Note.
|
||
7.
|
NO USURY.
It
is the intent of Lender and Borrower in the execution of this Note and all
other Loan Documents to contract in strict compliance with applicable
usury law. In furtherance thereof, Lender and Borrower
stipulate and agree that none of the terms and provisions contained in
this Note, or in any other Loan Documents, shall ever be construed to
create a contract to pay for the use, forbearance or detention of money,
interest at a rate in excess of the maximum interest rate permitted to be
charged by applicable law; that neither the Borrower nor any guarantors,
endorsers or other parties now or hereafter becoming liable for payment of
this Note shall ever be obligated or required to pay interest on this Note
at a rate in excess of the maximum interest that may be lawfully charged
under applicable law; and that the provisions of this Paragraph 7 shall
control over all other provisions of this Note and any other Loan
Documents which may be in apparent conflict herewith. Lender
expressly disavows any intention to charge or collect excessive unearned
interest or finance charges in the event the maturity of this Note is
accelerated. If the maturity of this Note shall be accelerated
for any reason or if the principal of this Note is paid prior to the end
of the term of this Note, and as a result thereof the interest received
for the actual period of existence of the loan evidenced by this Note
exceeds the applicable maximum lawful rate, Lender shall, at its option,
either refund to Borrower the amount of such excess or credit the amount
of such excess against the principal balance of this Note then outstanding
and thereby shall render inapplicable any and all penalties of any kind
provided by applicable law as a result of such excess
interest. In the event that Lender shall contract for, charge
or receive any amount or amounts and/or any other thing of value which are
determined to constitute interest which would increase the effective
interest rate on this Note to a rate in excess of that permitted to be
charged by applicable law, an amount equal to interest in excess of the
lawful rate shall, upon such determination, at the option of Lender, be
either immediately returned to Borrower or credited against the principal
balance of this Note then outstanding, in which event any and all
penalties of any kind under applicable law as a result of such excess
interest shall be inapplicable. By execution of this Note,
Borrower acknowledges that it believes the loan evidenced by this Note to
be non-usurious and agrees that if, at any time, Borrower should have
reason to believe that such loan is in fact usurious, it will give Lender
notice of such condition and Borrower agrees that Lender shall have sixty
(60) days in which to make appropriate refund or other adjustment in order
to correct such condition if in fact such exists. The term
“applicable law” as used in this Note shall mean the laws of the State of
Texas or the laws of the United States, whichever laws allow the greater
rate of interest, as such laws now exist or may be changed or amended or
come into effect in the future.
|
If
the Interest Rate is greater than the Treasury Yield, the difference
between the Interest Rate and the Treasury Yield shall be divided by
twelve (12) and multiplied by the then unpaid Principal Sum to determine
the monthly payment differential. The present value of the
series of monthly payment differentials for the number of whole and
partial months from the date of prepayment to the Maturity Date shall be
calculated using the Treasury Yield as the discount rate, compounded
monthly. The resulting sum of all the discounted monthly
payment differentials shall be the Discounted Yield Maintenance Prepayment
Fee.
|
|||
If
the Interest Rate is equal to or less than the Treasury Yield, the
prepayment premium shall be one percent (1%) of the then unpaid
Principal Sum.
|
|||
14.
|
ACCELERATION INDEMNIFICATION.
If the Maturity Date is accelerated by Lender because of the
occurrence of an Event of Default, Lender will sustain damages due to the
loss of its investment. Borrower therefore agrees to pay, at
the time of acceleration, in addition to all other sums due under this
Note and the other Loan Documents, as liquidated damages, an acceleration
premium in an amount equal to the greater of:
|
||
(a)
|
three
percent (3%) of the then unpaid Principal Sum; or
|
||
(b)
|
the
Discounted Yield Maintenance Prepayment Fee, as defined in Paragraph 13 of
this Note.
|
||
15.
|
NONRECOURSE DEBT.
Borrower shall be liable upon the indebtedness evidenced by this Note, for
all sums to accrue or to become payable thereon and for performance of all
covenants contained in this Note or in any of the other Loan Documents, to
the extent, but only to the extent, of Lender's security for the same,
including, without limitation, all properties, rights, estates and
interests covered by the Mortgage and the other Loan
Documents. No attachment, execution or other writ or process
shall be sought, issued or levied upon any assets, properties or funds of
Borrower other than the properties, rights, estates and interests
described in the Mortgage and the other Loan Documents. In the
event of foreclosure of such liens, mortgages or security interests, by
private power of sale or otherwise, no judgment for any deficiency upon
such indebtedness, sums and amounts shall be sought or obtained by Lender
against Borrower. Subject to the foregoing, nothing herein contained shall
be construed to prevent Lender from exercising and enforcing any other
remedy relating to the Property allowed at law or in equity or by any
statute or by the terms of any of the Loan
Documents.
|
19.
|
REGISTRATION. This
Note shall be deemed to be in registered form at Lender's sole
election. Such election may be made at any time without
endorsement of this Note or any other action by
Borrower. Borrower shall recognize any such election and, upon
request by Lender, shall cooperate with Lender at Lender's expense to
facilitate the consummation of such election.
|
||
20.
|
WAIVER OF JURY TRIAL. BORROWER AND
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER, ON
OR IN RESPECT OF ANY MATTER WHATSOEVER ARISING OUT OF, OR IN ANY WAY
CONNECTED WITH, THIS NOTE OR ANY OF THE OTHER LOAN DOCUMENTS, OR THE
RELATIONSHIP OF BORROWER AND LENDER HEREUNDER OR
THEREUNDER.
|
||
21.
|
CAPTIONS.
All paragraph and subparagraph captions are for convenience of reference
only and shall not affect the construction of any provision
herein.
|
WHITESTONE CENTERS LLC, | |||||
a Texas limited liability company | |||||
By:
|
Whitestone
REIT Operating Partnership, L.P., a
Delaware
limited partnership,
its
sole member
|
||||
By:
|
Whitestone
REIT, a Maryland real estate
investment
trust, its general partner
|
||||
By:
|
/s/ John J. Dee | ||||
Name:
John
J. Dee
|
|||||
Title:
Executive
Vice President
|
STATE
OF TEXAS
|
§
|
|
§
|
||
COUNTY
OF HARRIS
|
§
|
/s/ Priscilla A. Gonzalez | ||
Notary
Public, State of Texas
|
||
Priscilla A. Gonzalez | ||
(printed
name)
|
My
Commission Expires:
|
|
6/18/2011
|