Exhibit 10.7(b)


 


One Financial Place


 


PROMISSORY
NOTE B


 


Note Amount:                                                                $25,000,000.00


 


Maturity Date:                                                              The
Payment Date in August, 2011.


 


THIS
PROMISSORY NOTE B (this “Note”), is made as of July 13, 2006 by the
undersigned, as borrower (“Borrower”), in favor of WACHOVIA BANK,
NATIONAL ASSOCIATION and its successors or assigns, as lender (“Lender”).


 


R  E
C  I  T  A  L  S:


 


A.                                   Borrower
is indebted to Lender with respect to a loan (the “Original Loan”)in the
original principal amount of ONE HUNDRED EIGHTY-EIGHT MILLION SIX HUNDRED
THOUSAND AND NO/100 DOLLARS ($188,600,000.00) which is secured by the lien and
security interest created, among other things, by that certain Mortgage,
Security Agreement, Assignment of Rents and Fixture Filing dated as of July 13,
2006, as amended by that certain Modification Agreement dated as of even date
herewith by and between Borrower and Lender (as so amended and as the same may
hereafter be amended, modified or supplemented, the “Security Instrument”)
from Borrower, as borrower, in favor of and for the benefit of Lender, as
lender, as security for the Loan and the other Loan Documents;


 


B.                                     The
Original Loan is evidenced by that certain promissory note in the original
principal sum of $188,600,000 from Borrower to Lender dated as of July 13, 2006
(the “Original Note”);


 


C.                                     The
current outstanding principal balance due under the Original Loan is
$188,600,000;


 


D.                                    Borrower
and Lender have severed the Original Note pursuant to the terms of that certain
note severance agreement between Borrower and Lender dated as of the date
hereof (the “Severance Agreement”) into two (2) separate and distinct
obligations in substitution for the Original Note represented by this Note in
the amount of $25,000,000 and that certain Promissory Note A in the amount of
$163,600,000 (the “Substitute Note A”) and


 


E.                                      Borrower
and Lender intend these Recitals to be a material part of this Note.


 


NOW,
THEREFORE, FOR VALUE RECEIVED, Borrower does hereby covenant and promise to pay
to the order of Lender, without any counterclaim, setoff or deduction
whatsoever, on the Maturity Date (as hereinafter defined), in immediately
available funds, at Commercial Real Estate Services, 8739 Research Drive URP 4,
NC 1075, Charlotte, North Carolina 28262 or at such other place as Lender may
designate to Borrower in writing from time to time, in legal tender of the
United States of America, the Loan B Loan Amount and all other amounts due or
becoming due hereunder, to the extent not previously paid in accordance
herewith, together with all interest accrued and unpaid thereon through the
date Loan B is repaid in full, at the rate of 7.48% per annum (the “Interest
Rate”) to be computed on the


 

















 


basis of the actual number of days elapsed in a 360
day year, on so much of the Loan B Loan Amount as is from time to time
outstanding on the first day of the applicable Interest Accrual Period (as
hereinafter defined).


 


SECTION 1                                   DEFINITIONS


 


Defined terms in this Note shall include in the
singular number the plural and in the plural number the singular. All
capitalized terms not otherwise defined herein shall have the meaning ascribed
to them in the Security Instrument.


 


SECTION 2                                   PAYMENTS
AND LOAN TERMS


 


Section 2.1                                      Interest and
Principal Payments.


 


(a)                                  Interest
on the unpaid Principal Amount of Loan B for the first Interest Accrual Period
computed at the Interest Rate shall be payable, without any counterclaim,
setoff or deduction whatsoever, on the First Payment Date, and for each
subsequent Interest Accrual Period on each Payment Date thereafter until this
Note is paid in full on the Maturity Date or otherwise. The entire outstanding
principal balance, to the extent not theretofore paid, together with all
accrued but unpaid interest thereon and any other amounts due hereunder shall
be due and payable on the Payment Date in August, 2011 (the “Maturity Date”).


 


(b)                                 To
the extent any Interest Shortfall shall occur, except as otherwise provided in
Section 3.2 hereof, such Interest Shortfall shall accrue additional interest at
the Interest Rate.


 


(c)                                  To
the extent Payments (as hereinafter defined), other than Payments hereunder due
on a Payment Date, are or become due and payable under this Note or under any
of the other Loan Documents on a day (the “Due Date”) which is not a
Business Day, such Payments are and shall be due and payable on the first
Business Day immediately preceding the Due Date for such Payments. In the event
that any Payment is received after 2:00 p.m. Eastern Time on any day, it shall
be deemed received and paid on the subsequent Business Day.


 


Section 2.2                                      Application of
Payments.


 


(a)                                  Each
and every payment (a “Payment”) made by Borrower to Lender in accordance
with the terms of this Note and/or the terms of any one or more of the other
Loan Documents and all other proceeds received by Lender with respect to the
Debt, shall be applied as follows:


 


(1)                                  Payments
other than Unscheduled Payments shall be applied (i) first, to all Late
Charges, Default Rate Interest or other sums due and payable hereunder or under
the other Loan Documents (other than those sums included in clause (ii) of this
Section 2.2(a)(l)) in such order and priority as determined by Lender in its
sole discretion, (ii) second, to all interest (other than Default Rate
Interest) which shall be due and payable with respect to the Loan B Loan Amount
pursuant to the terms hereof as of the date the Payment is received (including
any Interest Shortfalls and interest thereon to the extent permitted by


 


2

















 


applicable law) and (iii) third, on the Maturity Date,
to the Loan B Loan Amount until the Loan B Loan Amount has been paid in full.


 


(2)                                  Unscheduled
Payments shall be applied at the end of the Interest Accrual Period in which
such Unscheduled Payments are received as a principal prepayment of the Loan B
Loan Amount to amortize the Loan B Loan Amount.


 


(b)                                 To
the extent that Borrower makes a Payment or Lender receives any Payment or
proceeds for Borrower’s benefit, which are subsequently invalidated, declared
to be fraudulent or preferential, set aside or required to be repaid to a
trustee, debtor in possession, receiver, custodian or any other party under any
bankruptcy law, common law or equitable cause, then, to such extent, the
obligations of Borrower hereunder intended to be satisfied shall be revived and
continue as if such Payment or proceeds had not been received by Lender.


 


Section 2.3                                      Prepayments.


 


The
Debt may not be prepaid, in whole or in part, except as set forth in Article XV
of the Security Instrument.


 


SECTION 3                                   DEFAULTS


 


Section 3.1                                      Events of
Default.


 


This
Note is secured by, among other things, the Security Instrument which specifies
various Events of Default, upon the happening of which all or portions of the
sums owing under this Note may be declared immediately due and payable as more
specifically provided therein. Each Event of Default under the Security
Instrument or any one or more of the other Loan Documents shall be an Event of
Default hereunder.


 


Section 3.2                                      Remedies.


 


If an
Event of Default shall exist hereunder or under any other Loan Document,
interest on the Principal Amount and, to the extent permitted by applicable
law, all accrued but unpaid interest on the Principal Amount shall, commencing
on the date of the occurrence of such Event of Default, at the option of
Lender, immediately and without notice to Borrower, accrue interest at the
Default Rate until such Event of Default is cured or, if not cured or such cure
is not accepted by Lender, until the repayment of the Debt. The foregoing
provision shall not be construed as a waiver by Lender of its right to pursue
any other remedies available to it under the Security Instrument, or any other
Loan Document, nor shall it be construed to limit in any way the application of
the Default Rate.


 


SECTION 4                                   EXCULPATION


 


Section 4.1                                      Exculpation.


 


Notwithstanding
anything to the contrary contained in this Note or the other Loan Documents,
the obligations of Borrower hereunder shall be non-recourse except with respect
to


 


3

















 


the Property, and as otherwise provided in Section
18.32 of the Security Instrument, the terms of which are incorporated herein.


 


SECTION 5                                   MISCELLANEOUS


 


Section 5.1                                      Further
Assurances.


 


Borrower
shall execute and acknowledge (or cause to be executed and acknowledged) and
deliver to Lender all documents, and take all actions, reasonably required by
Lender from time to time to confirm the rights created or now or hereafter
intended to be created under this Note and the other Loan Documents, to protect
and further the validity, priority and enforceability of this Note and the
other Loan Documents, to subject to the Loan Documents any property of Borrower
intended by the terms of any one or more of the Loan Documents to be encumbered
by the Loan Documents, or otherwise carry out the purposes of the Loan
Documents and the transactions contemplated thereunder; provided, however,
that no such further actions, assurances and confirmations shall vary the terms
of or increase Borrower’s obligations under this Note or any of the other Loan
Documents.


 


Section 5.2                                      Modification,
Waiver in Writing.


 


No
modification, amendment, extension, discharge, termination or waiver (a “Modification”)
of any provision of this Note, the Security Instrument or any one or more of
the other Loan Documents, nor consent to any departure by Borrower therefrom,
shall in any event be effective unless the same shall be in a writing signed by
the party against whom enforcement is sought, and then such waiver or consent
shall be effective only in the specific instance, and for the purpose, for
which given. Except as otherwise expressly provided herein, no notice to, or
demand on, Borrower shall entitle Borrower to any other or future notice or
demand in the same, similar or other circumstances. Lender does not hereby
agree to, nor does Lender hereby commit itself to, enter into any Modification.
However, in the event Lender does ever agree to a Modification, such
Modification shall only be upon the terms and conditions set forth in the Security
Instrument.


 


Section 5.3                                      Costs of
Collection.


 


Borrower
agrees to pay all costs and expenses of collection incurred by Lender, in
addition to principal, interest and late or delinquency charges (including,
without limitation, reasonable attorneys’ fees and disbursements), incurred in
connection with the pursuit by Lender of any of its rights or remedies referred
to in Section 3 hereof or its rights or remedies referred to in any of the Loan
Documents or the protection of or realization of collateral or in connection
with any of Lender’s collection efforts, whether or not suit on this Note, on
any of the other Loan Documents or any foreclosure proceeding is filed, and all
such costs and expenses shall be payable on demand, together with interest at
the Default Rate thereon, and also shall be secured by the Security Instrument
and all other collateral at any time held by Lender as security for Borrower’s
obligations to Lender.


 


4

















 


Section 5.4                                      Maximum Amount.


 


(a)                                  It
is the intention of Borrower and Lender to conform strictly to the usury and
similar laws relating to interest and the collection of other charges from time
to time in force, and all agreements between Borrower and Lender, whether now
existing or hereafter arising and whether oral or written, are hereby expressly
limited so that in no contingency or event whatsoever, whether by acceleration
of maturity hereof or otherwise, shall the amount paid or agreed to be paid in
the aggregate to Lender as interest or other charges hereunder or under the
other Loan Documents or in any other security agreement given to secure the
Debt, or in any other document evidencing, securing or pertaining to the Debt,
exceed the maximum amount permissible under applicable usury or such other laws
(the “Maximum Amount”). If under any circumstances whatsoever
fulfillment of any provision hereof, or any of the other Loan Documents, at the
time performance of such provision shall be due, shall involve transcending the
Maximum Amount, then ipso facto, the obligation to be fulfilled shall be
reduced to the Maximum Amount. For the purposes of calculating the actual
amount of interest or other charges paid and/or payable hereunder, in respect
of laws pertaining to usury or such other laws, all charges and other sums paid
or agreed to be paid hereunder to the holder hereof for the use, forbearance or
detention of the Debt, outstanding from time to time shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread from
the date of disbursement of the proceeds of this Note until payment in full of
all of the Debt, so that the actual rate of interest on account of the Debt is
uniform through the term hereof. The terms and provisions of this Section 5.4
shall control and supersede every other provision of all agreements between
Borrower or any endorser and Lender.


 


(b)                                 If
under any circumstances Lender shall ever receive an amount which would exceed
the Maximum Amount, such amount shall be deemed a payment in reduction of the
Loan B Loan Amount owing hereunder and any other obligation of Borrower in
favor of Lender, and shall be so applied in accordance with Section 2.2 hereof,
or if such excessive interest exceeds the unpaid balance of the Loan B Loan
Amount and any other obligation of Borrower in favor of Lender, the excess
shall be deemed to have been a payment made by mistake and shall be refunded to
Borrower.


 


Section 5.5                                      Waivers.


 


To the
extent permitted by law, and except as expressly provided herein or in any of
the other Loan Documents, Borrower hereby expressly and unconditionally waives
presentment, demand, protest, notice of protest or notice of any kind,
including, without limitation, any notice of intention to accelerate and notice
of acceleration, and, in connection with any suit, action or proceeding brought
by Lender on this Note, any and every right it may have to (a) a trial by jury,
(b) interpose any counterclaim therein (other than a counterclaim which can
only be asserted in the suit, action or proceeding brought by Lender on this
Note and cannot be maintained in a separate action) and (c) have the same
consolidated with any other or separate suit, action or proceeding.


 


5

















 


Section 5.6                                      Governing Law.


 


This
Note and the obligations arising hereunder shall be governed by, and construed
in accordance with, the laws of the State of Illinois applicable to contracts
made and performed in such State and any applicable law of the United States of
America.


 


Section 5.7                                      Headings.


 


The
Section headings in this Note are included herein for convenience of reference
only and shall not constitute a part of this Note for any other purpose.


 


Section 5.8                                      Assignment.


 


Lender
shall have the right to transfer, sell and assign this Note, the Security
Instrument and/or any of the other Loan Documents or any interest therein, and
the obligations hereunder, to any Person. All references to “Lender” hereunder
shall be deemed to include the assigns of the Lender.


 


Section 5.9                                      Severability.


 


Wherever
possible, each provision of this Note shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of this Note
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Note.


 


Section 5.10                                Joint and Several.


 


If
Borrower consists of more than one Person or party, the obligations and
liabilities of each such Person or party hereunder shall be joint and several.


 


Section 5.11                                Substitute Note.


 


This
Note is “Substitute Note B” executed and delivered pursuant to the Severance
Agreement. The principal indebtedness evidenced hereby is a portion of the
principal indebtedness previously evidenced by the Original Note in the
original principal sum of $188,600,000 made by Borrower to Lender.


 


[THE REMAINDER OF
THIS PAGE IS INTENTIONALLY LEFT BLANK]


 


6

















 


IN
WITNESS WHEREOF, this Note has been duly executed by the Borrower the day and
year first written above.


 


	
   

  	
  BORROWER:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ONE FINANCIAL PLACE PROPERTY LLC,

  	
   

  
	
   

  	
  a Delaware limited liability company

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  BCSP IV Illinois Manager LLC,

  
	
   

  	
   

  	
  a Delaware limited liability company,

  
	
   

  	
   

  	
  its manager

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  BCSP IV U.S. Investments, L.P.,

  
	
   

  	
   

  	
  a Delaware limited partnership,

  
	
   

  	
   

  	
  its sole member

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  BCSP REIT IV, Inc.,

  
	
   

  	
   

  	
  a Maryland corporation,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  Nancy J. Broderick

  
	
   

  	
   

  	
  Title:
  Managing Director