Exhibit 10.5


 


PROMISSORY NOTE


 


	
  

  $95,500,000.00

  	
   

  	
  New York, New
  York

  As of January 30, 2006

  



 


FOR VALUE RECEIVED,
200 SOUTH WACKER PROPERTY LLC, a Delaware limited liability company, as maker,
having its principal place of business c/o Beacon Capital Partners, LLC, One
Federal Street, Boston, Massachusetts 02110 (“Borrower”), hereby unconditionally promises to pay to the
order of LEHMAN BROTHERS BANK FSB, a federal stock savings bank, having an
office at 399 Park Avenue, 8th Floor, New York, New York 10022 (“Lender”), or at such other place as the
holder hereof may from time to time designate in writing, the principal sum of
NINETY-FIVE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($95,500,000.00),
or so much thereof as is advanced 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 (or, if applicable, the Default 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 (such Loan Agreement, as same
may be amended, restated, supplemented or otherwise modified from time to time,
the “Loan Agreement”). All
capitalized terms not defined herein shall have the respective meanings set
forth in the Loan Agreement.


 


ARTICLE 1:  PAYMENT
TERMS


 


Borrower 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 Article II of 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.


 


ARTICLE 2:  DEFAULT
AND ACCELERATION


 


The Debt may, as provided in the Loan Agreement, and
without notice become immediately due and payable at the option of Lender if
any payment of principal and/or interest required under this Note is not paid
on or prior to 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, (a) all
agreements and communications between Borrower and Lender are hereby and shall
automatically be limited so that, after taking into account all amounts deemed
interest, the interest contracted for, charged or received by Lender shall
never exceed the maximum lawful rate or amount, (b) in calculating whether any
interest exceeds the lawful maximum, all such interest shall be amortized,
prorated, allocated and spread over the full amount and term of all principal
indebtedness of Borrower to Lender, and (c) if through any contingency or
event, Lender receives or is deemed to receive interest in excess of the lawful
maximum, any such excess shall be deemed to have been applied toward payment of
the principal of any and all then outstanding indebtedness of Borrower to
Lender, or if there is no such indebtedness, shall immediately be returned to
Borrower.


 


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. 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, or 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 or limited
liability company, the agreements herein contained shall remain in force and
applicable, notwithstanding any changes in the individuals comprising the
partnership or limited liability company, and the term “Borrower,” as used
herein, shall include any alternate or successor partnership or limited
liability company, but any predecessor partnership or limited liability company
shall not thereby be released from any liability. If Borrower is a corporation,
the agreements contained herein shall remain in full force and be 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


 


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restriction on transfers
of interests in such partnership, limited liability company or corporation,
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, 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 thereafter 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 11.22 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


 


(A)          THIS NOTE WAS NEGOTIATED IN THE STATE
OF NEW YORK, AND MADE BY BORROWER AND ACCEPTED BY LENDER IN THE STATE OF NEW
YORK, AND THE PROCEEDS OF THIS NOTE WERE DISBURSED FROM THE STATE OF NEW YORK,
WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND
TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING,
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, THIS NOTE AND THE OBLIGATIONS ARISING HEREUNDER SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES
OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY
UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY
OTHER JURISDICTION GOVERNS THIS NOTE AND THIS NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.


 


(B)          ANY LEGAL SUIT, ACTION OR PROCEEDING
AGAINST LENDER OR BORROWER ARISING OUT OF OR RELATING TO THIS NOTE MAY, AT
LENDER’S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW
YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW, AND BORROWER


 


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WAIVES
ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM
NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION
OR PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT:


 


GOULSTON & STORRS, PC

750 THIRD AVENUE, 22ND FLOOR

NEW YORK, NEW YORK 10017

ATTN: MARC B. HELLER


 


AS ITS AUTHORIZED
AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS
WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR
STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID
AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO
BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT
EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT, ACTION OR
PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT NOTICE TO
LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT
ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN
OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE
DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL
PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN
OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.


 


ARTICLE 10:  NOTICES


 


All notices or other written communications hereunder
shall be delivered in accordance with Section 11.6 of the Loan
Agreement.


 


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FURTHER TEXT ON THIS PAGE]


 


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


 


	
  BORROWER:

  	
   

  
	
   

  	
   

  
	
  200 South Wacker 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