exv10w56



 






Exhibit 10.56




PROMISSORY NOTE




MERS MIN: 8000101-0000001029-7




			
	$114,200,000.00
	 	March 22, 2005






      FOR VALUE RECEIVED BURNETT PLAZA ASSOCIATES, L.P., a Delaware limited partnership, with a
principal place of business at 3890 West Northwest Highway, Suite 400, Dallas, Texas 75220
(“Borrower”), hereby unconditionally promises to pay to the order of BANK OF AMERICA, N.A.,
a national banking association, as lender, having an address at Hearst Tower, 214 North Tryon
Street, Charlotte, North Carolina 28255 (“Lender”), or at such other place as the holder
hereof may from time to time designate in writing, the principal sum of One Hundred Fourteen
Million Two Hundred Thousand and No/100 Dollars ($114,200,000.00), in lawful money of the United
States of America with interest thereon to be computed from the date of this Note at the rate set
forth in Article 2 of the Loan Agreement, and to be paid in accordance with the terms of this Note
and that certain Loan Agreement dated the date hereof between Borrower, Lender and the Borrower
Principals that are signatories thereto (together with all extensions, renewals, modifications,
substitutions and amendments thereof, 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 rate and at the times specified in Article 2 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




      Except as otherwise provided in the Loan Agreement, the Debt shall without notice become
immediately due and payable at the option of Lender if any portion of the Debt is not paid on or
prior to the date the same is due or if the entire Debt is not paid on or before the Maturity Date.



 








 





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 and
all other notices of any kind except as provided in the Loan Agreement. 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



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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 limited liability company,
the agreements herein contained shall remain in force and be applicable, notwithstanding any
changes in the individuals comprising the limited liability company, and the term “Borrower,” as
used herein, shall include any alternate or successor limited liability company, but any
predecessor limited liability company and its members shall not thereby be released from any
liability. If Borrower is a partnership, the agreements herein contained shall remain in force and
be 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 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 restriction on transfers of interests in such borrowing entity which
may be set forth in the Loan Agreement, the Mortgage or any other Loan Documents.)




ARTICLE 7




TRANSFER




      Upon the transfer of this Note, Borrower hereby waiving notice of any such transfer other than
in connection with the Securitization, 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 arising from events thereafter occurring; 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 Article 15 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.



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ARTICLE 9




GOVERNING LAW




      (A) THE PARTIES AGREE THE STATE OF NEW YORK 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 LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT
PERMITTED BY LAW, LENDER AND BORROWER EACH 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.


ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER ARISING OUT OF OR RELATING TO THIS
NOTE MAY AT LENDER’S OR BORROWER’S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE STATE
OF NEW YORK, AND LENDER AND BORROWER EACH 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.




ARTICLE 10




NOTICES




      All notices or other written communications hereunder shall be delivered in accordance with
Section 16.1 of the Loan Agreement.



[SIGNATURE PAGE IMMEDIATELY FOLLOWS]




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



	 	 	 	 	 	 	 	 	 	 	 
	BORROWER:

	 
	 	 	 	 	 	 	 	 	 	 
	BURNETT PLAZA ASSOCIATES, L.P., a Delaware limited partnership

	 
	 	 	 	 	 	 	 	 	 	 
	By:
	 	Burnett Plaza Associates GP, LLC, a Delaware limited

liability company, its general partner
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	By:	 	Prentiss Properties Acquisition Partners, L.P.,
a Delaware limited partnership, its sole member
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	By:	 	Prentiss Properties I, Inc., a Delaware corporation, its general partner
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	By:	 	/s/ Thomas P. Simon
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	 	 	Name:
	 	Thomas P. Simon
	

	 	 	 	 	 	 	 	Title:
	 	Senior Vice President