exh10_2.htm


    Exhibit
10.2

    


     

    Sugar
Land, Texas

    [FEI
Space]

    
 

    7.560%
PROMISSORY NOTE

    


     

    
      


      
        	
                $118,734,816.35

              	 
      	
                                              
      Dated:

              	
                June
      28, 2001

              
	 
      	 
      	
                                              
      Effective:

              	
                June
      28, 2001

              


      

       

    

    


    FOR VALUE RECEIVED, and intending to be
legally bound, LAKEPOINTE ASSETS LLC, a Delaware limited liability company
having an office c/o 5847 San Felipe Drive, Suite 2600, Houston, Texas 77057
(hereinafter called "BORROWER"), promises to pay to the order of LEGG MASON REAL
ESTATE SERVICES, INC., a Pennsylvania corporation, having an address at 100
Light Street, 32nd Floor, Baltimore, Maryland 21202 (hereinafter called
"LENDER") or at such place as the holder hereof may from time to time designate
in writing, the principal sum of ONE HUNDRED EIGHTEEN MILLION SEVEN HUNDRED
THIRTY-FOUR THOUSAND EIGHT HUNDRED SIXTEEN DOLLARS AND THIRTY-FIVE CENTS
($118,734,816.35) in lawful money of the United States of America with interest
thereon to be computed on the unpaid principal balance from time to time
outstanding at the rate of 7.560% per annum (the "APPLICABLE RATE") from the
date hereof and to be paid in installments as follows:

    


    
      	
               
      

            	
              1.

            	
              A
      payment of interest only on the date hereof representing interest from and
      including such date to and including July 7, 2001;
  and

            


    

    


    
      	
               
      

            	
              2.

            	
              Consecutive
      monthly payments of principal and interest, as set forth on Schedule A,
      beginning on the First Amortization Payment Date, set forth on Schedule A,
      up to and including the payment date immediately before the Final Payment
      Date set forth on Schedule A, each of such payments to be applied (a) to
      the payment of interest computed at the Applicable Rate; and (b) the
      balance applied toward the reduction of the principal
  sum.

            


    

    


    And the
balance of said principal sum, together with all accrued and unpaid interest
thereon, shall be due and payable on the Final Payment Date set forth on
Schedule A (the "MATURITY DATE"). Interest on the principal sum of this Note
shall be calculated on the basis of a three hundred sixty (360) day year
consisting of twelve (12) months of thirty (30) days each.

    


    It is
expressly stipulated and agreed to be the intent of Borrower and Lender at all
times to comply with the applicable Texas law governing the maximum rate or
amount of interest payable on this Note or the Debt evidenced by this Note and
by the other Loan Documents (or, to the extent it would permit a greater rate or
amount of interest on this Note or the Debt evidenced by this Note and by the
other Loan Documents, applicable United States federal law) to the end that
neither Borrower nor Lender shall have contracted for, and Lender shall not
charge, take, reserve or receive, and Borrower shall not pay, a greater amount
of interest than under Texas law or applicable United State federal law. If (i)
the applicable law is ever judicially interpreted so as to render usurious any
amount called for under this Note or under any of the other Loan Documents, or
contracted for, charged, taken, reserved or received


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    with
respect to the Debt, or (ii) Lender's exercise of any remedy hereunder or under
the other Loan Documents, including the option herein contained to accelerate
the maturity of this Note, or any prepayment by Borrower, results in Lender
having charged, taken, reserved or received, and Borrower having paid, any
interest in excess of that permitted by applicable law, then it is Borrower's
and Lender's express intent that (A) all amounts theretofore collected by Lender
in excess of the maximum amount of interest allowed by applicable law be
credited on the principal balance of this Note (or, if this Note has been or
would thereby be paid in full, refunded to Borrower), and (B) the provisions of
this Note and the other Loan Documents immediately be deemed reformed and the
amounts thereafter payable, chargeable or collectible hereunder and thereunder
reduced, without the necessity of the execution of any new document, so as to
comply with the applicable law, but so as to permit the recovery of the fullest
amount otherwise called for hereunder and thereunder which does not exceed the
maximum amount of interest allowed by applicable law. All sums paid or agreed to
be paid to Lender for the use, forbearance and detention of the Debt evidenced
by this Note and by the other Loan Documents shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout the full
term of such Debt until payment in full so that the rate or amount of interest
on account of such Debt does not exceed the usury ceiling from time to time in
effect and applicable to such Debt for so long as debt is outstanding. To the
extent that Lender is relying on Chapter 303, as amended, of the Texas Finance
Code to determine the Maximum Lawful Rate (hereafter defined) payable on such
Debt, Lender will utilize the weekly rate ceiling from time to time in effect as
provided in such Chapter 303, as amended. To the extent United States federal
law permits Lender to contract for, charge or receive a greater amount of
interest than Texas law, Lender will rely on United States federal law instead
of such Chapter 303, as amended, for the purpose of determining the Maximum
Lawful Rate and the maximum amount permitted by applicable Law. Additionally, to
the extent permitted by applicable law now or hereafter in effect and the Loan
Documents, Lender may, at its option and from time to time, implement any other
method of computing the Maximum Lawful Rate under such Chapter 303, as amended,
or under other applicable law by giving notice, if required, to Borrower as
provided by applicable law now or hereafter in effect. In no event shall the
provisions of Chapter 346 of the Texas Finance Code (which regulates certain
revolving credit loan accounts and revolving triparty accounts) apply to the
Debt evidenced by this Note. Notwithstanding anything to the contrary contained
herein or in any of the other Loan Documents, it is not the intention of Lender
to accelerate the maturity of any interest that has not accrued at the time of
such acceleration or to collect unearned interest at the time of such
acceleration. "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 (hereafter defined) made in
connection with the loan evidenced by this Note and the Loan Documents.
"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 Debt evidenced by this Note or by the Loan
Documents which are treated as interest under applicable law. The term
"APPLICABLE LAW" as used in this paragraph shall mean the laws of the State of
Texas or the laws of the United States, whichever allows the greater rate or
amount of non-usurious interest to be contracted for, charged, taken, reserved
or received with respect to the Debt evidenced
by this Note and the other Loan Documents, as such laws now exist or may be
changed or amended or come into effect in the future.


    
      
         


      

      
         


        
          

        

      

      
         


      

    


     

    This Note and the Debt evidenced hereby
is made pursuant to a Loan Agreement, dated the Closing Date, between the Lender
and Borrower (the "LOAN AGREEMENT") and is secured by the Indenture and the
other Security Documents.

    


    All capitalized terms used in this Note
and not otherwise defined herein shall have the meanings ascribed to them in
Appendix A to the Loan Agreement and the rules of construction set forth in
Appendix A to the Loan Agreement shall also apply to this Note. A copy of the
Loan Agreement is on file and available for inspection at the corporate trust
office of the Certificate Trustee in Salt Lake City, Utah. Reference is made to
the Loan Agreement for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of Borrower and Lender.

    


    If an Event of Default exists, the
principal of this Note may be declared or otherwise become due and payable in
the manner, at the price (including any applicable Prepayment Consideration) and
with the effect provided in the Loan Agreement. All of the terms, conditions and
agreements contained in the Loan Agreement and the Security 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.

    


    This Note is not subject to prepayment,
in whole or in part, except in accordance with and subject to and as more fully
set forth in Section 2.04 of the Loan Agreement.

    


    This Note may be defeased in whole but
not in part in accordance with and subject to and as more fully set forth in
Section 2.05 of the Loan Agreement.

    


    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.

    


    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, protest, notice of
protest, notice of non-payment, and notice of intent to accelerate the maturity
hereof (and of such acceleration); such waiver of notices, however, shall not
apply to notices specifically required under the Loan Documents. 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 or the other Loan Documents made by agreement between Lender and any
other person or party shall release, modify, amend, waive, extend, change,
discharge, terminate or affect the liability of Borrower, and any other Person
who may become liable to pay all or any part of the Debt, under the Loan
Documents.

    


    Notwithstanding anything to the
contrary contained in this Note, the liability of Borrower and the other
Released Parties to pay the Debt and perform the Other Obligations are limited
as set forth in Section 12.13 of the Loan Agreement, the terms and provisions of
which Section are incorporated into this Note by reference.


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Upon the transfer of this Note, (i)
Borrower hereby waives notice of any such transfer; (provided, however, unless
and until Lender delivers written notice to Borrower of such transfer, together
with the name, address and such other relevant payment information as is
necessary, any and all amounts due and payable under the Loan Documents shall
continue to be remitted to the payee last identified by Lender), (ii) Lender may
deliver all of the collateral mortgaged, granted, pledged or assigned pursuant
to the Indenture and the other Security Documents, or any part thereof, to the
transferee who shall thereupon become vested with all the rights therein or
under applicable law given to Lender with respect thereto, and (iii) Lender
shall thereafter forever be relieved and fully discharged from any liability or
responsibility in the matter; but Lender shall retain all rights given to it
under this Note, the Loan Agreement or the Security Documents with respect to
any liabilities and the collateral not so transferred.

    


    All Notices required or permitted to be
given pursuant hereto shall be given in the manner specified in the Loan
Agreement directed to the parties at their respective addresses as provided
therein.

    


    This Note shall be governed by and
construed in accordance with the laws of the State of Texas and the applicable
laws of the United States of America.

    


    Time is of the essence.

    


    Schedule A attached hereto is made a
part hereof and incorporated herein in its entirety by reference.

    


    


    


    [SIGNATURE
APPEARS ON THE FOLLOWING PAGE]


    
      
         


      

      
         


        
          

        

      

      
         


      

    


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

    


    


    
      	 
      	
              BORROWER:

            
	 
      	 
      
	 
      	
              LAKEPOINTE
      ASSETS LLC,

            
	 
      	
              a
      Delaware limited liability company

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	
              /s/
      J. Richard Rosenberg

            
	 
      	 
      	
              J.
      Richard Rosenberg

            
	 
      	 
      	
              Vice
      President and Chief Financial Officer