ex10-2.htm


    
      
        
          

        

        Exhibit 10.2

         

        
          PROMISSORY
NOTE

           

          
            	
                    1.

                  	
                    DEFINED
      TERMS.  As
      used in this Promissory Note, the following terms shall have the following
      meanings:

                  
	 	 
	 
      	
                    1.1.      Borrower:  Whitestone
      Centers LLC, a Texas limited liability company, its successors
      and assigns.

                  
	 	 
	 
      	
                    1.2.      Lender: Sun Life
      Assurance Company of Canada, a Canadian corporation, together with other
      holders from time to time of this Note.

                  
	 	 
	 
      	
                    1.3.      Guarantor: Whitestone
      REIT, a Maryland real estate investment trust.

                  
	 	 
	 
      	
                    1.4.     
      Principal Sum:
      $2,302,500.00.

                  
	 	 
	 
      	
                    1.5.     
      Monthly Payment:
      $17,343.50.

                  
	 	 
	 
      	
                    1.6.     
      Date of
      Disbursement: February 3, 2009.

                  
	 	 
	 
      	
                    1.7.     
      Interest
      Rate:  6.63% per annum.

                  
	 	 
	 
      	
                    1.8.     
      Default Rate: the
      Interest Rate plus five percent (5%) per annum, but in no event greater
      than the maximum lawful rate of interest.

                  
	 	 
	 
      	
                    1.9.     
      Maturity
      Date:  March 1, 2014.

                  
	 	 
	 
      	
                    1.10.    Amortization
      Period:  Twenty (20) years from the Interest Only Payment
      Date.

                  
	 	 
	 
      	
                    1.11.    Interest Only Payment
      Date:  March 1, 2009, being the first day of the first
      month after the Date of Disbursement.

                  
	 	 
	 
      	
                    1.12.    First Payment
      Date:  April 1, 2009, being the first day of the second
      month after the Date of Disbursement.

                  
	 	 
	 
      	1.13.    Lender's
      Payment Address:	
                    Sun
      Life  Assurance Company of Canada

                  
	 
      	 
      	 
      	
                    c/o
      Kinghorn Driver Hough & Co.

                  
	 
      	 
      	 
      	
                    1300
      Post Oak Blvd., Suite 1200

                  
	 
      	 
      	 
      	
                    Houston,
      Texas 77056

                  
	 
      	 
      	 
      	 
      
	 
      	
                    1.14.    Permitted Prepayment
      Period:  the period commencing on Date of Disbursement
      and ending on the Maturity Date, subject to and in accordance with the
      provisions of Paragraphs 12 and 13 of this Note.

                  
	 	 
	 
      	
                    1.15.    Mortgage:  a
      Deed of Trust and Security Agreement of even date with this Note from
      Borrower to, or for the benefit of, Lender, which secures Borrower's
      obligations hereunder, and which covers property in Harris County, Texas,
      and all modifications or amendments thereto or extensions
      thereof.

                  
	 	 
	 
      	
                    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.

                  


          

           

          
            
              
              

            

            
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                    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.

                  


          

           

          
            
              
              

            

            
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                    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.

                  


          

           

          
            
              
              

            

            
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                    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.

                  


          

           

          
            
              
              

            

            
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                    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.

                  


          

           

          
            
              
              

            

            
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                    Notwithstanding
      the foregoing, Borrower shall be personally liable to Lender
      for:

                  
	 	 
	 
      	
                    (a)

                  	
                    any
      damages, losses, liabilities, costs or expenses (including, without
      limitation, reasonable attorneys' fees) incurred by Lender due to any of
      the following: (i) any security deposits of tenants of the Property (not
      previously applied to remedy tenant defaults) which have not been paid
      over to Lender; (ii) any rents prepaid by any tenant of the Property more
      than one (1) month in advance; (iii) any insurance proceeds or
      condemnation awards received by Borrower and not applied according to the
      terms of the Mortgage; (iv) accepting Lease termination payments without
      Lender's prior written consent and direction as to use; (v) repairs to the
      Property resulting from a casualty not reimbursed by insurance, to the
      extent insurance coverage for such repairs was required by the Loan
      Documents; (vi) fraud, material misrepresentation or bad faith on the part
      of Borrower; (vii) any event or circumstance for which Borrower is
      obligated to indemnify Lender under the provisions of the Mortgage
      respecting Hazardous Substances, Contamination or Clean-Up; (viii) waste
      of the Property by Borrower; (ix) Borrower's failure to pay real estate
      taxes or other assessments against the Property; (x) Borrower's failure to
      comply with the Americans with Disabilities Act of 1990, as amended, or
      any other Laws; or (xi) any failure of Borrower to obtain, or cause to be
      obtained, any certificate of occupancy required by Laws covering the
      Property or any portion thereof; and

                  
	 	 	 
	 
      	
                    (b)

                  	
                    all
      rents, issues and profits from the Property collected by Borrower after an
      Event of Default has occurred and is continuing or after an event or
      circumstance has occurred and is continuing which with the passage of time
      or the giving of notice, or both, would constitute an Event of Default,
      unless such rents, issues and profits are applied to the normal operating
      expenses of the Property or to the Secured Debt.

                  
	 	 	 
	 
      	
                    Lender
      shall not be limited in any way in enforcing the personal liability and
      obligations of Borrower under the Loan Documents against Borrower, nor
      shall Lender be limited in any way in enforcing the personal liability and
      obligations of any guarantor or indemnitor in accordance with the terms of
      the instruments creating such liabilities and
  obligations.

                  
	 	 
	
                    16.

                  	
                    SECURITY. This
      Note is secured by the other Loan Documents and all amendments,
      modifications, supplements, substitutions, additions, renewals,
      replacements and extensions thereof.

                  
	 	 
	
                    17.

                  	
                    COLLECTION.
       Any check, draft, money order or other instrument given in
      payment of all or any portion of the Secured Debt may be accepted by
      Lender and handled by collection in the customary manner, but the same
      shall not constitute payment hereunder or diminish any rights of Lender
      except to the extent that actual cash proceeds of such instrument are
      unconditionally received by Lender and applied to the Secured Debt in the
      manner elsewhere herein provided.  Acceptance by Lender of
      actual cash proceeds of less than the total amount of the Secured Debt
      shall not constitute acceptance of such partial payment in satisfaction of
      the total amount of the Secured Debt, including, without limitation, the
      amounts payable to Lender pursuant to Paragraph 13 of this
      Note.

                  
	 	 
	
                    18.

                  	
                    ATTORNEYS' FEES. Upon
      any Event of Default, Borrower shall pay all costs incurred by Lender in
      the course of collection of sums due under this Note or in enforcing any
      of Borrower's other obligations under the Loan Documents, including,
      without limitation, reasonable attorneys' fees and expenses, whether or
      not suit is filed by Lender.

                  


          

           

          
            
              
              

            

            
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                    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.

                  


          

           

          IN
WITNESS WHEREOF, this Note has been executed and delivered as of the 3rd day of
February, 2009.

           

          [Remainder
of page intentionally left blank.

          Signature
page follows.]

          


           

          
            
              
              

            

            
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            SIGNATURE
PAGE OF BORROWER TO PROMISSORY NOTE

             

            


             

            
              	 
      	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

                    	
                      §

                    	 
      


            

             

            This instrument was acknowledged before
me on January 30, 2009 by John J. Dee, Executive Vice President of Whitestone
REIT, a Maryland real estate investment trust, on behalf of said real estate
investment trust, in its capacity as general partner of Whitestone REIT
Operating Partnership, L.P., a Delaware limited partnership, on behalf of said
limited partnership, in its capacity as sole member of Whitestone Centers LLC, a
Texas limited liability company, on behalf of said limited liability
company.

            


            


            


            
              	 
      	/s/
      Priscilla
      A. Gonzalez	 
      
	 
      	
                      Notary
      Public, State of Texas

                    	 
      
	 
      	 
      	 
      
	 
      	Priscilla
      A. Gonzalez 	 
      
	 
      	
                      (printed
      name)

                    	 
      


            

            


            
              	
                      My
      Commission Expires:

                    	 
      
	
                      
                         

                        6/18/2011