EXHIBIT 10.12


 


PROMISSORY NOTE


 


	
  $29,400,000.00

  	
   

  	
  November 15, 2007

  



 


FOR VALUE RECEIVED, THE PRIVATE
RESIDENCES, LLC, a Delaware limited liability company (“Borrower”),
hereby promises to pay to the order of NATIONAL
CITY BANK, a national banking association  (“Payee”) under that certain Loan Agreement (defined
below) among Borrower, Bank of America, N.A. (together with any and all of its
successors and assigns, “Administrative Agent”), as agent for the
benefit of the lenders from time to time a party to that certain Construction
Loan Agreement (the “Loan Agreement”) dated of even date herewith,
without offset, in immediately available funds in lawful money of the United
States of America, at the Administrative Agent’s Office as defined in the Loan
Agreement, the principal sum of TWENTY-NINE MILLION FOUR HUNDRED THOUSAND AND
NO/100 DOLLARS ($29,400,000.00) (or the unpaid balance of all principal
advanced against this Note, if that amount is less), together with interest on
the unpaid principal balance of this Note from day to day outstanding as
hereinafter provided.


 


1.                                       Note;
Interest; Payment Schedule and Maturity Date. This Note is one of
Notes referred to in Loan Agreement and is entitled to the benefits thereof. The
entire principal balance of this Note then unpaid shall be due and payable at
the times as set forth in the Loan Agreement. Accrued unpaid interest shall be
due and payable at the times and at the interest rate as set forth in the Loan
Agreement until all principal and accrued interest owing on this Note shall
have been fully paid and satisfied. Any amount not paid when due and payable
hereunder shall, to the extent permitted by applicable Law, bear interest and
if applicable a late charge as set forth in the Loan Agreement.


 


2.                                       Security;
Loan Documents. The security for this Note includes a Deed of Trust,
Security Agreement and Fixture Filing (which, as it may have been or may be
amended, restated, modified or supplemented from time to time, is herein called
the “Deed of Trust”) dated of even date herewith from Borrower to PRLAP, Inc.,
Trustee, for the benefit of Administrative Agent and the other lenders covering
certain property in the City of St. Louis, Missouri as more particularly
described therein (the “Property”). This Note, the Deed of Trust, the
Loan Agreement and all other documents now or hereafter securing, guaranteeing
or executed by Borrower or Guarantor (as defined in the Loan Agreement) in
connection with the loan evidenced by this Note (the “Loan”), are, as
the same have been or may be amended, restated, modified or supplemented
from time to time, herein sometimes called individually a “Loan Document”
and together the “Loan Documents.”


 


3.                                       Defaults.


 


(a)                                  It
shall be a default (“Default”) under this Note and each of the other
Loan Documents if (after giving effect to any applicable notice, grace or cure
periods) (i) any principal, interest or other amount of money due under
this Note is not paid in full when due, regardless of how such amount may have
become due; (ii) any covenant, agreement, condition, representation or
warranty herein or in any other Loan Documents is not fully and timely
performed, observed or kept; or (iii) there shall occur any default or
event of default under the 


 


PROMISSORY NOTE - Page 1


 

















 


Deed of Trust
or any other Loan Document. Upon the occurrence and during the continuation of
a Default, Administrative Agent, on behalf of Payee and the other Lenders, (as
defined in the Loan Agreement) shall have the rights to declare the unpaid
principal balance and accrued but unpaid interest on this Note, and all other
amounts due hereunder and under the other Loan Documents, at once due and
payable (and upon such declaration, the same shall be at once due and payable),
to foreclose any liens and security interests securing payment hereof and to
exercise any of its other rights, powers and remedies under this Note, under
any other Loan Document, or at Law or in equity.


 


(b)                                 All
of the rights, remedies, powers and privileges (together, “Rights”) of
Administrative Agent, on behalf of Payee and the other Lenders, provided for in
this Note and in any other Loan Document are cumulative of each other and of
any and all other Rights at Law or in equity. The resort to any Right shall not
prevent the concurrent or subsequent employment of any other appropriate Right.
No single or partial exercise of any Right shall exhaust it, or preclude any
other or further exercise thereof, and every Right may be exercised at any
time and from time to time. No failure by Administrative Agent, Payee or the
other Lenders to exercise, nor delay in exercising any Right, including but not
limited to the right to accelerate the maturity of this Note, shall be
construed as a waiver of any Default or as a waiver of any Right. Without
limiting the generality of the foregoing provisions, the acceptance by Payee
from time to time of any payment under this Note which is past due or which is
less than the payment in full of all amounts due and payable at the time of
such payment, shall not (i) constitute a waiver of or impair or extinguish
the right of Administrative Agent or Payee to accelerate the maturity of this
Note or to exercise any other Right at the time or at any subsequent time, or
nullify any prior exercise of any such Right, or (ii) constitute a waiver
of the requirement of punctual payment and performance or a novation in any
respect.


 


(c)                                  If
any holder of this Note retains an attorney in connection with any Default or
at maturity or to collect, enforce or defend this Note or any other Loan
Document in any lawsuit or in any probate, reorganization, bankruptcy,
arbitration or other proceeding, or if Borrower sues any holder in connection
with this Note or any other Loan Document and does not prevail, then Borrower
agrees to pay to each such holder, in addition to principal, interest and any
other sums owing to Payee hereunder and under the other Loan Documents, all  costs and expenses incurred by such holder
in trying to collect this Note or in any such suit or proceeding, including,
without limitation, attorneys’ fees and expenses, investigation costs and all
court costs, whether or not suit is filed hereon, whether before or after the
Maturity Date, or whether in connection with bankruptcy, insolvency or appeal,
or whether collection is made against Borrower or any guarantor or endorser or
any other person primarily or secondarily liable hereunder.


 


4.                                       Heirs,
Successors and Assigns. The terms of this Note and of the other Loan
Documents shall bind and inure to the benefit of the heirs, devisees,
representatives, successors and assigns of the parties. The foregoing sentence
shall not be construed to permit Borrower to assign the Loan except as
otherwise permitted under the Loan Documents. As further provided in the Loan
Agreement, Payee may, at any time, sell, transfer, or assign all on a portion
of its interest in this Note, the Deed of Trust and the other Loan Documents,
as set forth in the Loan Agreement.


 


PROMISSORY NOTE - Page 2


 

















 


5.                                       General
Provisions. Time is of the essence with respect to Borrower’s obligations
under this Note. If more than one person or entity executes this Note as
Borrower, all of said parties shall be jointly and severally liable for payment
of the indebtedness evidenced hereby. Borrower on behalf of itself and all
sureties, endorsers, guarantors and any other party now or hereafter liable for
the payment of this Note in whole or in part, hereby (a) waives, to the
extent permitted by applicable Laws, demand, presentment for payment, notice of
dishonor and of nonpayment, protest, notice of protest, notice of intent to
accelerate, notice of acceleration and all other notices (except any notices
which are specifically required by this Note or any other Loan Document or are
required by applicable Law), filing of suit and diligence in collecting this
Note or enforcing any of the security herefor; (b) agrees to any
substitution, subordination, exchange or release of any such security or the
release of any party primarily or secondarily liable hereon; (c) agrees
that neither Administrative Agent nor Payee or any Lender shall be required
first to institute suit or exhaust its remedies hereon against Borrower or
others liable or to become liable hereon or to perfect or enforce its rights
against them or any security herefor; (d) consents to any extensions or
postponements of time of payment of this Note for any period or periods of time
and to any partial payments, before or after maturity, and to any other
indulgences with respect hereto, without notice thereof to any of them; and (e) submits
(and waives all rights to object) to non-exclusive personal jurisdiction of any
state or federal court sitting in the city and county, and venue in the city or
county, in which payment is to be made as specified in Section 1 of
this Note, for the enforcement of any and all obligations under this Note and
the Loan Documents; (f) waives the benefit of all homestead and similar
exemptions as to this Note; (g) agrees that their liability under this
Note shall not be affected or impaired by any determination that any security
interest or lien taken by Administrative Agent, on behalf of Payee and the
other Lenders, to secure this Note is invalid or unperfected; and (h) hereby
subordinates any and all rights against Borrower and any of the security for
the payment of this Note, whether by subrogation, agreement or otherwise, until
this Note is paid in full. A determination that any provision of this Note is
unenforceable or invalid shall not affect the enforceability or validity of any
other provision and the determination that the application of any provision of
this Note to any person or circumstance is illegal or unenforceable shall not
affect the enforceability or validity of such provision as it may apply to
other persons or circumstances. This Note may not be amended except in a
writing specifically intended for such purpose and executed by the party
against whom enforcement of the amendment is sought. Captions and headings in
this Note are for convenience only and shall be disregarded in construing it. THIS
NOTE, AND ITS VALIDITY, ENFORCEMENT AND INTERPRETATION, SHALL BE GOVERNED BY
TEXAS LAW (WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES) AND APPLICABLE
UNITED STATES FEDERAL LAW.


 


6.                                       Notices.
Any notice, request, or demand to or upon Borrower, Administrative Agent or
Payee shall be deemed to have been properly given or made when delivered in
accordance with the Loan Agreement.


 


7. No Usury. It is expressly stipulated and agreed to be the
intent of Borrower, Administrative Agent and all Lenders (including Payee) at
all times to comply with applicable state law or applicable United States
federal law (to the extent that it permits a lender to contract for, charge, take,
reserve, or receive a greater amount of interest than under state law) and that
this Section shall control every other covenant and agreement in this Note
and the other Loan 


 


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Documents. If
applicable state or federal law should at any time be 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 Loan, or if the exercise by Administrative Agent, on behalf
of the Lenders, of the option to accelerate the Maturity Date, or if any
prepayment by Borrower results in Borrower having paid any interest in excess
of that permitted by applicable law, then it is Administrative Agent’s and each
Lender’s (including Payee’s) express intent that all excess amounts theretofore
collected by Administrative Agent’s and each Lender (including Payee) shall be
credited on the principal balance of this Note and all other indebtedness and
the provisions of this Note and the other Loan Documents shall immediately be
deemed reformed and the amounts thereafter collectible hereunder and thereunder
reduced, without the necessity of the execution of any new documents, so as to
comply with the applicable law, but so as to permit the recovery of the fullest
amount otherwise called for hereunder or thereunder. All sums paid or agreed to
be paid to Lenders (including Payee) for the use, forbearance, or detention of
the Loan shall, to the extent permitted by applicable law, be amortized,
prorated, allocated, and spread throughout the full stated term of the Loan
until payment in full so that the rate or amount of interest on account of the
Loan does not exceed the maximum lawful rate from time to time in effect and
applicable to the Loan for so long as the Loan is outstanding.


 


THE LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.


 


THERE ARE NO ORAL AGREEMENTS BETWEEN THE
PARTIES.


 


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


 


 


	
   

  	
  THE PRIVATE
  RESIDENCES, LLC,

  
	
   

  	
  a Delaware
  limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Behringer
  Harvard Private Residences, Inc.,

  
	
   

  	
   

  	
  a Delaware
  corporation, its authorized member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald
  J. Reihsen, III

  	
   

  
	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
  Executive
  Vice President - Corporate 

  
	
   

  	
   

  	
  Development &
  Legal and Secretary

  
						



 


 


PROMISSORY
NOTE - Signature Page