PROMISSORY NOTE
$ 14,300,000.00 Denver, Colorado
August 10, 2000
FOR VALUE RECEIVED, the undersigned ASSET INVESTORS OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership ("Borrower"), hereby promises
to pay to the order of U. S. BANK NATIONAL ASSOCIATION ("Bank") at 918
Seventeenth Street, Fifth Floor, Denver, Colorado 80202, or at such other place
as Bank may, from time to time designate in writing, the principal sum of
FOURTEEN MILLION THREE HUNDRED THOUSAND AND NO/100THS DOLLARS ($14,300,000.00),
or so much of that sum as may be advanced under this Note by the Bank, with
principal and interest thereon payable as specified in this Note. Capitalized
terms used but not defined herein shall have the meanings assigned to such terms
in the Loan Agreement (defined below).
1. Principal and Interest. Interest shall accrue on the outstanding
principal balance of the Loan from and after the date of disbursement
("Disbursement Date") at a variable annual rate equal to the Reserve Adjusted
LIBOR Rate (defined in Exhibit A) plus two hundred (200) Basis Points ("Adjusted
LIBOR Rate"), adjusted in the manner provided in Exhibit A, shall be payable as
set forth below, and shall be calculated on the actual days outstanding over a
360 day year.
2. Basis Points. The term "Basis Points" means an arithmetic
expression of a percentage measured in hundredths of a percent (i.e. 50 Basis
Points equals one-half of one percent). The terms used above are defined in
Exhibit A.
3. Payment and Maturity Dates. Principal and interest shall be payable
as follows:
(a) in arrears, on the first (1st) day of the month following the
date hereof, and on the first (1st) day of each month thereafter until this Note
matures, payments of interest only accruing on the outstanding principal balance
plus principal in an amount equal to $24,275.00; and
(b) on August 10, 2002 (the "Maturity Date"), the entire unpaid
principal amount and any interest accrued but remaining unpaid and all other
sums due under this Note.
All installments of principal and interest of this Note are payable only in
lawful money of the United States of America, at such place as the holder hereof
may designate in writing from time to time. Any payments received by Bank will
be applied in the following order: (a) any collection costs the Bank may have
incurred in procuring Borrower's performance hereunder; (b) payment of the
interest then accrued and due on the unpaid principal balance of this Note; (c)
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any charges assessed by the Bank or due under the terms of the Loan Documents,
including without limitation, the Make-Whole Fee (defined in Exhibit A); and (d)
principal.
4. Prepayment. This Note may be prepaid, either in whole or in part at
any time without premium or penalty but subject to payment of the Make-Whole
Fee, and without the prior consent of the Bank hereof, on the condition that
Borrower shall concurrently pay all accrued interest on the amount of principal
outstanding at the time of each prepayment and any other charges then due and
that Borrower shall provide Bank with five (5) days' prior written notice of the
amount of the prepayment.
5. Default and Acceleration. Time is of the essence of this Note. Upon
the occurrence of an Event of Default as defined in the Loan Agreement, at the
option of the holder hereof, the entire debt then remaining unpaid at once shall
become due and payable without notice and the liens given to secure the payment
of this Note may be foreclosed and Bank may pursue all rights and remedies
available under this Note or any instrument securing payment of this Note.
6. Default Rate of Interest. In the Event of Default, Borrower and
Co-Makers promise to pay interest on the principal balance of this Note together
with all sums due and owing under the Note or the Loan Documents then
outstanding at a rate of interest ("Default Rate") equal to the greater (a) of
eighteen percent (18%) per annum, or (b) five percent (5%) per annum in excess
of the Adjusted LIBOR Rate then applicable, provided that any interest which has
accrued at the Default Rate shall be paid at the time of and as a condition
precedent to the curing of any default under any statutory right to cure..
Failure to exercise such option or charge such increased interest shall not be a
waiver of the right to do so at any future time or with respect to any other
default.
7. Late Charges. If Borrower shall fail to make any payment of
interest or principal, including the final combined principal and interest
installment, within ten (10) days after the date the same is due and payable, a
late charge by way of damages shall be immediately due and payable. Borrower
recognizes that default by Borrower in making the payments herein agreed to be
paid when due will result in the holder incurring additional expense in
servicing the Loan, in loss to the holder of the use of the money due and in
frustration to the holder in meeting its other financial and loan commitments.
Borrower agrees that, if for any reason Borrower fails to pay the amounts due
under this Note within ten (10) days after the date the same is due and payable,
the holder hereof shall be entitled to damages for the detriment caused thereby,
and that it is extremely difficult and impractical to ascertain the extent of
such damages. Borrower therefore agrees that a sum equal to four percent (4%) of
each payment which becomes delinquent is a reasonable estimate of said damages
to the holder of this Note, which sum Borrower agrees to pay on demand.
8. Remedies Cumulative. The rights or remedies of the Bank as provided
in this Note and any instrument securing payment of this Note shall be
cumulative and concurrent and may be pursued singly, successively, or together
against the Borrower, the real property described in the Loan Documents, and any
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other funds, property or security held by Bank for the payment hereof or
otherwise at the sole discretion of the Bank. The failure to exercise any such
right or remedy shall in no event be construed as a waiver or release of such
rights or remedies or the right to exercise them at any later time.
9. Forbearance. Any forbearance of Bank in exercising any right or
remedy hereunder or under the Loan Documents, or otherwise afforded by
applicable law, shall not be a waiver of or preclude the exercise of any right
or remedy. The acceptance by Bank of payment of any sum payable hereunder after
the due date of such payment shall not be a waiver of Bank's right to either
require prompt payment when due of all other sums payable hereunder or to
declare a default for failure to make prompt payment. Bank shall at all times
have the right to proceed against any portion of the security held herefor in
such order and in such manner as Bank may deem fit, without waiving any rights
with respect to any other security. No delay or omission on the part of Bank in
exercising any right hereunder shall operate as a waiver of such right or of any
other right under this Note.
10. Right of Setoff. In addition to all liens upon, and the rights of
setoff against, the monies, securities and other property of Borrower given to
the Bank, the Bank shall have a lien upon, and a right of setoff against, all
monies, securities and other property of Borrower, now or hereafter in the
possession of the Bank, whether for safekeeping or otherwise. In the event of a
default under this Note, the Bank shall have the right to take amounts due from
any deposit balances Borrower has with the Bank, regardless of any penalty that
may apply when the Bank exercises such right, and apply such amounts for the
outstanding balance of amounts due under this Note.
11. Application of Payments. All payments made on this Note shall be
applied first to any collection costs the Bank may have incurred by procuring
Borrower's performance hereunder, then to payment of the interest then accrued
and due on the unpaid principal balance of this Note, then to any other sums due
to the Bank under the Loan Documents, then to the Prepayment Premium, if
applicable, and the remainder of all such payments shall be applied to the
reduction of the unpaid principal.
12. Waivers. Borrower and any sureties, guarantors and endorsers
(severally each called a "Surety") waive presentment, protest and demand, notice
of protest, demand and of dishonor and non-payment of this Note, and expressly
agree that this Note, or any payment hereunder, may be extended from time to
time without in any way affecting the liability of the Borrower and each Surety
hereof. Borrower and any Surety further agree that at any time and from time to
time without notice the terms of payment herein may be modified or the security
described in the Loan Documents released in whole or in part, or increased,
changed or exchanged by agreement between the Bank and any owner of the property
affected by said Loan Documents without in anywise affecting the liability of
any party to this instrument or any person liable or to become liable with
respect to any indebtedness evidenced hereby.
In addition, Borrower and each Surety waives and agrees not to assert:
(a) any right to require holder to proceed against Borrower or any other Surety,
to proceed against or exhaust any security for the Note, to pursue any other
remedy available to Bank, or to pursue any remedy in any particular order or
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manner; (b) the benefit of any statute of limitations affecting its liability
hereunder or the enforcement hereof; (c) the benefits of any legal or equitable
doctrine or principle of marshalling; (d) notice of the existence, creation or
incurring of new or additional indebtedness of Borrower to Bank; (e) the
benefits of any statutory provision limiting the liability of a surety, to the
extent applicable; (f) any defense arising by reason of any disability or other
defense of Borrower or by reason of the cessation from any cause whatsoever
(other than payment in full) of the liability of Borrower for payment of the
Note; and (g) the benefits of any statutory provision limiting the right of Bank
to recover a deficiency judgment, or to otherwise proceed against any person or
entity obligated for payment of the Note, after any foreclosure or trustee's
sale of any security for the Note. Until payment in full of the Note, no Surety
shall have any right of subrogation and each hereby waives any right to enforce
any remedy which Bank now has, or may hereafter have, against Borrower or any
other Surety, and waives any benefit of, and any right to participate in, any
security now or hereafter held by Bank.
13. Usury. In the event the interest provisions hereof or any
exactions provided for herein or in the Loan Documents or any other instrument
securing this Note shall result, because of any reduction of principal, or for
any reason at any time during the life of this Loan, in any effective rate of
interest which, for any month, transcends the limit of the usury or any other
law applicable to the Loan, all sums in excess of those lawfully collectible as
interest for the period in question shall, without further agreement or notice
between or by any party hereto, be applied upon principal immediately upon
receipt of such moneys by Bank, with the same force and effect as though the
payor had specifically designated such extra sums to be so applied to principal
and Bank had agreed to accept such extra payment as a premium-free prepayment.
In no event shall any agreed to or actual exaction as consideration for this
Loan transcend the limits imposed or provided by the laws applicable to this
transaction or the Borrower hereof in the jurisdiction in which the Property is
located for the use or detention of money or for forbearance in seeking its
collection.
14. Loan Documents. This Note is executed by Borrower in connection
with that certain Term Loan Agreement between Borrower and Bank dated as of the
date hereof (the "Loan Agreement"), and this Note is secured by, among other
things, a Mortgage, Security Agreement, Financing Statement and Absolute
Assignment of Rents and Revenues dated as of the date hereof, on real estate
situated in the County of Pinellas, Florida, and other documents and instruments
evidencing and securing repayment of the Loan (collectively, the "Loan
Documents"). The Loan Agreement and the Loan Documents contain provisions for
the acceleration of the maturity of this Note. In the event of any conflict
between any provision of the Loan Agreement and any provisions of this Note, the
provision of the Loan Agreement shall control.
15. Preferential Payment. Borrower agree that to the extent Borrower
or any Surety makes any payment to Bank in connection with the indebtedness
evidenced by this Note, and all or any part of such payment is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to
be repaid by Bank or paid over to a trustee, receiver or any other entity,
whether under any bankruptcy act or otherwise (any such payment is hereinafter
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referred to as a "Preferential Payment"), then the indebtedness of Borrower
under this Note shall continue or shall be reinstated, as the case may be, and,
to the extent of such payment or repayment by Bank, the indebtedness evidenced
by this Note or part thereof intended to be satisfied by such Preferential
Payment shall be revived and continued in full force and effect as if said
Preferential Payment had not been made.
16. Governing Law; Jurisdiction. This Note is to be governed according
to the laws of Colorado, without giving effect to principles of conflict.
Without limiting the right of the Bank to bring any action or proceeding against
Borrower or any Surety or against any property of Borrower or any Surety (an
"Action") arising out of or relating to this Note or any indebtedness evidenced
hereby in the courts of other jurisdictions, Borrower and each Surety hereby
irrevocably submit to the jurisdiction, process and venue of any Colorado State
or Federal court sitting in Denver, Colorado, and hereby irrevocably agree that
any Action may be heard and determined in such Colorado State court or in such
Federal court. Borrower and all Sureties each hereby irrevocably waives, to the
fullest extent it may effectively do so, the defenses of lack of jurisdiction
over any person, inconvenient forum or improper venue, to the maintenance of any
Action in any jurisdiction.
17. Joint and Several Obligations. If there shall be more than one
maker of this Note, the obligations of each maker under this Note are joint and
several. The obligations of each maker are independent of the obligations of
each of the other makers or any guarantor who has executed and delivered a
guarantee. Release of one or more of the makers shall not impair or diminish the
liability of any remaining maker, except to the extent of monies actually
received by Bank from the released maker as a consequence of such release. Each
maker waives any rights the maker might otherwise have under C.R.S. Sections
13-50-102 or 13-50-103 (or under any corresponding future statute or rule of law
in any jurisdiction) by reason of any release of fewer than all of the makers,
all in such manner and upon such terms as the Bank may deem proper, and without
notice to or further assent from the makers, and all without affecting the
obligations of the makers hereunder. In the event of any default thereunder, a
separate action or actions may be brought and prosecuted against any of the
makers, whether or not a maker is joined therein or a separate action or actions
are brought against any of the other makers. Bank may maintain successive
actions for other defaults. The Bank's rights hereunder shall not be exhausted
by its exercise of any of its rights and remedies or by any such action or by
any number of successive actions until and unless the Obligations have been paid
and fully performed.
18. Binding Effect. This Note shall be binding upon Borrower and its
successors and assigns and shall inure to the benefit of Bank, and any
subsequent holders of this Note, and their successors and assigns.
19. Notice. All notices required or permitted in connection with this
Note shall be given at the place and in the manner provided in the Loan
Agreement for the giving of notices.
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20. Attorneys' Fees. Borrower further promise to pay all reasonable
attorneys' fees incurred by the Bank in connection with any Default hereunder
and in any proceeding brought to enforce any of the provisions of this Note.
21. Interpretation and Incorporation. As used in this Note, the term
"Bank," shall include each subsequent transferee and/or owner of this Note,
whether taking by endorsement or otherwise. As used in this Note, the word
"include(s)" means "include(s), without limitation," and the word "including"
means "including, but not limited to".
22. Waiver of Jury Trial. Borrower, and by acceptance of this Note,
Bank hereby irrevocably waive, to the fullest extent permitted by law, any and
all right to trial by jury in any legal proceeding arising out of or relating to
this Note, the Loan Agreement, the other Loan Documents or the transactions
contemplated thereby.
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IN WITNESS WHEREOF, has duly executed this Note as of the day and year
first above written.
BORROWER:
ASSET INVESTORS OPERATING
PARTNERSHIP, L.P., a Delaware limited
partnership
By: ASSET INVESTORS CORPORATION,
a Delaware corporation, General Partner
By:____________________________________
David M. Becker
Chief Financial Officer
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