Exhibit 10.48
MERS MIN:8000101-0000002500-6
PROMISSORY NOTE
$12,025,000.00 New York, New York
February 6, 2006
FOR VALUE RECEIVED, COLE MT DENVER CO, LLC, a Delaware limited
liability company, having its principal place of business at 2555 E. Camelback
Road, Ste. 400, Phoenix, Arizona 85016, a maker hereunder (referred to herein as
"BORROWER"), hereby unconditionally promises to pay to the order of BEAR STEARNS
COMMERCIAL MORTGAGE, INC., a New York corporation, as payee, having an address
at 383 Madison Avenue, New York, New York 10179 ("LENDER"), or at such other
place as the holder hereof may from time to time designate in writing, the
principal sum of TWELVE MILLION TWENTY FIVE THOUSAND AND 00/100 DOLLARS
($12,025,000.00), in lawful money of the United States of America with interest
thereon to be computed from the date of this Note at the Interest Rate, and to
be paid in accordance with the terms of this Note and that certain Loan
Agreement, dated as of the date hereof, between Borrower and Lender (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 rates
and at the times specified in 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. This Note shall be the "Note" as
defined in the Loan Agreement.
ARTICLE 2
DEFAULT AND ACCELERATION
The Debt shall without notice become immediately due and payable at
the option of Lender if any payment required in this Note is not paid within
five (5) days of the date when due or if not paid on the Maturity Date or on the
happening of any other Event of Default.
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 (without prepayment penalty or premium or
any Yield Maintenance Premium) 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 with respect to matters for which any of the Loan
Documents specifically provides for the giving of notice by Lender to Borrower.
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 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 partnership, the agreements herein contained
shall remain in force and 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 limited liability company, the agreements herein contained
shall remain in force and applicable, notwithstanding any changes in the members
comprising the company, and the term "Borrower," as used herein, shall include
any alternate or successor company, but any predecessor company shall not
thereby be released from any liability. If Borrower is a corporation, the
agreements contained herein shall remain in full force and 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 entity which may be
set forth in the Loan Agreement, the Mortgage or any other Loan Document.)
ARTICLE 7
TRANSFER
Upon the transfer of this Note, Borrower hereby waiving notice of any
such transfer except as provided in the Loan Agreement, 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 from that date forward forever be relieved and
fully discharged from any liability or responsibility in the matter; 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 Section 9.3 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.
ARTICLE 9
GOVERNING LAW
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT ENTERED INTO PURSUANT TO
THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND SHALL IN ALL RESPECTS
BE GOVERNED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE IN
WHICH THE PROPERTY IS LOCATED AND APPLICABLE FEDERAL LAWS.
ARTICLE 10
NOTICES
All notices or other written communications hereunder shall be
delivered in accordance with Section 10.6 of the Loan Agreement.
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IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day
and year first above written.
BORROWER:
COLE MT DENVER CO, LLC, a Delaware
limited liability company
By: Cole REIT Advisors II, LLC, a
Delaware limited liability company,
its manager
By: /s/ John M. Pons
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Name: John M. Pons
Title: Senior Vice President
ACKNOWLEDGMENT
STATE OF Arizona )
) ss.
COUNTY OF Maricopa )
The foregoing instrument was acknowledged before me this 3rd day of
February, 2006 by John M. Pons, as Senior Vice President of Cole REIT Advisors
II, LLC, a Delaware limited liability company, in its capacity as the manager of
Cole MT Denver CO, LLC, a Delaware limited liability company.
Witness my hand and official seal.
My commission expires: 9/3/08
/s/ Mary D. Bates
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Notary Public