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Exhibit 10.148
PROMISSORY NOTE
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US $2,250,000.00
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Effective Date: December 31, 2008
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FOR VALUE RECEIVED, the undersigned (together with such
party’s or parties’ successors and assigns, "
Borrower ") jointly and severally (if more than one)
promises to pay to the order of FOOTHILL CHIMNEY ASSOCIATES
LIMITED PARTNERSHIP , a Georgia limited partnership, the
principal sum of TWO MILLION TWO HUNDRED FIFTY THOUSAND AND 00/100
Dollars (US $2,250,000.00), with interest on the unpaid
principal balance, as hereinafter provided.
1. Defined
Terms.
(a) As used in this
Note:
" Business Day " means any day other than a Saturday, a
Sunday or any other day on which the national banking associations
are not open for business.
" Default Rate " means an annual interest rate equal to
four (4) percentage points above the Permanent Interest Rate.
However, at no time will the Default Rate exceed the Maximum
Interest Rate.
" Initial Interest Rate " means a per annum interest rate
of three and one-half of one percent (3.5%).
" Installment Due Date " means, for any monthly
installment of interest only, the date on which such monthly
installment is due and payable pursuant to Section 3 of this Note.
The " First Installment Due Date " under this Note is
February 1, 2009.
" Lender " means the holder from time to time of this
Note.
" Loan " means the loan evidenced by this Note.
" Maturity Date " means the earlier of (i) November 1,
2034 (the " Scheduled Maturity Date "), (ii) the Call Date
of any Call Option exercised by the Senior Lender under the Senior
Note, and (iii) the date on which the unpaid principal balance of
this Note becomes due and payable by acceleration or otherwise
pursuant to the Loan Documents or the exercise by Lender of any
right or remedy under any Loan Document.
" Maximum Interest Rate " means
the rate of interest that results in the maximum amount of interest
allowed by applicable law.
" Permanent Interest Rate " means a per annum interest
rate of four percent (4%).
" Security Instrument " means the second deed to secure
debt effective as of the effective date of this Note, from Borrower
to or for the benefit of Lender and securing this Note.
" Senior Lender " means ING USA Annuity and Life
Insurance Company, and any successor holder of the Senior Note.
" Senior Loan Documents " means the Senior Note secured
by a deed to secure debt made by Borrower to or for the benefit of
Senior Lender, and any other loan document executed in connection
with the loan evidenced by the Senior Note.
" Senior Note " means the promissory note in the original
principal amount of $19,250,000.00 made by Borrower (as assignee of
Foothill Chimney Associates, Limited Partnership, a Georgia limited
partnership).
(b) Other capitalized
terms used but not defined in this Note shall have the meanings
given to such terms in the Security Instrument.
2. Address for
Payment. All payments due under this Note shall be
payable at 4582 South Ulster Street Parkway, Suite 1100, Denver,
Colorado 80237, or such other place as may be designated by Notice
to Borrower from or on behalf of Lender.
3.
Payments.
(a) Interest will accrue
on the outstanding principal balance of this Note at the Initial
Interest Rate and the Permanent Interest Rate, as provided in
Sections 3(d) and 3(e), subject to the provisions of Section 8 of
this Note.
(b) Interest under this
Note shall be computed, payable and allocated on the basis of a
360-day year consisting of twelve 30-day months.
(c) Unless disbursement
of principal is made by Lender to Borrower on the first day of a
calendar month, interest for the period beginning on the date of
disbursement and ending on and including the last day of such
calendar month shall be payable by Borrower simultaneously with the
execution of this Note. If disbursement of principal is made
by Lender to Borrower on the first day of a calendar month, then no
payment will be due from Borrower at the time of the execution of
this Note. The Installment Due Date for the first monthly
installment payment under Sections 3(d) and 3(e) of interest only
will be the First Installment Due Date set forth in Section 1(a) of
this Note. Except as provided in this Section 3(c) and in
Section 10, accrued interest will be payable in arrears.
(d) Beginning on First
Installment Due Date, and continuing for the next thirty-five (35)
Installment Due Dates (including the monthly installment due on
January 1, 2012), accrued interest only at the Initial Interest
Rate on the outstanding principal balance of this Note shall be
payable by Borrower in consecutive monthly installments due and
payable on the first day of each calendar month. The amount
of the monthly installment of interest only payable pursuant to
this Section 3(d) on each Payment Date shall be Six Thousand Five
Hundred Sixty-Two and 50/100 Dollars ($6,562.50) unless Borrower
makes a partial prepayment of the principal of the Loan pursuant to
Section 10 hereof, in which case Lender, after
Borrower’s written request, shall recalculate the amount of
the monthly installment of interest thereafter and shall notify
Borrower of the same.
(e) Beginning on February
1, 2012, and continuing until and including the final monthly
installment due on the Maturity Date, accrued interest only at the
Permanent Interest Rate on the outstanding principal balance of
this Note shall be payable by Borrower in consecutive monthly
installments due and payable on the first day of each calendar
month. The amount of the monthly installment of interest only
payable pursuant to this Section 3(d) on each Installment Due Date
shall be Seven Thousand Five Hundred and 00/100 Dollars ($7,500.00)
unless Borrower makes a partial prepayment of the principal of the
Loan pursuant to Section 10 hereof, in which case Lender,
after Borrower’s written request, shall recalculate the
amount of the monthly installment of interest thereafter and shall
notify Borrower of the same.
(f) All remaining
Indebtedness, including all principal and interest, shall be due
and payable by Borrower on the Maturity Date.
(g) All payments under
this Note shall be made in immediately available U.S. funds.
(h) Any regularly
scheduled monthly installment of interest only payable pursuant to
this Section 3 that is received by Lender before the date it
is due shall be deemed to have been received on the due date for
the purpose of calculating interest due.
(i) Any accrued
interest remaining past due for 30 days or more, at Lender’s
discretion, may be added to and become part of the unpaid principal
balance of this Note and any reference to "accrued interest" shall
refer to accrued interest which has not become part of the unpaid
principal balance. Any amount added to principal pursuant to
the Loan Documents shall bear interest at the applicable rate or
rates specified in this Note and shall be payable with such
interest upon demand by Lender and absent such demand, as provided
in this Note for the payment of principal and interest.
(j) All payments
made by Borrower hereunder shall be made irrespective of, and
without any deduction for, any set-offs or counterclaims.
4. Application of
Payments. If at any time Lender receives, from Borrower
or otherwise, any amount applicable to the Indebtedness which is
less than all amounts due and payable at such time, Lender may
apply the amount received to amounts then due and payable in
any manner and in any order determined by
Lender, in Lender’s discretion. Borrower agrees that
neither Lender’s acceptance of a payment from Borrower in an
amount that is less than all amounts then due and payable nor
Lender’s application of such payment shall constitute or be
deemed to constitute either a waiver of the unpaid amounts or an
accord and satisfaction.
5.
Security. The Indebtedness is secured by, among other
things, the Security Instrument, and reference is made to the
Security Instrument for other rights of Lender as to collateral for
the Indebtedness.
6.
Acceleration. If an Event of Default has occurred and is
continuing, the entire unpaid principal balance, any accrued
interest, and all other amounts payable under this Note and any
other Loan Document, shall at once become due and payable, at the
option of Lender, without any prior notice to Borrower (except if
notice is required by applicable law, then after such
notice). Lender may exercise this option to accelerate
regardless of any prior forbearance.
7. Late Charge.
(a) If any monthly
installment of interest or principal and interest or other amount
payable under this Note or under the Security Instrument or any
other Loan Document is not received in full by Lender within ten
(10) days after the installment or other amount is due, counting
from and including the date such installment or other amount is due
(unless applicable law requires a longer period of time before a
late charge may be imposed, in which event such longer period shall
be substituted), Borrower shall pay to Lender, immediately and
without demand by Lender, a late charge equal to five percent (5%)
of such installment or other amount due (unless applicable law
requires a lesser amount be charged, in which event such lesser
amount shall be substituted).
(b) Borrower acknowledges
that its failure to make timely payments will cause Lender to incur
additional expenses in servicing and processing the Loan and that
it is extremely difficult and impractical to determine those
additional expenses. Borrower agrees that the late charge
payable pursuant to this Section represents a fair and
reasonable estimate, taking into account all circumstances existing
on the date of this Note, of the additional expenses Lender will
incur by reason of such late payment. The late charge is
payable in addition to, and not in lieu of, any interest payable at
the Default Rate pursuant to Section 8.
8. Default
Rate.
(a) So long as
(i) any monthly installment under this Note remains past due
for thirty (30) days or more or (ii) any other Event of
Default has occurred and is continuing, then n
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