PROMISSORY NOTE
$5,000,000.00 Denver, Colorado
September 1, 1998
FOR VALUE RECEIVED, the undersigned, ASSET INVESTORS OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership, and ASSET INVESTORS
CORPORATION, a Maryland corporation (hereinafter referred to as "Borrowers"),
each with an address of 0000 X. Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx
00000, promise to pay to the order of U.S. BANK NATIONAL ASSOCIATION
(hereinafter referred to, along with each subsequent holder hereof, as
"Lender"), at its office at 0000 Xxxx Xxxxxxxxx, XXXX0000, Xxxxxx, Colorado
80237 (or at such other place as Lender shall designate in writing), in lawful
money of the United States of America, the principal sum of FIVE MILLION AND
NO/100 DOLLARS ($5,000,000.00), or so much thereof as may be advanced by Lender
pursuant to the terms of that certain Credit Agreement of even date, to which
Borrowers and Lender are parties (as the same may from time to time be amended
or supplemented, the "Credit Agreement"), and remain unpaid from time to time,
together with interest, from the date of each Advance made by Lender until
repaid in full, at the rate and at the times set forth in the Credit Agreement.
The loan evidenced by this Note is a revolving loan, whereby Borrowers may
borrow, repay and reborrow the principal indebtedness evidenced hereby.
1. Credit Agreement. This Promissory Note is the Note referred to in
the Credit Agreement and is entitled to the benefits thereof. Capitalized terms
used herein, unless otherwise defined herein, shall have the meanings given them
in the Credit Agreement.
2. Interest. The outstanding principal balance of this Note shall bear
interest, from the date of each Advance made by Lender until repaid in full, at
the interest rate set forth in the Credit Agreement, which interest shall be due
and payable, in arrears, as provided in the Credit Agreement.
3. Payments. Borrowers shall make principal payments in the amounts and
at the times set forth in the Credit Agreement. Upon the Maturity Date or
earlier upon termination of the Credit Agreement, the entire outstanding
principal balance of this Note, together with all accrued but unpaid interest
thereon and all other sums due hereunder, shall be due and payable in full.
Borrowers shall have the right to prepay the outstanding principal balance of
this Note, together with all accrued but unpaid interest thereon and all other
sums due hereunder, in full or in part, at any time, without penalty, fee or
premium. All payments of principal, interest and any other sums on this Note due
from Borrowers to Lender shall be made to Lender in lawful money of the United
States of America in the manner set forth in the Credit Agreement. All payments
received by Xxxxxx on this Note shall be applied as set forth in the Credit
Agreement.
4. Default. Time is of the essence hereof. The occurrence of any Event
of Default under the Credit Agreement shall be a default hereunder and, upon the
occurrence of any such default, the payment of all principal, interest and any
other sums due in accordance with the terms of this Note shall, at the option of
Lender, be accelerated and such principal, interest and other sums shall be
immediately due and payable without notice or demand, and Lender shall have the
option to foreclose or to require foreclosure of any or all liens and security
interests securing the payment hereof and/or to exercise any other rights and
remedies available to Lender hereunder or under the Credit Agreement.
5. Security. The payment and performance of this Note is secured by a
first priority security interest in the Pledged Stock (as defined in the Credit
Agreement).
6. Governing Law. As additional consideration for the extension of
credit, each Borrower, endorser, cosigner and guarantor of this Note understands
and agrees that the loan evidenced by this Note is made in the State of Colorado
and the provisions hereof will be construed in accordance with the laws of the
State of Colorado. Such parties further consent to the personal jurisdiction of
the federal and state courts located in the State of Colorado, waive any
argument that such a forum is not convenient and agree that any litigation
relating to this Note initiated by them or on their behalf shall be venued in
either the District Court of Denver County, Colorado, or the United States
District Court, District of Colorado, and they do hereby submit to the
jurisdiction of such courts regardless of their residence or where this Note or
any endorsement hereof may be executed.
7. Miscellaneous Provisions.
(a) Each Borrower and any guarantor of this Note hereby waives
demand for payment, presentment for payment, protest, notice of protest, notice
of dishonor, notice of nonpayment, notice of acceleration of maturity, diligence
in taking any action to collect sums owing hereunder and all duty or obligation
of Lender to effect, protect, perfect, retain or enforce any security for the
payment of this Note or to proceed against any collateral before otherwise
enforcing this Note.
(b) This Note and each payment of principal and interest hereunder
shall be paid when due without deduction or setoff of any kind or nature or for
any costs whatsoever.
(c) Borrowers agree to reimburse Lender for all costs, including,
without limitation, reasonable attorneys' fees, incurred from time to time to
collect any payment under this Note. Borrowers agree that Lender may from time
to time extend the maturity of this Note or the time any payment is due under
this Note and may accept further security or release security for the payment of
this Note, without in any way affecting any obligations of Borrowers to Lender.
(d) This Note shall be a joint and several obligation of Borrowers
and of all endorsers, cosigners and guarantors hereof and shall be binding upon
them and their respective heirs, representatives, successors and assigns.
8. Waiver of Jury Trial. BORROWERS HEREBY WAIVE THE RIGHT TO A TRIAL BY
JURY IN ANY DISPUTE ARISING IN CONNECTION WITH THIS NOTE, OR IN ANY WAY RELATED
TO THE NEGOTIATION, ADMINISTRATION, MODIFICATION, EXTENSION OR COLLECTION OF THE
INDEBTEDNESS EVIDENCED HEREBY. BORROWERS STATE THAT THEY HAVE CONFERRED
SPECIFICALLY WITH LENDER WITH RESPECT TO THIS WAIVER, AND BORROWERS HAVE AGREED
TO THIS WAIVER AFTER CONSULTATION WITH ITS COUNSEL AND WITH FULL UNDERSTANDING
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OF THE IMPLICATIONS HEREOF.
IN WITNESS WHEREOF, Xxxxxxxxx have executed this Promissory Note as of
the day and year first above written.
BORROWERS:
ASSET INVESTORS OPERATING
PARTNERSHIP, L.P., a Delaware
limited partnership
By: ASSET INVESTORS CORPORATION,
a Maryland corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------
Xxxxx X. Xxxxxx
Chief Financial Officer,
Secretary and Treasurer
ASSET INVESTORS CORPORATION, a
Maryland corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxx
Chief Financial Officer,
Secretary and Treasurer
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STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 2nd day of
September, 1998, by Xxxxx X. Xxxxxx, as Chief Financial Officer, Secretary and
Treasurer of Asset Investors Corporation, a Maryland corporation, as general
partner of Asset Investors Operating Partnership, L.P., a Delaware limited
partnership.
Witness my hand and official seal.
My commission expires: 9/9/2001
/s/ Xxxxx X. Xxxxxxx
----------------------------
Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 2nd day of
September, 1998, by Xxxxx X. Xxxxxx, as Chief Financial Officer, Secretary and
Treasurer of Asset Investors Corporation, a Maryland corporation.
Witness my hand and official seal.
My commission expires: 9/9/2001
/s/ Xxxxx X. Xxxxxxx
----------------------------
Notary Public
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