EXHIBIT 10.4
TERM NOTE
No. 1 February 6, 2003
$5,100,000.00
FOR VALUE RECEIVED, the undersigned, AMERIVEST PROPERTIES INC., a Maryland
corporation (the "Borrower"), promises to pay, without offset or counterclaim,
to the order of Fleet National Bank (hereinafter, together with its successors
in title and assigns, called the "Lender") at the head office of Fleet National
Bank, as Agent (the "Agent") at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
the principal sum of Five Million One Hundred Thousand Dollars ($5,100,000.00)
or, if less, the aggregate unpaid principal amount of all Loans made by the
Lender to the Borrower pursuant to the Term Loan Agreement dated as of February
6, 2003 among the Lender, the Borrower, the other lending institutions named
therein and the Agent (as amended from time to time, the "Term Loan Agreement").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to them in the Term Loan Agreement. Unless otherwise provided
herein, the rules of interpretation set forth in ss.1.2 of the Term Loan
Agreement shall be applicable to this Note.
The Borrower also promises to pay (a) principal from time to time at the
times provided in the Term Loan Agreement and (b) interest from the date hereof
on the principal amount from time to time unpaid at the rates and times set
forth in the Term Loan Agreement and in all cases in accordance with the terms
of the Term Loan Agreement. Late charges and other charges and default rate
interest shall be paid by Borrower in accordance with the terms of the Term Loan
Agreement. The entire outstanding principal amount of this Note, together with
all accrued but unpaid interest thereon, shall be due and payable in full on the
Maturity Date. The Lender may endorse the record relating to this Note with
appropriate notations evidencing advances and payments of principal hereunder as
contemplated by the Term Loan Agreement.
This Note is issued pursuant to, is entitled to the benefits of, and is
subject to the provisions of the Term Loan Agreement. The principal of this Note
is subject to prepayment in whole or in part in the manner and to the extent
specified in the Term Loan Agreement. The principal of this Note, the interest
accrued on this Note and all other Obligations of the Borrower are full recourse
obligations of the Borrower, and all of its Real Estate Assets, and its other
properties shall be available for the payment and performance of this Note, the
interest accrued on this Note, and all of such other Obligations. In case an
Event of Default shall occur and be continuing, the entire unpaid principal
amount of this Note and all of the unpaid interest accrued thereon may become or
be declared due and payable in the manner and with the effect provided in the
Term Loan Agreement.
The Borrower and all endorsers hereby waive presentment, demand, protest
and notice of any kind in connection with the delivery, acceptance, performance
and enforcement of this Note, and also hereby assent to extensions of time of
payment or forbearance or other indulgences without notice.
This Note and the obligations of the Borrower hereunder shall be governed
by and interpreted and determined in accordance with the laws of the
Commonwealth of Massachusetts (excluding the laws applicable to conflicts or
choice of law). The Borrower has waived its right to a jury trial with respect
to any action or claim arising out of this Note pursuant to ss.24 of the Term
Loan Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed
in its name as an instrument under seal on the date first above written.
WITNESS: AMERIVEST PROPERTIES INC.
Xxxx Xxxxxxxx By: Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Its Vice President
