exv10w44






Exhibit 10.44




PPM Loan No. 09-01102




FIXED
RATE PROMISSORY NOTE




Date: August 31, 2009




The following terms or provisions are used in this Note and are incorporated by reference herein.




Maker: Those entities executing this Note, jointly and severally




	 	 	 
	Maker’s Mailing Address:

	 	2555 E. Camelback Road, Suite 400

Phoenix, Arizona 85016






	 	 	 
	Noteholder:

	 	JACKSON NATIONAL LIFE INSURANCE
COMPANY, a Michigan
corporation, its successors or assigns





Place for Payment: the office of Noteholder’s correspondent, CBRE Melody at 400 North Ashley Drive,
Suite 1700, Tampa, Florida 33602, or at such other place as from time to time may be designated by
Noteholder by notice to Maker in accordance with the Loan Agreement (hereinafter defined).



Principal Amount:$30,000,000.00



Interest Rate: six and thirty eight hundredths percent (6.38%) per annum



Prepaid Interest Period: the period commencing on the date of this Note through and including
August 31, 2009.



First Monthly Payment Date: October 1, 2009



Payments: Monthly installments of interest only on the unpaid principal balance of this Note shall
be due and payable in forty-eight (48) consecutive monthly installments commencing on October 1,
2009, and continuing on the 1st day of each calendar month thereafter, with each such installment
to be in the sum of ONE HUNDRED FIFTY-NINE THOUSAND FIVE HUNDRED and No/100 Dollars ($159,500.00),
without deduction or set off. Principal, and interest thereon, shall be due and payable IN FULL on
September 1, 2013 unless extended as set forth herein.



Maturity Date: September 1, 2013, unless extended as set forth herein.





 









 








     1. Promise to Pay. FOR VALUE RECEIVED, the Maker hereby promises to pay to the order
of Noteholder, the Principal Amount (the “Loan”), with interest on the outstanding
principal balance thereof from the date hereof until Maturity Date at the Interest Rate or the
Default Rate (as applicable), both principal and interest being payable as hereinafter provided in
lawful money of the United States of America at the Place for Payment. Interest shall be calculated
and paid on the basis of a 30-day month and 360-day year, unless otherwise noted herein. The
Interest Rate may be changed to the “Reset Rate” in accordance with the Loan Agreement (hereinafter
defined).



     2. Payments. A payment of interest only, calculated at the Interest Rate, based on a
365-day year, on the outstanding principal balance of this Note shall be due and payable in advance
on the date hereof in an amount equal to accrued interest during the Prepaid Interest Period. Maker agrees to pay Noteholder
payments of interest only calculated at the Interest Rate, commencing on the First Monthly Payment
Date and continuing thereafter on the same day of each succeeding month through and including the
Maturity Date, on which date all unpaid principal and interest, together with any other sums due
under the terms of this Note, shall be due and payable.



     PROVIDED THAT, if the Maturity Date is extended and the Interest Rate is changed to the Reset
Rate in accordance with the Loan Agreement, Maker agrees to pay Noteholder monthly installment
payments of (i) interest only, calculated at the Reset Rate, on the unpaid principal balance of
this Note, commencing on the 1st day of October, 2013, and on the same day of each succeeding month
through and including September 1, 2014, and (ii) principal and interest, calculated at the Reset
Rate, commencing on the first day of October, 2014 and continuing until September 1, 2019 on which
date all unpaid principal and accrued and unpaid interest, together with any other sums due under
the terms of this Note, shall be due and payable in full. All such monthly payments commencing on
October 1, 2014 will be applied first to interest and then to principal based on a 25 year
amortization schedule.



     3. Treatment of Payments. All payments of principal, interest, late charges (as
described below), and prepayment premium (as described below), if any, due under this Note shall be
paid to Noteholder by wire transfer pursuant to Noteholder’s written wire transfer instructions or
by check of immediately available funds delivered to the Place for Payment and in such other
manner, as Noteholder may from time to time designate upon not less than fifteen (15) days prior
written notice to Maker. If such payment is received by 2:00 p.m., eastern time, such payment will
be credited to Maker’s account as of the date on which received. If such payment is received after
2:00 p.m., eastern time, such payment will be credited to Maker’s account on the business day next
following the date on which received. Each installment payment under this Note shall be applied
first to the payment of any cost or expense for which Maker is liable hereunder or under the other
Loan Documents, including any unpaid late charge, then to accrued interest and the remainder to the
reduction of unpaid principal. Time is of the essence as to all payments hereunder.



2









 





     4. Late Charges. If any monthly installment of principal and/or interest is not paid
in full on or before the tenth day of the month in which such payment is due, then a charge for
late payment (“Late Charge”) in the amount of five percent (5%) of the amount of such
installment shall be immediately assessed and shall be immediately due and payable by Maker. The
parties hereby recognize that the Late Charge is a reasonable approximation of an actual loss
difficult to estimate. Noteholder’s failure to collect such Late Charge shall not constitute a
waiver of Noteholder’s right to require such payment of such Late Charge for past or future
defaults. The Late Charge shall be in addition to all other rights and remedies available to
Noteholder upon the occurrence of an Event of Default.



     5. Default Interest. Upon (a) the occurrence of an Event of Default and during the
continuation thereof, or (b) Maker’s failure to pay all then unpaid principal and interest, and any
other sums due, on the Maturity Date, interest shall thereafter accrue hereunder at an annual rate
(the “Default Rate”) equal to the lesser of (i) the then Interest Rate plus 5% per annum and (ii)
the maximum rate allowed by law. The Default Rate shall accrue on the entire outstanding balance
hereof, including, without limitation, delinquent interest and any and all costs and expenses
incurred by Noteholder in connection therewith.



     6. Security; Definitions.



     a. This Note is made pursuant to a Loan Agreement of even date herewith between Noteholder and
Maker (the “Loan Agreement”) and secured by, among other things, the Security Instruments
of even date herewith in favor of Noteholder described on Schedule “A” hereto, each granting a
first lien on certain real property described therein, and granting a security interest in certain
personal property, fixtures and equipment described therein.



     b. Capitalized terms not otherwise defined in the preamble or in other provisions of this Note
shall have the meanings ascribed to such terms in the Loan Agreement.



     c. The terms and provisions of the Loan Agreement are incorporated herein by reference (as if
such terms and provisions were set forth in this Note).



     7. Event of Default. Upon the occurrence of an Event of Default, Noteholder shall
have the option of declaring the indebtedness evidenced hereby to be immediately due and payable
(the “Loan Acceleration”). After the Loan Acceleration, Noteholder shall have the option of
applying any payments received to principal or interest or any other costs due pursuant to the
terms of this Note or the other Loan Documents. Interest at the Default Rate shall continue to
accrue on any judgment Noteholder may obtain against Maker on this Note or the Security Instrument
until Noteholder acquires record title to the Project or the judgment and interest and costs have
been paid in full. Noteholder may include any applicable prepayment premium, attorney’s fees and
costs of suit in any complaint, judgment or assessment of damages filed or entered pursuant to this
Note and/or the Security Instrument.



3









 





     8. Prepayment. No prepayment of the principal balance of the Note is allowed prior to
April 1, 2012. If the Loan has been accelerated at a time when the Loan is closed to prepayment,
and Maker wishes to pay the Loan in full, the payment tendered must include a premium of ten (10%)
percent of the principal amount owed on the date of default in addition to all other amounts due
and owing.



     After April 1, 2012, prepayment is permitted at any time, in full but not in part (except upon
an involuntary partial prepayment resulting from application of casualty or condemnation proceeds),
upon thirty (30) days’ written notice, with payment to Noteholder of a yield maintenance premium
(“Premium”) equal to the greater of (i) 1% of the outstanding principal balance hereof at the time
of prepayment or (ii) the present value on the date of prepayment of all future principal and
interest payments hereunder until the Maturity Date, beginning with the payment due on the month
following the pay-off date, including any balloon payment due on the Maturity Date assuming payment
in accordance with the repayment terms hereunder, less the current outstanding principal balance of
the Loan. The interest rate used in calculating the present value shall be the Treasury Rate, as
defined herein, divided by twelve. “Treasury Rate” for loans with two or more years to maturity
shall be equal to the result of the straight-line interpolation of the current annual yield (or if
none, the most recent previous yield) of the two Key U.S. Government Treasury Securities that
bracket the maturity date of the Loan. The “Key U.S. Government Treasury Securities” are the
treasuries with 2-Year, 5-Year, 10-Year and 30-Year maturities as published by Bloomberg at 4 p.m.
central time, 3 business days prior to the payoff date. By way of example and not limitation, if 7
and 1/2 years remain until the Maturity Date at the time of prepayment, the straight line
interpolation of the Treasury Rate would be the average of the then annual current yield (or if
none, the most recent previous yield) of the 5-Year and 10-Year U.S. Treasury Securities. By way of
clarification, if the Loan is paid in full prior to September 1, 2013, the yield maintenance will
be calculated through September 1, 2013.



     If less than two years remain from the payoff date to the Maturity Date, the term “Treasury
Rate” as used herein, shall be based on the Interpolated Curve Function (“ICUR”) as calculated by
Bloomberg L.P. at 4 p.m. central time three (3) days prior to the payoff date. If any of the Key
U.S. Government Securities are no longer in use or if Bloomberg L.P. is no longer reporting such
information, Noteholder in its sole discretion may select another reporting source or other
relevant replacement Key U.S. Government Treasury Securities to determine the Treasury Rate.



     Notwithstanding anything to the contrary hereinabove provided, no Premium shall apply to a
payment in full during the last ninety (90) days of the Loan term or due to taking through
condemnation or a casualty where Lender applies proceeds to pay down the Loan. No involuntary
partial prepayment shall modify the timing of any required monthly payments, except that if the
principal is reduced, the interest components of the monthly payments will be reduced to reflect
such reduced principal balance.



4









 





     If this Note has been accelerated due to an Event of Default during a time when prepayment is
permitted, and Maker wishes to pay the Note in full, the payment tendered must include either (i)
the applicable prepayment premium, if the payment is tendered during a period when prepayment is
permitted hereunder, or (ii) the greater of such prepayment premium or 10% of the principal amount
owed on the date of default, if the payment is tendered during a period when prepayment is
prohibited hereunder.



     9. Limitation on Personal Liability. The provisions of Section 9.18 of the
Loan Agreement entitled “Limitation of Liability” are hereby incorporated by reference to the same
extent as if it were set forth herein.



     10. Non-Usurious Loan. It is the intent of Noteholder and Maker in this Note and the
other Loan Documents now or hereafter securing this Note to contract in strict compliance with
applicable usury law. In furtherance thereof, Noteholder and Maker stipulate and agree that none
of the terms and provisions contained in this Note, or in any other instrument executed in
connection herewith, including, the Loan Documents, shall ever be construed to create a contract to
pay for the use, forbearance or detention of money, or interest at a rate in excess of the maximum
interest rate permitted to be charged by applicable law. Neither Maker nor any guarantors,
endorsers or other parties now or hereafter becoming liable for payment of this Note shall ever be
required to pay interest on this Note at a rate in excess of the maximum interest that may be
lawfully charged under applicable law, and the provisions of this paragraph shall control over all
other provisions of this Note, the Loan Documents and any other instruments now or hereafter
executed in connection herewith which may be in apparent conflict herewith. Noteholder expressly
disavows any intention to charge or collect excessive unearned interest or finance charges in the
event the maturity of this Note is accelerated. If the maturity of this Note is accelerated for
any reason or if the principal of this Note is paid prior to the Maturity Date, and as a result
thereof the interest received for the actual period of existence of this Note exceeds the
applicable maximum lawful rate, Noteholder shall, at its option, either refund the amount of such
excess or credit the amount of such excess against the principal balance of this Note then
outstanding and thereby shall render inapplicable any and all penalties of any kind provided by
applicable law as a result of such excess interest. In the event that Noteholder collects monies
which are deemed to constitute interest which would increase the effective interest rate on this
Note to a rate in excess of that permitted to be charged by applicable law, all such sums deemed to
constitute interest in excess of the lawful rate shall, upon such determination, at the option of
Noteholder, be either immediately returned or credited against the principal balance of this Note
then outstanding, in which event any and all penalties of any kind under applicable law as a result
of such excess interest shall be inapplicable. By execution of this Note Maker acknowledges that it
believes this Note and all interest and fees paid in connection with the loan represented by this
Note, to be non-usurious. Maker agrees that if, at any time, Maker should believe that this Note or
the loan represented by this Note is in fact usurious, Maker will give Noteholder notice of such
condition and Maker agrees that Noteholder shall have ninety (90) days in which to make appropriate
refund or other adjustment in order to correct such condition if in fact such condition exists.
The term “applicable law” as used in this Note shall mean the laws of the State of Florida or the
laws of the United States, whichever allows the greater rate of interest, as such laws now exist or
may be changed or amended or come into effect in the future.



5









 





     11. Noteholder’s Attorney Fees. Should the indebtedness represented by this Note or
any part thereof be collected at law or in equity or through any bankruptcy, receivership, probate
or other court proceedings or if this Note is placed in the hands of attorneys for collection after
an Event of Default, or if the lien or priority of the lien represented by the Security Instrument
or the other Loan Documents is the subject of any court proceeding, Maker and all endorsers,
guarantors and sureties of this Note jointly and severally agree to pay to Noteholder in addition
to the principal and interest due and payable hereon reasonable third party attorneys’ and
collection fees actually incurred, including those incurred by Noteholder for any appeal.



     12. Maker’s Waivers. Except as otherwise provided in the Loan Documents, and only to
the extent permitted under applicable law, Maker and all other persons liable or to become liable
on this Note severally waive presentment for payment, demand, notice of demand and of dishonor and
nonpayment of this Note, notice of intention to accelerate the maturity of this Note, notice of
acceleration, protest and notice of protest, diligence in collecting, and the bringing of suit
against any other party, and agree to all renewals, extensions, modifications, partial payments,
releases or substitutions of security, in whole or in part, with or without notice, before or after
maturity.



     13. Payment of Taxes and Fees. Maker agrees to pay the cost of any revenue, tax or
other documentary fee or stamps now or hereafter required by law to be affixed to this Note or the
Security Instrument.



     14. Governing Law. This Note and the rights, duties and liabilities of the parties
hereunder and/or arising from or relating in any way to the indebtedness evidenced by this Note or
the transaction of which such indebtedness is a part shall be governed and construed for all
purposes by the law of the State of Florida.



     15. Replacement of Note. If this Note is lost or destroyed, the Maker shall, at the
Noteholder’s request, execute and return to the Noteholder a replacement promissory note identical
to this Note, provided the Noteholder delivers to the Maker an affidavit to the foregoing effect.
Upon delivery of the executed replacement Note, the Noteholder shall indemnify the Maker from and
against its actual damages suffered as a result of the existence of two Notes evidencing the same
obligation. No replacement of this Note under this Section shall result in a novation of the
Maker’s obligations under this Note. If this Note is so replaced, and Noteholder thereafter locates
this Note, the Noteholder shall return this Note to the Maker marked to evidence its cancellation.
Noteholder shall pay all costs incurred by it with respect to documenting such replacement note.
Maker acknowledges the need to act promptly upon its receipt of the documentation evidencing any
request by Noteholder that the Note be replaced pursuant to this Section and agrees that Maker will
meet the reasonable deadlines of Noteholder provided that Maker has received the applicable
documents at least ten (10) business days prior to such deadline. Furthermore, Maker agrees to
reasonably cooperate with Noteholder to effectuate the obtainment of such title policy
endorsements, or new title evidence and other assurances and documents as Noteholder shall
reasonably require.



6









 





     16. Maturity Date. The Maturity Date shall be September 1, 2013, unless extended to September
1, 2019 in accordance with the Loan Agreement.



     17. WAIVER OF TRIAL BY JURY. MAKER AND NOTEHOLDER, BY ACCEPTANCE HEREOF, HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE LOAN,
THE APPLICATION FOR THE LOAN, THE LOAN DOCUMENTS OR ANY ACTS OR OMISSIONS OF NOTEHOLDER, ITS
OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS IN CONNECTION THEREWITH.



7









 





          IN WITNESS WHEREOF, Maker has caused this Note to be duly executed as of the day and year
first above written.



	 	 	 	 	 
	 	MAKER:



COLE HD SAN DIEGO CA, LP,

a Delaware limited partnership



By: Cole GP CCPT III, LLC, a Delaware
limited
       liability company, its General Partner
 	 
	 
	 	By:  	/s/ Todd J. Weiss
 	 
	 	 	Todd J. Weiss, Vice President 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	COLE HT DURHAM NC, LLC,

a Delaware limited liability company



By: Cole REIT Advisors III, LLC, a Delaware

       limited liability company, its Manager

 	 
	 	By:  	/s/ Todd J. Weiss
 	 
	 	 	Todd J. Weiss, Vice President 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	COLE KO MONROVIA CA, LP,

a Delaware limited partnership



By: Cole GP CCPT III, LLC, a Delaware limited 
       liability
company, its General Partner

 	 
	 	By:  	/s/ Todd J. Weiss
 	 
	 	 	Todd J. Weiss, Vice President 	 
	 	 	 	 



8









 







	 	 	 	 	 
	 	COLE HH NORTH CHARLESTON SC, LLC,

a Delaware limited liability company





By: Cole REIT Advisors III, LLC, a Delaware

       limited liability company, its Manager

 	 
	 	By:  	/s/ Todd J. Weiss
 	 
	 	 	Todd J. Weiss, Vice President 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	COLE WG EDMOND OK, LLC,

a Delaware limited liability company



By: Cole REIT Advisors III, LLC, a Delaware

       limited liability company, its Manager

 	 
	 	By:  	/s/ Todd J. Weiss
 	 
	 	 	Todd J. Weiss, Vice President 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	COLE CV SOUTHAVEN MS, LLC,

a Delaware limited liability company



By: Cole REIT Advisors III, LLC, a Delaware

       limited liability company, its Manager

 	 
	 	By:  	/s/ Todd J. Weiss
 	 
	 	 	Todd J. Weiss, Vice President 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	COLE KO TAVARES FL, LLC,

a Delaware limited liability company



By: Cole REIT Advisors III, LLC, a Delaware

       limited liability company, its Manager

 	 
	 	By:  	/s/ Todd J. Weiss
 	 
	 	 	Todd J. Weiss, Vice President 	 
	 	 	 	 



9









 






	 	 	 	 	 



	 	 	 	 	 
	 	COLE BB CORAL SPRINGS FL, LLC,

a Delaware limited liability company



By: Cole REIT Advisors III, LLC, a Delaware

       limited liability company, its Manager

 	 
	 	By:  	/s/ Todd J. Weiss
 	 
	 	 	Todd J. Weiss, Vice President 	 
	 	 	 	 



10









 






	 	 	 	 	 



SCHEDULE “A”

SECURITY INSTRUMENTS





     1. Deed of Trust executed by Cole HD San Diego CA, LP, a Delaware limited partnership,
granting a first lien on certain real property in San Diego County, CA.



     2. Deed of Trust executed by Cole HT Durham NC, LLC, a Delaware limited liability company,
granting a first lien on certain real property in Durham County, SC.



     3. Deed of Trust executed by Cole KO Monrovia CA, LP, a Delaware limited partnership, granting
a first lien on certain real property in Los Angeles County, CA.



     4. Mortgage executed by Cole HH North Charleston SC, LLC, a Delaware limited liability
company, granting a first lien on certain real property in Charleston County, SC.



     5. Real Estate Mortgage executed by Cole WG Edmond OK, LLC, a Delaware limited liability
company, granting a first lien on certain real property in Oklahoma County, OK.



     6. Deed of Trust executed by Cole CV Southaven MS, LLC, a Delaware limited liability company,
granting a first lien on certain real property in DeSoto County, MS.



     7. Mortgage executed by Cole KO Tavares FL, LLC, a Delaware limited liability company,
granting a first lien on certain real property in Lake County, FL.



     8. Mortgage executed by Cole BB Coral Springs FL, LLC, a Delaware limited liability company,
granting a first lien on certain real property in Broward County, FL.




11