Exhibit 10.47


 


SECURED
PROMISSORY NOTE

LOAN NO. 754867


 


	
  $26,785,000.00

  	
   

  	
  February 27,
  2006

  



 


1.                                       FOR
VALUE RECEIVED, MB KEENE MONADNOCK, L.L.C., a Delaware limited liability
company, as “Borrower” (“Borrower” to be construed as “Borrowers” if the
context so requires), hereby promises to pay to the order of PRINCIPAL
COMMERCIAL FUNDING, LLC, a Delaware limited liability company (as “Lender”),
having a principal place of business and post office address at c/o Principal
Real Estate Investors, LLC, 801 Grand Avenue, Des Moines, Iowa 50392-1450, or
at such other place as Lender may designate, the principal sum of Twenty Six
Million Seven Hundred Eighty Five Thousand and No/100 Dollars ($26,785,000.00)
(the “Loan Amount”) or so much thereof as shall from time to time have
been advanced, together with interest on the unpaid balance of said sum from February          ,
2006 (the “Closing Date”) (i) at the rate of four and 88/100
percent (4.88%) per annum through and including February 28, 2008, (ii) at
the rate of five and 10/100 percent (5.10%) per annum from March 1, 2008
through and including February 28, 2010, (iii) at the rate of five
and 30/100 percent (5.30%) per annum from March 1, 2010 through and
including February 28, 2011, and (iv) at the rate of five and 45/100
percent (5.45%) from March 1, 2011 through and including the Maturity Date
(hereinafter defined).


 


A payment of interest from the Closing Date to and including February 28,
2006 shall be paid on the Closing Date calculated by multiplying the actual number
of days elapsed in the period for which interest is being calculated by a daily
rate based on the foregoing annual interest rate and a 360-day year.  Thereafter, interest shall be computed on the
unpaid balance on the basis of a 360-day year composed of twelve 30-day
months.  Beginning on April 1, 2006,
interest shall be due and payable in arrears in monthly installments of One
Hundred Eight Thousand Nine Hundred Twenty Five and 67/100 Dollars
($108,925.67), through and including March 1, 2008.  Beginning on April 1, 2008, interest
shall be due and payable in arrears in monthly installments of One Hundred
Thirteen Thousand Eight Hundred Thirty Six and 25/100 Dollars ($113,836.25),
through and including March 1, 2010. 
Beginning on April 1, 2010, interest shall be due and payable in
arrears in monthly installments of One Hundred 
Eighteen Thousand Three Hundred and 42/100 Dollars ($118,300.42),
through and including March 1, 2011. 
Beginning on April 1, 2011, interest shall be due and payable in
arrears in monthly installments of One Hundred Twenty One Thousand Six Hundred
Forty Eight and 54/100 Dollars ($121,648.54), except that all remaining
principal and interest to and including the date of payment and other
Indebtedness shall be due and payable on March 1, 2013 or such earlier
date resulting from the acceleration of the Indebtedness by Lender (“Maturity
Date”).  All principal and interest
shall be paid in lawful money of the United States of America by automated
clearing house transfer through such bank or financial institution as shall be
approved in writing by Lender, shall be made to an account designated by
Lender, and shall be initiated by Lender or shall be made in such other manner
as Lender may direct from time to time. 
Any other monthly deposits or payments Borrower is required to make to
Lender under the terms of the Loan Documents shall be made by the same payment
method and on the same date as the installments of interest due under this
Note.


 


2.                                       No
privilege is reserved by Borrower to prepay any principal of this Note prior to
the Maturity Date, except in strict accordance with the provisions of the Loan
Agreement.


 


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3.                                       Borrower
agrees that if Lender accelerates the whole or any part of the principal sum
evidenced hereby after the occurrence of an Event of Default, or applies any
proceeds pursuant to the provisions of the Loan Documents, Borrower waives any
right to prepay said principal sum in whole or in part without premium and
agrees to pay, as yield maintenance protection and not as a penalty, the Make
Whole Premium.


 


Notwithstanding
the above, in the event any proceeds from a casualty or Taking of the Premises
are applied to reduce the principal balance hereof, such reduction shall be made
without a Make Whole Premium, provided no Event of Default then exists under
the Loan Documents.


 


4.                                       If
any payment of principal, interest, Make Whole Premium, or other Indebtedness
is not made when due, damages will be incurred by Lender, including additional
expense in handling overdue payments, the amount of which is difficult and
impractical to ascertain.  Borrower
therefore agrees to pay, upon demand, the sum of four cents ($.04) for each one dollar ($1.00) of each said
payment which becomes overdue (“Late Charge”) as a reasonable estimate
of the amount of said damages, subject, however, to the limitations contained
in paragraph 6 hereof.


 


Notwithstanding
anything hereinabove to the contrary, the Late Charge assessed on any amount
due on the Maturity Date but not then paid, whether or not by acceleration,
shall not be four cents for each one dollar as described above, but shall
instead be a sum equal to the interest which would have accrued on the
principal balance then outstanding from the date the payment is made to the end
of the month in which the Maturity Date occurs. 
Such Late Charge shall be in addition to interest otherwise accruing
under this Note.


 


5.                                       If
any Event of Default has occurred and is continuing under the Loan Documents,
the entire principal balance of the Loan, interest then accrued, and Make Whole
Premium, and all other Indebtedness whether or not otherwise then due, shall at
the option of Lender, become immediately due and payable without demand or
notice, and whether or not Lender has exercised said option, interest shall
accrue on the entire principal balance, interest then accrued, Make Whole
Premium and any other Indebtedness then due, at a rate equal to the Default
Rate until fully paid.


 


6.                                       Notwithstanding
anything herein or in any of the other Loan Documents to the contrary, no
provision contained herein or therein which purports to obligate Borrower to
pay any amount of interest or any fees, costs or expenses which are in excess
of the maximum permitted by applicable law, shall be effective to the extent it
calls for the payment of any interest or other amount in excess of such
maximum.  All agreements between Borrower
and Lender, whether now existing or hereafter arising and whether written or
oral, are hereby limited so that in no contingency, whether by reason of demand
for payment or acceleration of the maturity hereof or otherwise, shall the
interest contracted for, charged or received by Lender exceed the maximum
amount permissible under applicable law. 
If, from any circumstance whatsoever, interest would otherwise be
payable to Lender in excess of the maximum lawful amount, the interest payable
to Lender shall be reduced to the maximum amount permitted under applicable
law; and if from any circumstance Lender shall ever receive anything of value
deemed interest by applicable law in excess of the maximum lawful amount, an
amount equal to any excessive interest shall, at the option of Lender, be
refunded to Borrower or be applied to the reduction of the principal hereof, without
a Make Whole Premium


 


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and not to the
payment of interest or, if such excessive interest exceeds the unpaid balance
of principal hereof such excess shall be refunded to Borrower.  This paragraph shall control all agreements
between Borrower and Lender.


 


7.                                       Borrower
and any endorsers or guarantors waive presentment, protest and demand, notice
of protest, demand and dishonor and nonpayment, and agree the Maturity Date of
this Note or any installment may be extended without affecting any liability
hereunder, and further promise to pay all reasonable costs and expenses,
including but not limited to, reasonable attorney’s fees incurred by Lender in
connection with any default or in any proceeding to interpret and/or enforce
any provision of the Loan Documents.  No
release of Borrower from liability hereunder shall release any other maker,
endorser or guarantor hereof.


 


8.                                       This
Note is secured by the Loan Documents creating among other things legal and
valid encumbrances on and an assignment of all of Borrower’s interest in any
Leases of the Premises located in the county of Cheshire, state of New
Hampshire.  Capitalized terms used herein
and not otherwise defined shall have those meanings given to them in the Loan
Documents.  In no event shall such
documents be construed inconsistently with the terms of this Note, and in the
event of any discrepancy between any such documents and this Note, the terms
hereof shall govern.  The proceeds of
this Note are to be used for business, commercial, investment or other similar
purposes, and no portion thereof will be used for any personal, family or
household use.  This Note shall be
governed by and construed in accordance with the laws of the State where the
Premises is located, without regard to its conflict of law principles.


 


9.                                       Notwithstanding
any provision to the contrary in this Note or the Loan Documents and except as
otherwise provided for below, the liability of Borrower under the Loan
Documents shall be limited to the interest of Borrower in the Premises and the
Rents.  In the event of foreclosure of
the liens evidenced by the Loan Documents, no judgment for any deficiency upon
the Indebtedness evidenced by the Loan Documents shall be sought or obtained by
Lender against Borrower.  Nothing herein
shall in any manner limit or impair (i) the lien or enforcement of the
Loan Documents pursuant to the terms thereof or (ii) the obligations of
any indemnitor or guarantor, if any.


 


Notwithstanding any provision hereinabove to the contrary, Borrower
shall be personally liable to Lender for:


 


(a)                                  any loss or damage to
Lender arising from (i) the sale or forfeiture of the Premises resulting
from Borrower’s failure to pay any of the taxes, assessments or charges
specified in the Loan Documents or (ii) Borrower’s failure to insure the
Premises in compliance with the provisions of the Loan Documents;


 


(b)                                 any event or
circumstance for which Borrower indemnifies Lender under the Environmental
Indemnity;


 


(c)                                  nonpayment of taxes,
assessments, insurance premiums and utilities for the Premises and any penalty
or late charge associated with nonpayment thereof;


 


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(d)                                 material failure to
manage, operate, and maintain the Premises in a commercially reasonable manner
for similar property types in the surrounding geographic area;


 


(e)                                  any sums expended by
Lender in fulfilling the obligations of Borrower as lessor under any Lease of
the Premises prior to a sale of the Premises pursuant to foreclosure or power
of sale, a bona fide sale (permitted by the terms of paragraph 2(f) of the
Mortgage (it being agreed that “Mortgage” as used herein shall be construed to
mean “mortgage” or “deed of trust” or “trust deed” as the context so requires)
or consented to in writing by Lender) to an unrelated third party or upon
conveyance to Lender of the Premises by a deed acceptable to Lender in form and
content (each of which shall be referred to as a “Sale” for purposes of this
paragraph) or expended by Lender after a Sale of the Premises for obligations
of Borrower which arose prior to a Sale of the Premises;


 


Borrower’s personal liability for items specified in (c), (d) and (e) above
shall be limited to the amount of rents, issues, proceeds and profits from the
Premises (“Rents and Profits”) received by Borrower for the twelve (12) months
preceding an Event of Default and thereafter; but less any such Rents and
Profits applied to (A) payment of principal, interest and other charges
when due under the Loan Documents, or (B) payment of expenses for the
operation, maintenance, taxes, assessments, utility charges and insurance of
the Premises including sufficient reserves for the same or replacements or
renewals thereof (“Operation Expense(s)”) provided that (x) Borrower has
furnished Lender with evidence reasonably satisfactory to Lender of the
Operation Expenses and payment thereof, and (y) any payments to parties related
to Borrower shall be considered an Operation Expense only to the extent that
the amount expended for the Operation Expense does not exceed the then current
market rate for such Operation Expense.


 


(f)                                    any rents or other
income regardless of type or source of payment or other considerations in lieu
thereof (including, but not limited to, common area maintenance charges, lease
termination payments, refunds of any type, prepayment of rents, settlements of
litigation, or settlements of past due rents) from the Premises which Borrower
has received or will receive after an Event of Default under the Loan Documents
which are not applied to (A) payment of principal, interest and other
charges when due under the Loan Documents or (B) payment of Operation
Expenses provided that (x) Borrower has furnished Lender with evidence
reasonably satisfactory to Lender of the Operation Expenses and payment
thereof, and (y) any payments to parties related to Borrower shall be
considered an Operation Expense only to the extent that the amount expended for
the Operation Expense does not exceed the then current market rate for such
Operation Expense;


 


(g)                                 any security deposits
of tenants not otherwise applied in accordance with the terms of the Lease(s),
together with any interest on such security deposits required by law or the
leases, not turned over to Lender upon conveyance of the Premises to Lender
pursuant to foreclosure or power of sale or by a deed acceptable to Lender in
form and content;


 


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(h)                                 misapplication or
misappropriation of tax reserve accounts, tenant improvement reserve accounts,
security deposits, prepaid rents or other similar sums paid to or held by
Borrower or any other entity or person in connection with the operation of the
Premises;


 


(i)                                     any insurance or
condemnation proceeds or other similar funds or payments applied by Borrower in
a manner other than as expressly provided in the Loan Documents; and


 


(j)                                     any loss or damage
to Lender arising from any fraud or willful misrepresentation by or on behalf
of Borrower, Interest Owner or any guarantor regarding the Premises, the making
or delivery of any of the Loan Documents or in any materials or information
provided by or on behalf of Borrower, Interest Owner or guarantor, if any, in
connection with the Loan.


 


Notwithstanding anything contained in paragraphs 9(a)(i) and 9(c) hereinabove
as it relates solely to taxes, assessments and insurance premiums, to the
extent Lender is impounding for taxes, assessments and insurance premiums in
accordance with the Loan Documents and Borrower has fully complied with all
terms and conditions of the Loan Documents relating to impounding for the same,
then Borrower shall not be personally liable for Lender’s failure to apply any
of said impound amounts held by Lender in accordance with the Loan Documents.


 


Notwithstanding anything to the contrary in the Loan Documents, the
limitation on liability contained in the first paragraph of this paragraph 9
SHALL BECOME NULL AND VOID and shall be of no further force and effect in the
event:


 


(x)                                   of any breach or
violation of paragraph 2(f) (due on sale or encumbrance) of the Mortgage,
other than (i) the filing of a nonmaterial mechanic’s lien affecting the
Premises or a mechanic’s lien affecting the Premises for which Borrower has
complied with the provisions of paragraph 1(e) of the Mortgage, or (ii) the
granting of any utility or other nonmaterial easement or servitude burdening
the Premises, or (iii) any transfer or encumbrance of a nonmaterial
economic interest in the Premises not otherwise set forth in (i) or (ii);
or


 


(y)                                 of any filing by
Borrower of a petition in bankruptcy or insolvency or a petition or answer
seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the Bankruptcy laws of the
United States or under any other applicable federal, state or other statute or
law.


 


10.                                 If
more than one, all obligations and agreements of Borrower are joint and
several.


 


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11.                                 This
Note may not be changed or terminated orally, but only by an agreement in
writing and signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.  All
of the rights, privileges and obligations hereunder shall inure to the benefit
of the heirs, successors and assigns of Lender and shall bind the heirs and
permitted successors and assigns of Borrower.


 


12.                                 If
any provision of this Note shall, for any reason, be held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provision hereof, but this Note shall be construed as if such invalid or
unenforceable provision had never been contained herein.


 


13.                                 This
Note may be executed in counterparts, each of which shall be deemed an
original; and such counterparts when taken together shall constitute but one
agreement.


 


14.                                 This
Note constitutes an instrument under seal in the State of New Hampshire.


 


                                                IN
WITNESS WHEREOF, Borrower has caused this Note to be duly executed and
delivered as of the date first set forth above.


 


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(Signatures on next page)


 


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  SIGNATURE
  PAGE OF BORROWER TO

  
	
   

  	
   

  	
  SECURED
  PROMISSORY NOTE

  
	
   

  	
   

  
	
   

  	
   

  	
  MB KEENE
  MONADNOCK, L.L.C., a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Minto Builders
  (Florida), Inc., a Florida

  
	
   

  	
   

  	
   

  	
  corporation,
  Sole Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/Valerie Medina

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Valerie Medina

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Assistant
  Secretary

  	
   

  
										



 


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