Exhibit 10.48


 


PROMISSORY
NOTE


 


	
  $8,201,000.00

  	
   

  	
  New York, New York

  
	
   

  	
   

  	
  As of March 3, 2006

  



 


FOR VALUE RECEIVED, MB SUGAR LAND GILLINGHAM
LIMITED PARTNERSHIP, an
Illinois limited partnership, having its principal place of business at
2901 Butterfield Road, Oak Brook, Illinois 60523, as maker hereunder (referred
to herein as “Borrower”), hereby
unconditionally promises to pay to the order of NOMURA
CREDIT & CAPITAL, INC., a Delaware corporation, as payee, having
an address at 2 World Financial Center, Bldg. B, New York, New York 10281 (“Lender”), or at such other place as
the holder hereof may from time to time designate in writing, the principal sum
of EIGHT MILLION TWO HUNDRED ONE THOUSAND AND 00/100
DOLLARS ($8,201,000.00), in lawful money of the United States of
America with interest thereon to be computed from the date of this Note at the
Interest Rate, and to be paid in accordance with the terms of this Note and
that certain Loan Agreement, dated as of the date hereof, between Borrower and
Lender (the “Loan Agreement”). All
capitalized terms not defined herein shall have the respective meanings set
forth in the Loan Agreement.


 


ARTICLE 1


 


PAYMENT TERMS


 


Borrower agrees to pay interest on the unpaid principal sum of this
Note from time to time outstanding at the rates and at the times specified in
the Loan Agreement and the outstanding balance of the principal sum of this
Note and all accrued and unpaid interest thereon shall be due and payable on
the Maturity Date. This Note shall be the “Note” as defined in the Loan
Agreement.


 


ARTICLE 2


 


DEFAULT AND ACCELERATION


 


The Debt shall without notice become immediately due and payable at the
option of Lender if any payment required in this Note is not paid on or prior
to the date when due or if not paid on the Maturity Date or on the happening of
any other Event of Default.


 


ARTICLE 3


 


LOAN DOCUMENTS


 


This Note is secured by the Mortgage and the other Loan Documents. All
of the terms, covenants and conditions contained in the Loan Agreement, the
Mortgage and the other Loan Documents are hereby made part of this Note to the
same extent and with the same force as if they were fully set forth herein. In
the event of a conflict or inconsistency between the terms


 


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of this Note and the Loan Agreement, the terms and
provisions of the Loan Agreement shall govern.


 


ARTICLE 4


 


SAVINGS CLAUSE


 


Notwithstanding anything
to the contrary, (a) all agreements and communications between Borrower and
Lender are hereby and shall automatically be limited so that, after taking into
account all amounts deemed interest, the interest contracted for, charged or
received by Lender shall never exceed the maximum lawful rate or amount, (b) in
calculating whether any interest exceeds the lawful maximum, all such interest
shall be amortized, prorated, allocated and spread over the full amount and
term of all principal indebtedness of Borrower to Lender, and (c) if through
any contingency or event, Lender receives or is deemed to receive interest in excess
of the lawful maximum, any such excess shall be deemed to have been applied
toward payment of the principal of any and all then outstanding indebtedness of
Borrower to Lender, or if there is no such indebtedness, shall immediately be
returned to Borrower.


 


ARTICLE 5


 


NO ORAL CHANGE


 


This Note may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
Borrower or Lender, but only by an agreement in writing signed by the party against
whom enforcement of any modification, amendment, waiver, extension, change,
discharge or termination is sought.


 


ARTICLE 6


 


WAIVERS


 


Borrower and all others who may become liable for the payment of all or
any part of the Debt do hereby severally waive presentment and demand for
payment, notice of dishonor, notice of intention to accelerate, notice of
acceleration, protest and notice of protest and non-payment and all other
notices of any kind. No release of any security for the Debt or extension of time
for payment of this Note or any installment hereof, and no alteration,
amendment or waiver of any provision of this Note, the Loan Agreement or the
other Loan Documents made by agreement between Lender or any other Person shall
release, modify, amend, waive, extend, change, discharge, terminate or affect
the liability of Borrower, and any other Person who may become liable for the
payment of all or any part of the Debt, under this Note, the Loan Agreement or
the other Loan Documents. No notice to or demand on Borrower shall be deemed to
be a waiver of the obligation of Borrower or of the right of Lender to take
further action without further notice or demand as provided for in this Note,
the Loan Agreement or the other Loan Documents. If Borrower is a partnership,
the agreements herein contained shall remain in force and applicable,
notwithstanding any changes in the individuals comprising the partnership, and
the term “Borrower,” as used herein, shall include any alternate or successor
partnership, but


 


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any predecessor partnership and their partners shall
not thereby be released from any liability. If Borrower is a limited liability
company, the agreements herein contained shall remain in force and applicable,
notwithstanding any changes in the members comprising the company, and the term
“Borrower,” as used herein, shall include any alternate or successor company,
but any predecessor company shall not thereby be released from any liability. If
Borrower is a corporation, the agreements contained herein shall remain in full
force and applicable notwithstanding any changes in the shareholders
comprising, or the officers and directors relating to, the corporation, and the
term “Borrower” as used herein, shall include any alternative or successor
corporation, but any predecessor corporation shall not be relieved of liability
hereunder. (Nothing in the foregoing sentence shall be construed as a consent
to, or a waiver of, any prohibition or restriction on transfers of interests in
such entity which may be set forth in the Loan Agreement, the Mortgage or any
other Loan Document.)


 


ARTICLE 7


 


TRANSFER


 


Upon the transfer of this Note, Borrower hereby waiving notice of any
such transfer except as provided in the Loan Agreement, Lender may deliver all
the collateral mortgaged, granted, pledged or assigned pursuant to the Loan
Documents, or any part thereof, to the transferee who shall thereupon become
vested with all the rights herein or under applicable law given to Lender with
respect thereto, and Lender shall from that date forward forever be relieved
and fully discharged from any liability or responsibility in the matter; but
Lender shall retain all rights hereby given to it with respect to any
liabilities and the collateral not so transferred.


 


ARTICLE 8


 


EXCULPATION


 


The provisions of Section 9.4 of the Loan Agreement are hereby
incorporated by reference into this Note to the same extent and with the same
force as if fully set forth herein.


 


ARTICLE 9


 


GOVERNING LAW


 


THIS NOTE SHALL BE DEEMED TO BE A CONTRACT ENTERED
INTO PURSUANT TO THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND
SHALL IN ALL RESPECTS BE GOVERNED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND APPLICABLE FEDERAL LAWS.


 


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ARTICLE 10


 


NOTICES


 


All notices or other written communications hereunder shall be
delivered in accordance with Section 10.6 of the Loan Agreement.


 


ARTICLE 11


 


SAVINGS CLAUSE


 


This Note and all of the other Loan Documents are intended to be
performed in accordance with, and only to the extent permitted by, all
applicable usury laws. If any provision hereof or of any of the other Loan
Documents or the application thereof to any person or circumstance shall, for
any reason and to any extent, be invalid or unenforceable, neither the
application of such provision to any other person or circumstance nor the
remainder of the instrument in which such provision is contained shall be
affected thereby, and all provisions shall be enforced to the greatest extent
permitted by law. It is expressly stipulated and agreed to be the intent of the
holder hereof to at all times comply with the usury and other applicable laws
now or hereafter governing the interest payable on the indebtedness evidenced
by this Note. If the applicable law is ever revised, repealed, or judicially
interpreted so as to render usurious any amount called for under this Note or
under any of the other Loan Documents, or contracted for, charged, taken,
reserved, or received with respect to the indebtedness evidenced by this Note,
or if Lender’s exercise of the option to accelerate the maturity of this Note
or if any prepayment by Borrower results in Borrower having paid any interest
in excess of that permitted by law, then it is the express intent of Borrower
and Lender that all excess amounts theretofore collected by Lender be credited
on the principal balance of this Note (or, if this Note and all other
indebtedness arising under or pursuant to the other Loan Documents have been
paid in full, refunded to Borrower), and the provisions of this Note and the
other Loan Documents immediately be deemed reformed and the amounts thereafter
collectable hereunder and thereunder reduced, without the necessity of the
execution of any new document, so as to comply with the then applicable law,
but so as to permit the recovery of the fullest amount otherwise called for
hereunder or thereunder. All sums paid, or agreed to be paid, by Borrower for
the use, forbearance, detention, taking, charging, receiving, or reserving of
the indebtedness of Borrower to Lender under this Note or arising under or
pursuant to the other Loan Documents shall, to the maximum extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the
full term of such indebtedness until payment in full so that the rate or amount
of interest on account of such indebtedness does not exceed the usury ceiling
from time to time in effect and applicable to such indebtedness for so long as
such indebtedness is outstanding. To the extent federal law permits Lender to
contract for, charge or receive a greater amount of interest, Lender will rely
on federal law instead of the Texas Finance Code, as supplemented by Texas
Credit Title, for the purpose of determining the Maximum Legal Rate. Additionally,
to the maximum extent permitted by applicable law now or hereafter in effect,
Lender may, at its option and from time to time, implement any other method of
computing the Maximum Legal


 


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Rate under the Texas Finance Code, as supplemented by
Texas Credit Title, or under other applicable law, by giving notice, if
required, to Borrower as provided by applicable law now or hereafter in effect.
Notwithstanding anything to the contrary contained herein or in any of the
other Loan Documents, it is not the intention of Lender to accelerate the
maturity of any interest that has not accrued at the time of such acceleration
or to collect unearned interest at the time of such acceleration.


 


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IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day
and year first above written.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  MB SUGAR LAND GILLINGHAM
  LIMITED

  
	
   

  	
  PARTNERSHIP, an Illinois limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  MB
  SUGAR LAND GILLINGHAM GP,

  
	
   

  	
   

  	
  L.L.C., a Delaware limited liability company,

  
	
   

  	
   

  	
  Its General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  MINTO
  BUILDERS (FLORIDA), INC.,

  
	
   

  	
   

  	
   

  	
  a Florida corporation, Its Sole Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   /s/
  Debra A. Palmer

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Debra A. Palmer

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Assistant Secretary

  
								



 


 


ACKNOWLEDGMENT


 


	
  STATE OF ILLINOIS

  	
  )

  
	
   

  	
  : ss.:

  
	
  COUNTY OF DUPAGE

  	
  )

  



 


BEFORE ME, the undersigned, a Notary Public in and for said County and
State, on this day personally appeared                                                    ,
in his/her capacity as                                              
of MINTO BUILDERS (FLORIDA), INC., a
Florida corporation, the Sole Member on behalf of MB SUGAR
LAND GILLINGHAM GP, L.L.C., a Delaware limited liability company,
the General Partner of behalf of MB SUGAR LAND GILLINGHAM
LIMITED PARTNERSHIP, an
Illinois limited partnership, known to me to be the person whose name is
subscribed to the foregoing instrument, and, being by me first duly sworn,
declared and acknowledged to me under oath that he/she executed the same for
the purposes and consideration therein expressed and in the capacity therein
stated, as the act and deed of said limited partnership on behalf of the
limited partnership.


 


GIVEN
UNDER MY HAND AND SEAL OF OFFICE this                
day of March, 2006.


 


	
   

  	
   

  	
   

  
	
   

  	
  Notary Public in and for

  	
   

  	
   

  
	
   

  	
  County, State of