Exhibit 10.29


 


MULTIFAMILY NOTE


 


	
  US $29,578,000

  	
  as of September 17, 2010

  



 


FOR VALUE RECEIVED, the undersigned (“Borrower”)
jointly and severally (if more than one) promises to pay to the order of AMERISPHERE MULTIFAMILY FINANCE, L.L.C., a Nebraska limited
liability company, the principal sum of Twenty-Nine Million Five Hundred
Seventy-Eight Thousand and No/100ths Dollars (US $29,578,000), with
interest accruing at the Interest Rate on the unpaid principal balance from the
Disbursement Date until fully paid.


 


1.                                      Defined Terms.  In addition to defined terms found elsewhere
in this Note, as used in this Note, the following definitions shall apply:


 


Amortization
Period:  360
months.


 


Business Day:   Any day other than a Saturday, Sunday or any
other day on which Lender is not open for business.


 


Debt Service Amounts:  Amounts payable under this Note, the Security
Instrument or any other Loan Document.


 


Default Rate:  A rate equal to the lesser of 4
percentage points above the Interest Rate or the maximum interest rate which
may be collected from Borrower under applicable law.


 


Disbursement Date:  The date of disbursement of Loan
proceeds hereunder.


 


First Payment Date:   The first day of November, 2010.


 


Indebtedness:  The
principal of, interest on, or any other amounts due at any time under, this
Note, the Security Instrument or any other Loan Document, including prepayment
premiums, late charges, default interest, and advances to protect the security
of the Security Instrument under Section 12 of the Security Instrument.


 


Interest Rate:  The annual rate of four and
twenty-three hundredths percent (4.23%).


 


Lender:  The
holder of this Note.


 


Loan:  The
loan evidenced by this Note.


 


Loan Term:  84 months.


 


Maturity Date:   The first day of October, 2017, or any earlier
date on which the unpaid principal balance of this Note becomes due and payable
by acceleration or otherwise.


 


	
  Multifamily Non-Recourse Fixed Rate Note – Multistate

  	
  Form 4100

  	
   

  
	
   

  	
   

  	
   

  
	
  Fannie Mae

  	
  08-09

  	
  © 1997-2009 Fannie Mae

  



 


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Property Jurisdiction:  The jurisdiction in which the Land
is located.


 


Security Instrument:  A multifamily mortgage, deed to
secure debt or deed of trust dated as of the date of this Note.


 


Yield Maintenance Period Term or
Prepayment Premium Period Term:  60 months.


 


Yield Maintenance Period End Date
or Prepayment Premium Period End Date:  The last day of September, 2015.


 


Event of Default, Key Principal and other capitalized
terms used but not defined in this Note shall have the meanings given to such
terms in the Security Instrument.


 


2.                                      Address for Payment.  All payments due under this Note shall be
payable at One Pacific Place, Suite 130, 1125 South 103rd Street, Omaha, Nebraska 68124, or
such other place as may be designated by written notice to Borrower from or on
behalf of Lender.


 


3.                                      Payment of Principal and Interest.  Principal and interest shall be paid as
follows:


 


(a)                                  Short Month Interest.  If disbursement of principal is made by
Lender to Borrower on any day other than the first day of the month, interest
for the period beginning on the Disbursement Date and ending on and including
the last day of the month in which such disbursement is made shall be payable
simultaneously with the execution of this Note.


 


(b)                                 Interest Computation.  Interest under this Note shall be computed on
the basis of (check one only):


 


o                                    30/360.  A 360-day year consisting of twelve 30-day
months.


 


x                                  Actual/360.  A 360-day year.  The amount of each monthly payment made by
Borrower pursuant to Paragraph 3(c) below that is allocated to interest
will be based on the actual number of calendar days during such month and shall
be calculated by multiplying the unpaid principal balance of this Note by the
per annum Interest Rate, dividing the product by 360 and multiplying the
quotient by the actual number of days elapsed during the month.  Borrower understands that the amount
allocated to interest for each month will vary depending on the actual number
of calendar days during such month.


 


(c)                                  Monthly Installments.  Consecutive monthly installments of principal
and interest, each in the amount of One Hundred Forty-Five Thousand One Hundred
Fifty-Nine and 87/100ths Dollars (US $145,159.87), shall be payable on the
First Payment Date and on the first day of every month thereafter, until the
entire unpaid principal balance evidenced by this Note is fully paid.  Any remaining principal and interest shall be
due and payable on the Maturity Date.  The unpaid principal balance shall continue
to bear interest after the Maturity Date at the Default Rate set forth in this
Note until and including the date on which it is paid in full.


 


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(d)           Payments Before Due Date.  Any regularly scheduled monthly installment
of principal and interest that is received by Lender before the date it is due
shall be deemed to have been received on the due date solely for the purpose of
calculating interest due.


 


(e)           Accrued Interest.  Any accrued interest remaining past due for
30 days or more shall be added to and become part of the unpaid principal
balance and shall bear interest at the rate or rates specified in this
Note.  Any reference herein to “accrued
interest” shall refer to accrued interest which has not become part of the
unpaid principal balance.  Any amount
added to principal pursuant to the Loan Documents shall bear interest at the
applicable rate or rates specified in this Note and shall be payable with such
interest upon demand by Lender and absent such demand, as provided in this Note
for the payment of principal and interest.


 


4.             Application of Payments. 
If at any time Lender receives, from Borrower or
otherwise, any amount applicable to the Indebtedness which is less than all
amounts due and payable at such time, Lender may apply that payment to amounts
then due and payable in any manner and in any order determined by Lender, in
Lender’s discretion.  Borrower agrees
that neither Lender’s acceptance of a payment from Borrower in an amount that
is less than all amounts then due and payable nor Lender’s application of such
payment shall constitute or be deemed to constitute either a waiver of the
unpaid amounts or an accord and satisfaction.


 


5.             Security.  The Indebtedness is secured, among other things, by the Security Instrument, and reference is
made to the Security Instrument for other rights of Lender concerning the
collateral for the Indebtedness.


 


6.             Acceleration.  If an Event of Default has occurred and is continuing, the entire unpaid
principal balance, any accrued interest, the prepayment premium payable under
Paragraph 10, if any, and all other amounts payable under this Note and any
other Loan Document shall at once become due and payable, at the option of
Lender, without any prior notice to Borrower. 
Lender may exercise this option to accelerate regardless of any prior
forbearance.


 


7.             Late Charge.  If any monthly installment due hereunder is not received by Lender on or
before the 10th day of each month or if any other amount
payable under this Note or under the Security Instrument or any other Loan
Document is not received by Lender within 10 days after the date such amount is
due, counting from and including the date such amount is due, Borrower shall
pay to Lender, immediately and without demand by Lender, a late charge equal to
5 percent of such monthly installment or other amount due.  Borrower acknowledges that its failure to
make timely payments will cause Lender to incur additional expenses in
servicing and processing the Loan and that it is extremely difficult and impractical
to determine those additional expenses. 
Borrower agrees that the late charge payable pursuant to this Paragraph
represents a fair and reasonable estimate, taking into account all
circumstances existing on the date of this Note, of the additional expenses
Lender will incur by reason of such late payment.  The late charge is payable in addition to,
and not in lieu of, any interest payable at the Default Rate pursuant to
Paragraph 8.


 


8.             Default Rate.  So long as any monthly installment or any other payment due under this Note
remains past due for 30 days or more, interest under this Note shall accrue on
the unpaid principal balance from the earlier of the due date of the first
unpaid monthly installment or other payment due, as applicable, at the Default
Rate.  If the unpaid principal balance
and all accrued interest are not paid in


 


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full on the Maturity Date, the unpaid principal balance
and all accrued interest shall bear interest from the Maturity Date at the
Default Rate.  Borrower also acknowledges
that its failure to make timely payments will cause Lender to incur additional
expenses in servicing and processing the Loan, that, during the time that any
monthly installment or payment under this Note is delinquent for more than 30
days, Lender will incur additional costs and expenses arising from its loss of
the use of the money due and from the adverse  impact
on Lender’s ability to meet its other obligations and to take advantage of
other investment opportunities, and that it is extremely difficult and
impractical to determine those additional costs and expenses.  Borrower also acknowledges that, during the
time that any monthly installment or other payment due under this Note is
delinquent for more than 30 days, Lender’s risk of nonpayment of this Note will
be materially increased and Lender is entitled to be compensated for such
increased risk.  Borrower agrees that the
increase in the rate of interest payable under this Note to the Default Rate
represents a fair and reasonable estimate, taking into account all
circumstances existing on the date of this Note, of the additional costs and
expenses Lender will incur by reason of the Borrower’s delinquent payment and
the additional compensation Lender is entitled to receive for the increased
risks of nonpayment associated with a delinquent loan.


 


9.                                      Limits on Personal Liability.


 


(a)                                  Except as otherwise provided in this Paragraph 9, Borrower shall have no
personal liability under this Note, the Security Instrument or any other Loan
Document for the repayment of the Indebtedness or for the performance of any
other obligations of Borrower under the Loan Documents, and Lender’s only
recourse for the satisfaction of the Indebtedness and the performance of such obligations
shall be Lender’s exercise of its rights and remedies with respect to the
Mortgaged Property (as such term is defined in the Security Instrument) and any
other collateral held by Lender as security for the Indebtedness. This
limitation on Borrower’s liability shall not limit or impair Lender’s
enforcement of its rights against any guarantor of the Indebtedness or any
guarantor of any obligations of Borrower.


 


(b)                                 Borrower shall be personally liable to Lender for the repayment of a
portion of the Indebtedness equal to any loss or damage suffered by Lender as a
result of:


 


(1)           failure
of Borrower to pay to Lender upon demand after an Event of Default, all Rents
to which Lender is entitled under Section 3(a) of the Security
Instrument and the amount of all security deposits collected by Borrower from
tenants then in residence;


 


(2)           failure
of Borrower to apply all insurance proceeds and condemnation proceeds as
required by the Security Instrument;


 


(3)           failure
of Borrower to comply with Section 14(d) or (e) of the Security
Instrument relating to the delivery of books and records, statements, schedules
and reports;


 


(4)           fraud
or written material misrepresentation by Borrower, Key Principal or any
officer, director, partner, member or employee of Borrower in connection with
the application for or creation of the Indebtedness or any request for any
action or consent by Lender;


 


(5)           failure
to apply Rents, first, to the payment of reasonable operating expenses (other
than Property management fees that are not currently payable pursuant to the
terms of an


 


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Assignment of Management Agreement or any other agreement
with Lender executed in connection with the Loan) and then to Debt Service Amounts, except that Borrower
will not be personally liable (i) to the extent that Borrower lacks the
legal right to direct the disbursement of such sums because of a bankruptcy,
receivership or similar judicial proceeding, or (ii) with respect to Rents
that are distributed in any calendar year if Borrower has paid all operating
expenses and Debt Service Amounts for that calendar year; or


 


(6)                                  failure by Borrower to comply with the provisions of Section 17(a) of
the Security Instrument.


 


(c)                                  Borrower shall become personally liable to Lender for the repayment of all
of the Indebtedness upon the occurrence of any of the following Events of
Default:


 


(1)                                  Borrower’s acquisition of any property or operation of any business not
permitted by Section 33 of the Security Instrument;


 


(2)                                  a Transfer that is an Event of Default under Section 21 of the
Security Instrument; or


 


(3)                                  the occurrence of a Bankruptcy Event (but only if the Bankruptcy Event
occurs with the consent, encouragement or active participation of Borrower, Key
Principal or any Borrower Affiliate).


 


(d)                                 To the extent that Borrower has personal liability under this Paragraph 9,
Lender may exercise its rights against Borrower personally without regard to
whether Lender has exercised any rights against the Mortgaged Property or any
other security, or pursued any rights against any guarantor, or pursued any
other rights available to Lender under this Note, the Security Instrument, any
other Loan Document or applicable law. For purposes of this Paragraph 9, the
term “Mortgaged Property” shall
not include any funds that (1) have been applied by Borrower as required
or permitted by the Security Instrument prior to the occurrence of an Event of
Default, or (2) Borrower was unable to apply as required or permitted by
the Security Instrument because of a bankruptcy, receivership, or similar
judicial proceeding.


 


10.                               Voluntary and Involuntary Prepayments.


 


(a)                                  A prepayment premium shall be payable in connection with any prepayment
made under this Note as provided below:


 


(1)                                  Borrower may voluntarily prepay all (but not less than all) of the unpaid
principal balance of this Note only on the last calendar day of a calendar
month (the “Last Day of the Month”) and only if Borrower has complied with all
of the following:


 


(i)                                     Borrower must give Lender at least 30 days (if given via U.S. Postal
Service) or 20 days (if given via facsimile, email or overnight courier), but
not more than 60 days, prior written notice of Borrower’s intention to make a
prepayment (the “Prepayment Notice”). 
The Prepayment Notice shall be given in writing (via facsimile, email,
U.S. Postal Service or


 


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overnight courier) and addressed to Lender.  The Prepayment Notice shall include, at a
minimum, the Business Day upon which Borrower intends to make the prepayment
(the “Intended Prepayment Date”).


 


(ii)                                  Borrower acknowledges that the Lender is not required to accept any
voluntary prepayment of this Note on any day other than the Last Day of the
Month even (A) if Borrower has given a Prepayment Notice with an Intended
Prepayment Date other than the Last Day of the Month or (B) if the Last
Day of the Month is not a Business Day. 
Therefore, even if Lender accepts a voluntary prepayment on any day
other than the Last Day of the Month, for all purposes (including the accrual
of interest and the calculation of the prepayment premium), any prepayment
received by Lender on any day other than the Last Day of the Month shall be
deemed to have been received by Lender on the Last Day of the Month and any
prepayment calculation will include interest to and including the Last Day of
the Month in which such prepayment occurs. 
If the Last Day of the Month is not a Business Day, then the Borrower
must make the payment on the Business Day immediately preceding the Last Day of
the Month.


 


(iii)                               Any prepayment shall be made by paying (A) the amount of principal
being prepaid, (B) all accrued interest (calculated to the Last Day of the
Month), (C) all other sums due Lender at the time of such prepayment, and
(D) the prepayment premium calculated pursuant to Schedule A.


 


(iv)                              If, for any reason, Borrower fails to prepay this Note (A) within five
(5) Business Days after the Intended Prepayment Date or (B) if the
prepayment occurs in a month other than the month stated in the original
Prepayment Notice, then Lender shall have the right, but not the obligation, to
recalculate the prepayment premium based upon the date that Borrower actually
prepays this Note and to make such calculation as described in Schedule A
attached hereto.  For purposes of such
recalculation, such new prepayment date shall be deemed the “Intended
Prepayment Date.”


 


(2)                                  Upon Lender’s exercise of any right of acceleration under this Note,
Borrower shall pay to Lender, in addition to the entire unpaid principal
balance of this Note outstanding at the time of the acceleration, (i) all
accrued interest and all other sums due Lender under this Note and the other
Loan Documents, and (ii) the prepayment premium calculated pursuant to
Schedule A.


 


(3)                                  Any application by Lender of any collateral or other security to the
repayment of any portion of the unpaid principal balance of this Note prior to
the Maturity Date and in the absence of acceleration shall be deemed to be a
partial prepayment by Borrower, requiring the payment to Lender by Borrower of
a prepayment premium.


 


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(b)           Notwithstanding
the provisions of Paragraph 10(a), no prepayment premium shall be payable (1) with
respect to any prepayment occurring as a result of the application of any
insurance proceeds or condemnation award under the Security Instrument, or (2) as
provided in subparagraph (c) of Schedule A.


 


(c)           Schedule
A is hereby incorporated by reference into this Note.


 


(d)           Any
required prepayment of less than the entire unpaid principal balance of this
Note shall not extend or postpone the due date of any subsequent monthly
installments or change the amount of such installments, unless Lender agrees
otherwise in writing.


 


(e)           Borrower
recognizes that any prepayment of the unpaid principal balance of this Note,
whether voluntary or involuntary or resulting from a default by Borrower, will
result in Lender’s incurring loss, including reinvestment loss, additional
expense and frustration or impairment of Lender’s ability to meet its
commitments to third parties.  Borrower
agrees to pay to Lender upon demand damages for the detriment caused by any
prepayment, and agrees that it is extremely difficult and impractical to ascertain
the extent of such damages.  Borrower
therefore acknowledges and agrees that the formula for calculating prepayment
premiums set forth on Schedule A represents a reasonable estimate of the
damages Lender will incur because of a prepayment.


 


(f)            Borrower
further acknowledges that the prepayment premium provisions of this Note are a
material part of the consideration for the loan evidenced by this Note, and
acknowledges that the terms of this Note are in other respects more favorable
to Borrower as a result of the Borrower’s voluntary agreement to the prepayment
premium provisions.


 


11.          Costs and Expenses.  Borrower shall pay on demand all expenses and costs, including fees and
out-of-pocket expenses of attorneys and expert witnesses and costs of
investigation, incurred by Lender as a result of any default under this Note or
in connection with efforts to collect any amount due under this Note, or to
enforce the provisions of any of the other Loan Documents, including those
incurred in post-judgment collection efforts and in any bankruptcy proceeding
(including any action for relief from the automatic stay of any bankruptcy
proceeding) or judicial or non-judicial foreclosure proceeding.


 


12.          Forbearance.  Any forbearance by Lender in exercising any
right or remedy under this Note, the Security Instrument, or any other Loan
Document or otherwise afforded by applicable law, shall not be a waiver of or
preclude the exercise of that or any other right or remedy.  The acceptance by Lender of any payment after
the due date of such payment, or in an amount which is less than the required
payment, shall not be a waiver of Lender’s right to require prompt payment when
due of all other payments or to exercise any right or remedy with respect to
any failure to make prompt payment. 
Enforcement by Lender of any security for Borrower’s obligations under
this Note shall not constitute an election by Lender of remedies so as to
preclude the exercise of any other right or remedy available to Lender.


 


13.          Waivers.  Presentment, demand, notice of dishonor, protest, notice of acceleration,
notice of intent to demand or accelerate payment or maturity, presentment for
payment, notice of nonpayment, grace, and diligence in collecting the
Indebtedness are waived by Borrower, Key Principal, and all endorsers and
guarantors of this Note and all other third party obligors.


 


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14.          Loan Charges.  Borrower agrees to pay an effective rate of
interest equal to the sum of the Interest Rate provided for in this Note and
any additional rate of interest resulting from any other charges of interest or
in the nature of interest paid or to be paid in connection with the loan
evidenced by this Note and any other fees or amounts to be paid by Borrower
pursuant to any of the other Loan Documents. 
Neither this Note nor any of the other Loan Documents shall be construed
to create a contract for the use, forbearance or detention of money requiring
payment of interest at a rate greater than the maximum interest rate permitted
to be charged under applicable law.  If
any applicable law limiting the amount of interest or other charges permitted
to be collected from Borrower in connection with the Loan is interpreted so
that any interest or other charge provided for in any Loan Document, whether
considered separately or together with other charges provided for in any other
Loan Document, violates  that law, and Borrower
is entitled to the benefit of that law, that interest or charge is hereby
reduced to the extent necessary to eliminate that violation.  The amounts, if any, previously paid to
Lender in excess of the permitted amounts shall be applied by Lender to reduce
the unpaid principal balance of this Note. 
For the purpose of determining whether any applicable law limiting the
amount of interest or other charges permitted to be collected from Borrower has
been violated, all Indebtedness that constitutes interest, as well as all other
charges made in connection with the Indebtedness that constitute interest,
shall be deemed to be allocated and spread ratably over the stated term of the
Note.  Unless otherwise required by
applicable law, such allocation and spreading shall be effected in such a
manner that the rate of interest so computed is uniform throughout the stated
term of the Note.


 


15.          Commercial Purpose.  Borrower represents that the Indebtedness is being incurred by Borrower
solely for the purpose of carrying on a business or commercial enterprise, and
not for personal, family or household purposes.


 


16.          Counting of Days.  Except where otherwise specifically provided, any reference in this Note to
a period of “days” means calendar days, not Business Days.


 


17.          Governing Law.  This Note shall be governed by the law of the jurisdiction in which the
Land is located.


 


18.          Captions.  The captions of the paragraphs of
this Note are for convenience only and shall be disregarded in construing this
Note.


 


19.          Notices.  All notices, demands and other communications
required or permitted to be given by Lender to Borrower pursuant to this Note
shall be given in accordance with Section 31 of the Security Instrument.


 


20.          Consent to Jurisdiction and Venue.  Borrower
and Key Principal each agrees that any controversy arising under or in relation
to this Note shall be litigated exclusively in the Property Jurisdiction.  The
state and federal courts and authorities with jurisdiction in the Property
Jurisdiction shall have exclusive jurisdiction over all controversies which
shall arise under or in relation to this Note. 
Borrower and Key Principal each irrevocably consents to service,
jurisdiction, and venue of such courts for any such litigation and waives any
other venue to which it might be entitled by virtue of domicile, habitual
residence or otherwise.


 


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21.          WAIVER OF TRIAL BY JURY. 
BORROWER, KEY PRINCIPAL AND LENDER EACH (A) AGREES NOT TO ELECT A
TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS NOTE OR THE
RELATIONSHIP BETWEEN THE PARTIES AS LENDER, KEY PRINCIPAL AND BORROWER THAT IS
TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH
RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE
FUTURE.  THIS WAIVER OF RIGHT TO TRIAL BY
JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE
BENEFIT OF COMPETENT LEGAL COUNSEL.


 


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ATTACHED SCHEDULES.  The following Schedules are attached to this
Note:


 


	
  x

  	
  Schedule A

  	
  Prepayment Premium (required)

  
	
   

  	
   

  	
   

  
	
  x

  	
  Schedule B

  	
  Modifications to Multifamily Note

  



 


[REST OF PAGE INTENTIONALLY LEFT BLANK]


 


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IN WITNESS WHEREOF, Borrower has signed and delivered this Note or has caused this Note to be
signed and delivered by its duly authorized representative.


 


	
  BORROWER

  
	
   

  	
   

  
	
   

  	
  7900 HAMPTON BLVD, LLC

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Hampton Peak, LLC

  
	
   

  	
   

  	
  a Colorado limited liability company

  
	
   

  	
   

  	
  Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Luke Simpson

  
	
   

  	
   

  	
  Name:

  	
  Luke Simpson

  
	
   

  	
   

  	
  Title:

  	
  Manager

  



 


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ACKNOWLEDGMENT AND AGREEMENT OF
KEY PRINCIPAL TO


PERSONAL LIABILITY FOR EXCEPTIONS
TO NON-RECOURSE LIABILITY


 


Key Principal, who has an economic interest in Borrower
or who will otherwise obtain a material financial benefit from the Loan, hereby
absolutely, unconditionally and irrevocably agrees to pay to Lender, or its
assigns, on demand, all amounts for which Borrower is personally liable under
Paragraph 9 of the Multifamily Note to which this Acknowledgment is attached
(the “Note”). 
The obligations of Key Principal shall survive any foreclosure
proceeding, any foreclosure sale, any delivery of any deed in lieu of
foreclosure, and any release of record of the Security Instrument.  Lender may pursue its remedies against Key
Principal without first exhausting its remedies against the Borrower or the
Mortgaged Property. All capitalized terms used but not defined in this
Acknowledgment shall have the meanings given to such terms in the Security
Instrument.  As used in this
Acknowledgment, the term “Key Principal” (each if more than one) shall mean
only those individuals or entities that execute this Acknowledgment.


 


The obligations of Key Principal shall be performed
without demand by Lender and shall be unconditional irrespective of the
genuineness, validity, or enforceability of the Note, or any other Loan
Document, and without regard to any other circumstance which might otherwise
constitute a legal or equitable discharge of a surety or a guarantor.  Key Principal hereby waives the benefit of
all principles or provisions of law, which are or might be in conflict with the
terms of this Acknowledgment, and agrees that Key Principal’s obligations shall
not be affected by any circumstances which might otherwise constitute a legal
or equitable discharge of a surety or a guarantor.  Key Principal hereby waives the benefits of
any right of discharge and all other rights under any and all statutes or other
laws relating to guarantors or sureties, to the fullest extent permitted by
law, diligence in collecting the Indebtedness, presentment, demand for payment,
protest, all notices with respect to the Note including this Acknowledgment,
which may be required by statute, rule of law or otherwise to preserve Lender’s
rights against Key Principal under this Acknowledgment, including notice of
acceptance, notice of any amendment of the Loan Documents, notice of the
occurrence of any default or Event of Default, notice of intent to accelerate,
notice of acceleration, notice of dishonor, notice of foreclosure, notice of
protest, notice of the incurring by Borrower of any obligation or indebtedness
and all rights to require Lender to (a) proceed against Borrower, (b) proceed
against any general partner of Borrower, (c) proceed against or exhaust any
collateral held by Lender to secure the repayment of the Indebtedness, or (d)
if Borrower is a partnership, pursue any other remedy it may have against
Borrower, or any general partner of Borrower.


 


At any time without notice to Key Principal, and without
affecting the liability of Key Principal hereunder, (a) the time for payment of
the principal of or interest on the Indebtedness may be extended or the
Indebtedness may be renewed in whole or in part; (b) the time for Borrower’s
performance of or compliance with any covenant or agreement contained in the
Note, or any other Loan Document, whether presently existing or hereinafter
entered into, may be extended or such performance or compliance may be waived;
(c) the maturity of the Indebtedness may be accelerated as provided in the Note
or any other Loan Document; (d) the Note or any other Loan Document may be
modified or amended by Lender and Borrower in any respect, including an
increase in the principal amount; and (e) any security for the Indebtedness may
be modified, exchanged, surrendered or otherwise dealt with or additional
security may be pledged or mortgaged for the Indebtedness.


 


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Key Principal acknowledges that Key Principal has
received a copy of the Note and all other Loan Documents.  Neither this Acknowledgment nor any of its
provisions may be waived, modified, amended, discharged, or terminated except
by an agreement in writing signed by the party against which the enforcement of
the waiver, modification, amendment, discharge, or termination is sought, and
then only to the extent set forth in that agreement.  Key Principal agrees to notify Lender (in the
manner for giving notices provided in Section 31 of the Security Instrument) of
any change of Key Principal’s address within 10 Business Days after such change
of address occurs.  Any notices to Key
Principal shall be given in the manner provided in Section 31 of the Security
Instrument.  Key Principal agrees to be
bound by Paragraphs 20 and 21 of the Note.


 


THIS ACKNOWLEDGMENT IS AN
INSTRUMENT SEPARATE FROM, AND NOT A PART OF, THE NOTE.  BY SIGNING THIS ACKNOWLEDGMENT, KEY PRINCIPAL
DOES NOT INTEND TO BECOME AN ACCOMMODATION PARTY TO, OR AN ENDORSER OF, THE
NOTE.


 


IN WITNESS WHEREOF, Key Principal has signed and delivered this Acknowledgment or has caused
this Acknowledgment to be signed and delivered by its duly authorized
representative.


 


	
   

  	
  KEY PRINCIPAL

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Don Simpson

  
	
   

  	
  Name: Don Simpson

  
	
   

  	
  Address:

  	
  c/o Grand Peaks Properties, LLC

  
	
   

  	
   

  	
  4582 South Ulster Street Parkway

  
	
   

  	
   

  	
  Suite 1200

  
	
   

  	
   

  	
  Denver, Colorado 80237

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Luke Simpson

  
	
   

  	
  Name: Luke Simpson

  
	
   

  	
  Address:

  	
  c/o Grand Peaks Properties, LLC

  
	
   

  	
   

  	
  4582 South Ulster Street Parkway

  
	
   

  	
   

  	
  Suite 1200

  
	
   

  	
   

  	
  Denver, Colorado 80237

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Nick Simpson

  
	
   

  	
  Name: Nick Simpson

  
	
   

  	
  Address:

  	
  c/o Grand Peaks Properties, LLC

  
	
   

  	
   

  	
  4582 South Ulster Street Parkway

  
	
   

  	
   

  	
  Suite 1200

  
	
   

  	
   

  	
  Denver, Colorado 80237

  



 


13

















 


SCHEDULE A


 


PREPAYMENT PREMIUM


 


Any prepayment premium payable under Paragraph 10 of this
Note shall be computed as follows:


 


(a)                                  If the prepayment is made at any time after the date of this Note and
before the Yield Maintenance Period End Date, the prepayment premium shall be
the greater of:


 


(i)                                     1% of the amount of principal being prepaid; or


 


(ii)                                  The product obtained by multiplying:


 


                                                (A)          the amount of principal
being prepaid,


 


by


 


(B)                                the difference obtained by subtracting from the Interest Rate on this Note
the Yield Rate (as defined below), on the twenty-fifth Business Day preceding
(x) the Intended Prepayment Date, or (y) the date Lender accelerates the Loan
or otherwise accepts a prepayment pursuant to Paragraph 10(a)(3) of this Note,


 


by


 


(C)                                the present value factor calculated using the following formula:


 


	
   

  	
  1 - (1 + r)-n/12

  	
   

  
	
   

  	
  r

  	
   

  



 


[r =          Yield
Rate


 


 n =                            the number of months remaining between (1) either of the following:
(x) in the case of a voluntary prepayment, the Last Day of the Month
during which the prepayment is made, or (y) in any other case, the date on
which Lender accelerates the unpaid principal balance of this Note and
(2) the Yield Maintenance Period End Date.


 


A-1

















 


For purposes of this clause (ii), the “Yield Rate” means the yield calculated by interpolating the
yields for the immediately shorter and longer term U.S. “Treasury constant
maturities” (as reported in the Federal Reserve Statistical Release H.15
Selected Interest Rates (the “Fed Release”)
under the heading “U.S. government securities”) closest to the remaining term
of the Yield Maintenance Period Term, as follows (rounded to three decimal
places):


 





 


a =                               the yield for the longer U.S. Treasury constant maturity


b =                               the yield for the shorter U.S. Treasury constant maturity


x =                                the term of the longer U.S. Treasury constant maturity


y =                                the term of the shorter U.S. Treasury constant maturity


z =                                 “n” (as defined in the present value factor calculation above) divided by
12.


 


Notwithstanding any provision to the contrary, if “z” equals a term reported under the U.S. “Treasury constant
maturities” subheading in the Fed Release, the yield for such term shall be
used, and interpolation shall not be necessary. 
If publication of the Fed Release is discontinued by the Federal Reserve
Board, Lender shall determine the Yield Rate from another source selected by
Lender.  Any determination of the Yield
Rate by Lender will be binding absent manifest error.]


 


(b)                                 If the prepayment is made on or after the Yield Maintenance Period End Date
but before the last calendar day of the 4th month prior to the month in which
the Maturity Date occurs, the prepayment premium shall be 1% of the amount of
principal being prepaid.


 


(c)                                  Notwithstanding the provisions of Paragraph 10(a) of this Note, no
prepayment premium shall be payable with respect to any prepayment made on or
after the last calendar day of the 4th month prior to the month in which the
Maturity Date occurs.


 


 


	
   

  	
  LS

  
	
   

  	
  Borrower Initials

  



 


A-2

















 


SCHEDULE B


 


MODIFICATIONS TO MULTIFAMILY NOTE


 


The
following modifications are made to the text of the Note that precedes this
Schedule:


 


1.             In
the first sentence of Section 7, after the phrase “If any monthly installment
due hereunder” the phrase “(other than the balloon payment due on the Maturity
Date)” is hereby inserted.


 


2.             All capitalized terms used in this Schedule not
specifically defined herein shall have the meanings set forth in the text of
the Note that precedes this Schedule.


 


 


	
   

  	
  LS

  
	
   

  	
  Borrower’s Initials

  



 


B-1