Exhibit 10.16


PROMISSORY
NOTE


 


	
  $165,000,000

  	
  New York, New
  York

  
	
   

  	
  October 26, 2004

  



 


FOR VALUE RECEIVED  THE ENTITIES SET FORTH ON THE SIGNATURE PAGES OF THIS
NOTE (collectively, “Borrower”), as maker, hereby
unconditionally promise to pay to the order of COLUMN FINANCIAL, INC., a
Delaware corporation, as lender, having an address at 11 Madison Avenue, New
York, New York 10010 (“Lender”), or at such other place as the
holder hereof may from time to time designate in writing, the principal sum of
One Hundred Sixty-Five Million and No/100 Dollars ($165,000,000), in lawful
money of the United States of America with interest thereon to be computed from
the date of this Note at the Applicable Interest Rate, and to be paid in
accordance with the terms of this Note and that certain Loan Agreement, dated
the date hereof, between Borrower and Lender (as the same may be amended,
restated, replaced, supplemented or otherwise modified from time to time, 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
the principal sum of this Note and interest on the unpaid principal sum of this
Note from time to time outstanding at the rates and at the times specified in
Article 2 of 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.


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 Mortgages and the other Loan Documents. 
All of the terms, covenants and conditions contained in the Loan
Agreement, the Mortgages 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 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 Legal Rate, (b) in
calculating whether any interest

















 


exceeds the
Maximum Legal Rate, 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 Maximum Legal Rate, 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.


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


 


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ARTICLE 7: 
TRANSFER


Upon the transfer of this
Note, Borrower hereby waiving notice of any such transfer, 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 thereafter 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
governed in accordance with the terms and provisions of Section 10.3 of
the Loan Agreement.


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: 
NUMBER AND GENDER/JOINT AND SEVERAL LIABILITY


All pronouns and any
variations thereof shall be deemed to refer to the masculine, feminine, neuter,
singular or plural as the identity of the Person or Persons referred to may
require.  Without limiting the effect of
specific references in any provision of this Agreement, the term “Borrower”
shall be deemed to refer to each and every Person comprising a Borrower from
time to time, as the sense of a particular provision may require, and to
include the heirs, executors, administrators, legal representatives, successors
and assigns of Borrower, all of whom shall be bound by the provisions of this
Agreement, provided that no obligation of Borrower may be assigned except with
the written consent of Lender.  Each
reference herein to Lender shall be deemed to include its successors and
assigns.


If Borrower is comprised
of more than one Person, all representations, warranties, covenants (both
affirmative and negative) and all other obligations of Borrower hereunder shall
be the joint and several obligation of each entity making up Borrower and a
Default or Event of Default by any such Person shall be deemed a Default or
Event of Default by all such entities and Borrower.  The representations, covenants and warranties contained herein
shall be read to apply to the individual entities comprising Borrower when the
context so requires but a breach of any such representation, covenant or
warranty or a breach of any obligation under this Note shall be deemed a breach
by all such entities and Borrower, entitling Lender to exercise all of its
rights and remedies under this Note and the other Loan Documents and under
applicable law.


 


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ARTICLE 12: 
STATE SPECIFIC PROVISIONS


(a)           With respect to the foregoing
provisions contained in this Note, the following shall apply with respect to
the State of California:


(i)            The following paragraph shall be
inserted after Article 3 of this Note:


Borrower hereby expressly
(a) waives any right it may have under California Civil Code §2954.10 to prepay
this Note in whole or in part, without penalty, upon acceleration of the
Maturity Date of this Note; and (b) agrees that if a prepayment of any or all
of this Note is made, following any acceleration of the Maturity Date of this
Note by Lender on account of any transfer or disposition prohibited or
restricted herein or by the Loan Agreement, Borrower shall be obligated to pay,
concurrently therewith, the Prepayment Premium, if any, that would be required
under the Loan Agreement.  By initialing
this provision in the space provided below, Borrower hereby declares that
Lender’s agreement to make the subject loan at the interest rate and for the
term set forth herein constitutes adequate consideration, given individual
weight by the undersigned, for this waiver and agreement.


INITIALS: /s/ D.M.                              


(b)           With respect to the foregoing
provisions contained in this Note, the following shall apply with respect to
the State of Missouri:


(i)            Oral agreements or commitments to
loan money, extend credit or to forbear from enforcing repayment of a debt,
including promises to extend or renew such debt, are not enforceable.  To protect you (Borrower) and us (Lender)
from misunderstanding or disappointment, any agreements we reach covering such
matters are contained in this writing which is the complete and exclusive
statement of agreement between us except as we may later agree in writing to
modify it.


(c)           With respect to the foregoing
provisions contained in this Note, the following shall apply with respect to
the State of Virginia:


(i)            Borrower represents and warrants
that this Note evidences an indebtedness which is being incurred by Borrower
for the sole purpose of acquiring or carrying on a business or commercial
enterprise and/or that Borrower is a business or commercial entity. Borrower
further represents and warrants that all of the proceeds received by Borrower
in connection with this Note shall be used for commercial purposes and Borrower
stipulates that the Loan shall be construed for all purposes as a commercial
loan and that it is made for other than personal, family or household purposes.


 


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(d)           With respect to the foregoing
provisions contained in this Note, the following shall apply with respect to
the State of Maryland:


(i)            Borrower represents and warrants
that the Note evidences an indebtedness which is a “Commercial Loan” as defined
in Section 12-101(a) of the Commercial Law Article of the Maryland Code.


(e)           With respect to the foregoing
provisions contained in this Note, the following shall apply with respect to
the State of Illinois:


(i)            Borrower represents and warrants
that the Loan is a “business Loan” in accordance with 815 ILCS 205/4.


(f)            With respect to the foregoing
provisions contained in this Note, the following shall apply with respect to
the State of Washington:


(i)            ORAL
AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.


[NO FURTHER TEXT ON THIS PAGE]


 


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


BORROWER:


 


 


	
  ABP AL (MIDFIELD) LLC

  	
   

  	
  ABP AR (LITTLE ROCK) LLC

  
	
  ABP CA (CITY OF INDUSTRY) LLC

  	
   

  	
  ABP CA (NATIONAL CITY) LLC

  
	
  ABP CA (NEWARK) LLC

  	
   

  	
  ABP CA (NORTH HIGHLANDS) LLC

  
	
  ABP CA (RIVERSIDE) LLC

  	
   

  	
  ABP CO I (DENVER) LLC

  
	
  ABP CO II (DENVER) LLC

  	
   

  	
  ABP CT (NEWTON) LLC

  
	
  ABP FL (LAKE CITY) LLC

  	
   

  	
  ABP FL (MIAMI) LLC

  
	
  ABP FL (PENSACOLA) LLC

  	
   

  	
  ABP FL (TAMPA) LLC

  
	
  ABP FL (YULEE) LLC

  	
   

  	
  ABP GA (LAWRENCEVILLE) LLC

  
	
  ABP IA (DES MOINES) LLC

  	
   

  	
  ABP IL (UNIVERSITY PARK) LLC

  
	
  ABP IN (ELKHART) LLC

  	
   

  	
  ABP KY (INDEPENDENCE) LLC

  
	
  ABP LA (BATON ROUGH) LLC

  	
   

  	
  ABP LA (NEW ORLEANS) LLC

  
	
  ABP LA (SHREVEPORT) LLC

  	
   

  	
  ABP MA (BELLINGHAM) LLC

  
	
  ABP MD (BALTIMORE) LLC

  	
   

  	
  ABP ME (PORTLAND) LLC

  
	
  ABP MI (DETROIT) LLC

  	
   

  	
  ABP MI (GRAND RAPIDS) LLC

  
	
  ABP MN (EAGAN) LLC

  	
   

  	
  ABP MN (MAPLE GROVE) LLC

  
	
  ABP MO (BRIDGETON) LLC

  	
   

  	
  ABP MO (KANSAS CITY) LLC

  
	
  ABP MO (SPRINGFIELD) LLC

  	
   

  	
  ABP MS (PEARL) LLC

  
	
  ABP NC (BUTNER) LLC

  	
   

  	
  ABP NC (CHARLOTTE) LLC

  
	
  ABP ND (NORTH FARGO) LLC

  	
   

  	
  ABP NJ (DENVILLE) LLC

  
	
  ABP NM (ALBUQUERQUE) LLC

  	
   

  	
  ABP NY (YAPHANK) LLC

  
	
  ABP OH (TALMADGE) LLC

  	
   

  	
  ABP OK (TULSA) LLC

  
	
  ABP OR (BEAVERTON) LLC

  	
   

  	
  ABP PA (ALLENTOWN) LLC

  
	
  ABP PA (STANTON) LLC

  	
   

  	
  ABP SC (CHARLESTON) LLC

  
	
  ABP SD (SIOUX FALLS) LLC

  	
   

  	
  ABP TN (ERWIN) LLC

  
	
  ABP TN (MEMPHIS) LLC

  	
   

  	
  ABP TN (NASHVILLE) LLC

  
	
  ABP TX (EL PASO) LLC

  	
   

  	
  ABP TX (FORT WORTH) LLC

  
	
  ABP TX (HARLINGEN) LLC

  	
   

  	
  ABP TX (HOUSTON) LLC

  
	
  ABP TX (LUBBOCK) LLC

  	
   

  	
  ABP TX (SAN ANTONIO) LLC

  
	
  ABP VA (RICHMOND) LLC

  	
   

  	
  ABP VA (VIRGINIA BEACH) LLC

  
	
  ABP VT (SHELBURNE) LLC

  	
   

  	
  ABP WA (WOODINVILLE) LLC

  
	
  ABP WI (WAUSAU) LLC

  	
   

  	
   

  



 


 


 


	
   

  	
  By:

  	
  /s/
  David Morris

  
	
   

  	
   

  	
  Name:

  	
  David
  Morris

  
	
   

  	
   

  	
  Title:

  	
  Secretary
  and Vice President

  



 


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