Exhibit 10.38


 


Loan No. 000500642


 


PROMISSORY NOTE


 


	
  BORROWER:

  	
   

  	
  PAYEE:

  
	
   

  	
   

  	
   

  
	
  Ascent Solar Technologies, Inc., a Delaware

  	
   

  	
  Colorado Housing and Finance Authority

  
	
  corporation

  	
   

  	
   

  
	
  8120 Shaffer Parkway, Littleton, CO 80127-4107 

  	
   

  	
  1981 Blake Street, Denver, Colorado 80202

  



 


Note Date: February 8,
2008


Principal Amount:
Seven Million Five Hundred Thousand and No/100 Dollars ($7,500,000.00) 


Loan Rate: Six and
Sixty One-Hundredths Percent (6.60%) Per Annum


 


FOR VALUE RECEIVED,
Borrower promises to pay to the order of Payee, the principal sum of
Seven Million Five Hundred Thousand and
No/100 Dollars ($7,500,000.00) or so much thereof as shall have been
advanced by Payee, from time to time (the “Principal Amount”), in accordance
with the terms hereof and of that certain construction loan agreement between
Borrower and Payee of even date herewith (the “Loan Agreement”) as it relates
to the construction or rehabilitation of certain improvements (the “Improvements”)
on the real property (the “Property”) more particularly described in the Deed
of Trust (as defined below), together with interest on the outstanding unpaid
balance of such Principal Amount at the Loan Rate set forth above, together
with other amounts which may be due in accordance with the  provisions of
this Promissory Note (the “Note”).


 


The Borrower shall make payments of principal and
interest as follows: Borrower shall pay interest only, at the Loan Rate, on so
much of the Principal Amount as shall be outstanding from time to time (“Construction
Loan Interest”). Construction Loan Interest shall be computed on the basis of a three- hundred-sixty-five
(365) day year based upon the actual number of days elapsed. Construction Loan Interest shall be payable
each month, in arrears, on the first day of the month. All unpaid principal,
accrued and unpaid Construction Loan Interest, and all other sums due hereunder
shall be due and payable in full on  January 1, 2009 (the “Maturity Date”).


 


All payments of principal and interest shall be made at Payee’s
offices at the address shown above or at such other place as Payee shall designate to Borrower
in writing. For so long as there does not exist an Event of Default hereunder, as hereinafter defined, all
payments received hereunder, including prepayments, shall be applied in the following order
of priority: (i) to any amount required to be  paid into a tax
and insurance impound account in accordance with any of the Loan Documents, as
hereinafter defined; (ii) to reimburse Payee for advances made and expenses incurred,
including interest which has accrued on such advances or expenses, pursuant to the Loan
Documents, as hereinafter defined; (iii) to the Cost of Funds
Reimbursement due as described below, if any; (iv) to accrued and unpaid
interest; and (v) to the outstanding principal balance of this Note.


 


After an Event of Default hereunder which has not
been cured within any applicable cure period, all payments received by Payee on
this Note shall be applied by Payee to the impound account, advances, accrued
late charges, principal, interest and other charges due hereunder or under the
other Loan Documents, as hereinafter defined, in such order as Payee shall
determine in its sole subjective discretion.


 


In the event that Borrower shall fail to make any
monthly payment due hereunder within fifteen (15) days following the due date
thereof, Borrower shall pay to Payee a late charge in the amount of five
percent (5%) of said monthly payment.


 


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Borrower acknowledges that Payee may pledge this
Note as security for bonds, including refunding bonds, issued by Payee (the “Bonds”).
This Note may not be prepaid in whole or in part before the Maturity Date.
Notwithstanding the foregoing, if this Note is prepaid prior to the Maturity
Date, whether because of the  acceleration of the Maturity Date by Payee
after an Event of Default or otherwise, Borrower agrees that it shall pay Payee
an amount (the “Cost of Funds Reimbursement”) equal to the actual costs
incurred by the Payee to cancel all or a portion of the financial instruments
purchased by the Payee in order to lock in the Loan Rate up to the amount of
$6,750,000 for the benefit of the Borrower. In addition, Borrower agrees to pay
the Cost of Funds Reimbursement to Payee if the Permanent Loan is not made by
Payee to Borrower in the amount of at least $6,750,000 as provided in that
certain Construction and Permanent Loan Commitment between Payee and Borrower
dated January 16, 2008.


 


This Note is secured by, and the holder of this Note
is entitled to the benefits of a Deed of Trust, Security Agreement, Financing
Statement and Assignment of Rents and Leases (the “Deed of Trust”) encumbering
certain real and personal property more particularly described therein (the “Property”).
This Note, the Loan Agreement and Deed of Trust, together with all other
instruments now or hereafter executed by Borrower or any related business
enterprise in favor of Payee, which in any manner evidence the indebtedness
represented by this Note or which constitute additional security for this Note,
are herein collectively referred to as the “Loan Documents”. Reference is made
to the Loan Documents for a description of the property covered thereby and the
rights, remedies and obligations of the holder hereof in respect thereto.


 


The occurrence of any one or more of the following
events shall constitute a default under this Note (an “Event of Default”):


 


	
  (a)

  	
   

  	
  Borrower shall fail to pay on or before the
  Maturity Date all amounts due and payable under this 

  
	
  Note; or

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  Borrower shall fail to make any monthly interest
  payment on the date such payment is due in 

  
	
  accordance with the provisions of this Note
  (whether due on the date provided herein or by acceleration
  or otherwise); or

  
	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  Borrower shall fail to complete construction of
  the Renovations to the improvements not later than 

  
	
  the Construction Completion Date as defined in the
  Loan Agreement; or

  
	
   

  
	
  (d)

  	
   

  	
  There shall occur a non-monetary default under the
  terms of this Note; or

  
	
   

  	
   

  	
   

  
	
  (e)

  	
   

  	
  There shall occur a default under the terms of any
  Loan Document.

  



 


Upon the occurrence of an Event of
Default, the entire principal balance and accrued interest, irrespective of the
Maturity
Date specified herein, shall become immediately due and payable at the option of Payee, subject
only to the giving of prior notice and the rights of cure as set forth below,
to the extent applicable and shall thereafter bear interest until paid in full
at the rate of four percent (4%) above the Loan Rate.


 


Upon the occurrence of an Event of Default (except
as otherwise stated below), Payee shall not accelerate this debt, make any
payments for which Borrower is primarily liable or foreclose upon or attach any
assets of Borrower unless it first mails to Borrower at Borrower’s address
listed in the Deed of Trust, written notice of such default and such default is
not fully cured within the following periods:


 


(a)          ten (10) days after such notice is so
deposited in the U.S. mail in the event of any failure to make a monetary
payment to any person;


 


(b)         thirty (30) days after such notice is so
deposited in the U.S. mail in the event of nonmonetary defaults not subject to
other provisions of this paragraph, provided (i) within ten (10) days
after the mailing of the notice of default Borrower commences its cure and
submits to Payee in writing its plan to cure; and (ii) said cure is
continuously pursued by Borrower with due diligence. If said default is 


 


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not reasonably capable of being cured within thirty
(30) days, Borrower shall have such additional time as is reasonably necessary
to complete the cure, but in no event for more than ninety (90) days after the
mailing of the notice of default, all provided (x) said default is in
Payee’s reasonable judgment curable within said period, (y) Borrower
provides Payee with written, detailed progress reports at least every  thirty (30) days until the cure is complete,
and (z) Borrower continuously and diligently pursues said cure; or


 


(c)           sixty (60) days after the filing of any involuntary petition
in bankruptcy against or for the appointment of a receiver for Borrower (except
for petitions for receivership filed by Payee), with the dismissal of such
petitions by the court within such period being deemed to cure such default.


 


Notwithstanding the above provisions, none of the
cure periods provided for in this paragraph shall apply in the following
circumstances:


 


(i)            if Borrower
transfers or encumbers all or any portion of its interest in the Property
without the required consent of Payee; or


 


(ii)           in any circumstance when a delay in effecting
a cure is, in the reasonable judgment of Payee, likely to result in any
security being damaged, becoming uninsured or rendered unavailable to Payee or
the value thereof being materially and adversely affected; or


 


(iii)          any default of the same type or nature which
occurs more than twice in any one (1) calendar year; or


 


(iv)          any failure to proceed with or complete the
construction, renovation or repair of the Improvements as required by the Loan
Agreement or Deed of Trust; or


 


(v)           any filing of a voluntary petition in
bankruptcy by Borrower; or


 


(vi)          any assignment for the benefit of creditors,
fraudulent conveyance, or other plan or action instituted by Borrower or any
general partner of Borrower, in any attempt to avoid the satisfaction of any lawful indebtedness; or


 


(vii)         any waste committed to the Property or Improvements, or any demolition or removal of any Improvements except as permitted
by the Loan Agreement without Payee’s consent (other than the exercise by any
proper authority of the right of eminent domain); or


 


(viii)        any non-monetary default which Payee
reasonably determines is not capable of being cured within the requisite
period.


 


The provisions of this paragraph shall apply to
defaults under all the Loan Documents, and unless expressly stated to the
contrary in such documents any cure period referred to therein shall be deemed
to incorporate said provisions. If any of said documents are inconsistent
with this paragraph the latter shall be controlling, unless said other document
expressly provides otherwise. Where additional notice or cure periods are
provided in this or any other such documents or are required by any other contract or by law,
said periods and those contained in this paragraph shall run  concurrently.


 


Upon the occurrence of an Event of Default, Borrower
agrees to pay on demand all of Payee’s costs and expenses incurred for the
recovery of all or any part of or for protection of the indebtedness or to
enforce Payee’s rights under the Loan Documents including, without limitation,
reasonable attorneys’ fees.


 


The Deed of Trust includes certain limitations on
the right of Borrower to sell, convey, contract to sell or convey, assign or
encumber the Property. Reference to the Deed of Trust must be made for the text
of these provisions. Such provisions are incorporated herein by this reference.


 


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Borrower waives presentment, notice of dishonor,
notice of acceleration and protest, and assents to any extensions of time with
respect to any payment due under this Note, to any substitution or release of
collateral and to the addition or release of any party. No waiver of any
payment or other right under this Note shall operate as a waiver of any other
payment or right.


 


This Note is made and dated as of the date above
written and is to be governed by and construed according to the laws of the
State of Colorado.


 


Notices which are given pursuant to this Note shall
be given as set forth in the Deed of Trust.


 


IN CONSIDERATION OF PAYEE MAKING THE LOAN EVIDENCED
BY THIS NOTE AND AS A SPECIFIC CONDITION OF THE MAKING OF SAID LOAN BY PAYEE,
PAYEE AND BORROWER DO EACH HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS NOTE, ANY OTHER LOAN DOCUMENT, THE LETTER OF COMMITMENT WHEREBY PAYEE
AGREED TO MAKE THE LOAN AND ANY MODIFICATION OR AMENDMENT TO ANY ONE OR ALL OF
THEM, OR ARISING OUT OF OR RELATING TO THE ACTIONS OF PAYEE IN THE ENFORCEMENT
THEREOF. BORROWER DOES HEREBY ACKNOWLEDGE THAT IT HAS DISCUSSED AND REVIEWED
THE LOAN DOCUMENTS WITH ITS LEGAL COUNSEL AND UNDERSTANDS THE PROVISIONS
THEREOF, INCLUDING SPECIFICALLY, BUT WITHOUT LIMITATION, THIS WAIVER OF JURY
TRIAL. BORROWER ACKNOWLEDGES THAT IT HAS EXERCISED ITS INDEPENDENT JUDGMENT TO
ACT IN EXECUTING THIS NOTE AND THE OTHER LOAN DOCUMENTS, AND IS ACTING UPON ITS
OWN FREE WILL, WITHOUT DURESS, COERCION OR COMPULSION OF ANY NATURE WHATSOEVER.


 


 


	
   

  	
   

  	
  BORROWER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Ascent Solar Technologies, Inc., a Delaware

  
	
   

  	
   

  	
  corporation

  
	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ R.Scott Burrows

  	
   

  	
  By:

  	
  /s/ Matthew B. Foster

  
	
   

  	
  R.Scott Burrows, Secretary

  	
   

  	
   

  	
  Matthew B. Foster, President

  
						



 


 


	
  STATE OF COLORADO

  	
  )

  
	
   

  	
  )ss.

  
	
  COUNTY OF DENVER

  	
  )

  



 


The foregoing instrument was acknowledged before me
this 8th, day of February, 2008, by Matthew B. Foster as President and R. Scott Burrows as
Secretary of Ascent Solar Technologies, Inc., a Delaware corporation.


 


	
  My commission expires:

  	
   

  	
  .

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (SEAL)

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  [ILLEGIBLE]

  	
   

  
	
   

  	
  MIKE HEATH

  NOTARY PUBLIC 

  STATE
  OF COLORADO

  	
   

  	
  Notary Public

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  My Commission Expires Oct. 11, 2010

  	
   

  	
   

  	
   

  
								



 


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