**Exhibit 10.9B**

 

**PROMISSORYNOTE**

 
| $39,000,000.00 |   | September 19,  2003 |
|----------------|--------|---------------------|

 

**FOR VALUE RECEIVED**, **AMERIVESTCENTERRA INC., AMERIVEST PARKWAY INC. AND AMERIVEST BLACK CANYON INC.,**eachhaving an address c/o AmeriVest Properties Inc. at 1780 South Bellaire Street,Suite 100 Denver, CO  80222 (“***Maker***”), herebypromises to pay to the order of **GREENWICHCAPITAL FINANCIAL PRODUCTS INC.**, a Delaware corporation, at itsprincipal place of business at 600 Steamboat Road, Greenwich, Connecticut 06830(together with its successors and assigns “***Payee***”) or at such place as the holder hereofmay from time to time designate in writing, the principal sum of THIRTY-NINEMILLION AND 00/100 DOLLARS ($39,000,000.00) (the “***Principal***”),in lawful money of the United States of America, with interest on the unpaidprincipal balance from time to time outstanding at the Interest Rate, ininstallments as follows:

 

A.                                   A payment of$66,690.00 on the date hereof, representing interest from the date of fundingthrough September 30, 2003;

 

B.                                     On November 1,2003 (which shall be the first Payment Date hereunder) and each Payment Datethereafter through and including September 1, 2008, the Principal and interestthereon at the Interest Rate shall be payable in equal monthly installments of$230,953.76 (the “***MonthlyDebt Service Payment Amount***”); which is based on the InterestRate and a 300-month amortization schedule; each of such payments, subject tothe provisions of Section 3.11 of the Loan Agreement (hereinafter defined), tobe applied (a) to the payment of interest computed at the rate aforesaid;and (b) the balance applied toward the reduction of the principal sum; and

 

C.                                     The balance ofthe principal sum of this Note together with all accrued and unpaid interestthereon shall be due and payable on the Maturity Date.

 

**1.****                                     ****Definitions**.  Capitalized terms used but not otherwisedefined herein shall have the meanings given in that certain Loan Agreement(the “***Loan Agreement***”)dated the date hereof between Maker and Payee. The following terms have the meanings set forth below:

 

***Business Day***: any day other than a Saturday, Sunday or any day on whichcommercial banks in New York, New York are authorized or required to close.

 

***Default Rate***: a rate per annum equal to the lesser of (i) the maximum rate permittedby applicable law, or (ii) 5% above the Interest Rate, compounded monthly.

 

***Interest Period***: (i) the period from the date hereof through the first daythereafter that is the last day of a calendar month and (ii) each periodthereafter from the 1st day of each calendar month through the lastday of each such calendar month; except that the Interest Period, if any, thatwould otherwise commence before and end after the Maturity Date shall end onthe Maturity Date.

 

----

 

***Interest Rate***: a rate of interest equal to five and thirteen one-hundredths percent(5.13%) per annum, which includes a servicing fee of three (3) basis points(or, when applicable pursuant to this Note or any other Loan Document, theDefault Rate).

 

***Maturity Date***: the date on which the final payment of principal of this Note (or theDefeased Note, if applicable) becomes due and payable as therein provided,whether at the Stated Maturity Date, by declaration of acceleration, orotherwise.

 

***Payment Date***: the 1st day of each calendar month or, upon Payee’s exercise of itsright to change the Payment Date in accordance with Section 2.2.4 of the LoanAgreement, the New Payment Date (in either case, if such day is not a BusinessDay, the Payment Date shall be the first Business Day thereafter).  The first Payment Date hereunder shall beNovember 1, 2003.

 

***PrepaymentConsideration***shallbe the amount equal to the greater of (i) one percent (1%) of the aggregateLoan balance at the time of prepayment, or (ii) (A) the amount of the monthlyinterest which would otherwise be payable on the principal balance beingprepaid from the date of the first day of the calendar month immediatelyfollowing the date of prepayment (unless prepayment is tendered on the firstday of any calendar month during the term of this Note, in which case from thedate of prepayment) to and including the Maturity Date; over (B) the amount ofthe monthly interest the Lender would earn if the principal balance beingprepaid were reinvested for the period from the first day of the calendar monthimmediately following the date of prepayment (unless prepayment is tendered onthe first day of any calendar month during the term of this Note, in which casefrom the date of prepayment) to and including the Maturity Date at the TreasuryRate (as hereinafter defined), such difference to be discounted to presentvalue at the Treasury Rate.  The “TreasuryRate” shall be the annualized yield on securities issued by the UnitedStates Treasury having a maturity corresponding to the remaining term to theoriginally scheduled Maturity Date of this Note, as quoted in FederalReserve Statistical Release [H. 15(519)] under the heading “U.S. GovernmentSecurities – Treasury Constant Maturities” for the Treasury Rate DeterminationDate (as defined below), converted to a monthly equivalent yield.  If yields for such securities of suchmaturity are not shown in such publication, then the Treasury Rate shall bedetermined by Lender by linear interpolation between the yields of securitiesof the next longer and next shorter maturities.  If said Federal Reserve Statistical Release or any otherinformation necessary for determination of the Treasury Rate in accordance withthe foregoing is no longer published or is otherwise unavailable, then theTreasury Rate shall be reasonably determined by Lender based on comparabledata.  The term “Treasury RateDetermination Date” shall mean the date which is five (5) banking daysprior to the scheduled prepayment date.

 

***Stated MaturityDate***:  October 1, 2008, as such date may be changedin accordance with Section 2.2.4 of the Loan Agreement.

 

***Yield MaintenancePremium***: anamount which, when added to the outstanding Principal, would be sufficient topurchase U.S. Obligations which provide payments (a) on or prior to, but asclose as possible to, all successive scheduled payment dates under this Notethrough the Stated Maturity Date and (b) in amounts equal to the Monthly DebtService Payment Amount required under this Note through the Stated MaturityDate together with the outstanding principal balance of this Note as of theStated Maturity Date assuming all such Monthly Debt

 

2

----

 

Service Payments are made (including any servicingcosts associated therewith).  In noevent shall the Yield Maintenance Premium be less than zero.

 

**2.****                                     ****Payments and Computations**.  Interest on the unpaid Principal shall becomputed on the basis of the actual number of days elapsed over a 360-dayyear.  All amounts due under this Noteshall be payable without setoff, counterclaim or any other deduction whatsoeverand are payable without relief from valuation and appraisement laws and withall costs and charges incurred in the collection or enforcement hereof,including, attorneys’ fees and court costs.

 

**3.****                                     ****Loan Documents**.  This Note is evidence of that certain loanmade by Payee to Maker contemporaneously herewith and is executed pursuant tothe terms and conditions of the Loan Agreement.  This Note is secured by and entitled to the benefits of, among otherthings, the Mortgage and the other Loan Documents.  Reference is made to the Loan Documents for a description of thenature and extent of the security afforded thereby, the rights of the holderhereof in respect of such security, the terms and conditions upon which thisNote is secured and the rights and duties of the holder of this Note.  No reference herein to and no provision ofany other Loan Document shall alter or impair the obligation of Maker, which isabsolute and unconditional (except for Section 10.1 of the LoanAgreement), to pay the principal of and interest on this Note at the time andplace and at the rates and in the monies and funds described herein.  All of the agreements, conditions, covenants,provisions and stipulations contained in the Loan Documents to be kept andperformed by Maker are by this reference hereby made part of this Note to thesame extent and with the same force and effect as if they were fully set forthin this Note, and Maker covenants and agrees to keep and perform the same, orcause the same to be kept and performed, in accordance with their terms.

 

**4.****                                     ****Loan Acceleration; Prepayment**.  The Debt, shall without notice become immediately due and payableat the option of Payee if any payment required in this Note is not paid onthe date on which it is due or upon the happening of any other Event ofDefault.  Maker shall have no right toprepay or defease all or any portion of the Principal except in accordance withSections 2.3.2, 2.3.3, 2.3.4 and 2.4 of the Loan Agreement.  If prior to the third Payment Date prior tothe Stated Maturity Date (i) Maker shall (notwithstanding such prohibitionof prepayment) tender, and Payee shall, in its sole discretion, elect toaccept, payment of the Debt, or (ii) the Debt is accelerated by reason ofan Event of Default, then the Debt shall include, and Payee shall be entitledto receive, in addition to the outstanding principal and accrued interest andother sums due under the Loan Documents, an amount equal to the (i) PrepaymentConsideration that would be required in connection with a Partial Release if aPartial Release were to occur at the time of Payee’s acceptance of such tenderor other receipt of the Debt (through foreclosure or otherwise), as the casemay be, and (ii) Yield Maintenance Premium, if any, that would be required inconnection with a Defeasance if a Defeasance were to occur at the time ofPayee’s acceptance of such tender or other receipt of the Debt (throughforeclosure or otherwise), as the case may be. The principal balance of this Note is subject to mandatory prepayment,without premium or penalty, in certain instances of Insured Casualty orCondemnation, as more particularly set forth in Sections 2.3.2 and 7.4.2of the Loan Agreement.  Except duringthe continuance of an Event of Default, all proceeds of any repayment,including permitted prepayments of Principal, shall be applied in accordancewith Section 2.3.1 of the Loan Agreement. During the continuance of an Event of Default, all proceeds ofrepayment,

 

3

----

 

including any payment or recovery on theProperty (whether through foreclosure, deed-in-lieu of foreclosure, orotherwise) shall, unless otherwise provided in the Loan Documents, be appliedin such order and in such manner as Payee shall elect in Payee’s discretion.

 

**5.****                                     ****Default Rate**.  After the occurrence and during thecontinuance of an Event of Default, the entire unpaid Debt shall bear interestat the Default Rate, and shall be payable upon demand from time to time, to theextent permitted by applicable law.

 

**6.****                                     ****Late Payment Charge**.  If any Monthly Debt Service Payment Amountis not paid by Maker on the date on which it is due, Maker shall pay to Payeeupon demand an amount equal to the lesser of 5% of such unpaid sum or themaximum amount permitted by applicable law, in order to defray the expenseincurred by Payee in handling and processing such delinquent payment and tocompensate Payee for the loss of the use of such delinquent payment.

 

**7.****                                     ****Amendments**.  This Note may not be modified, amended,waived, extended, changed, discharged or terminated orally or by any act orfailure to act on the part of Maker or Payee, but only by an agreement inwriting signed by the party against whom enforcement of any modification,amendment, waiver, extension, change, discharge or termination is sought.  Whenever used, the singular number shallinclude the plural, the plural the singular, and the words “***Payee***” and “***Maker***” shall includetheir respective successors, assigns, heirs, executors and administrators.  If Maker consists of more than one person orparty, the obligations and liabilities of each such person or party shall bejoint and several.

 

**8.****                                     ****Waiver**.  Maker and all others who may become liablefor the payment of all or any part of the Debt do hereby severally waivepresentment and demand for payment, notice of dishonor, protest, notice ofprotest, notice of nonpayment, notice of intent to accelerate the maturityhereof and of acceleration.  No releaseof any security for the Debt or any person liable for payment of the Debt, noextension of time for payment of this Note or any installment hereof, and noalteration, amendment or waiver of any provision of the Loan Documents made byagreement between Payee and any other person or party shall release, modify,amend, waive, extend, change, discharge, terminate or affect the liability ofMaker, and any other person or party who may become liable under the LoanDocuments, for the payment of all or any part of the Debt.

 

**9.****                                     ****Exculpation**.  It is expressly agreed that recourse againstMaker for failure to perform and observe its obligations contained in this Noteshall be limited as and to the extent provided in Section 10.1 of the LoanAgreement.

 

**10.****                              ****Notices**.  All notices or other communications requiredor permitted to be given pursuant hereto shall be given in the manner specifiedin the Loan Agreement directed to the parties at their respective addresses as *provided* therein.

 

**11.****                              ****Joint and Several****.**  Each Person constituting Maker hereundershall have joint and several liability for the obligations of Maker hereunder.

 

**12.****                              ****Governing Law****.  THIS NOTE SHALL BE GOVERNED BY AND CONSTRUEDIN ACCORDANCE WITH THE APPLICABLE LAW PERTAINING IN THE STATE OF NEW YORK(OTHER THAN THOSE CONFLICT OF LAW**

 

4

----

 

**PROVISIONS THAT WOULD DEFERTO THE SUBSTANTIVE LAWS OF ANOTHER JURISDICTION).  WITHOUT IN ANY WAY LIMITING THE PRECEDING CHOICE OF LAW, THEPARTIES ELECT TO BE GOVERNED BY NEW YORK LAW IN ACCORDANCE WITH, AND RELYING(AT LEAST IN PART) ON,- § 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OFNEW YORK, AS AMENDED, OR ANY CORRESPONDING OR SUCCEEDING PROVISIONS THEREOF**.

 

**13.****                              ****Special State Provisions**. Maker agrees that theinterest rate contracted for by Maker includes the interest rate set forth inthis Note plus any other charges, fees, costs and expenses that are either (a)described herein, in any security instrument securing this Note, or in anyother document or instrument executed by Maker in connection with the Loan ofwhich this Note is a part, or (b) incident to the transaction of which thisNote is a part and paid or payable by Maker to the extent the same are deemedinterest under applicable law, including without limitation any defaultinterest, prepayment charges or consideration, late charges, loan applicationfees, or loan origination fees.

 

[Signature Page Follows]

 

5

----

 

IN WITNESSWHEREOF, Maker has executed this Promissory Note as of the day and year firstwritten.

 

 
|   | **AMERIVEST  CENTERRA INC**.,  a Colorado corporation     |
|--------|-----------------------------------------------------------|
|   |                                                      |
|   | By:                                                       | John B. Greenman |   |
|   |                                                      | Name: | John B. Greenman |   |
|   |                                                      | Title: | Vice President |   |
|   |                                                      |
|   |                                                      |
|   | **AMERIVEST  PARKWAY INC**., a  Texas corporation         |
|   |                                                      |
|   |                                                      |
|   | By:                                                       | John B. Greenman |   |
|   |                                                      | Name: | John B. Greenman |   |
|   |                                                      | Title: | Vice President |   |
|   |                                                      |
|   |                                                      |
|   | **AMERIVEST  BLACK CANYON INC**.,  an Arizona corporation |
|   |                                                      |
|   |                                                      |
|   | By:                                                       | John B. Greenman |   |
|   |                                                      | Name: | John B. Greenman |   |
|   |                                                      | Title: | Vice President |   |
|        |                                                           |  |  |  |  |  |  |  |

 

----