EX-10.21



 





Exhibit 10.21




PROMISSORY NOTE




			
	$30,500,000.00
	 	November 28, 2001






     FOR VALUE RECEIVED, and upon the terms and conditions set forth herein, LOCKE SOVRAN I L.L.C.,
a New York limited liability company having an address at 6467 Main Street, Buffalo, New York 14221
(“Borrower”), promises to pay to the order of GMAC COMMERCIAL MORTGAGE CORPORATION, a California
corporation (“Lender”), at Lender’s office located at 200 Witmer Road, P.O. Box 809, Horsham,
Pennsylvania 19044-0809, Attn: Servicing — Accounting Manager, or at such other place as Lender may
designate to Borrower in writing from time to time, the principal sum of THIRTY MILLION FIVE
HUNDRED THOUSAND AND 00/100 DOLLARS ($30,500,000.00), or so much thereof as is outstanding and
unpaid, together with interest thereon at the rate of seven and eight-tenths percent (7.8%) per
annum (“Interest Rate”), in lawful money of the United States of America, which, at the time of
payment, shall be legal tender in payment of all debts and dues, public and private.



     1. COMPUTATION OF INTEREST. Interest under this Note shall be paid in arrears and shall be
calculated based on a 360-day year and paid for the actual number of days elapsed for any whole or
partial month in which interest is being calculated. Interest shall accrue from the date on which
funds are advanced (regardless of the time of day such advance is made) through and including the
day on which funds are repaid, unless payment is received by Lender prior to the time set forth in
Section 2.03 hereof.



     2. PAYMENT OF PRINCIPAL AND INTEREST.



          2.01 Principal and Interest Payments. Borrower shall pay principal and interest due
under this Note as follows:



          Borrower shall pay consecutive monthly installments of principal and interest in the amount of
$219,560.50 (each a “Monthly Amount”), beginning on the fifth day of January, 2002, and continuing
on the fifth day of each and every successive month thereafter (each a “Payment Date”) through and
including the Payment Date immediately prior to the Maturity Date (as defined below); and



          On the fifth day of December, 2011 (“Maturity Date”), the entire outstanding principal balance
hereof, together with all accrued but unpaid interest thereon and any other amounts due under the
Note or the other Loan Documents (hereafter defined) shall be due and payable in full.



          2.02 Payment of Short Interest. If this Note is executed on a date other than the fifth day of
a calendar month, Borrower shall pay to Lender, contemporaneously with the execution of this Note,
an interest payment calculated by multiplying (a) the number of days from and including the date of
this Note to and including the fourth day of such month (or if the date of this Note is after the
fourth day of the month, then the next following month) (b) by a daily rate based on the Interest
Rate calculated for a 360 day year.



          2.03 Method of Payment. Each payment due hereunder shall not be deemed received by
Lender until received on a Business Day (as hereafter defined) in Federal funds immediately
available to Lender prior to 2:00 p.m. local time at the place then designated by Lender. Any
payment received on a Business Day after the time established by the preceding sentence, shall be
deemed to have been received on the immediately following Business Day for all purposes, including,
without limitation, the accrual of interest on principal. “Business Day” for purposes of this note
shall mean a day on which commercial banks are not authorized or required by law to close in the
State of New York.



          2.04 Application of Payments. Payments under this Note shall be applied first to the
payment



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of late fees and other costs and charges due in connection with this Note, as Lender
determines in its sole discretion, then to the payment of accrued but unpaid interest, and then to
reduction of the outstanding principal balance (in inverse order of maturity whether or not then
due), but such application shall not reduce the amount of the fixed monthly installments required
to be paid hereunder unless partial prepayments are expressly permitted in the event of partial
release of collateral under Section 2.05 (b) below. No principal amount repaid may be reborrowed.
All amounts due under this Note shall be payable without setoff, counterclaim or any other
deduction whatsoever.




          2.05 Loan Repayment and Defeasance.



               (a) Repayment. Other than as set forth in this Section 2.05, or as required or
permitted pursuant hereto in connection with a casualty or condemnation, Borrower shall have no
right to prepay all or any portion of the indebtedness evidenced by this Note (sometimes referred
to in this Section 2.05 as “Loan”) prior to November 5, 2011 (the “Optional Prepayment Date”). From
and after the Optional Prepayment Date, provided no Event of Default exists, the principal balance
of this Note may be prepaid, in whole but not in part, except as provided in Section 2.05(g), upon:
(i) not less than thirty (30) days’ prior written notice to Lender specifying the scheduled Payment
Date on which prepayment is to be made (the “Prepayment Date”); (ii) payment of all accrued and
unpaid interest on the outstanding principal balance of this Note through and including the
Prepayment Date and, if the Prepayment Date is not a Payment Date, then a payment of all interest
which would have accrued on the principal balance of this Note through and including the fifth day
of the calendar month immediately following the calendar month in which the Prepayment Date occurs;
and (iii) payment of all other sums then due under this Note, the Security Instrument and the other
Loan Documents. Lender shall not be obligated to accept any prepayment of the principal balance of
this Note unless it is accompanied by all sums due in connection therewith.



               (b) Voluntary Defeasance of the Note. On or after that date (“Optional Defeasance
Date”) which is the earlier to occur of (i) three years after the date of this Note or (ii) two
years after the Loan is sold into a securitization (“Securitization”), and subject to confirmation
from applicable rating agencies (“Rating Agencies”) having been obtained therefor and to the terms
and conditions set forth in this Section 2.05(b), Borrower may defease all (but not less than all)
of the Loan (hereinafter, “Defeasance”). Defeasance shall be subject to satisfaction of each of the
following conditions precedent:



                    (i) Borrower shall provide not less than thirty (30) days prior written notice to Lender
specifying a date (“Defeasance Date”) which shall be a Payment Date, on which the amount required
to defease the Loan (“Defeasance Deposit”) is to be made and on which the Defeasance is to occur,
as well as the anticipated outstanding principal amount of this Note as of the Defeasance Date.



                    (ii) Borrower shall pay to Lender all accrued and unpaid interest on the outstanding principal
balance of this Note to but not including the Defeasance Date.



                    (iii) Borrower shall pay to Lender all other sums, not including scheduled interest or
principal payments, then due under this Note, the Security Instrument and any of the other Loan
Documents.



                    (iv) No Event of Default shall exist on the Defeasance Date.



                    (v) Borrower shall pay to Lender the required Defeasance Deposit for the Defeasance.



                    (vi) Borrower shall execute and deliver one or more security agreements in form and substance
satisfactory to Lender (collectively, “Security Agreement”), creating a first priority lien on, and
security interest in, the Defeasance Deposit and the U.S. Government Securities purchased with the
Defeasance Deposit in accordance with the provisions of Section 2.05(c).



                    (vii) Borrower shall deliver to Lender an opinion of Borrower’s counsel, which opinion shall
be in form and substance satisfactory to Lender in its sole discretion, stating, among other



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things, that Lender has a perfected first priority security interest in the U.S. Government
Securities purchased with the Defeasance Deposit.




                    (viii) If required by the applicable Rating Agencies, Borrower also shall deliver or cause to
be delivered from Borrower’s counsel a non-consolidation opinion with respect to the Successor
Borrower (as defined below), if any, which opinion shall be in form and substance satisfactory to
Lender in its sole discretion and to the applicable Rating Agencies. In addition, if the Loan is
included in any REMIC formed pursuant to a Securitization, Borrower also shall deliver or cause to
be delivered an opinion of Borrower’s counsel, which opinion shall be in form and substance
satisfactory to Lender in its sole discretion, stating that (A) after a Defeasance, the Loan will
continue to be a “qualified mortgage” within the meaning of Section 860G of the United States
Internal Revenue Code (as now or hereafter amended, “Code”) and (B) the REMIC will not fail to
maintain its status as a “real estate mortgage investment conduit” within the meaning of Section
860D of the Code as a result of such Defeasance.



                    (ix) Borrower shall deliver to Lender a certification from Borrower, in form and substance
satisfactory to Lender, certifying that the requirements set forth in this Section 2.05(b) have
been satisfied.



                    (x) Borrower shall deliver such other certificates, documents or instruments as Lender may
reasonably request, all of which shall be in form and substance acceptable to Lender.



                    (xi) Borrower shall pay all reasonable costs and expenses of Lender incurred in connection
with the Defeasance, including any costs and expenses associated with the Release Instruments (as
defined in Section 2.05(f) hereof) and reasonable attorneys fees and expenses.



                    (xii) Borrower shall deliver to Lender a confirmation, in form and substance satisfactory to
Lender, by a “Big Five” independent certified public accounting firm, that the Defeasance Deposit
is sufficient to pay all Scheduled Defeasance Payments and other amounts required to be paid by
Borrower hereunder in connection with the proposed Defeasance.



                    (xiii) Borrower shall deliver to Lender confirmation, in form and substance satisfactory to
Lender, that all conditions to Defeasance have been met from any applicable Rating Agency that has
required as a condition to Defeasance that such conditions have been met.



          (c) Purchase of U.S. Government Securities. In connection with the Defeasance of this
Note, Borrower hereby appoints Lender as its agent and attorney-in-fact for the purpose of using
the Defeasance Deposit to purchase U.S. Government Securities (which purchases, if made by Lender,
shall be made on an arms-length basis at then prevailing market rates) which provide payments on or
prior to, but as close as possible to, all successive Payment Dates after the Defeasance Date,
(including the outstanding principal balance of this Note due on the Maturity Date), and in amounts
equal to the full amounts due on each Payment Date under this Note (“Scheduled Defeasance
Payments”). Borrower, pursuant to the Security Agreement or other appropriate document, shall
irrevocably authorize and direct that the payments received from the U.S. Government Securities may
be made directly to Lender and applied to satisfy the obligations of the Borrower under this Note.
In connection with the Defeasance of the Loan, any portion of the Defeasance Deposit in excess of
the amount necessary to purchase the U.S. Government Securities required by this Section 2.05 (c)
and satisfy Borrower’s obligations under Section 2.05 shall be remitted to Borrower. Any amounts
received in payment on the U.S. Government Securities in excess of the amounts necessary to make
monthly payments pursuant to Section 2 (including payments due on the Maturity Date) shall be
treated in accordance with the terms of Section 2.04 hereof.



          (d) Successor Borrower Option. If requested by Borrower, in connection with a
Defeasance of the Loan, Lender, at Borrower’s expense, shall establish or designate one or more
successor entities (“Successor Borrower”) and Borrower shall transfer and assign all obligations,
rights and duties under and to this Note, together with the pledged U.S. Government Securities, to
the Successor Borrower. The obligation of the Lender to establish or designate a Successor Borrower
shall be retained by the original Lender named herein notwithstanding the sale or transfer of this
Loan unless such obligation is specifically assumed by the transferee. The Successor Borrower shall
assume in writing the obligations under this Note, the Security Agreement and the other Loan
Documents, by



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agreements in form and substance satisfactory to Lender, whereupon Borrower shall be relieved
of its obligations thereunder. Borrower shall pay $1,000 to any such Successor Borrower as
consideration for assuming Borrower’s obligations under the Note and the Security Agreement.
Notwithstanding anything in this Note or the Security Instrument to the contrary, no other
assumption fee shall be payable upon a transfer of this Note in accordance with this Section
2.05(d), but Borrower shall pay all out-of-pocket costs and expenses incurred by Lender, including
Lender’s reasonable attorneys fees and expenses, incurred in connection therewith.




          (e) Repayment Upon Default. If all or any part of the principal amount of this Note is
prepaid upon acceleration of this Note following the occurrence of an Event of Default prior to the
Optional Prepayment Date, then, in addition to such principal payment, Borrower shall be required
to make such payments (“Yield Maintenance Payments”) in an amount equal to the greater of (i) one
percent (1%), or (ii) the excess, if any, of (A) the aggregate respective present values of all
scheduled interest and principal payments payable on each Payment Date in respect of this Note for
the period from the date of such prepayment upon acceleration to the Maturity Date, discounted
monthly at a rate equal to the Treasury Constant Maturity Yield Index (defined below) and based on
a 360-day year of twelve 30-day months over (B) the then current outstanding principal amount of
this Note. For purposes hereof, “Treasury Constant Maturity Yield Index” shall mean the average
yield for “This Week” as reported by the Federal Reserve Board in Federal Reserve Statistical
Release H.15(519) (“FRB Release”) published during the second full week preceding the Prepayment
Date for instruments having a maturity coterminous with the remaining term of this Note. In the
event the FRB Release is no longer published, Lender shall select a comparable publication to
determine the Treasury Constant Maturity Yield Index. If there is no Treasury Constant Maturity
Yield Index for instruments having a maturity coterminous with the remaining term of this Note,
then the weighted average yield to maturity of the Treasury Constant Maturity Yield Indices with
maturities next longer and shorter than such remaining average life to maturity shall be used,
calculated by averaging (and rounding upward to the nearest whole multiple of 1/100 of 1% per
annum, if the average is not such a multiple) the yields of the relevant Treasury Constant Maturity
Yield Indices (rounded, if necessary, to the nearest 1/100 of 1% with any figure of 1/200 of 1% or
above rounded upward). The Yield Maintenance Payments to be paid in connection with any prepayment
under this Section 2.05(e) shall be determined by Lender and shall be conclusive and binding on
Borrower (absent manifest error). For purposes of this Section 2.05(e), the unpaid principal amount
due on this Note on the date of prepayment shall be determined after giving effect to any payment
of scheduled amortization made on such date.



          (f) Release of the Mortgaged Property. No repayment, prepayment or Defeasance of all
or any portion of this Note shall cause, give rise to a right to require, or otherwise result in,
the release of the real or personal property subject to the lien or mortgage created by the
Security Instrument (referred to in this Section 2.05(f) as “Mortgaged Property”), except as
follows:



               (i) If Borrower has elected Defeasance, and the requirements of Section 2.05(b) have been
satisfied, the Mortgaged Property shall be released from the lien and mortgage created by the
Security Instrument, whereupon the U.S. Government Securities pledged pursuant to the Security
Agreement shall be the sole source of Borrower’s collateral securing this Note. The Security
Instrument shall otherwise remain in full force and effect as to provisions not pertaining to the
Mortgaged Property.



               (ii) In connection with the release of the Mortgaged Property contemplated in this Section
2.05(f), Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance
Date, a release of the Mortgaged Property (and related Loan Documents approved by Lender) for
execution by Lender which shall be in a form appropriate in the applicable state and otherwise
satisfactory to Lender in its reasonable discretion, along with all other documentation Lender
reasonably requires to be delivered by Borrower in connection with such release (collectively,
“Release Instruments”), together with a certification from Borrower, in form and substance
satisfactory to Lender, certifying that such documentation (A) is in compliance with all Applicable
Laws (as defined in the Security Agreement [defined below]), and (B) will effect such releases in
accordance with the terms of this Section 2.05.



          (g) From time to time on or after the Optional Defeasance Date, but only in connection with
any transfer or sale pursuant to Article 8 of the Security Instrument, Borrower may obtain a
release from the lien of the Security Instrument of one or more Parcels (as identified on Exhibit A
hereto), but less than all of the Property, in each case together with all improvements thereon and
other property appurtenant thereto which is collateral for



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the loan evidenced hereby (each Parcel being released from the lien of the Security Instrument
is referred to as a “Release Parcel”, and the Parcel(s) remaining subject to the lien of the
Security Instrument are referred to collectively, as the “Remaining Parcel”), upon the satisfaction
of the following conditions:




               (i) Borrower shall give Lender not less than thirty (30) days’ prior written notice,
specifying the date (the “Partial Defeasance Date”) on which the Partial Defeasance Deposit (as
defined below) is to be delivered, such date being a Payment Date, and identifying the Release
Parcel being released;



               (ii) accrued and unpaid interest and other sums due under this Note and under the
other Loan Documents up to the Partial Defeasance Date, including, without limitation, all
reasonable costs and expenses incurred by Lender or its agents in connection with such partial
defeasance (including, without limitation, any legal fees and expenses incurred in connection with
obtaining and reviewing the Partial Defeasance Collateral (as defined below) and the preparation of
the Defeased Note, the Undefeased Note, the Partial Defeasance Security Agreement (as defined
below) and related documentation), shall be paid in full on or prior to the Partial Defeasance
Date;



               (iii) No Event of Default, and no event or condition that, with the giving of notice
or passage of time or both, would constitute an Event of Default, shall exist either at the time
Borrower gives notice of the Partial Defeasance Date to Lender or on the Partial Defeasance Date;



               (iv) Lender, at Borrower’s expense, shall prepare all necessary documents to sever
the indebtedness evidenced by this Note into two substitute notes, one (the “Defeased Note”) having
a principal balance equal to the Adjusted Release Amount (as defined herein) with respect to the
Release Parcel, and the other (the “Undefeased Note”) having a principal balance equal to the
remaining principal balance outstanding on this Note as of the Partial Defeasance Date. The
“Monthly Amount” of the Defeased Note and the Undefeased Note shall be determined by
proportionately allocating the Monthly Amount between them, as determined by Lender, such that the
aggregate payment each month under the Defeased Note and the Undefeased Note equals the Monthly
Amount. The Defeased Note shall mature on the Maturity Date, and except as set forth above shall
have identical terms as this Note (except for the principal balance), except that a Defeased Note
cannot be the subject of any further defeasance. The Undefeased Note shall have identical terms as
this Note (except for the principal balance and Monthly Amount thereunder);



               (v) Borrower shall deliver to Lender on or prior to the Partial Defeasance Date, the
Adjusted Release Amount with respect to each Release Parcel together with an additional amount such
that the aggregate amount (the “Partial Defeasance Deposit”) is sufficient to purchase direct,
non-callable obligations of the United States of America (the “Partial Defeasance Collateral”) that
provide for payments prior, but as close as possible, to all successive Payment Dates occurring
after the Partial Defeasance Date through and including the Maturity Date, with each such payment
being equal to or greater than the amount of the corresponding installment of principal and
interest under the Defeased Note;



               (vi) The Partial Defeasance Collateral shall be duly endorsed by the holder thereof
as directed by Lender or accompanied by a written instrument of transfer in form and substance
wholly satisfactory to Lender (including, without limitation, such instruments as may be required
by the depository institution holding such securities to effectuate book-entry transfers and
pledges through the book-entry facilities of such institution) in order to create a first priority
security interest therein in favor of Lender in conformity with an applicable state and federal
laws governing granting of such security interests;



               (vii) Borrower shall deliver the following to Lender on or prior to the Partial
Defeasance Date:



                    A. a pledge and security agreement, in form and substance satisfactory to Lender in its sole
discretion, creating a first priority security interest in favor of Lender in the Partial
Defeasance Deposit and the Partial Defeasance Collateral (the “Partial Defeasance Security
Agreement”), which shall provide, among other things, that any excess received by Lender from the
Partial Defeasance Collateral over the amounts payable under the Defeased Note shall be refunded to
Borrower promptly after each monthly Payment Date;



                    B. a certificate of Borrower certifying that all of the requirements set forth in this Section
2.05(g) have been satisfied;



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                    C. an opinion of counsel for Borrower in form and substance and delivered by counsel
satisfactory to Lender in its sole discretion stating, among other things, (x) that Lender has a
perfected first priority security interest in the Partial Defeasance Deposit and the Partial
Defeasance Collateral, (y) that the Partial Defeasance Security Agreement is enforceable against
Borrower in accordance with its terms and (z) that the defeasance will not cause the Trust to fail
to qualify as a REMIC, within the meaning of Section 860D of the Code;



                    D. evidence in writing from each of the Rating Agencies to the effect that such release will
not result in a qualification, downgrade or withdrawal of any rating in effect immediately prior to
the Partial Defeasance Date for any securities issued in connection with a Secondary Market
Transaction;



                    E. a certificate in form reasonably acceptable to Lender, from a firm of independent certified
public accountants acceptable to Lender, certifying that the Partial Defeasance Collateral is
sufficient to make the payments required by Paragraph 2.05(c) above;



                    F. evidence reasonably acceptable to Lender that the Undefeased Note will continue to be
secured by the Security Instrument; and



                    G. such other certificates, opinions, documents or instruments as Lender may reasonably
require.



          (h) If Borrower is defeasing an Undefeased Note from a prior defeasance in accordance with
this Section 2.05(g), such defeasance shall be in accordance with the requirements of Paragraphs
(a) through (f) of this Section 2.05.



          (i) Upon a partial defeasance in accordance with Section 2.05(g), Borrower shall, at Lender’s
request, assign all its obligations and rights under the Defeased Note to a special-purpose
bankruptcy-remote entity (“Partial Defeasance Successor Borrower”) to be formed by Borrower at its
sole cost and expense. In connection therewith, the Partial Defeasance Successor Borrower shall
execute an assumption agreement in form and substance satisfactory to Lender in its sole discretion
pursuant to which it shall assume Borrower’s obligations under the Defeased Note and the Partial
Defeasance Security Agreement. The sole asset of Partial Defeasance Successor Borrower shall be the
Partial Defeasance Collateral. In connection with such assignment and assumption, Borrower and/or
Partial Defeasance Successor Borrower shall:



               (i) deliver to Lender an opinion of counsel in form and substance and delivered by counsel
satisfactory to Lender in its sole discretion stating, among other things, that such assumption
agreement is enforceable against Borrower and Partial Defeasance Successor Borrower, as applicable,
in accordance with its terms and that the Defeased Note and the Partial Defeasance Security
Agreement and any other documents executed in connection with such defeasance are enforceable
against Partial Defeasance Successor Borrower, and the Undefeased Note remains enforceable against
Borrower, each in accordance with their respective terms, and



               (ii) pay all costs and expenses incurred by Lender or its agents in connection with such
assignment and assumption (including, without limitation, any fees and disbursements of legal
counsel).



          (j) Upon an assumption by Partial Defeasance Successor Borrower acceptable to Lender, except
as otherwise provided in the Loan Documents, Borrower shall be relieved of its obligations under
the Defeased Note and the Partial Defeasance Security Agreement and, to the extent such documents
relate to the Release Parcel, the other Loan Documents.



          (k) Upon compliance with the requirements of Section 2.05(g) and (h), the Release Parcel shall
be released from the lien of the Security Instrument and the other Loan Documents, and the Partial
Defeasance Collateral shall constitute collateral which shall secure the Defeased Note. Lender
will, at Borrower’s expense, execute and deliver any agreements reasonably requested by Borrower to
release the lien of the Security Instrument from the Property.



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          (1) As used in Section 2.05(g) of this Note:



               (i) “Adjusted Release Amount” shall mean, with respect to the Release Parcel, 125% of the
Allocated Loan Amount with respect to such Parcel as set forth on Exhibit A, and



               (ii) “Allocated Loan Amount” shall mean, with respect to each Parcel, the amount set forth on
Exhibit A to this Note.



     3. SECURITY; LOAN DOCUMENTS. The indebtedness evidenced by this Note and the
obligations created hereby (including without limitation the amounts authorized by Section 4 to be
collected by Lender and any prepayment consideration when due hereunder) are secured by, among
other things, those first mortgages, deeds of trust, security interests and liens on those certain
parcels of real property shown on Exhibit A hereof (each “a Parcel”, and collectively, the
“Property”) and certain personal property collateral of Borrower, tangible and intangible, as
described more particularly in those certain Deeds of Trust and Security Agreements and/or
Mortgages and Security Agreements, as applicable (referred to individually and collectively as, the
“Security Instrument”) from Borrower to Lender, dated as of the date hereof. The Security
Instrument together with this Note and all other documents to or of which Lender is a party or a
beneficiary now or hereafter evidencing, securing, guarantying, modifying or otherwise relating to
the indebtedness evidenced hereby, and all extensions, renewals and modifications thereof, are
collectively referred to herein as the “Loan Documents.” Unless otherwise defined herein, any
capitalized terms herein shall have the meaning ascribed to such terms in the Security Instrument.



     4. DEFAULT.



          4.01 Event of Default. The occurrence of any of the following shall constitute an
event of default (“‘Event of Default”) under this Note: (a) if any payment of principal and
interest or any other payment required under this Note is not received by Lender on or before the
date that is five (5) days after the date such payment is due (except that no grace period shall be
provided for the payment of principal and interest due on the Maturity Date or upon acceleration of
indebtedness following the occurrence of an Event of Default); or (b) if any default should occur
under any of the other Loan Documents which is not fully cured following applicable notice or prior
to the expiration of any applicable grace or cure period. Upon the occurrence of an Event of
Default, at Lender’s option, the outstanding principal balance of this Note, together with all
unpaid interest accrued thereon and all other sums due hereunder or under any other of , the other
Loan Documents, shall, without notice or prior demand, immediately become due and payable.



          4.02 Late Charges. If any payment is not received by Lender on or before the date that
is five (5) days after the date such payment is due (such date may be extended by the applicable
grace period as referenced in Section 4.01), then, in addition to any default interest payments due
hereunder, Borrower also shall pay to Lender a late charge in an amount equal to five percent
(5.0%) of the amount of such overdue payment to defray the expenses incurred by Lender in handling
and processing such delinquent payment and to compensate Lender for the loss of the use of the
delinquent payment. Such late charge shall be immediately due and payable, without notice or demand
therefor.



          4.03 Default Interest Rate. If this Note is not paid in full on or before the Maturity
Date or the date on which the due date of the indebtedness has been accelerated pursuant to the
provisions hereof, the unpaid principal and accrued interest and other amounts then due shall bear
interest at a rate per annum (“‘Default Interest Rate”) equal to the lesser of (a) five percent
(5.0%) in excess of the Interest Rate or (b) the maximum rate of interest, if any, which may be
charged or collected from Borrower under applicable law. In addition, Lender shall have the right,
without acceleration of the indebtedness, to collect interest at the Default Interest Rate on any
payment due hereunder (including without limitation late charges and fees for legal counsel) which
is not received by Lender on or before the date on which such payment originally was due (as such
due date may be extended by the applicable grace period, if any). Interest at the Default Interest
Rate shall be immediately due and payable from the due date specified herein and shall accrue until
all Events of Default have been fully cured or full payment is received, as applicable.



          4.04 Interest on Judgments. Interest shall accrue on any judgment obtained by Lender
in connection with the enforcement or collection of this Note until such judgment amount is paid in
full at a rate equal



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to the greater of (a) the Default Interest Rate or (b) the legal rate applicable to judgments
within such jurisdiction; provided, however, that interest shall not accrue at a rate in excess of
the maximum rate of interest, if any, which may be charged or collected from Borrower under
applicable law.




          4.05  Cumulative Remedies; Attorney Fees. The remedies of Lender in this Note and in
the other Loan Documents, or at law or in equity, shall be cumulative and concurrent, and may be
pursued singly, successively or together in Lender’s sole discretion and as often as occasion
therefor shall arise. If Borrower’s obligations under this Note or any of the other Loan Documents
are enforced by Lender through an attorney-at-law, or any payment due under this Note or the other
Loan Documents is collected by or through an attorney-at-law or collection agency, Borrower agrees
to pay all costs incurred by Lender in connection therewith, including, but not limited to,
reasonable fees and disbursements of legal counsel (whether with respect to a retained firm or
Lender’s in-house staff) and collection agency costs, whether or not suit be brought. No provision
of this Section 4 shall be construed as an agreement or privilege to extend the date on which any
required payment is due (subject to the applicable grace period, if any), nor as a waiver of any
other right or remedy accruing to Lender by reason of the occurrence of an Event of Default. The
payments required under this Section 4 shall be in addition to, and shall in no way limit, any
other rights and remedies provided for in this Note or any of the other Loan Documents, nor any
other remedies provided by law or in equity, and shall be added to the principal evidenced by this
Note and deemed secured by the Security Instrument and other Loan Documents



     5. LIMITATIONS ON RECOURSE. Notwithstanding anything to the contrary contained in this
Note, the liability of Borrower and of any general partner, principal or member of Borrower to pay
the indebtedness evidenced by this Note and for the performance of the other agreements, covenants
and obligations contained herein and in the other Loan Documents shall be limited as set forth in
Article 15 of the Security Instrument.



     6. NO USURY. This Note is subject to the express condition that at no time shall
Borrower be required or obligated to pay interest (or any other amount agreed to be paid hereunder
which shall be deemed to be interest) at a rate which would subject Lender to either civil or
criminal liability as a result of being in excess of the maximum interest rate which Borrower is
permitted by applicable law to pay. If, from any circumstance whatsoever, Borrower is at any time
required or obligated to pay interest (or any other amount agreed to be paid hereunder shall be
deemed to be interest) at a rate in excess of such maximum rate, then the amount to be paid
immediately shall be reduced to such maximum rate, and, as required by applicable law, all previous
payments in excess of such maximum shall be deemed to have been payments in reduction of the
principal balance owing under this Note in the inverse order of maturity (whether or not then due)
or, at the option of Lender, be paid over to Borrower and not to the payment of interest. All sums
paid or agreed to be paid to Lender for the use, forbearance or detention of the indebtedness
evidenced herby shall, to the extent permitted by applicable law, be amortized, prorated, allocated
and spread throughout the full stated term of this Note until payment in full so that the rate or
amount of interest on account of said indebtedness does not exceed the maximum lawful rate of
interest from time to time in effect and applicable to this Note for so long as the Note is
outstanding. This Section will control all agreements between Borrower and Lender in connection
with this Note.



     7. GENERAL CONDITIONS.



          7.01 No Waiver by Lender. No failure to accelerate the debt evidenced hereby nor
failure or delay in exercising any other right or remedy upon the occurrence of an Event of Default
hereunder, or any acceptance of a partial or past due payment, or indulgences granted from time to
time shall be construed (a) as a novation of this Note or as a reinstatement of the indebtedness
evidenced hereby, (b) as a waiver or impairment of Lender’s right of acceleration or any other
right or remedy available to Lender upon the occurrence of an Event of Default, or (c) as a waiver
of Lender’s right thereafter to insist upon strict compliance with the terms of this Note or any of
the other Loan Documents; and Borrower hereby expressly waives the benefit of any statute or rule
of law or equity now provided, or which may hereafter be provided, which would produce a result
contrary to or in conflict with the foregoing. No extension of the time for payment of any amount
due under this Note or under any of the other Loan Documents made by Lender’s agreement with any
person now or hereafter liable for the payment thereof shall operate to release, discharge, modify,
change or affect the original liability of Borrower under this Note or any such other person,
either in whole or in part unless Lender agrees otherwise in writing.



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          7.02 Borrower’s Waivers. Borrower, for itself and all others who may become liable for
payment of all or any part of the indebtedness evidenced by this Note, hereby waives presentment
for payment, demand, protest, and notice of dishonor, protest, nonpayment, demand, intent to
accelerate, and acceleration. Borrower, for itself and all others who may become liable for payment
of all or any part of the indebtedness evidenced by this Note, hereby further waives and renounces,
to the fullest extent permitted by law, all rights to the benefits of any moratorium,
reinstatement, marshalling, forbearance, valuation, stay, extension, redemption, appraisement,
exemption and homestead now or hereafter provided by the Constitution and laws of the United States
of America and of each state thereof, both as to party and property (real and personal), against
the enforcement and collection of the obligations evidenced by this Note or the other Loan
Documents.



          7.03 Unconditional Payment. If any payment received by Lender hereunder shall be
deemed by a court of competent jurisdiction to have been a voidable preference or fraudulent
conveyance under any bankruptcy, insolvency or other debtor relief law, then the obligation to make
such payment shall survive any cancellation or satisfaction of this Note or return thereof to
Borrower and shall not be discharged or satisfied with any prior payment thereof or cancellation of
this Note, but shall remain a valid and binding obligation enforceable in accordance with the terms
and provisions hereof, and such payment shall be immediately due and payable upon demand. No
release of any security for this Note or any party liable for payment of this Note shall release or
affect the liability of Borrower or any other party who may become liable for payment of all or any
part of the indebtedness evidenced by this Note. Lender may release any guarantor, surety or
indemnitor of this Note from liability, in every instance without the consent of Borrower hereunder
and without waiving any rights which Lender may have hereunder or under any of the other Loan
Documents or under applicable law or in equity.



          7.04 Authority. Borrower represents that Borrower has full power, authority and legal
right to execute, deliver and perform its obligations pursuant to this Note, that the execution,
delivery and performance of this Note has been duly authorized, that the person executing this Note
on Borrower’s behalf has authority to do so, and that this Note, once executed by Borrower,
constitutes the valid and binding obligation of Borrower, enforceable in accordance with its terms.



          7.05 Negotiable Instrument. Borrower agrees that this Note shall be deemed a
negotiable instrument, even though this Note, absent this paragraph, may not otherwise qualify as a
negotiable instrument under applicable law.



          7.06 Sale of Loan by Lender. Lender shall have the right to transfer, sell or assign
this Note, the Security Instrument and the Other Security Documents, and the Obligations hereunder.



     8. MISCELLANEOUS.



          8.01 Notices. All notices and other communications under this Note or under the other
Loan Documents are to be in writing, addressed to the respective party as set forth in this
section, and shall be deemed to have been duly given (a) upon delivery, if delivered in person with
receipt acknowledged by the recipient thereof, (b) one (1) business day after having been deposited
for overnight delivery, fee prepaid, with any reputable overnight courier service, or (c) three (3)
business days after having been deposited in any post office or mail depository regularly
maintained by the U.S. Postal Service and sent by registered or certified mail, postage prepaid,
return receipt requested. Initial addresses for each party are as follows:


Borrower: Locke Sovran I L.L.C.

6467 Main Street Buffalo, New York 1422 1

Attn: Michael Rogers



Lender: GMAC Commercial Mortgage Corporation

200 Witmer Road

Horsham, Pennsylvania 19044

Attn: Servicing — Executive Vice President




Each party may establish a new address from time to time by written notice to the other given in accordance with




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this section; provided, however, that no such change of address will be effective until
written notice thereof is actually received by the party to whom such change of address is sent.
Notice to additional parties now or hereafter designated by a party entitled to notice are for
convenience only and are not required for notice to a party to be effective in accordance with this
section.




          8.02 Entire Agreement; Time of Essence. This Note, together with the other Loan
Documents and Lender’s commitment letter to Borrower, contain the entire agreements between
Borrower and Lender relating to the subject matter hereof and thereof, and supersede all prior
discussions and agreements (oral or written) relative hereto and thereto which are not contained
herein or therein. Borrower represents and warrants that it is not relying on any promises,
covenants, representations or agreements in connection with this Note or the other Loan Documents,
other than as expressly set forth herein or therein. In the event of any conflict between the terms
of the Loan Documents, the following order of priority shall be used to resolve such conflict: The
Note shall control over the Security Instrument and the Security Instrument shall control over all
other Loan Documents. Time is of the essence with respect to all provisions of this Note.



          8.03 Modification. Neither this Note nor any of the other Loan Documents may be
changed, waived, supplemented, 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 thereof is sought and then only to the extent expressly set forth in such writing.
No person other than a duly authorized officer or agent of Lender shall be deemed an agent of
Lender nor have any authority to waive, modify, supplement or terminate in any manner whatsoever
any of the terms of this Note.



          8.04 Binding Effect; Joint and Several Obligations. The terms and provisions of this
Note and the other Loan Documents shall be binding upon and inure to the benefit of Borrower and
Lender and their respective heirs, executors, legal representatives, successors and assigns,
whether by voluntary action of the parties or by operation of law. The foregoing shall not be
construed, however, to alter any limitations or restrictions applicable to Borrower under the other
Loan Documents. If Borrower consists of more than one person or entity, each shall be jointly and
severally liable to perform the obligations of Borrower under this Note and the other Loan
Documents.



          8.05 Unenforceable Provisions. Any provision of this Note or the other Loan Documents
which may be determined by competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.



          8.06 Ambiguity and Construction of Certain Terms. Neither this Note nor any
uncertainty or ambiguity herein shall be construed or resolved against Lender by virtue of the fact
that such document has originated with Lender as drafter. Borrower acknowledges that it has
reviewed this Note and has had the opportunity to consult with counsel on same. This Note,
therefore, shall be construed and interpreted according to the ordinary meaning of the words used
so as to fairly accomplish the purposes and intentions of the parties hereto. All personal pronouns
used herein, whether used in the masculine, feminine or neuter gender, shall be deemed to include
all other genders; the singular shall include the plural and vice versa. Titles of articles and
sections are for convenience only and in no way define, limit, amplify or describe the scope or
intent of any provisions hereof. “Herein,” “hereof” and “hereunder” and other words of similar
import refer to this Note as a whole and not to any particular section, paragraph or other
subdivision; “Section” refers to the entire section and not to any particular subsection, paragraph
of other subdivision. Reference to days for performance shall mean calendar days unless Business
Days are expressly indicated.



          8.07 Governing Law. This Note shall be governed by, construed and enforced in
accordance with the laws of the State of New York without reference to conflicts of law rules. It
is the intent of the parties hereto that the provisions of Section 5-1401 of the General
Obligations Law of the State of New York apply to this Note. Accordingly, in all respects,
including, without limitation, matters of construction, validity, enforceability and performance,
this Note and the obligations arising hereunder shall be governed by, and construed in accordance
with, the laws of the State of New York applicable to contracts made and performed in such State,
and any applicable law of the United States of America, except that at all times the provisions for
enforcement of the power



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of sale granted under the Security Instrument and the creation, perfection and enforcement of
the security interests created pursuant thereto and pursuant to the other Loan Documents shall be
governed by and construed according to the laws of the state where the applicable Parcel is
located. Except as provided in the immediately preceding sentence, Borrower hereby unconditionally
and irrevocably waives, to the fullest extent permitted by law, any claim to assert that the law of
any jurisdiction other than New York governs this Note.




          8.08 Consent to Jurisdiction. Borrower and Lender, by its acceptance of this Note,
agree and consent to the exclusive jurisdiction and venue of any state or federal court sitting in
the county and state where the real property encumbered by the Security Instrument is located with
respect to any legal action, proceeding, or controversy between them and hereby expressly waive any
and all rights under applicable law or in equity to object to the jurisdiction and venue of said
courts. Borrower further irrevocably consents to service of process by certified mail, return
receipt requested, to Borrower at the address for Borrower last provided to Lender in accordance
with the notice provision of this Note and agrees that such service shall be effective ten (10)
days after mailing. Nothing herein shall, however, preclude or prevent Lender from bringing any one
or more actions against Borrower in any other jurisdiction as may be necessary to enforce or
realize upon the security or other collateral provided for this Note.



          8.09 WAIVER OF JURY TRIAL. BORROWER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY RIGHT BORROWER MAY HAVE TO TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, OR COUNTERCLAIM,
WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE INDEBTEDNESS
EVIDENCED BY THIS NOTE; THE APPLICATION OR COMMITMENT FOR THE LOAN EVIDENCED BY THIS NOTE; THE
INTERPRETATION, CONSTRUCTION, VALIDITY, ENFORCEMENT OR PERFORMANCE OF THIS NOTE OR ANY OF THE OTHER
LOAN DOCUMENTS; OR ANY ACTS OR OMISSION OF LENDER, ITS OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS IN
CONNECTION WITH ANY OF THE FOREGOING.



          8.10 Tax Identification Number. Borrower represents and warrants that its current tax
identification number is: 16-1597988.



     IN WITNESS WHEREOF, Borrower has executed this Note under seal as of the date first above
written.



	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	BORROWER: LOCKE SOVRAN I L.L.C., a New York limited 

   liability company	 	 
	 
	 	 	 	 	 	 
	 	 	By: Locke Sovran I Manager, Inc., a

Delaware corporation, its manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ David L. Rogers	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	David L. Rogers
	 	 
	 

	 	Title:
	 	V.P.	 	 







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