exv10w32



 





Exhibit 10.32



 [Virginia Retail





 Yield Maintenance]








PROMISSORY NOTE


 


		
	US$1,500,000.00	Stafford, Virginia




January     , 1998



    
FOR VALUE RECEIVED, the undersigned promise to
pay GMAC COMMERCIAL MORTGAGE CORPORATION, or order, the
principal sum of ONE MILLION FIVE HUNDRED THOUSAND and 00/100
Dollars (US$1,500,000.00), with interest on the unpaid principal
balance from the date of this Note, until paid, at the rate of
Seven and 28/100 percent (7.28%) per annum. The principal and
interest shall be payable at GMAC Commercial Mortgage
Corporation, 650 Dresher Road, Horsham, Pennsylvania 19044,
or such other place as the holder hereof may designate in
writing, in consecutive monthly installments of Thirteen
Thousand Seven Hundred Eighteen and 32/100 Dollars
(US$13,718.32) on the first day of each month beginning
March 1, 1998, (herein “amortization commencement
date”), until the entire indebtedness evidenced hereby is
fully paid, except that any remaining indebtedness, if not
sooner paid, shall be due and payable on February 1, 2013
(the “Maturity Date”).



    
If any installment under this Note is not paid
when due, the entire principal amount outstanding hereunder and
accrued interest thereon shall at once become due and payable,
at the option of the holder hereof. The holder hereof may
exercise this option to accelerate during any default by the
undersigned regardless of any prior forbearance. In the event of
any default in the payment of this Note or any other payment due
under the instrument or any other Loan Document (as such terms
are hereinafter defined) and if the same is referred to an
attorney at law for collection or any action at law or in equity
is brought with respect hereto, the undersigned shall pay the
holder hereof all expenses and costs, including, but not limited
to, attorneys’ fees.



    
If any installment under this Note is not
received by the holder hereof within ten (10) calendar days
after the installment is due, the undersigned shall pay to the
holder hereof a late charge of the greater of (a) US$250.00
or (b) five percent (5%) of such installment, such late
charge to be immediately due and payable without demand by the
holder hereof. If any installment under this Note or any other
monetary payment due under this Note, the Instrument or any
other Loan Document remains past due for ten (10) calendar
days or more, the outstanding principal balance of this Note
shall bear interest during the period in which the undersigned
is in default at a rate of Twelve and 28/100 percent (12.28%)
per annum, or if there shall exist any non-monetary default
under this Note, the Instrument or any other Loan Document which
remains uncured for the later of (i) ten (10) calendar
days or (ii) the expiration of any applicable grace or cure
period specifically provided in the Instrument, the outstanding
principal balance of this Note shall bear interest during the
period the undersigned is in default at the rate of Nine and
28/100 percent (9.28%) percent per annum, or, if such increased
rate of interest may not be collected from the undersigned under
applicable law, then at the maximum increased rate of interest,
if any, which may be collected from the undersigned under
applicable law.



    
From time to time, without affecting the
obligation of the undersigned or the successors or assigns of
the undersigned to pay the outstanding principal balance of this
Note and observe the covenants of the undersigned contained
herein, in the Instrument or in any other Loan Document without
affecting the guaranty of any person, corporation, partnership
or other entity for payment of the outstanding principal balance
of this Note, without giving notice to or obtaining the consent
of the undersigned, the successors or assigns of the undersigned
or guarantors, and without liability on the part of the holder
hereof, the holder hereof may, at the option of the holder
hereof, extend the time for payment of said outstanding
principal balance or any part thereof, reduce the payments
thereon, release anyone liable on any of said outstanding
principal balance, accept a renewal of this Note, modify the
terms and time of payment of said outstanding principal balance,
join in any extension or subordination agreement, release any
security given herefor, take or release other or additional
security, and agree in writing with the undersigned to modify
the rate of interest or period of amortization of this Note or
change the amount of the monthly installments payable hereunder.



    
Presentment, notice of dishonor, and protest are
hereby waived by all makers, sureties, guarantors and endorsers
hereof. This Note shall be the joint and several obligation of
all makers, sureties, guarantors, and endorsers, and shall be
binding upon them and their successors and assigns.



    
The indebtedness evidenced by this Note is
secured by, among other things, that certain Deed of Trust,
Assignment of Rents and Security Agreement (the
“Instrument”), executed by the undersigned,
encumbering real property more particularly described therein
(the “Property”), dated of even date herewith, and
reference is made thereto for rights as to acceleration of the
indebtedness evidenced by this Note.



    
Prior to and through January 31, 2006, this
Note may not be prepaid in whole or (except as hereinafter
provided) in part. Commencing February 1, 2006 and
continuing through and including July 31, 2012, this Note
may only be prepaid (whether voluntarily or involuntarily,
except as hereinafter provided, and including any acceleration
by the holder hereof) in whole (but not in part) upon not less
than forty five (45) days and not more than ninety
(90) days prior written notice by the undersigned to the
holder hereof and the simultaneous payment by the undersigned to
the holder hereof of an amount (the “Yield Maintenance
Premium”) equal to the aggregate (without duplication) of:




		
	 	    
    (a) the product obtained by multiplying
    (1) the entire unpaid principal balance of this Note at the
    time of prepayment, times (2) the difference obtained by
    subtracting from the interest rate on this Note the yield rate
    (the “Yield Rate”) on the 6.125% U.S. Treasury
    Security due August 15, 2007 (the “Specified
    U.S. Treasury Security”), as the Yield Rate is
    reported in the Wall Street Journal on the fifth Business
    Day (as hereinafter defined) preceding (x) the date notice
    of prepayment is given to holder hereof where prepayment is
    voluntary, or (y) the date holder hereof accelerates the
    Loan (as hereinafter defined), times (3) the present value
    factor calculated using the following formula:
    





			
	 		
    1-(1 + r)-n
    

     r
    





			
	 	r = 	
    Yield Rate
    



			
	 	n = 	
    the number of years, and any fraction thereof,
    remaining between the prepayment date and the Maturity Date.
    





		
	 	    
    In the event that no Yield Rate is published for
    the Specified U.S. Treasury Security, then the nearest
    equivalent U.S. Treasury Security shall be selected at the
    holder hereof’s sole discretion. If the publication of such
    Yield Rates in the Wall Street Journal is discontinued,
    the holder hereof shall determine
    









 




		
	 	
    such Yield Rates from another source selected by
    the holder hereof. As used herein, the term “Business
    Day” means any day other than a Saturday, a Sunday, or any
    other day on which the holder hereof is not open for business;
    and
    





		
	 	    
    (b) an amount equal to the interest which
    would have accrued on the amount of such prepayment during the
    remaining days of the full calendar month within which such
    prepayment is made.
    





In the event of a prepayment of this Note after
July 31, 2012, Borrower shall pay, together with the amount
of such prepayment, an amount equal to the interest which would
have been accrued on the amount of such prepayment during the
remaining days of the full calendar month within which such
prepayment is made.



    
The undersigned shall pay the Yield Maintenance
Premium whether the prepayment is voluntary or involuntary (in
connection with holder hereof’s acceleration of the unpaid
principal balance of this Note) or the instrument is satisfied
or released by foreclosure (whether by power of sale or judicial
proceeding), deed in lieu of foreclosure or by any other means.
Notwithstanding any other provision herein to the contrary, the
undersigned shall not be required to pay any Yield Maintenance
Premium in connection with any prepayment occurring as a result
of the application of insurance proceeds or condemnation awards
under the instrument.



    
The Yield Maintenance Premium is not a penalty or
additional interest, but is holder hereof’s cost of
liquidating its investments in the event of any prepayment of
this Note. The undersigned hereby covenants and agrees to
indemnify holder hereof and hold it harmless from any costs,
fees, expenses (including attorney’s fees) resulting from
any action, litigation or judicial decision alleging, claiming
or holding that the Yield Maintenance Premium is a penalty or
additional interest, and from any damages (whether compensatory
or punitive) ordered by a court, judge or administrative law
judge which may determine that the Yield Maintenance Premium is
a penalty or additional interest.



    
Notwithstanding anything herein contained to the
contrary, any permitted prepayment of this Note may only be made
by payment of the principal amount to be prepaid together with
(i) the applicable Yield Maintenance Premium, (ii) all
accrued and unpaid interest and (iii) any other sums due
under this Note, the Instrument or any other Loan Document.



    
Subject to the qualifications below in this
paragraph, the undersigned shall be liable for payment and
performance of all of the obligations, covenants and agreements
of the undersigned under this Note, the Instrument, the
Assignment of Leases and Rents (herein so called), dated of even
date herewith, and executed by the undersigned to the holder
hereof, the Environmental Indemnity Agreement (herein so
called), dated of even date herewith, and executed by the
undersigned and the holder hereof, and all other instruments and
documents evidencing, securing or governing the terms of the
loan (the “Loan”) evidenced by this Note
(collectively, the “Loan Documents”), to the full
extent (but only to the extent) of all of the Property and any
other items, property or amounts which are collateral or
security for the Loan. If a default occurs in the timely and
proper payment of any portion of such indebtedness or in the
timely performance of any obligations, agreements or covenants
under any of the Loan Documents, except as set forth below in
this paragraph, neither the undersigned, nor any partner of the
undersigned, nor any partner, stockholder, director or officer
of any partner of the undersigned, shall be personally liable
for the repayment of any of the principal of, interest on, or
prepayment fees (including yield maintenance premiums) or late
charges, or other charges or fees, due in connection with, the
Loan, the performance of any covenants of the undersigned under
this Note, the Instrument or any of the other Loan Documents or
for any deficiency judgment which the holder hereof may obtain
after default by the undersigned. Notwithstanding the foregoing
provisions of this paragraph or any other agreement, the
undersigned shall be fully and personally liable for any and
all: (1) liabilities, costs, losses, damages, expenses or
claims (including, without limitation, any reduction in the
value of the Property or any other items, property or amounts
which are collateral or security for the Loan) suffered or
incurred by the holder hereof by reason of or in connection with
(a) any fraud or misrepresentation by the undersigned in
connection with the Loan, including but not limited to any
misrepresentation of the undersigned contained in any Loan
Document, (b) any failure to pay taxes, insurance premiums
(except to the extent that such taxes and insurance premiums are
then held by the holder hereof), assessments, charges for labor
or materials or other charges that can create liens on any
portion of the Property to the extent that income generated from
the Property is sufficient to pay such amounts, (c) any
misapplication of (i) proceeds of insurance covering any
portion of the Property, or (ii) proceeds of the sale or
condemnation of any portion of the Property, (d) any
rentals, income, profits, issues and products received by or on
behalf of the undersigned subsequent to the date on which the
holder hereof gives written notice that a default has occurred
under the Loan and not applied to the payment of principal or
interest due under this Note or the payment of operating
expenses (excluding any operator’s, manager’s, or
developer’s fee payable to the undersigned or any affiliate
of the undersigned) of the Property, (e) any failure to
maintain, repair or restore the Property in accordance with any
Loan Document, to the extent not covered by insurance proceeds
made available to the holder hereof, (f) any failure by the
undersigned to deliver to the holder hereof all unearned advance
rentals and security deposits paid by tenants of the Property
received by or on behalf of the undersigned, and not refunded to
or forfeited by such tenants, (g) any failure by the
undersigned to return to, or reimburse the holder hereof for,
all personalty taken from the Property by or on behalf of the
undersigned, except in accordance with the provisions of the
Instrument, and (h) any and all indemnities given by the
undersigned to the holder hereof set forth in the Environmental
Indemnity Agreement or any other Loan Document in connection
with any environmental matter relating to the Property; and
(2) court costs and all attorneys’ fees provided for
in any Loan Document incurred in connection with the enforcement
of the Loan. Furthermore, no limitation of liability or recourse
provided above in this paragraph shall (x) apply to the
extent that the holder hereof’s rights of recourse to the
Property are suspended, reduced or impaired by or as a result of
any act, omission or misrepresentation of the undersigned or any
other party now or hereafter liable for any part of the Loan and
accrued interest thereon, or by or as a result of any case,
action, suit or proceeding to which the undersigned or any such
other party, voluntarily becomes a party; or (y) constitute
a waiver, forfeiture, abrogation or limitation of or on any
right accorded by any law establishing a debtor relief
proceeding, including, but not limited to, Title 11,
U.S. Code, which right provides for the assertion in such
debtor relief proceeding of a deficiency arising by reason of
the insufficiency of collateral notwithstanding an agreement of
the holder hereof not to assert such deficiency.



    
This Note shall be governed by and construed in
accordance with the law of the state in which the Property is
located, and applicable federal law. The parties hereto intend
to conform strictly to the applicable usury laws. In no event,
whether by reason of demand for payment, prepayment,
acceleration of the maturity hereof or otherwise, shall the
interest contracted for, charged or received by the holder
hereof hereunder or otherwise exceed the maximum amount
permissible under applicable law. If from any circumstance
whatsoever interest would otherwise be payable to the holder
hereof in excess of the maximum lawful amount, the interest
payable to the holder hereof shall be reduced automatically to
the maximum amount permitted by applicable law. If the holder
hereof shall ever receive anything of value deemed interest
under applicable law which would apart from this provision be in
excess of the maximum lawful amount, an amount equal to any
amount which would have been excessive interest shall be applied
to the reduction of the principal amount owing hereunder in the
inverse order of its maturity and not to the payment of
interest, or if such amount which would have been excessive
interest exceeds the unpaid balance of principal hereof, such
excess shall be refunded to the undersigned. All interest paid
or agreed to be paid to the holder hereof shall, to the extent
permitted by applicable law, be amortized, prorated, allocated,
and spread throughout the full stated term (including any
renewal or extension) of such indebtedness so that the amount of
interest on account of such indebtedness does not exceed the
maximum permitted by applicable law. The provisions of this
paragraph shall control all existing and future agreements
between the undersigned and the holder hereof.




2








 



    
THE UNDERSIGNED HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT THE UNDERSIGNED MAY HAVE TO A
TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER OR IN CONJUNCTION WITH THIS NOTE, THE
INSTRUMENT, ANY OTHER LOAN DOCUMENT, ANY OTHER AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL
OR WRITTEN) OR ACTIONS OF EITHER PARTY.



     
The holder hereof shall have the right to assign,
in whole or in part, this Note, the Instrument and any other
Loan Document and all of its rights hereunder and thereunder,
and all of the provisions herein and therein shall continue to
apply to the Loan. The holder hereof shall have the right to
participate the Loan with other parties.



     
Interest on the principal sum of this Note shall
be calculated on the basis of the actual number of days elapsed
over a year consisting of 360 days. Interest on the Note
shall be paid in arrears.



     
The undersigned shall pay the holder hereof, in
advance, on the date hereof, interest only on the outstanding
principal balance of this Note, at the interest rate first
mentioned above, from the date hereof through and including the
last day of the calendar month in which this Note is executed.



     
Executed as of the date set forth above.




		
	 	
    AQUIA COMMERCE CENTER, L.C.,
    
	 	
    a Virginia limited liability company
    





			
	 	By: 	
    Andrew S. Garrett, Inc.,
    



		
	 	
    a Virginia corporation, a
    
	 	
    managing member of the authorized signatory
    




 


		
	By:  /s/  Andrew S. Garrett	(SEAL)



		
	 	
    




			
	 	Title: 	




		
	 	
    




     
This is to certify that this is the Note
described in and secured by a Deed of Trust dated of even date
herewith, on the property located in Stafford, Virginia.




My Commission expires:




11-30-2000




		
	 	
    /s/ CYNTHIA M. YEARS
    
	 	
    

	 	
    Notary Public
    



3






 




ALLONGE ENDORSEMENT TO PROMISSORY
NOTE


     
This allonge is attached to that Promissory Note
dated as of January 12th, 1998, made by Aquia Commerce
Center, L.C., a Virginia limited liability company, to the
undersigned.



     
Pay to the Order of CITICORP REAL ESTATE, INC.
without recourse.




		
	 	
    GMAC Commercial Mortgage Corporation,
    
	 	
    a California corporation
    





			
	 	By: 	
    /s/ Michael I. Lipson
    



		
	 	
    

	 	
    Name: /s/ Michael I. Lipson
    
	 	
    Title:  SVP
    





[Local counsel to review and advise whether form
and use of name is acceptable under local law.]