**Exhibit 10.5**

 

PROMISSORY NOTE

 

 

FOR VALUE RECEIVED,the undersigned, **935 HQ ASSOCIATES, LLC**, a Delaware limited liability company (“Borrower”), whose address is 1075 First Avenue, King of Prussia, Pennsylvania 19406 (and whose taxpayer identification number is 51-0509051), promisesto pay to the order of **CIBC INC.**, a Delaware corporation (“Lender”), at the office of Lender at 622 Third Avenue, 10th Floor, Attn: Real Estate Finance Group, New York, New York 10017, or at such other place as Lender may designate to Borrower in writing from time to time, the principal sum of THIRTEEN MILLION and 00/100 DOLLARS($13,000,000.00) together with interest on so much thereof as is from time to time outstanding and unpaid, from the date of the advance of the principal evidenced hereby, at the Applicable Interest Rate (as hereinafter defined), in lawful money ofthe United States of America, which shall at the time of payment be legal tender in payment of all debts and dues, public and private. 

 

PARTICULAR DEFINITIONS

 

The following terms, as used in this Note, shall have the following meaning, which meaning shall be applicable equally to the singular and the plural ofthe items defined: 

 

(a) “**Anticipated RepaymentDate**” shall mean July 1, 2014. 

 

(b) “**InitialTerm Interest Rate**” shall mean a rate of Six and Thirty-Two One-Hundredths percent (6.32%) per annum. 

 

(c) “**Maturity Date**” shall mean July 1, 2034. 

 

(d) “**Monthly Payment Amount**” shall mean the amount of $80,636.02. 

 

Additional terms are defined in Section 3.05 of this Note. 

 

ARTICLE I

 

TERMS AND CONDITIONS

 

1.01. Payment of Principal and Interest. 

 

(a) Interest shall be computed hereunder based on a 360-day year and paid for the actual number of days elapsed for any whole or partial month in whichinterest is being calculated. In computing the number of days during which interest accrues, the day on which funds are initially advanced shall be included (regardless of the time of day such advance is made), and the day on which funds are repaidshall be included unless repayment is credited prior to close of business. Payments in federal funds immediately available in the place designated for payment received by Lender prior to 2:00 p.m. local time on a business day in the State ofLender’s principal office at said place of payment shall be credited prior to close of business, while other payments may, at the option of Lender, not be credited until immediately available to Lender in federal funds at the place designatedfor payment prior to 2:00 p.m. local time at said place of payment on a day on which Lender is open for business. 

(b) Principal and interest shall be payable in equal consecutive monthly installments, each in the amountof the Monthly Payment Amount, on the first day of each calendar month (each such date, a “Payment Date”) until payment in full of this Note beginning on the first day of the second full calendar month following the date of this Note (oron the first day of the first full calendar month following the date hereof, in the event the advance of the principal amount evidenced by this Note is the first day of a calendar month). On the Maturity Date, the entire outstanding principalbalance hereof, together with all accrued but unpaid interest thereon and all other sums due hereunder, shall be due and payable in full. So long as no Event of Default (as hereinafter defined) exists hereunder, each such monthly installment shallbe applied first, to any amounts hereafter advanced by Lender hereunder or under any other Loan Document, second, to any late fees and other amounts payable to Lender, third, to the payment of accrued interest and last to reduction of principal.

 

(c) If the advance of the principal amount evidenced by thisNote is made on a date other than the first day of a calendar month, then Borrower shall pay to Lender contemporaneously with the execution hereof interest at the Initial Term Interest Rate for a period from the date of such advance through andincluding the last day of such calendar month. 

 

1.02.Prepayment. 

 

(a) Voluntary Prepayment. Borrowermay not voluntarily prepay this Note in whole or in part at any time prior to the expiration of the Lock-out Period. “Lock-out Period” shall mean the period of time from the date hereof to, but not including, the date that is three(3) months prior to the Anticipated Repayment Date (as previously defined). After the expiration of the Lock-out Period, Borrower may prepay this Note in whole only, provided, that (i) written notice of such prepayment is received by Lendernot more than sixty (60) days and not less than thirty (30) days prior to the date of such prepayment, (ii) such prepayment is accompanied by all interest accrued hereunder and all other sums due hereunder and under the other Loan Documents (asdefined in Section 1.04) and (iii) such prepayment (x) is received by Lender on a Payment Date (as defined in Article III), or (y) if not received on a Payment Date, is accompanied by a payment of interest, calculated at the Applicable InterestRate, on the amount prepaid, based on the number of days from the date such prepayment is received through the next Payment Date. 

 

(b) Involuntary Prepayment. Except as hereinafter provided in this subparagraph (b), in the event that any prepayment is received by Lender priorto the expiration of the Lock-out Period, or if a prepayment results from Lender’s exercise of its remedies hereunder, Borrower shall pay Lender a Yield Maintenance Charge (as defined below) in connection with such prepayment. Prepayments ofthis Note prior to the expiration of the Lock-out Period shall be permitted without notice, and without the imposition of a Yield Maintenance Charge or any other premium or penalty in connection with Lender’s application of insurance orcondemnation proceeds on account of the Loan in accordance with the terms and provisions of the Security Instrument (as defined in Section 1.04 hereof), provided, however, if an Event of Default shall have occurred and be continuing atthe time of the related casualty or condemnation, in addition to applying such proceeds as provided in the Security Instrument, Borrower shall pay a Yield Maintenance Charge to Lender. Lender, at its option, may elect to use such proceeds and YieldMaintenance Charge to economically defease an amount of the Loan equal to the proceeds applied as a prepayment, in the manner provided in Section 1.03 below. Any prepayment during the Lockout Period shall not reduce the Monthly Payment Amountpayable hereunder unless such prepayment is accompanied by a Yield Maintenance Charge and Lender elects, in its sole discretion, to economically defease all or a portion of the Loan with the related proceeds. No tender of a prepayment of this Notewith respect to which a Yield Maintenance Charge is due shall be effective unless such prepayment is accompanied by such Yield Maintenance Charge. 

 

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(c) No principal amount repaid or defeased may be re-borrowed. 

 

1.03. Defeasance. 

 

(a) At any time during the Defeasance Period (as hereinafter defined),Borrower may obtain a release of the Security Property (as hereinafter defined) from the lien of the Security Instrument upon the satisfaction of the following conditions: 

 

(1) not less than thirty (30) days’ prior written notice shall be given to Lender specifying a date(the “Defeasance Date”) on which the Defeasance Deposit (as hereinafter defined) is to be delivered; 

 

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

 

(3) 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 Defeasance Date to Lender or on the Defeasance Date; 

 

(4) on or before the Defeasance Date, Borrower shall pay toLender the principal amount of the Loan to be defeased together with an additional amount such that the aggregate amount (the “Defeasance Deposit”) is sufficient to purchase (as set forth in Section 1.03(d) below) direct, non-callable andnon-prepayable obligations of the United States of America or, at the option of Lender (and with the approval of each applicable Rating Agency, if a Secondary Market Transaction has then occurred (the two capitalized terms used above withoutdefinition shall have the respective meanings attributed thereto in the Security Instrument)), other securities considered “government securities” within the meaning of the Investment Company Act of 1940, as amended (the “DefeasanceCollateral”) that provide for payments prior, but as close as possible, to all successive Payment Dates occurring after the Defeasance Date through and including the Anticipated Repayment Date, with each such payment being equal to or greaterthan (1) the Monthly Payment Amount and (2) with respect to the payment due on the Anticipated Repayment Date, the entire outstanding principal balance of this Note together with any interest accrued as of such date and all other amounts payablepursuant to the Loan Documents; 

 

(5) theDefeasance 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 maybe 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 Lenderin conformity with an applicable state and federal laws governing granting of such security interests; 

 

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

 

A. a pledge and security agreement, in form and substancesatisfactory to Lender in its sole discretion, creating a first priority security interest in favor of Lender in the Defeasance Deposit and the Defeasance Collateral (the “Defeasance Security 

 

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Agreement”), which shall provide, among other things, that any excess received by Lender from theDefeasance Collateral over the amounts payable by Borrower hereunder 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 1.03 have been satisfied; 

 

C. an opinion of counsel for Borrower in form and substanceand delivered by counsel reasonably satisfactory to Lender in its sole discretion stating, among other things, (x) that Lender has a perfected first priority security interest in the Defeasance Deposit and the Defeasance Collateral, (y) that theDefeasance Security Agreement is enforceable against Borrower in accordance with its terms and (z) that the defeasance will not cause the Trust (as hereinafter defined) to fail to qualify as a “real estate mortgage investment conduit” (a“REMIC”), within the meaning of Section 860D of the Internal Revenue Code of 1986, as amended from time to time or any successor statute (the “Code”); 

 

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

 

E. a certificate, inform reasonably acceptable to Lender, from a firm of independent certified public accountants acceptable to Lender, certifying that the Defeasance Collateral is sufficient to make the payments required by Paragraph 1.03(a)(4) above; and 

 

F. such other certificates, opinions, documents orinstruments as Lender may reasonably require. 

 

All costs and expenses ofsatisfying the foregoing conditions and of the transactions contemplated by this Section 1.03, including, without limitation, the reasonable costs and expenses of Lender’s counsel, shall be paid by Borrower simultaneously with the defeasance ofthis Note. 

 

(b) Upon a defeasance in accordance with Section1.03(a), Borrower shall, at Lender’s request, assign all of Borrower’s obligations and rights under this Note to a special-purpose, bankruptcy-remote entity (“Successor Borrower”) to be formed, at Lender’s election, eitherby Borrower or by the Trust. In connection therewith, the Successor Borrower shall execute an assumption agreement in form and substance satisfactory to Lender in its sole discretion pursuant to which Successor Borrower shall assume Borrower’sobligations under this Note and the Defeasance Security Agreement. The sole asset of Successor Borrower shall be the Defeasance Collateral unless Successor Borrower is formed by the Trust, in which case the Trust may elect to have one entity serveas “Successor Borrower” with respect to other notes owned by the Trust. In connection with such assignment and assumption, Borrower and/or Successor Borrower shall deliver to Lender an opinion of counsel in form and substance and deliveredby counsel satisfactory to Lender in its sole discretion stating, among other things, that such assumption agreement is enforceable against Borrower and Successor Borrower, as applicable, in accordance with its terms and that this Note, theDefeasance Security Agreement and any other documents executed in connection with such defeasance are enforceable against Borrower or Successor Borrower, as applicable, in accordance with their respective terms. Upon an assumption by SuccessorBorrower acceptable to Lender, Borrower shall be relieved of its obligations under this Note and the Defeasance Security Agreement and, to the extent such documents relate to the Security Property, the other Loan Documents. 

 

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(c) Upon compliance with the requirements of Section 1.03(a) and (b), the Security Property shall bereleased from the lien of the Security Instrument and the other Loan Documents, and the Defeasance Collateral shall constitute the collateral that shall secure this Note. Lender will, at Borrower’s expense, execute and deliver any agreementsreasonably requested by Borrower to release the Security Property from the lien of the Security Instrument. 

 

(d) Lender, as attorney-in-fact of Borrower, shall cause the purchase of the Defeasance Collateral with the Defeasance Deposit, which purchase may bethrough an affiliate of Lender. Borrower shall be responsible for the payment of any brokerage or other transaction fees in connection with such purchase. 

 

1.04. Security. The indebtedness evidenced by this Note and the obligations created hereby are secured by, interalia, that certainMortgage, Assignment of Leases and Rents and Security Agreement (as amended, consolidated, modified, severed or spread from time to time, the “Security Instrument”) from Borrower to Lender, dated on or about the date hereof, concerningproperty located in King of Prussia, Pennsylvania. The Security Instrument together with this Note, the Cash Management Agreement (as defined in Article III) and all other documents to or of which Lender is a party or beneficiary now or hereafterevidencing, securing, guarantying, modifying or otherwise relating to the indebtedness evidenced hereby, as amended or modified from time to time, are herein referred to collectively as the “Loan Documents”. All of the terms and provisionsof the Loan Documents are incorporated herein by reference. Some of the Loan Documents are to be filed for record on or about the date hereof in the appropriate public records. 

 

1.05. Exculpation. Notwithstanding anything in the Loan Documents to the contrary, but subject to the qualificationshereinbelow set forth, Lender agrees that (i) Borrower shall be liable upon the indebtedness evidenced hereby and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of the security therefor, thesame being all properties (whether real or personal), rights, estates and interests now or at any time hereafter securing the payment of this Note and/or the other obligations of Borrower under the Loan Documents (collectively, the “SecurityProperty”), (ii) if default occurs in the timely and proper payment of all or any part of such indebtedness evidenced hereby or in the timely and proper performance of the other obligations of Borrower under the Loan Documents, any judicial orother proceedings brought by Lender against Borrower shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereaftersecuring the payment of this Note and/or the other obligations of Borrower under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Borrower other thanthe Security Property except with respect to the liability described below in this section, and (iii) in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of this Noteand/or the other obligations of Borrower under the Loan Documents, no judgment for any deficiency upon the indebtedness evidenced hereby shall be sought or obtained by Lender against Borrower, except with respect to the liability described below inthis section; provided, however, that, notwithstanding the foregoing provisions of this section, Borrower shall be fully liable, and subject to legal action, for all losses, costs and expenses incurred by Lender (including, without limitation, thefees and expenses of Lender’s counsel) by reason of: 

 

(a)proceeds paid under any insurance policies (or paid as a result of any other claim or cause of action against any person or entity) by reason of damage, loss or destruction to all or any portion of the Security Property, to the full extent of suchproceeds not previously delivered to Lender, but which, under the terms of the Loan Documents, should have been delivered to Lender; 

 

(b) proceeds or awards resulting from the condemnation or other taking in lieu of condemnation of all or any portion of the Security Property, or any ofthem, to the full extent of such proceeds or awards not previously delivered to Lender, but which, under the terms of the Loan Documents, should have been delivered to Lender; 

 

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(c) all tenant security deposits or other refundable deposits paid to or held by Borrower or any otherperson or entity in connection with leases of all or any portion of the Security Property which are not applied in accordance with the terms of the applicable lease or other agreement, to the full extent of such deposits; 

 

(d) rent and other payments received from tenants under leases of all or anyportion of the Security Property paid more than one month in advance, to the full extent of any such rents collected by Borrower and not remitted to Lender promptly upon the occurrence of an Event of Default; 

 

(e) rents, issues, profits and revenues of all or any portion of the SecurityProperty received or applicable to a period after the occurrence of any Event of Default or any event which, solely with the passage of time, would constitute an Event of Default hereunder, which are not paid to Lender, to the full extent of therents, issues, profits and revenues not so applied; 

 

(f) wastecommitted on the Security Property, damage to the Security Property as a result of the intentional misconduct or gross negligence of Borrower or any Indemnitor (as defined in the Security Instrument) or any holder of equity interests in Borrower orIndemnitor, or any person acting on behalf of, or at the direction of, Borrower or Indemnitor, or any removal of the Security Property in violation of the terms of the Loan Documents; 

 

(g) failure to pay, or make deposits to the Impound Account (as defined in the Security Instrument) on account of, any validtaxes, assessments, mechanic’s liens, materialmen’s liens or other liens which could create liens on any portion of the Security Property which would be superior to the lien or security title of the Security Instrument or the other LoanDocuments; 

 

(h) failure by Borrower to pay, or make deposits tothe Impound Account on account of, the premiums on insurance policies required under the Loan Documents to be maintained by Borrower or with respect to the Security Property; 

 

(i) fraud or material misrepresentation or failure to disclose a material fact by Borrower or any Indemnitor, or any holderof equity interests in Borrower or Indemnitor, or any person acting on behalf of, or at the direction of, Borrower or Indemnitor; and 

 

(j) the filing by Borrower of a voluntary bankruptcy petition, or the filing against Borrower of an involuntary bankruptcy petition by any generalpartner, managing member or other constituent entity of Borrower, by any indemnitor with respect to Borrower’s obligations under the Loan Documents, or by any affiliate of any of them. 

 

Furthermore, notwithstanding anything to the contrary in the Loan Documents, in the eventthat: (A) Borrower fails to obtain Lender’s prior written consent to any subordinate financing or other voluntary lien encumbering the Security Property, if such consent is required by the Loan Documents; (B) Borrower fails to obtainLender’s prior written consent to any assignment, transfer or conveyance of the Security Property or any interest therein, if such consent is required by Loan Documents; or (C) payment of the first full installment of the Monthly Payment Amount(together with all required reserves) is not paid when due, then the Loan shall be fully recourse to Borrower. 

 

Nothing contained in this section shall (1) be deemed to be a release or impairment of the indebtedness evidenced by this Note or the other obligations of Borrower under the Loan Documents or the lien of the LoanDocuments upon the Security Property, or (2) preclude Lender from foreclosing the Loan Documents in case of any default or from enforcing any of the other rights of Lender except as stated in this section, or (3) reduce, release, relieve, waive,limit or impair in any way whatsoever the Indemnity and Guaranty Agreement and/or the Hazardous Substances Indemnity Agreement each of even date executed and delivered in connection with the indebtedness evidenced by this Note or release,

 

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relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to such Indemnity and GuarantyAgreement and Hazardous Substances Indemnity Agreement or (4) waive any right that Lender may have under Section 506 (a), 506 (b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Loan or torequire that all collateral shall continue to secure all of the indebtedness owing to Lender in accordance with the Loan Documents. 

 

1.06. Event of Default. It is hereby expressly agreed that should any default occur in the payment of principal or interest as stipulated above andsuch payment is not made within seven (7) days of the date such payment is due (provided that no grace period is provided for the payment of principal and interest due on the Maturity Date), or should an “Event of Default” (as defined inthe Security Instrument) occur, or should any other default occur under any of the Loan Documents which is not cured within any applicable grace or cure period, then an “Event of Default” shall exist hereunder, and in such event theindebtedness evidenced hereby, including all sums advanced or accrued hereunder or under any other Loan Document, and all unpaid interest accrued thereon, shall, at the option of Lender and without notice to Borrower, at once become due and payableand may be collected forthwith, whether or not there has been a prior demand for payment and regardless of the stipulated date of maturity. 

 

1.07. Late Charges and Default Interest Rate. In the event that any payment is not received by Lender on the date when due (subject to theapplicable grace period), then in addition to any default interest payments due hereunder, Borrower shall also pay to Lender a late charge in an amount equal to five percent (5.0%) of the amount of such overdue payment (the “LateCharge”); provided that the Late Charge shall not apply to the payment of principal due on the Maturity Date. So long as any Event of Default exists hereunder, regardless of whether or not there has been an acceleration of the indebtednessevidenced hereby, and at all times after maturity of the indebtedness evidenced hereby (whether by acceleration or otherwise), interest shall accrue on the outstanding principal balance of this Note at a rate per annum equal to four percent (4.0%)plus the Applicable Interest Rate, or if such increased rate of interest may not be charged or collected under applicable law, then at the maximum rate of interest, if any, which may be charged or collected from Borrower under applicable law (the“Default Interest Rate”), and such default interest shall be immediately due and payable. Borrower acknowledges that it would be extremely difficult or impracticable to determine Lender’s actual damages resulting from any late paymentor Event of Default, and such late charges and default interest are reasonable estimates of those damages and do not constitute a penalty. Interest at the Default Rate shall continue to accrue on any judgment Lender may obtain against Borrower onthis Note or the Security Instrument until Lender acquires record title to the Security Property or the judgment, including interest and costs, have been paid in full. 

 

1.08. Cumulative Remedies. The remedies of Lender in this Note or in the Loan Documents, or at law or in equity,shall be cumulative and concurrent, and may be pursued singly, successively or together in Lender’s discretion. In the event this Note, or any part hereof, is collected by or through an attorney-at-law, Borrower agrees to pay all costs ofcollection including, but not limited to, reasonable attorneys’ fees. 

 

ARTICLE II 

 

GENERALCONDITIONS 

 

2.01. No Waiver: Amendment. No failureto accelerate the debt evidenced hereby by reason of default hereunder, acceptance of a partial or past due payment, or indulgences granted from time to time shall be construed (i) as a novation of this Note or as a reinstatement of the indebtednessevidenced hereby or as a waiver of such right of acceleration or of the right of Lender thereafter to insist upon strict compliance with the terms of this Note, or (ii) to prevent the exercise of such right of acceleration or any 

 

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other right granted hereunder or by any applicable laws; and Borrower hereby expressly waives the benefit of any statuteor 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 the payment of this Note or any installment due hereunder, made byagreement with any person now or hereafter liable for the payment of this Note shall operate to release, discharge, modify, change or affect the original liability of Borrower under this Note, either in whole or in part unless Lender agreesotherwise in writing. This Note may not be changed orally, but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification or discharge is sought. 

 

2.02. Waivers. Presentment for payment, demand, protest and notice ofdemand, protest and nonpayment and all other notices are hereby waived by Borrower. Borrower 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 itself and in and to all of itsproperty, real and personal, against the enforcement and collection of the obligations evidenced by this Note or the other Loan Documents. 

 

2.03. Limit of Validity. The provisions of this Note and of all agreements between Borrower and Lender, whether now existing or hereafter arisingand whether written or oral, are hereby expressly limited so that in no contingency or event whatsoever, whether by reason of demand or acceleration of the maturity of this Note or otherwise, shall the amount paid, or agreed to be paid(“Interest”), to Lender for the use, forbearance or detention of the money loaned under this Note exceed the maximum amount permissible under applicable law. If, from any circumstance whatsoever, performance or fulfillment of any provisionhereof or of any agreement between Borrower and Lender shall, at the time performance or fulfillment of such provision shall be due, exceed the limit for Interest prescribed by law or otherwise transcend the limit of validity prescribed byapplicable law, then ipsofacto the obligation to be performed or fulfilled shall be reduced to such limit and if, from any circumstance whatsoever, Lender shall ever receive anything of value deemed Interest by applicable law inexcess of the maximum lawful amount, an amount equal to any excessive Interest shall be applied to the reduction of the principal balance owing under this Note in the inverse order of its maturity (whether or not then due) or at the option of Lenderbe paid over to Borrower, and not to the payment of Interest. All Interest (including, but not limited to, any amounts or payments deemed to be Interest) paid or agreed to be paid to Lender shall, to the extent permitted by applicable law, beamortized, prorated, allocated and spread throughout the full period until payment in full of the principal balance of this Note so that the Interest thereof for such full period will not exceed the maximum amount permitted by applicable law. ThisSection 2.03 will control all agreements between Borrower and Lender. 

 

2.04. Use of Funds. Borrower hereby warrants, represents and covenants that the loan evidenced hereby is for business or commercial purposes only, and no advance of funds evidenced hereby shall be used by Borrower for personal,family or household purposes. The foregoing shall not, however, prohibit Borrower from distributing surplus proceeds (after payment from time to time of all amounts that Borrower is required to pay pursuant to the Loan Documents) to the owners ofequity interests in Borrower. 

 

2.05. UnconditionalPayment. Borrower is and shall be obligated to pay principal, interest and any and all other amounts which become payable hereunder or under the other Loan Documents absolutely and unconditionally and without any abatement, postponement,diminution or deduction and without any reduction for counterclaim or setoff. In the event that at any time any payment received by Lender hereunder shall be deemed by a court of competent jurisdiction to have been a voidable preference orfraudulent 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 

 

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Borrower and shall not be discharged or satisfied with any prior payment thereof or cancellation of this Note, but shallremain 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. 

 

ARTICLE III 

 

HYPERAMORTIZATION 

 

3.01. Deposit of Rents and Profits. Upon the commencement of any Sweep Period (as defined in the Cash Management Agreement) prior to theAnticipated Repayment Date, Borrower shall thereafter cause the Rents and Profits (as defined in the Security Instrument) to be deposited in the applicable accounts required by the Cash Management Agreement and such sums shall be applied on thefirst day of each calendar month in the following listed order of priority: 

 

(a) First, payments to the Impound Account (as defined in the Security Instrument) in accordance with the terms and conditions of the Security Instrument; 

 

(b) Next, the payment of the Monthly Payment Amount; 

 

(c) Next, payments of any other amounts due under the Loan Documents not expressly set forth below in this Section 3.01;

 

(d) Next, payments to the Replacement Reserve (as defined inthe Security Instrument) in accordance with the terms and conditions of the Security Instrument; and 

 

(e) Lastly, payment to Borrower of any excess amounts. 

 

Notwithstanding any provision of this Note to the contrary, following an Event of Default, Lender reserves the right to (x) take such enforcement actions as it deemsappropriate under the Loan Documents or otherwise under law or in equity and (y) apply sums received to the amounts owed under the Loan Documents at such times and in such amounts, order and manner as Lender shall in its sole discretion elect fromtime to time. 

 

3.02. Amounts Outstanding at the AnticipatedRepayment Date. In the event that Borrower does not pay to Lender on or before the Anticipated Repayment Date the outstanding principal balance of this Note together with all accrued and unpaid interest hereon and all other sums then due andpayable hereunder and under the Loan Documents, the following shall apply: 

 

(a) From and after the Anticipated Repayment Date, interest shall accrue on the unpaid principal balance from time to time outstanding on this Note at the Extended Term Rate. Interest accrued at the Extended Term Rateand not paid pursuant to this Section 3.02 shall be deferred and added to the outstanding principal balance of this Note (together with all accrued interest thereon) and shall earn interest at the Extended Term Rate to the extent permitted byapplicable law (such accrued interest together with any interest accrued thereon is hereinafter defined as “**Accrued Interest**”). All of the outstanding principal balance, including any Accrued Interest, shall be due and payable onthe Maturity Date. 

 

(b) Borrower shall cause all Rents andProfits to be deposited directly into the applicable accounts required by the Cash Management Agreement and Borrower shall pay on the Anticipated Repayment Date and each Payment Date thereafter up to and including the Maturity Date, the followingpayments from Rents and Profits on or before such day in the listed order of priority: 

 

(1) First, payments to the Impound Account in accordance with the terms and conditions of the Security Instrument; 

 

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(2) Next, the payment of the Monthly Payment Amount to be applied first to the payment of interestcomputed at the Initial Term Interest Rate (as hereinafter defined) with the remainder applied to the reduction of the outstanding principal balance of this Note; 

 

(3) Next, payments to Lender of any other amounts due under the Loan Documents not expressly set forth below in this Section3.02(b); 

 

(4) Next, payments to the Replacement Reserve, eachin accordance with the terms and conditions of the Security Instrument; 

 

(5) Next, payments for monthly Cash Expenses (as hereinafter defined), less management fees payable to affiliates of Borrower, pursuant to the terms and conditions of the related Approved Annual Budget (as hereinafter defined); 

 

(6) Next, payment for monthly Net Capital Expenditures (as hereinafterdefined), pursuant to the terms and conditions of the related Approved Annual Budget; 

 

(7) Next, payment for Extraordinary Expenses (as hereinafter defined) approved by Lender, if any; 

 

(8) Next, payments to Lender to be applied against the outstanding principal due under this Note (but not including any Accrued Interest) until suchprincipal amount (not including any Accrued Interest) is paid in full; 

 

(9) Next, payments to Lender for Accrued Interest; and 

 

(10) Lastly, payment to the Borrower of any excess amounts. 

 

(c) In the event that the Borrower must incur an Extraordinary Expense, then Borrower shall promptly deliver to Lender a reasonably detailed explanation of such proposed Extraordinary Expense for the Lender’s approval. 

 

3.03. Payment of Monthly Payment Amount. Nothing in this Article IIIshall limit, reduce or otherwise affect Borrower’s obligations to make payments of the Monthly Payment Amount and/or payments to the Impound Account or the Replacement Reserve or any other sums due hereunder and under the other Loan Documents,whether or not Rents and Profits are available to make such payments. 

 

3.04. Annual Budgets. For each fiscal year commencing with the fiscal year in which the Anticipated Repayment Date occurs, Borrower shall submit to Lender for Lender’s written approval an Annual Budget (as hereinafter defined)not later than sixty (60) days prior to the commencement of such fiscal year, in form satisfactory to Lender setting forth in reasonable detail budgeted monthly operating income and monthly operating capital and other expenses for the Property (ashereinafter defined). Each Annual Budget shall contain, among other things, limitations on management fees, third party service fees, and other expenses as Borrower may reasonably determine. Lender shall have the right to approve such Annual Budget(which approval shall not be unreasonably withheld), and in the event that Lender objects to the proposed Annual Budget submitted by Borrower, Lender shall advise Borrower of such objections within fifteen (15) days after receipt thereof (anddeliver to Borrower a reasonably detailed description of such objections) and Borrower shall within three (3) days after receipt of notice of any such objections revise such Annual Budget and resubmit the same to Lender. Lender shall advise Borrowerof any objections to such revised Annual Budget within ten (10) days after receipt thereof (and deliver to Borrower a reasonably detailed description of such objections) and Borrower shall revise the same in accordance with the process described inthis subparagraph until the Lender approves an Annual Budget, provided, however, that if Lender shall not advise Borrower of its objections to any proposed Annual Budget within the applicable time period set forth in this paragraph, then suchproposed Annual Budget shall be deemed approved by Lender. Until such time as Lender approves a proposed Annual Budget, the most recently Approved Annual Budget shall apply; provided that such Approved Annual Budget shall be adjusted to reflectactual increases in real estate taxes, insurance premiums and utilities expenses. 

 

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3.05. Definitions. The following items, as used in this Note, shall have the following meaningwhich meaning shall be applicable equally to the singular and the plural of the items defined: 

 

(a) “**Annual Budget**” shall mean an annual budget submitted by Borrower to Lender in accordance with the terms of Section 3.04 of thisNote. 

 

(b) “**Applicable Interest Rate**” shallmean from (a) the date of this Note through but not including the Anticipated Repayment Date, the Initial Term Interest Rate, and (b) from and after the Anticipated Repayment Date through and including the date this Note is paid in full, theExtended Term Rate. 

 

(c) “**Approved AnnualBudget**” shall mean each Annual Budget approved by Lender in accordance with the terms herein. 

 

(d) “**Capital Expenditures**” shall mean for any period, the amount expended for items capitalized under generally accepted accountingprinciples, including expenditures for building improvements or major repairs. 

 

(e) “**Cash Expenses**” shall mean for any period, the operating expenses for the Property (as defined in the Security Instrument and hereinafter referred to as the “Property”) as set forth inan Approved Annual Budget to the extent that such expenses are actually incurred by Borrower minus payments into the Impound Account and the Replacement Reserve. 

 

(f) “**Cash Management Agreement**” shall mean that certain Cash Management Agreement of even date herewithexecuted by Borrower and Lender and, if applicable, any property manager retained by Borrower, in connection with this Note. 

 

(g) “**Defeasance Period**” shall mean the period of time commencing on the date which is the earlier to occur of (i) two (2) years after the“startup day”, within the meaning of Section 860G(a)(9) of Code, of the REMIC that holds this Note (such REMIC is referred to as the “**Trust**”) and (ii) four (4) years after the date hereof, and ending on the AnticipatedRepayment Date. 

 

(h) “**Extended Term Rate**”shall mean a rate per annum equal to the greater of (i) the Initial Term Interest Rate plus three (3) percentage points or (ii) the Treasury Rate plus three (3) percentage points. 

 

(i) “**Extraordinary Expense**” shall mean an extraordinary operating expense or capital expense not set forthin the Approved Annual Budget or allotted for in the Replacement Reserve. 

 

(j) “**Loan**” shall mean the loan by Lender to Borrower evidenced, *inter alia*, by this Note and secured, *inter alia*, by the Security Instrument. 

 

(k) “**Net Capital Expenditures**” shall mean for any period theamount by which Capital Expenditures during such period exceeds reimbursements for such items during such period from any fund (including, but not limited to, the Replacement Reserve) established pursuant to the Loan Documents. 

 

(l) “**Note**” shall mean this Promissory Note, as amended fromtime to time. 

 

(m) “**Payment Date**” shall meanwith respect to any month shall be the first day of such month; provided, however, that if the first day of a given month shall not be a business day, then the Payment Date for such month shall be the next business day to occur after the first dayof such month. 

 

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(n) “**Treasury Rate**” shall mean, as of the Anticipated Repayment Date, the yield,calculated by linear interpolation (rounded to the nearest one-thousandth of one percent (*i.e.*, 0.001%)) of the yields of noncallable United States Treasury obligations with terms (one longer and one shorter) most nearly approximatingthe period from the Anticipated Repayment Date to the Maturity Date, as determined by Lender on the basis of Federal Reserve Statistical Release H.15-Selected Interest Rates under the heading U.S. Governmental Security/Treasury Constant Maturities,or other recognized source of financial market information selected by Lender. 

 

(o) “**Yield Maintenance Charge**” shall mean, as of any date, the greater of (1) the excess, if any, of the Defeasance Deposit over the outstanding principal balance of this Note, and (2) an amount equalto one percent (1%) of the outstanding principal balance of this Note. 

 

ARTICLE IV

 

MISCELLANEOUS

 

4.01. Miscellaneous. This Note shall be interpreted, construed andenforced according to the laws of the State of Pennsylvania. The terms and provisions hereof shall be binding upon and inure to the benefit of Borrower and Lender and their respective heirs, executors, legal representatives, successors,successors-in-title and assigns, whether by voluntary action of the parties or by operation of law. As used herein, the terms “Borrower” and “Lender” shall be deemed to include their respective heirs, executors, legalrepresentatives, successors, successors-in-title and assigns, whether by voluntary action of the parties or by operation of law. If Borrower consists of more than one person or entity, each shall be jointly and severally liable to perform theobligations of Borrower under this Note. All personal pronouns used herein, whether used in the masculine, feminine or neuter gender, shall include all other genders; the singular shall include the plural and vice versa. Titles of articles andsections are for convenience only and in no way define, limit, amplify or describe the scope or intent of any provisions hereof. Time is of the essence with respect to all provisions of this Note. This Note and the other Loan Documents contain theentire agreements between the parties hereto relating to the subject matter hereof and thereof and all prior agreements relative hereto and thereto which are not contained herein or therein are terminated.****

 

4.02. **BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY ORATTORNEYS OR THE PROTHONOTARY OR CLERK OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR FOR BORROWER IN ANY SUCH COURT IN AN APPROPRIATE ACTION THERE BROUGHT OR TO BE BROUGHT AGAINST BORROWER AT THE SUIT OF LENDERON THIS NOTE, AND THEREIN TO CONFESS JUDGMENT AGAINST BORROWER FOR ALL SUMS DUE FROM BORROWER TOGETHER WITH COSTS OF SUIT AND AN ATTORNEY’S FEE FOR COLLECTION EQUAL TO $25,000; AND FOR SO DOING THIS NOTE OR A COPY HEREOF VERIFIED BY AFFIDAVITSHALL BE A SUFFICIENT WARRANT. THIS WARRANT OF ATTORNEY SHALL BE EFFECTIVE ONLY AFTER AN EVENT OF DEFAULT, BUT SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF.**

 

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4.03. **BORROWER HEREBY RELEASES LENDER AND SAID ATTORNEY OR ATTORNEYS FROM ALL PROCEDURAL ERRORS,DEFECTS AND IMPERFECTIONS WHATSOEVER IN ENTERING JUDGMENT BY CONFESSION AS AFORESAID OR IN ISSUING ANY PROCESS OR INSTITUTING ANY PROCEEDINGS RELATING THERETO AND HEREBY WAIVES ALL BENEFIT THAT MIGHT ACCRUE TO BORROWER BY VIRTUE OF ANY PRESENT ORFUTURE LAWS EXEMPTING THE SECURITY PROPERTY, AND ANY OTHER COLLATERAL FOR THIS NOTE, OR ANY PART OF THE PROCEEDS ARISING FROM ANY SALE OF ANY SUCH PROPERTY, FROM ATTACHMENT, LEVY OR SALE UNDER EXECUTION, OR PROVIDING FOR ANY STAY OF EXECUTION,EXEMPTION FROM CIVIL PROCESS OR EXTENSION OF TIME AND AGREES THAT SUCH PROPERTY MAY BE SOLD TO SATISFY ANY JUDGMENT ENTERED ON THIS NOTE OR THE MORTGAGE, IN WHOLE OR IN PART AND IN ANY ORDER AS MAY BE DESIRED BY LENDER.**

 

4.04. **BORROWER CONFIRMS TO LENDER THAT (I) BORROWER IS A BUSINESS ENTITYAND THAT ITS PRINCIPALS ARE KNOWLEDGEABLE IN BUSINESS MATTERS; (II) THE TERMS OF THIS NOTE, INCLUDING THE FOREGOING WARRANT OF ATTORNEY TO CONFESS JUDGMENT, HAVE BEEN NEGOTIATED AND AGREED UPON IN A COMMERCIAL CONTEXT; AND (III) IT HAS FULLYREVIEWED THE AFORESAID WARRANT OF ATTORNEY TO CONFESS JUDGMENT WITH ITS OWN COUNSEL AND IS KNOWINGLY AND VOLUNTARILY WAIVING CERTAIN RIGHTS IT WOULD OTHERWISE POSSESS, INCLUDING BUT NOT LIMITED TO, THE RIGHT TO ANY NOTICE OR A HEARING PRIOR TO THEENTRY OF JUDGMENT BY LENDER PURSUANT TO THE AFORESAID WARRANT OF ATTORNEY.**

 

[signature appears on following page] 

 

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

 
**935 HQ ASSOCIATES, LLC,**a Delaware limited liability companyBy: GSI Commerce, Inc.,a Delaware corporation,its Managing Member  By: /s/ Jordan M. Copland    Name: Jordan M. Copland    Title: Executive Vice President
 

COMMONWEALTH OF PENNSYLVANIA

 

COUNTY OF Philadelphia 

 

On this, the 9th day of June, 2004 before me, a Notary Public, personally appeared Jordan M. Copland, known to me (or satisfactorily proven) to be the Executive Vice Presidentof GSI Commerce, Inc., a Delaware corporation, the Managing Member of 935 HQ Associates, LLC, a Delaware limited liability company and acknowledged that being duly authorized to do so, executed the foregoing instrument on behalf of such limitedpartnership as general partner of such limited partnership for the purposes therein contained. 

 

IN WITNESS WHEREOF, I have hereunto set my official hand and seal. 

 

/s/ Sheldon Bender
 [SEAL]Name: Sheldon Bender  My commission expires: May 2, 2006