Exhibit 10.1
PROMISSORY NOTE
$18,750,000.00 April 13, 1999
FOR VALUE RECEIVED, and upon the terms and conditions set forth herein,
PENNSYLVANIA REAL ESTATE INVESTMENT TRUST, a Pennsylvania business trust
("Borrower"), promises to pay to the order of GMAC COMMERCIAL MORTGAGE
CORPORATION, a California corporation ("Lender"), at Lender's office located at
650 Dresher 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 EIGHTEEN MILLION
SEVEN HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($18,750,000.00), or so much
thereof as is outstanding and unpaid, together with interest thereon at the rate
of 6.773% 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 $123,160.75 (each a "Monthly
Amount"), beginning on the tenth day of June, 1999 ("First Payment Date"), and
continuing on the tenth 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 tenth day of May, 2009 ("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 tenth 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 ninth day of such month (or if the date of this
Note is after the ninth 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.
2.04 Application of Payments. Payments under this Note shall
be applied first to the payment 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 February 10, 2009 (after which date Borrower shall incur no
prepayment penalty or fee).
(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, or at Borrower's option, Borrower shall
deliver to Lender U.S. Government Securities 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.
(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
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 reasonable discretion, stating, among other 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 reasonable 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 reasonable 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 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 shall purchase U.S. Government Securities
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"), or, at Borrower's option, Borrower shall pay Lender the
required Defeasance Deposit in accordance with Section 2.5(b)(v) above. 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 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 remitted to Borrower.
(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 agreements in form and substance satisfactory to Lender,
whereupon Borrower shall, pursuant to the express terms of such agreement, be
relieved of its obligations thereunder. Borrower shall pay $10 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 Defeasance
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.
Sections 3.1, 7.2, 7.4(a), 11.2, 11.7 and 14.2 and Articles 13 and 15 of the
Security Instrument shall otherwise remain in full force and effect.
(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 Legal
Requirements, and (B) will effect such releases in accordance with the terms of
this Section 2.05.
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 the Prepayment
Consideration when due hereunder) are secured by, among other things, a first
mortgage, security interest and lien on certain real and personal property
collateral of Borrower, tangible and intangible, as described more particularly
in that certain Deed of Trust and Security Agreement or Mortgage and Security
Agreement, as applicable (either, "Security Instrument") from Borrower to
Lender, dated as of date hereof. The Security Instrument together with this Note
and all other documents executed by Borrower 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."
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 such payment is due;
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 on which such payment originally was due, 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. 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 from the date any such judgment becomes due until such judgment amount
is paid in full at a rate equal 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 the Exculpated Parties (as
defined in Section 15.1 of the Security Instrument) 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
hereby 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.
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. Lender shall provide Borrower
with notice of any such transfer, sale or assignment within five (5) days prior
thereto, but Lender's failure to so notify Borrower shall have no effect or
consequence and Lender shall have no liability to Borrower thereon or 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: Pennsylvania Real Estate Investment Trust
Attn: Jeffrey A. Linn
The Bellevue, Suite 300
200 South Broad Street
Philadelphia, PA 19102
Fax: (215) 546-0240
Lender: GMAC Commercial Mortgage Corporation
650 Dresher Road
P.O. Box 1015
Horsham, Pennsylvania 19044-8015
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 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, 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 and the other Loan Documents
shall be interpreted, construed and enforced according to the laws of the state
in which the real property encumbered by the Security Instrument is located
(without giving effect to its conflict of laws rules).
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.
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IN WITNESS WHEREOF, Borrower has executed this Note under seal as of
the date first above written.
PENNSYLVANIA REAL ESTATE
INVESTMENT TRUST
a Pennsylvania business trust
By: /s/ Jeffrey A. Linn
-----------------------------------
Name: Jeffrey A. Linn
Title: Senior Vice President
PAY TO THE ORDER OF ________________________________, WITHOUT RECOURSE.
GMAC COMMERCIAL MORTGAGE CORPORATION
By:
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Name:
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Title:
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Date:
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