MORTGAGE NOTE
New York, New York
$45,929,800 October 4, 1996
FOR VALUE RECEIVED, Mark M.P.N.M., Limited Partnership, an
Alabama limited partnership, Mark New Smyrna Limited Partnership,
a Florida limited partnership, Mark Troy, L.P., a New York
limited partnership, Mark Park Plaza, L.P., a Georgia limited
partnership, Mark Martintown, L.P., a South Carolina limited
partnership, Mark Kings Fairground, L.P., a Virginia limited
partnership, Mark Shillington, L.P., a Pennsylvania limited part-
nership, Mark 25th Street, L.P., a Pennsylvania limited
partnership, Mark Three Realty, L.P., a Pennsylvania limited
partnership and Mark Four Realty, L.P., a Pennsylvania limited
partnership, each having its principal office c/o Mark Centers
Trust, 600 Third Avenue, P.O. Box 1679, Kingston, Pennsylvania
18704 (collectively, the "Maker") promises to pay to the order of
Secore Financial Corporation, or its assigns ("Payee") having its
principal office at 12510 Prosperity Drive, Suite 270, Silver
Spring, Maryland 20904, the Principal Amount (as defined below),
together with interest from the date hereof at the Applicable
Interest Rate (as defined below). Interest accruing hereunder
shall be calculated on the basis of a 360-day year of twelve 30-
day months.
WHEN USED HEREIN, the following capitalized terms shall have
the following meanings:
"Applicable Interest Rate" shall mean (a) from the date of
this Note through but not including the Reset Date (as
hereinafter defined), a rate of 8.84 percent (8.84%) per annum
(the "Initial Interest Rate") and (b) from and after the Reset
Date through and including the date this Note is paid in full, a
rate per annum equal to the greater of (i) the Initial Interest
Rate plus five percent (5%) or (ii) the Treasury Rate (as
hereinafter defined) plus five percent (5%) (the "Revised
Interest Rate"). For purposes of this Note, (A) the term "Reset
Date" shall mean October 31, 2006 and (B) the term "Treasury
Rate" shall mean, as of the Reset Date, the yield, calculated by
linear interpolation (rounded to the nearest one-thousandth of
one percent) of the yields of noncallable United States
Treasury obligations with terms (one longer and one shorter) most
nearly approximating the period from the Reset Date to the
Maturity Date, as determined by Payee 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 Payee for the week prior to the Reset
Date.
"Commencement Date" shall be December 1, 1996.
"Closing Date" shall be October 4, 1996.
"Default Rate" shall be Applicable Interest Rate plus five
percent per annum.
"Lockout Period" shall be the period from the Closing Date
through November 1, 1999.
"Maturity Date" shall be November 1, 2021.
"Monthly Amount" shall be $380,421.43.
"Payment Date" shall be the first business day of each month
commencing on the first business day of the second full month
after the Closing Date and continuing to and including the
Maturity Date.
"Principal Amount" shall be $45,929,800.
(1) The Principal Amount and interest thereon shall be due
and payable in lawful money of the United States as follows:
(a) On the date hereof, all interest on the unpaid
balance through the end of the month in which the Closing Date
occurs shall be due and payable. Thereafter, commencing on the
Commencement Date and continuing until the Maturity Date, 300
equal monthly installments of principal and interest at the
Monthly Amount each shall be due and payable. Each installment of
the Monthly Amount shall be applied first to the interest at the
Initial Interest Rate and the remainder thereof to reduction of
principal. Each monthly installment shall be due on each Payment
Date. In addition, all amounts advanced by Payee pursuant to
applicable provisions of the Loan Documents (as hereinafter
defined), together with any interest at the Default Rate or other
charges as therein provided, shall be immediately due and payable
hereunder. In the event any such advance is not so repaid by
Maker, Payee may, at its option, first apply any payments
received hereunder to repay said advances together with any
interest thereon or other charges as provided in the Loan
Documents, and the balance, if any, shall be applied in payment
of any installment then due. The entire remaining unpaid balance
of principal of this Note, all interest accrued thereon and all
other sums payable hereunder or under the Loan Documents
(collectively, the "Debt") shall be due and payable in full on
the Maturity Date.
(b) In the event that the Maker does not prepay the entire
principal balance of this Note and any other amounts outstanding
on or before the Reset Date, the following subparagraphs shall
also apply:
(i) From and after the Reset Date, interest shall
accrue on the unpaid principal balance from time to time
outstanding on this Note at the Revised Interest Rate. Subject
to the provisions of this subparagraph (b), Maker shall continue
to make payments in the Monthly Amount on each Payment Date. Each
Monthly Amount paid on and after the Reset Date shall be applied
first to the payment of interest computed at the Initial Interest
Rate with the remainder of the Monthly Amount applied to the
reduction of the outstanding principal balance of this Note.
Interest accrued at the Revised Interest Rate and not paid
pursuant to the preceding sentence shall be deferred and added to
the Debt and shall earn interest at the Revised Interest Rate to
the extent permitted by applicable law (such accrued interest
in hereafter defined as "Accrued Interest"). All of the Debt,
including Accrued Interest, shall be due and payable at the
Maturity Date.
(ii) Maker shall pay on the Reset Date and on each
Payment Date thereafter up to and including the Maturity Date the
following payments from the Rents (as defined in the Mortgage)
received on or before such day, in the listed order of priority:
(1) First to payment of rent, additional rent
and/or other charges due under those certain Ground Leases listed
on Exhibit 2 hereto;
(2) Second, to payment of the amounts due
pursuant to Section 8(a) of the Mortgage;
(3) Third, to payment of the Monthly Amount,
including interest accruing at the Default Rate, and late payment
charges, if any;
(4) Fourth, to payment of Monthly Cash Expenses
(defined in paragraph 18 below) pursuant to the terms and
conditions of the related approved Annual Budget (defined in
paragraph 18, below):
(5) Fifth, to payment of the Capital Expenditure
Reserve Amount in accordance with Section 48(b) of the Mortgage;
(6) Sixth, to payment of Extraordinary Expenses
(defined in paragraph 18, below) approved by Payee, if any:
(7) Seventh, to payments to the Payee to be
applied against the outstanding principal due under this Note
until such principal amount is paid in full:
(8) Eighth, to payments to the Payee for Accrued
Interest, including interest thereon, if any, accruing at the
Default Rate:
(9) Ninth, to payments to the Payee of any other
amounts due under the Loan Documents; and
(10) Lastly, to payment to the Maker of any excess
amounts.
(c) Amounts due on this Note shall be payable, without
any counterclaim, setoff or deduction whatsoever, at the office
of Payee or its agent or designee at the address set forth in
Exhibit 1 or at such other place as Payee or its agent or
designee may from time to time designate in writing.
(2) This Note is secured by an Indenture of Mortgage, Deed
of Trust, Security Agreement, Financing Statement, Fixture Filing
and Assignment of Leases, Rents and Security Deposits, of even
date herewith (the "Mortgage") from Maker to Craig A. Kawamoto,
as trustee, for the benefit of Payee, and by an Assignment of
Rents and Leases of even date herewith (the "Assignment") from
Maker to Payee. The Mortgage, the Assignment, and any other
instrument given at any time to secure this Note are hereinafter
collectively called the "Loan Documents."
(3) Maker has the right to prepay the principal of this
Note in full or in part on any Payment Date from and after the
end of the Lockout Period, upon sixty days' prior written notice
and payment, together with the portion of the principal to be
prepaid, of a prepayment premium (the "Prepayment Premium") in an
amount calculated as specified in Appendix 1. The calculation of
the Prepayment Premium shall be made by Payee and shall, absent
manifest error, be conclusive. In no event shall the Prepayment
Premium as computed hereunder be less than one percent (1%) of
the portion of the principal amount of this Note that is being
prepaid. As of October 4, 1998, and upon sixty days' prior
written notice, Maker shall have the right to apply the
outstanding balance held in the Additional Collateral Account in
accordance with Section 61 of the Mortgage to partial prepayment
of the principal, together with a Prepayment Premium in an amount
calculated as specified in Appendix 1. Notwithstanding the
foregoing, this Note may be prepaid without a prepayment premium
commencing with the 180 day period prior to the Reset Date. Upon
acceleration of this Note in accordance with its terms and the
terms of the Loan Documents, Maker agrees to pay the Prepayment
Premium described above in the amount that would be due if a
voluntary payment were made on the date of such acceleration. A
tender of payment of the amount necessary to pay and satisfy the
entire unpaid principal balance of this Note or any portion
thereof at any time after an Event of Default under the Mortgage
or an acceleration by Payee of the indebtedness evidenced hereby,
whether such payment is tendered voluntarily, during or after
foreclosure of the Mortgage, or pursuant to realization upon
other security, shall constitute a purposeful evasion of the
prepayment terms of this Note, shall be deemed to be a voluntary
prepayment hereof, and Maker shall be required to pay the
prepayment premium as described above. Partial prepayments of
principal shall not change the Payment Dates or amounts of
subsequent monthly installments, unless Payee shall otherwise
agree in writing.
(4) If Maker defaults in the payment of any installment of
principal and interest on the date on which it shall fall due or
in the performance of any of the agreements, conditions,
covenants, provisions or stipulations contained in this Note or
in the Loan Documents, and if such default shall continue beyond
any grace period provided for in the Mortgage so as to constitute
an Event of Default thereunder, then Payee, at its option and
without further notice to Maker, may declare immediately due and
payable the entire unpaid principal balance of this Note,
together with interest thereon at an annual rate after the date
of such default equal to the Default Rate, together with all sums
due by Maker under the Loan Documents, anything herein or in the
Loan Documents to the contrary notwithstanding. The foregoing
provision shall not be construed as a waiver by Payee of its
right to pursue any other remedies available to it under the
Mortgage, this Note or any other Security Document, nor shall it
be construed to limit in any way the application of the Default
Rate. Any payment hereunder may be enforced and recovered in
whole or in part at such time by one or more of the remedies
provided to Payee in this Note or in the Loan Documents. In the
event that: (i) this Note or any Security Document is placed in
the hands of an attorney for collection or enforcement or is
collected or enforced through any legal proceeding; (ii) an
attorney is retained to represent Payee in any bankruptcy,
reorganization, receivership, or other proceedings affecting
creditors' rights and involving a claim under this Note or any
Security Document; (iii) an attorney is retained to protect or
enforce the lien of the Mortgage or any Security Document; or
(iv) an attorney is retained to represent Payee in any other
proceedings whatsoever in connection with this Note, the
Mortgage, any of the Loan Documents or any portion of the
Mortgaged Property subject thereto, then Maker shall pay to Payee
all reasonable attorney's fees, costs and expenses incurred in
connection therewith, including costs of appeal, together with
interest on any judgment obtained by Payee at the Default Rate.
(5) If Maker defaults in the payment of any monthly
installment on the Payment Date, then Maker shall pay to Payee a
late payment charge in an amount equal to five percent (5%) of
the amount of the installment not paid as aforesaid. An
additional late charge equal to five percent (5%) of the monthly
payment due will be charged for each successive month the payment
remains outstanding. Said late charge payments, if payable,
shall be secured by the Mortgage and the other Loan Documents,
shall be payable without notice or demand by Payee, and are
independent of and have no effect upon the rights of Payee under
paragraph 4 above.
(6) Maker and all endorsers, sureties and guarantors hereby
jointly and severally waive all applicable exemption rights,
valuation and appraisement, presentment for payment, demand,
notice of demand, notice of nonpayment or dishonor, protest and
notice of protest of this Note, and all other notices in
connection with the delivery, acceptance, performance, default or
enforcement of the payment of this Note. Maker and all
endorsers, sureties and guarantors consent to any and all
extensions of time, renewals, waivers or modifications that may
be granted by Payee with respect to the payment or other
provisions of this Note and to the release of the collateral or
any part thereof, with or without substitution, and agree that
additional makers, endorsers, guarantors or sureties may become
parties hereto without notice to them or affecting their
liability hereunder.
(7) Payee shall not be deemed, by any act of omission or
commission, to have waived any of its rights or remedies
hereunder unless such waiver is in writing and signed by Payee,
and then only to the extent specifically set forth in writing. A
waiver of one event shall not be construed as continuing or as a
bar to or waiver of any right or remedy to a subsequent event.
(8) This Note shall be governed by and construed in
accordance with the laws of the State of New York (the "State").
(9) The parties hereto intend and believe that each
provision in this Note comports with all applicable law.
However, if any provision in this Note is found by a court of law
to be in violation of any applicable law, and if such court
should declare such provision of this Note to be unlawful, void
or unenforceable as written, then it is the intent of all parties
hereto that such provision shall be given full force and effect
to the fullest possible extent that is legal, valid and
enforceable, that the remainder of this Note shall be construed
as if such unlawful, void or unenforceable provision were not
contained therein, and that the rights, obligations and interest
of Maker and the holder hereof under the remainder of this Note
shall continue in full force and effect; provided, however, that
if any provision of this Note which is found to be in violation
of any applicable law concerns the imposition of interest
hereunder, the rights, obligations and interests of Maker and
Payee with respect to the imposition of interest hereunder shall
be governed and controlled by the provisions of the following
paragraph.
(10) It being the intention of Payee and Maker to comply
with the laws of the State with regard to the rate of interest
charged hereunder, it is agreed that, notwithstanding any
provision to the contrary in this Note, the Mortgage, or any of
the other Loan Documents, no such provision, including without
limitation any provision of this Note providing for the payment
of interest or other charges, shall require the payment or permit
the collection of any amount ("Excess Interest") in excess of the
maximum amount of interest permitted by law to be charged for the
use or detention, or the forbearance in the collection, of all or
any portion of the indebtedness evidenced by this Note. If any
Excess Interest is provided for, or is adjudicated to be provided
for, in this Note, the Mortgage, or any of the other Loan
Documents, then in such event:
(i) the provisions of this paragraph shall govern;
(ii) Maker shall not be obligated to pay any Excess
Interest;
(iii) any Excess Interest that Payee may have received
hereunder shall, at the option of Payee, be (x) applied as a
credit against the unpaid principal balance then due under this
Note, accrued and unpaid interest thereon not to exceed the
maximum amount permitted by law, or both, (y) refunded to the
payor thereof or (z) any combination of the foregoing;
(iv) the applicable interest rate or rates provided
for herein shall be automatically subject to reduction to the
maximum lawful rate allowed to be contracted for in writing under
the applicable usury laws of the aforesaid State, and this Note,
the Mortgage and the other Loan Documents shall be deemed to have
been, and shall be, reformed and modified to reflect such
reduction in such interest rate or rates; and
(v) Maker shall not have any action or remedy against
Payee for any damages whatsoever or any defense to enforcement of
this Note, the Mortgage or any other Security Document arising
out of the payment or collection of any Excess Interest.
(11) Upon any endorsement, assignment, or other transfer of
this Note by Payee or by operation of law, the term "Payee," as
used herein, shall mean such endorsee, assignee, or other
transferee or successor to Payee then becoming the holder of this
Note. This Note shall inure to the benefit of Payee and its
successors and assigns and shall be binding upon the undersigned
and its successors and assigns. The term "Maker" as used herein
shall include the respective successors and assigns, legal and
personal representatives, executors, administrators, devisees,
legatees and heirs of Maker.
(12) Any notice, demand or other communication which any
party may desire or may be required to give to any other party
shall be in writing and shall be given as provided in the
Mortgage.
(13) To the extent that Maker makes a payment or Payee re-
ceives any payment or proceeds for Maker's benefit, which are
subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee,
debtor in possession, receiver, custodian or any other party
under any bankruptcy law, common law or equitable cause, then, to
such extent, the obligations of Maker hereunder intended to be
satisfied shall be revived and continue as if such payment or
proceeds had not been received by Payee.
(14) Maker shall execute and acknowledge (or cause to be
executed and acknowledged) and deliver to Payee all documents,
and take all actions, reasonably required by Payee from time to
time to confirm the rights created or now or hereafter intended
to be created under this Note and the Loan Documents, to protect
and further the validity, priority and enforceability of this
Note and the Loan Documents, to subject to the Loan Documents any
property of Maker intended by the terms of any one or more of the
Loan Documents to be encumbered by the Loan Documents, or
otherwise carry out the purposes of the Loan Documents and the
transactions contemplated thereunder; provided, however, that no
such further actions, assurances and confirmations shall increase
Maker's obligations under this Note.
(15) No modification, amendment, extension, discharge,
termination or waiver (a "Modification") of any provision of this
Note, or any one or more of the other Loan Documents, nor consent
to any departure by Maker therefrom, shall in any event be
effective unless the same shall be in a writing signed by the
party against whom enforcement is sought, and then such waiver or
consent shall be effective only in the specific instance, and for
the purpose, for which given. Except as otherwise expressly
provided herein, no notice to, or demand on, Maker shall entitle
Maker to any other or future notice or demand in the same,
similar or other circumstances. Payee does not hereby agree to,
nor does Payee hereby commit itself to, enter into any Modifica-
tion.
(16) Maker hereby expressly and unconditionally waives, in
connection with any suit, action or proceeding brought by Payee
on this Note, any and every right it may have to (a) a trial by
jury, (b) interpose any counterclaim therein (other than a
counterclaim which can only be asserted in the suit, action or
proceeding brought by Payee on this Note and cannot be maintained
in a separate action) and (c) have the same consolidated with any
other or separate suit, action or proceeding.
(17) Notwithstanding any provision to the contrary in the
Mortgage or this Note, Payee shall not have any recourse to any
asset of Maker or its partners other than the Mortgaged Property
in order to satisfy the indebtedness for payment of the principal
and interest evidenced by this Note, and Payee's sole recourse
for satisfaction of the payment of principal and interest
evidenced by this Note shall be to exercise its rights against
the Mortgaged Property encumbered by the Mortgage and the other
collateral securing this Note. The foregoing sentence shall not
be deemed or construed to be a release of the indebtedness
evidenced by this Note or in any way impair, limit or otherwise
affect the lien of the Mortgage or any such other instrument
securing repayment of this Note or prevent Payee from naming
Maker, its partners, or their successors or assigns as a
defendant to any action to enforce any remedy for default so long
as there is no personal or deficiency money judgment sought or
entered against Maker, its partners, or their successors or
assigns for payment of principal and interest evidenced by this
Note. Notwithstanding the foregoing provisions of this paragraph
17, it is expressly understood and agreed that the aforesaid
limitation of liability shall in no way affect or apply to
Maker's continued personal liability for the payment to Payee of:
(i) any loss or damage occurring by reason of all or
any part of the Mortgaged Property being encumbered by a
voluntary lien (other than the Mortgage) granted by Maker;
(ii) any Rents, issues, profits and/or income
collected by Maker in excess of normal and verifiable operating
expenses from the Mortgaged Property after default by Maker
hereunder, under the Mortgage or under any other instrument
securing or referring to this Note;
(iii) unrefunded security deposits made by tenants of
the Mortgaged Property;
(iv) payment of Impositions, as defined in the
Mortgage, and insurance premiums, payment of which is required to
be made by Maker under the Mortgage;
(v) Rents, security deposits with respect to leases of
the Mortgaged Property, insurance proceeds, condemnation awards
and any other payments or consideration which Maker receives and
to which Payee is entitled pursuant to the terms of the Mortgage
or of any other Security Document;
(vi) damage to the Mortgaged Property from waste
committed or permitted by Maker;
(vii) loss or damage occurring by reason of the
failure of Maker to comply with any of the provisions of Section
40 of the Mortgage;
(viii) any loss or claim incurred by or asserted
against Payee as a result of fraud or misrepresentation by Maker
or any of the partners thereof with respect to any certification,
representation or warranty made by Maker or such other persons to
Payee herein or in any of the Loan Documents; and
(ix) reasonable attorney's fees incurred by Payee in
connection with suit filed on account of any of the foregoing
clauses (i) through (viii).
(18) Maker has executed the Cash Collateral Agreement (as
defined in the Mortgage). Commencing on the Reset Date, for each
calendar year, the Maker shall submit to the Payee for the
Payee's written approval an annual budget (an "Annual Budget")
not later than sixty (60) days prior to the commencement of such
calendar year, in form satisfactory to Payee setting forth in
reasonable detail budgeted monthly operating income and monthly
operating capital and other expenses for the Mortgaged Property.
Each Annual Budget shall contain, among other things, limitations
on management fees, third party service fees, and other expenses
as the Maker may reasonably determine. Payee shall have the
right to approve such Annual Budget and in the event that Payee
objects to the proposed Annual Budget submitted by Maker, Payee
shall advise Maker of such objections within fifteen (15) days
after receipt thereof (and deliver to Maker a reasonably detailed
description of such objections) and Maker shall within three (3)
days after receipt of notice of any such objections revise such
Annual Budget and resubmit the same to Payee. Payee shall advise
Maker of any objections to such revised Annual Budget within ten
(10) days after receipt thereof (and deliver to Maker a
reasonably detailed description of such objections) and Maker
shall promptly revise the same in accordance with the process
described in this subparagraph until the Payee approves an Annual
Budget, provided, however, that if Payee shall not advise Maker
of its objections to any proposed Annual Budget within the
applicable time period set forth in this paragraph, then such
proposed Annual Budget shall be deemed approved by Payee. Each
such Annual Budget approved by Payee in accordance with terms
hereof shall hereinafter be referred to as an "Approved Annual
Budget." Until such time that Payee approves a proposed Annual
Budget, the most recently Approved Annual Budget shall apply
provided that, such Approved Annual Budget shall be adjusted to
reflect actual increases in real estate taxes, insurance premiums
and utilities expenses.
In the event that the Maker must incur an extraordinary
operating expense or capital expense not set forth in the Annual
Budget (each an, "Extraordinary Expense"), the Maker shall
promptly deliver to Payee a reasonably detailed explanation of
such proposed Extraordinary Expense for the Payee's approval.
For the purposes of this Note, "Cash Expenses" shall mean, for
any period, the operating expenses for the operation and
maintenance of the Mortgaged Property as set forth in an Approved
Annual Budget to the extent that such expenses are actually
incurred by Maker minus Mortgage Escrow Amounts (as defined in
the Mortgage) for such period.
(19) Any legal action or proceeding with respect to this
Note and any action for enforcement of any judgment in respect
thereof may be brought in the courts of the State of New York or
of the United States of America for the Southern District of New
York, and, by execution and delivery of this Note, Maker hereby
accepts for itself and in respect of its property, generally and
unconditionally, the non-exclusive jurisdiction of the aforesaid
courts and appellate courts from any thereof. Maker irrevocably
consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail,
postage prepaid, to Maker at the address for notices set forth
herein. Maker hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection
with this Maker brought in the courts referred to above and
hereby further irrevocably waives and agrees not to plead or
claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient
forum. Nothing herein shall affect the right of Payee to serve
process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against Maker in any other
jurisdiction.
IN WITNESS WHEREOF, Maker has caused this Note to be
executed and delivered as of the day and year first above
written.
MAKER
Signed and acknowledged
in the presence of:
Mark M.P.N.M., Limited Partnership, an
Alabama limited partnership
By: Mark M.P.N.M. Realty, Inc.,
Name: an Alabama corporation,
its general partner
By: /s/ Joshua Kane
Name: Name: Joshua Kane
Title: Senior Vice President
& CFO
Mark New Smyrna Limited
Partnership,
a Florida limited partnership
By: Mark New Smyrna Realty, Inc.,
Name: a Florida corporation,
its general partner
By: /s/ Joshua Kane
Name: Name: Joshua Kane
Title: Senior Vice President
& CFO
Signed and acknowledged
in the presence of:
Mark Troy, L.P., a New York limited
partnership
By: Mark Troy Realty, Inc., a
Name: New York corporation, its
general partner
By: /s/ Joshua Kane
Name: Name: Joshua Kane
Title: Senior Vice President
& CFO
Mark Park Plaza, L.P., a Georgia
limited partnership
By: Mark Park Plaza Realty, Inc.
Name: a Georgia corporation, its
general partner
By: /s/Joshua Kane
Name: Name: Joshua Kane
Title: Senior Vice President
& CFO
Mark Martintown, L.P., a South
Carolina limited partnership
By: Mark Martintown Realty Inc.,
Name: a South Carolina corporation,
its general partner
By: /s/ Joshua Kane
Name: Name: Joshua Kane
Title: Senior Vice President
& CFO
Signed and acknowledged
in the presence of: Mark Kings Fairground, L.P., a
Virginia limited partnership
By: Mark Kings Fairground Realty,
Name: Inc., a Virginia corporation,
its general partner
By: /s/ Joshua Kane
Name: Name: Joshua Kane
Title: Senior Vice President
& CFO
Mark Shillington, L.P. a
Pennsylvania limited partnership
By: Mark Shillington Realty Corp.,
Name: a Pennsylvania corporation,
its general partner
By: /s/ Joshua Kane
Name: Name: Joshua Kane
Title: Senior Vice President
& CFO
Mark 25th Street, L.P., a
Pennsylvania limited partnership
By: Mark 25th Street Realty, Inc.
Name: a Pennsylvania corporation,
its general partner
By: /s/ Joshua Kane
Name: Name: Joshua Kane
Title: Senior Vice President
& CFO
Signed and acknowledged
in the presence of:
Mark Three Realty, L.P., a
Pennsylvania limited partnership
By: Mark Three Realty Corp., a
Name: Pennsylvania corporation,
its general partner
By: /s/ Joshua Kane
Name: Name: Joshua Kane
Title: Senior Vice President
& CFO
Mark Four Realty, L.P., a
Pennsylvania limited partnership
By: Mark Four Realty Corp., a
Name: Pennsylvania corporation
its general partner
By: /s/ Joshua Kane
Name: Name: Joshua Kane
Title: Senior Vice President
& CFO
APPENDIX 1
Calculation of Prepayment Premium
The prepayment premium shall be equal to the greater of
(a) one percent (1%) of the portion of the principal amount of
the Note being repaid and (b) the product of (i) a fraction whose
numerator is an amount equal to the portion of the principal
balance of this Note being prepaid and whose denominator is the
entire outstanding principal balance of this Note on the date of
such prepayment (after subtracting the amount of any scheduled
principal payment due on such Payment Date), multiplied by (ii)
an amount equal to the remainder obtained by subtracting (x) an
amount equal to the entire outstanding principal balance of this
Note as of the date of such prepayment (after subtracting the
amount of any scheduled principal payment due on such Payment
Date) from (y) the present value as of the date of such
prepayment of the remaining scheduled payments of principal and
interest on this Note (including any final installment of
principal payable on the Maturity Date) determined by discounting
such payments at the Discount Rate (as hereinafter defined).
For purposes of this Note, "Discount Rate" shall mean the rate
which, when compounded monthly, is equivalent to the Treasury
Rate as of the date of the proposed prepayment.
EXHIBIT 1
Amounts due on this note shall be payable to Morgan Stanley
Mortgage Capital Inc. at the following address or as otherwise
directed:
Morgan Stanley Mortgage Capital Inc.
1585 Broadway
New York, New York 10036