PROMISSORY NOTE
U.S. $4,100,000.00 December 23, 1996
FOR VALUE RECEIVED, and at the times hereinafter
specified, MARK CENTERS LIMITED PARTNERSHIP, a Delaware limited
partnership ("Maker"), whose address is 600 Third Avenue,
Kingston, Pennsylvania 18604-1679, hereby promises to pay to the
order of ANCHOR NATIONAL LIFE INSURANCE COMPANY, an Arizona
corporation (hereinafter referred to, together with each
subsequent holder hereof, as "Holder"), at 1 SunAmerica Center,
Century City, Los Angeles, California 90067-6022, or at such
other address as may be designated from time to time hereafter by
any Holder, the principal sum of FOUR MILLION ONE HUNDRED
THOUSAND AND NO/100 THS DOLLARS ($4,100,000.00), together with
interest on the principal balance outstanding from time to time,
as hereinafter provided, in lawful money of the United States of
America.
By its execution and delivery of this promissory note
(this "Note"), Maker covenants and agrees as follows:
1. Interest Rate and Payments.
(a) The balance of principal outstanding from time to
time under this Note shall bear interest at the rate of seven and
ninety-three one hundredths percent (7.93%) per annum (the
"Original Interest Rate"), based on a three hundred sixty (360)
day year composed of twelve (12) months of thirty (30) days each.
(b) Interest only shall be payable on the date hereof,
in advance, for the period from and including the date hereof
through and including December 31, 1996.
(c) Commencing on February 1, 1997, and on the first
day of each month thereafter through and including December 1,
2003, combined payments of principal and interest shall be
payable, in arrears, in the amount of $32,870.12 each (such
amount representing an amount sufficient to fully amortize the
original principal amount of this Note over a twenty-two (22)
year period) (the "Amortization Period").
(d) The entire outstanding principal balance, together
with all accrued and unpaid interest and all other sums due
hereunder, shall be due and payable in full on January 1, 2004
(the "Original Maturity Date").
2. Holder's Extension Option; Net Operating Income.
(a) If Maker shall fail to pay the outstanding
principal balance of this Note and all accrued interest and other
charges due hereon at the Original Maturity Date, Holder shall
have the right, at Holder's sole option and discretion, to extend
the term of the loan evidenced by this Note (the "Loan") for an
additional period of five (5) years (the "Extension Term"). If
Holder elects to extend the term of the Loan, Maker shall pay all
fees of Holder incurred in connection with such extension,
including, but not limited to, attorneys' fees and title
insurance premiums. Maker shall execute all documents reasonably
requested by Holder to evidence and secure the Loan, as extended,
and shall obtain and provide to Holder any title insurance policy
or endorsement requested by Holder.
(b) Should Holder elect to extend the term of the Loan
as provided above, Holder shall (i) reset the interest rate borne
by the then-existing principal balance of the Loan to a rate per
annum (the "New Rate") equal to the greater of (A) the Original
Interest Rate, or (B) Holder's (or comparable lenders', if Holder
is no longer making such loans) then-prevailing interest rate for
five (5) year loans secured by properties similar to the Property
(hereinafter defined), as determined by Holder in its sole
discretion; (ii) re-amortize the then-existing principal balance
of the Loan over the remaining portion of the Amortization Period
(the "New Amortization Period"); (iii) have the right to require
Maker to enter into modifications of the non-economic terms of
the Loan Documents (hereinafter defined) as Holder may request
(the "Non-Economic Modifications"); and (iv) notwithstanding any
provision set forth in the Loan Documents to the contrary, have
the right to require Maker to make monthly payments into escrow
for insurance premiums and real property taxes, assessments and
similar governmental charges. Hence, monthly principal and
interest payments during the Extension Term shall be based upon
the New Rate, and calculated to amortize fully the outstanding
principal balance of the Loan over the New Amortization Period.
(c) If Holder elects to extend the term of the Loan,
Holder shall advise Maker of the New Rate on or prior to the
Original Maturity Date.
(d) In addition to the required monthly payments of
principal and interest set forth above, commencing on the first
day of the second month following the Original Maturity Date and
continuing on the first day of each month thereafter during the
Extension Term (each an "Additional Payment Date"), Maker shall
make monthly payments to Holder in an amount equal to all Net
Operating Income (hereinafter defined) attributable to the
Property for the calendar month ending on the last day of the
month that is two months preceding each such Additional Payment
Date. For example, assuming the Original Maturity Date is January
1, then Net Operating Income for the period from January 1
through January 31 shall be payable to Holder on March 1; Net
Operating Income for the period from February 1 through February
28 shall be payable to Holder on April 1, and so on.
(e) Holder shall deposit all such Net Operating Income
received from Maker into an account or accounts maintained at a
financial institution chosen by Holder or its servicer in its
sole discretion (the "Deposit Account") and all such funds shall
be invested in a manner acceptable to Holder in its sole
discretion. All interest, dividends and earnings credited to the
Deposit Account shall be held and applied in accordance with the
terms hereof.
(f) On the third Additional Payment Date and on each
third Additional Payment Date thereafter, Holder shall apply all
Excess Funds (hereinafter defined), if any, to prepayment of
amounts due under this Note, without premium or penalty.
(g) As security for the repayment of the Loan and the
performance of all other obligations of Maker under the Loan
Documents, Maker hereby assigns, pledges, conveys, delivers,
transfers and grants to Holder a first priority security interest
in and to: all Maker's right, title and interest in and to the
Deposit Account; all rights to payment from the Deposit Account
and the money deposited therein or credited thereto (whether then
due or in the future due and whether then or in the future on
deposit); all interest thereon; any certificates, instruments and
securities, if any, representing the Deposit Account; all claims,
demands,
general intangibles, choses in action and other rights or
interests of Maker in respect of the Deposit Account; any monies
then or at any time thereafter deposited therein; any increases,
renewals, extensions, substitutions and replacements thereof; and
all proceeds of the foregoing.
(h) From time to time, but not more frequently than
monthly, Maker may request a disbursement (a "Disbursement") from
the Deposit Account for capital expenses, tenant improvement
expenses, leasing commissions and special contingency expenses.
Holder may consent to or deny any such Disbursement in its sole
discretion.
(i) Upon the occurrence of any Event of Default
(hereinafter defined) (i) Maker shall not be entitled to any
further Disbursement from the Deposit Account; and (ii) Holder
shall be entitled to take immediate possession and control of the
Deposit Account (and all funds contained therein) and to pursue
all of its rights and remedies available to Holder under the Loan
Documents, at law and in equity.
(j) All of the terms and conditions of the Loan shall
apply during the Extension Term, except as expressly set forth
above, and except that no further extensions of the Loan shall be
permitted.
(k) For the purposes of the foregoing:
(i) "Excess Funds" shall mean, on any Additional
Payment Date, the amount of funds then existing in the Deposit
Account (including any Net Operating Income due on the applicable
Additional Payment Date), less an amount equal to the sum of
three regularly scheduled payments of principal and interest due
on this Note;
(ii) "Net Operating Income" shall mean, for any
particular period of time, Gross Revenue for the relevant period,
less Operating Expenses for the relevant period; provided,
however, that if such amount is equal to or less than zero (0),
Net Operating Income shall equal zero (0);
(iii) "Gross Revenue" shall mean all payments and
other revenues (exclusive, however, of any payments attributable
to sales taxes) received by or on behalf of Maker from all
sources related to the ownership or operation of the Property,
including, but not limited to, rents, room charges, parking fees,
interest,security deposits (unless required to be held in a
segregated account), business interruption insurance proceeds,
operating expense pass-through revenues and common area
maintenance charges, for the relevant period for which the
calculation of Gross Revenue is being made; and
(iv) "Operating Expenses" shall mean the sum of
all ordinary and necessary operating expenses actually paid by
Maker in connection with the operation of the Property during the
relevant period for which the calculation of Operating Expenses
is being made, including, but not limited to, (a) payments made
by Maker for taxes and insurance required under the Loan
Documents, and (b) monthly debt service payments as required
under this Note.
3. Budgets.
(a) Within fifteen (15) days following the Original
Maturity Date and on or before December 1 of each subsequent
calendar year, Maker shall deliver to Holder a proposed revenue
and expense budget for the Property for the remainder of the
calendar year in which the Original Maturity Date occurs or the
immediately succeeding calendar year (as applicable). Such budget
shall set forth Maker's projection of Gross Revenue and Operating
Expenses for the applicable calendar year, which shall be subject
to Holder's reasonable approval. Once a proposed budget has been
reviewed and approved by Holder, and Maker has made all revisions
requested by Holder, if any, the revised budget shall be
delivered to Holder and shall thereafter become the budget for
the Property hereunder (the "Budget") for the applicable calendar
year. If Maker and Holder are unable to agree upon a Budget for
any calendar year, the budgeted Operating Expenses (excluding
extraordinary items) provided in the Budget for the Property for
the preceding calendar year shall be considered the Budget for
the Property for the subject calendar year until Maker and Holder
agree upon a new Budget for such calendar year.
(b) During the Extension Term, Maker shall operate the
Property in accordance with the Budget for the applicable
calendar year, and the total of expenditures relating to the
Property exceeding one hundred and five percent (105%) of the
aggregate of such expenses set forth in the Budget for the
applicable time period shall not be treated as Operating Expenses
for the purposes of calculating "Net Operating Income," without
the prior written consent of Holder except for emergency
expenditures which, in the Maker's good faith judgment, are
reasonably necessary to protect, or avoid immediate danger to,
life or property.
4. Reports.
(a) During the Extension Term, Maker shall deliver to
Holder all financial statements reasonably required by Holder to
calculate Net Operating Income, including, without limitation, a
monthly statement to be delivered to Holder concurrently with
Maker's payment of Net Operating Income that sets forth the
amount of Net Operating Income accompanying such statement and
Maker's calculation of Net Operating Income for the relevant
calendar month. Such statements shall be certified by an
executive officer of Maker or Maker's manager, managing member or
general partner (as applicable) as having been prepared in
accordance with the terms hereof and to be true, accurate and
complete in all material respects.
(b) In addition, on or before February 1 of each
calendar year during the Extension Term, Maker shall submit to
Holder an annual income and expense statement for the Property
which shall include the calculation of Gross Revenue, Operating
Expenses and Net Operating Income for the preceding calendar year
and shall be accompanied by Maker's reconciliation of any
difference between the actual aggregate amount of the Net
Operating Income for such calendar year and the aggregate amount
of Net Operating Income for such calendar year actually remitted
to Holder. All such statements shall be certified by an executive
officer of Maker or Maker's manager, managing member or general
partner (as applicable) as having been prepared in accordance
with the terms hereof and to be true, accurate and complete in
all material respects. If any such annual financial statement
discloses any inconsistency between the calculation of Net
Operating Income and the amount of Net Operating Income actually
remitted to Holder, Maker shall immediately remit to Holder the
amount of any underpayment of Net Operating Income for such
calendar year or, in the event of an overpayment by Maker, such
amount may be withheld from any subsequent payment of Net
Operating Income required hereunder.
(c) Holder may notify Maker within ninety (90) days
after receipt of any statement or report required hereunder that
Holder disputes any computation or item contained in any portion
of such statement or report. If Holder so notifies Maker, Holder
and Maker shall meet in good faith within twenty (20) days after
Holder's notice to Maker to resolve such disputed items. If,
despite such good faith efforts, the parties are unable to
resolve the dispute at such meeting or within ten (10) days
thereafter, the items shall be resolved by an independent
certified public accountant designated by Holder within fifteen
(15) days after such ten (10) day period. The determination of
such accountant shall be final. All fees of such accountant shall
be paid by Maker. Maker shall remit to Holder any additional
amount of Net Operating Income found to be due for such periods
within ten (10) days after the resolution of such dispute by the
parties or the accountant's determination, as applicable. The
amount of any overpayment found to have been made for such
periods may be withheld from any required future remittance of
Net Operating Income.
(d) Maker shall at all times keep and maintain full
and accurate books of account and records adequate to reflect
correctly all items required in order to calculate Net Operating
Income.
5. Prepayment.
(a) During the first thirty (30) months after the date
of this Note, Maker shall have no right to prepay all or any part
of this Note.
(b) At any time after the first thirty (30) months
after the date of this Note, Maker shall have the right to prepay
the full principal amount of this Note and all accrued but unpaid
interest hereon as of the date of prepayment, provided that
(i) Maker gives not less than thirty (30) days' prior written
notice to Holder of Maker's election to prepay this Note, and
(ii) Maker pays a prepayment premium to Holder equal to the
greater of (A) one percent (1%) of the outstanding principal
amount of this Note or (B) the Present Value of this Note
(hereinafter defined), less the amount of principal being
prepaid, calculated as of the prepayment date.
(c) Holder shall notify Maker of the amount and basis
of determination of the prepayment premium. Holder shall not be
obligated to accept any prepayment of the principal balance of
this
Note unless such prepayment is accompanied by the applicable
prepayment premium and all accrued interest and other sums due
under this Note.
(d) Except for making payments of Net Operating Income
as required above, in no event shall Maker be permitted to make
any partial prepayments of this Note.
(e) If Holder accelerates this Note for any reason,
then in addition to Maker's obligation to pay the then
outstanding principal balance of this Note and all accrued but
unpaid interest thereon, Maker shall pay an additional amount
equal to the prepayment premium that would be due to Holder if
Maker were voluntarily prepaying this Note at the time that such
acceleration occurred, or if under the terms hereof no voluntary
prepayment would be permissible on the date of such acceleration,
Maker shall pay a prepayment premium calculated as set forth in
the Mortgage (hereinafter defined).
(f) For the purposes of the foregoing:
(i) The "Present Value of this Note" with respect
to any prepayment of this Note, as of any date, shall be
determined by discounting all scheduled payments of principal and
interest remaining to maturity of this Note, attributed to the
amount being prepaid, at the Discount Rate. If prepayment occurs
on a date other than a regularly scheduled payment date, the
actual number of days remaining from the prepayment date to the
next regularly scheduled payment date will be used to discount
within such period.
(ii) The "Discount Rate" is the rate which, when
compounded monthly, is equivalent to the Treasury Rate, when
compounded semi-annually.
(iii) The "Treasury Rate" is the semi-annual yield
on the Treasury Constant Maturity Series with maturity equal to
the remaining weighted average life of this Note, for the week
prior to the prepayment date, as reported in Federal Reserve
Statistical Release H.15 - Selected Interest Rates, conclusively
determined by Holder on the prepayment date. The rate will be
determined by linear interpolation between the yields reported in
Release H.15, if necessary. In the event Release H.15 is no
longer published, Holder shall select a comparable publication to
determine the Treasury Rate.
(g) Holder shall not be obligated actually to reinvest
the amount prepaid in any treasury obligations as a condition
precedent to receiving any prepayment premium.
(h) Notwithstanding the foregoing, (i) at any time
during the Extension Term, Maker shall have the right to prepay
the full principal amount of this Note and all accrued but unpaid
interest thereon as of the date of prepayment, without prepayment
penalty or premium thereon; and (ii) no prepayment premium will
be due from Maker if prepayment results from principal reductions
required due to the applications of insurance proceeds or
proceeds from eminent domain proceedings.
6. Payments. Whenever any payment to be made under
this Note shall be stated to be due on a Saturday, Sunday or
public holiday or the equivalent for banks generally under the
laws of the Commonwealth of Pennsylvania (any other day being a
"Business Day"), such payment may be made on the next succeeding
Business Day.
7. Default Rate.
(a) The entire balance of principal, interest, and
other sums due upon the maturity hereof, by acceleration or
otherwise, shall bear interest from the date due until paid at
the greater of (i) eighteen percent (18%) per annum and (ii) a
per annum rate equal to five percent (5%) over the prime rate
(for corporate loans at large United States money center
commercial banks) published in The Wall Street Journal on the
first business day of each month (the "Default Rate"); provided,
however, that such rate shall not exceed the maximum permitted by
applicable state or federal law. In the event The Wall Street
Journal is no longer published or no longer publishes such prime
rate, Holder shall select a comparable reference.
(b) If any payment under this Note is not made when
due, interest shall accrue at the Default Rate from the date such
payment was due until payment is actually made.
8. Late Charges. In addition to interest as set forth
herein, Maker shall pay Holder a late charge equal to four
percent (4%) of any amounts due under this Note in the event any
such amount is not paid when due.
9. Application of Payments. All payments hereunder
shall be applied first to the payment of late charges, if any,
then to the payment of prepayment premiums, if any, then to the
repayment of any sums advanced by Holder for the payment of any
insurance premiums, taxes, assessments, or other charges against
the property securing this Note (together with interest thereon
at the Default Rate from the date of advance until repaid), then
to the payment of accrued and unpaid interest, and then to the
reduction of principal.
10. Immediately Available Funds. Payments under this
Note shall be payable in immediately available funds without
setoff, counterclaim or deduction of any kind.
11. Security. This Note is secured by an Open-End
Mortgage, Security Agreement, Fixture Filing, Financing Statement
and Assignment of Leases and Rents of even date herewith granted
by Maker for the benefit of the named Holder hereof (the
"Mortgage"), encumbering certain real property and improvements
thereon commonly known as Pittston Plaza, Route 11 By-Pass, City
of Pittston, Luzerne County, Pennsylvania, as more particularly
described in such Mortgage (the "Property").
12. Certain Definitions. Capitalized terms used herein
and not otherwise defined shall have the meanings set forth in
the Mortgage.
13. Event of Default. Each of the following events
shall constitute an "Event of Default" hereunder and under the
Mortgage and each other document securing or executed in
connection with this Note (collectively, the "Loan Documents"),
and any default or Event of Default under any of such documents
shall constitute an Event of Default hereunder and under each
other Loan Document:
(a) any failure to pay when due any sum hereunder or
failure to perform any covenant or agreement herein contained; or
(b) if, at any time during the Extension Term, Gross
Revenue for any calendar month shall be less than ninety-three
percent (93%) of the amount of projected Gross Revenue for such
month set forth in the applicable Budget.
14. Acceleration. Upon the occurrence of any Event of
Default, the entire balance of principal, accrued interest, and
other sums owing hereunder shall, at the option of Holder, become
at once due and payable without notice or demand. Upon the
occurrence of an Event of Default described in Section 13(b),
hereof, Holder shall have the option, in its sole discretion, to
either (a) exercise any remedies available to it under the Loan
Documents, at law or in equity, or (b) require Maker to submit a
new proposed budget for Holder's approval. If Holder agrees to
accept such new proposed budget, then such budget shall become
the Budget for all purposes hereunder.
15. Conditions Precedent. Maker hereby certifies and
declares that all acts, conditions and things required to be done
and performed and to have happened precedent to the creation and
issuance of this Note, and to constitute this Note the legal,
valid and binding obligation of Maker, enforceable in accordance
with the terms hereof, have been done and performed and happened
in due and strict compliance with all applicable laws.
16. Certain Waivers and Consents. Maker and all
parties now or hereafter liable for the payment hereof, primarily
or secondarily, directly or indirectly, and whether as endorser,
guarantor, surety, or otherwise, hereby severally (a) waive
presentment, demand, protest, notice of protest and/or dishonor,
and all other demands or notices of any sort whatever with
respect to this Note, (b) consent to impairment or release of
collateral, extensions of time for payment, and acceptance of
partial payments before, at, or after maturity, (c) waive any
right to require Holder to proceed against any security for this
Note before proceeding hereunder, (d) waive diligence in the
collection of this Note or in filing suit on this Note, and
(e) agree to pay all costs and expenses, including reasonable
attorneys' fees, which may be incurred in the collection of this
Note or any part thereof or in preserving, securing possession
of, and realizing upon any security for this Note.
17. Usury Savings Clause. The provisions of this Note
and of all agreements between Maker and Holder are, whether now
existing or hereinafter made, hereby expressly limited so that in
no contingency or event whatever, whether by reason of
acceleration of the maturity hereof, prepayment, demand for
payment or otherwise, shall the amount paid, or agreed to be
paid, to Holder for the use, forbearance, or detention of the
principal hereof or interest hereon, which remains unpaid from
time to time, exceed the maximum amount permissible under
applicable law, it particularly being the intention of the
parties hereto to conform strictly to Pennsylvania and Federal
law, whichever is applicable. If from any circumstance whatever,
the performance or fulfillment of any provision hereof or of any
other agreement between Maker and Holder shall, at the time
performance or fulfillment of such provision is due, involve or
purport to require any payment in excess of the limits prescribed
by law, then the obligation to be performed or fulfilled is
hereby reduced to the limit of such validity, and if from any
circumstance whatever Holder should ever receive as interest an
amount which would exceed the highest lawful rate, the amount
which would be excessive interest shall be applied to the
reduction of the principal balance owing hereunder (or, at
Holder's option, be paid over to Maker) and shall not be counted
as interest. To the extent permitted by applicable law,
determination of the legal maximum amount of interest shall at
all times be made by amortizing, prorating, allocating and
spreading in equal parts during the period of the full stated
term of this Note, all interest at any time contracted for,
charged, or received from Maker in connection with this Note and
all other agreements between Maker and Holder, so that the actual
rate of interest on account of the indebtedness represented by
this Note is uniform throughout the term hereof.
18. Non-Recourse; Exceptions to Non-Recourse. Except
as expressly hereinafter set forth, the recourse of Holder with
respect to the obligations evidenced by this Note shall be solely
to the Property, Chattels, and Intangible Personalty (as such
terms are defined in the Mortgage). Notwithstanding anything to
the contrary contained in this Note or in any Loan Document,
nothing shall be deemed in any way to impair, limit or prejudice
the rights of Holder (a) in foreclosure or execution proceedings
or in any ancillary proceedings brought to facilitate Holder's
foreclosure on the Property or any portion thereof; (b) to
recover from Maker damages or costs (including without limitation
reasonable attorneys' fees) incurred by Holder as a result of
waste by Maker; (c) to recover from Maker any condemnation or
insurance proceeds attributable to the Property which were not
paid to Holder or used to restore the Property in accordance with
the terms of the Mortgage; (d) to recover from Maker any rents,
profits, security deposits, advances, rebates, prepaid rents or
other similar sums attributable to the Property collected by or
for Maker following an Event of Default under any Loan Document
and not properly applied to the reasonable fixed and operating
expenses of the Property, including payments of this Note; (e) to
pursue the personal liability of Maker under the provisions of
Sections 5.10 or 5.11 of the Mortgage, including any
indemnification provisions under such Sections; (f) to exercise
any specific rights or remedies afforded Holder under any other
provisions of the Loan Documents or by law or in equity (or to
recover under any guarantee or suretyship agreement given in
connection with this Note); (g) to recover from Maker the amount
of any accrued taxes, assessments, and/or utility charges
affecting the Property (whether or not the same have been billed
to Maker) that are either unpaid by Maker or paid by Holder under
the Mortgage and to collect from Maker any sums expended by
Holder in fulfilling the obligations of Maker, as lessor, under
any leases affecting the Property; (h) to pursue any personal
liability of Maker and Guarantor under the Environmental
Indemnity Agreement; and (i) to recover from Maker the amount of
any loss suffered by Holder (that would otherwise be covered by
insurance) as a result of Maker's failure to maintain any
insurance required under the terms of any Loan Document. The
agreement contained in this paragraph to limit the personal
liability of Maker shall become null and void and be of no
further force and effect in the event (i) that the Property or
any part thereof or any interest therein, or any interest in
Maker, shall be further encumbered by a voluntary lien securing
any obligation upon which Maker or any general partner, principal
or affiliate of Maker shall be personally liable for repayment,
whether as obligor or guarantor; (ii) of any breach or violation
of Section 5.4, 5.5 or 5.7 of the Mortgage; (iii) of any fraud or
misrepresentation by Maker in connection with the Property, the
Loan Documents or the application made by Maker for the loan
evidenced by this Note; or (iv) of any execution, amendment,
modification or termination of any lease of any portion of the
Property without the prior written consent of Holder if such
consent is required under the terms of the Loan Documents. For
purposes of the foregoing, "affiliate" shall mean any individual,
corporation, trust, partnership or any other person or entity
controlled by, controlling or under common control with Maker. A
person or entity of any nature shall be presumed to have control
when it possesses the power, directly or indirectly, to direct,
or cause the direction of, the management or policies of another
person or entity, whether through ownership of voting securities,
by contract, or otherwise.
19. Severability. If any provision hereof or of any
other document securing or related to the indebtedness evidenced
hereby is, for any reason and to any extent, invalid or
unenforceable, then neither the remainder of the document in
which such provision is contained, nor the application of the
provision to other persons, entities, or circumstances, nor any
other document referred to herein, shall be affected thereby, but
instead shall be enforceable to the maximum extent permitted by
law.
20. Transfer of Note. Each provision of this Note
shall be and remain in full force and effect notwithstanding any
negotiation or transfer hereof and any interest herein to any
other Holder or participant.
21. Governing Law. Regardless of the place of its
execution, this Note shall be construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania.
22. Jurisdiction and Venue. Maker consents to the
jurisdiction and venue of the Federal and State courts located in
Pennsylvania with respect to any suit arising out of, relating to
or mentioning this Note.
23. Time of Essence. Time is of the essence of this
Note.
24. Remedies Cumulative. The remedies provided to
Holder in this Note, the Mortgage and the other Loan Documents
are cumulative and concurrent and may be exercised singly,
successively or together against Maker, the Property, and other
security, or any guarantor of this Note, at the sole and absolute
discretion of the Holder.
25. No Waiver. Holder shall not by any act or
omission be deemed to waive any of its rights or remedies
hereunder unless such waiver is in writing and signed by the
Holder and then only to the extent specifically set forth
therein. A waiver of one event shall not be construed as
continuing or as a bar to or waiver of any right or remedy
granted to Holder hereunder in connection with a subsequent
event.
26. Joint and Several Obligation. If Maker is more
than one person or entity, then (a) all persons or entities
comprising Maker are jointly and severally liable for all of the
Maker's obligations hereunder; (b) all representations,
warranties, and covenants made by Maker shall be deemed
representations, warranties, and covenants of each of the persons
or entities comprising Maker; (c) any breach, Default or Event of
Default by any of the persons or entities comprising Maker
hereunder shall be deemed to be a breach, Default, or Event of
Default of Maker; and (d) any reference herein contained to the
knowledge or awareness of Maker shall mean the knowledge or
awareness of any of the persons or entities comprising Maker.
27. Warrant of Attorney for Confession of Judgment.
(a) MAKER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS
ANY ATTORNEY OR ANY CLERK OF ANY COURT OF RECORD TO APPEAR FOR
AND CONFESS JUDGMENT AGAINST MAKER, AS TO ANY TERM, AT ANY TIME
AFTER THE OCCURRENCE OF AN EVENT OF DEFAULT UNDER THIS NOTE OR
UNDER ANY OTHER LOAN DOCUMENT (i) FOR SUCH SUMS AS ARE DUE AND
MAY BECOME DUE PURSUANT TO THIS NOTE OR ANY OF THE OTHER LOAN
DOCUMENTS (THE "INDEBTEDNESS"), AND (ii) IN ANY ACTION OF
EJECTMENT OR POSSESSION INSTITUTED BY HOLDER TO OBTAIN POSSESSION
OF ANY COLLATERAL SECURING THIS NOTE OR SECURING ANY OF THE
INDEBTEDNESS, IN EITHER CASE WITH OR WITHOUT DECLARATION, WITH
COSTS OF SUIT, WITHOUT STAY OR EXECUTION AND WITH A REASONABLE
AMOUNT AT AN HOURLY RATE NOT EXCEEDING $250.00 PER HOUR, FOR LIEN
PRIORITY PURPOSES, ADDED FOR ATTORNEYS' COLLECTION FEES. TO THE
EXTENT PERMITTED BY LAW, MAKER RELEASES ALL ERRORS IN SUCH
PROCEEDINGS. IF A COPY OF THIS NOTE, VERIFIED BY AFFIDAVIT BY OR
ON BEHALF OF HOLDER, SHALL HAVE BEEN FILED IN SUCH ACTION, IT
SHALL NOT BE NECESSARY TO FILE THE ORIGINAL NOTE AS A WARRANT OF
ATTORNEY. THE AUTHORITY AND POWER TO APPEAR FOR AND ENTER
JUDGMENT AGAINST MAKER SHALL NOT BE EXHAUSTED BY THE INITIAL
EXERCISE THEREOF, AND THE SAME MAY BE EXERCISED, FROM TIME TO
TIME, AS OFTEN AS HOLDER SHALL DEEM NECESSARY AND DESIRABLE, AND
THIS NOTE SHALL BE SUFFICIENT WARRANT THEREFOR. HOLDER MAY ENTER
ONE OR MORE JUDGMENTS IN THE SAME OR DIFFERENT COUNTIES FOR ALL
OR PART OF THE SECURED OBLIGATIONS, WITHOUT REGARD TO WHETHER
JUDGMENT HAS BEEN ENTERED ON MORE THAN ONE OCCASION FOR THE SAME
SECURED OBLIGATIONS. IN THE EVENT ANY JUDGMENT ENTERED AGAINST
MAKER IS STRICKEN OR OPENED UPON APPLICATION BY MAKER OR ON ITS
BEHALF FOR ANY REASON WHATSOEVER, HOLDER IS HEREBY AUTHORIZED AND
EMPOWERED TO AGAIN APPEAR FOR AND CONFESS JUDGMENT AGAINST MAKER;
SUBJECT, HOWEVER, TO THE LIMITATION THAT SUCH SUBSEQUENT ENTRY OF
JUDGMENT BY HOLDER SHALL HAVE THE EFFECT OF CURING ANY ERRORS IN
THE PRIOR PROCEEDING, AND ONLY TO THE EXTENT THAT SUCH EFFORTS
ARE SUBJECT TO CURE IN THE LATER PROCEEDINGS. THE JUDGMENT
CONFERRED HEREIN IS NON-RECOURSE TO MAKER OR ITS RESPECTIVE
PROPERTIES (OTHER THAN THE PROPERTY), EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED IN THIS NOTE OR THE OTHER LOAN DOCUMENTS.
(b) The remedies of Holder provided herein and in the
other Loan Documents and the warrant of attorney herein or
therein contained, are cumulative and concurrent, and may be
pursued singly, successively and together, at the sole discretion
of the Holder, and may be exercised as often as occasion therefor
shall occur; and the failure to exercise any such right or remedy
shall in no event be construed as a waiver or release of the
same.
(c) Maker hereby releases the Holder and its attorney
or attorneys from all errors, defects and imperfections
whatsoever of a procedural nature in entering judgment by
confession hereon as aforesaid or in issuing any process or
instituting any proceedings relating thereto and hereby waives
all benefit that might accrue to the Maker by virtue of any
present or future laws exempting the Property, or any part of the
proceeds arising from any sale of the Property, from attachment,
levy or sale under execution, or providing for any stay of
execution, exemption from civil process or extension of time.
Maker agrees that the Property may be sold to satisfy any
judgment entered on this Note or any of the other Loan Documents,
in whole or in part and in any order desired by the Holder.
(d) MAKER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED BY
COUNSEL IN CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS
NOTE AND THAT IT UNDERSTANDS THIS PROVISION FOR CONFESSION OF
JUDGMENT, AND MAKER WAIVES ANY RIGHT TO NOTICE OR A HEARING IT
MIGHT OTHERWISE HAVE BEFORE ENTRY OF JUDGMENT.
28. WAIVER OF JURY TRIAL. MAKER AND HOLDER KNOWINGLY,
IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING
OR COUNTERCLAIM BASED ON THIS NOTE, OR ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS NOTE, THE MORTGAGE, OR ANY OTHER LOAN
DOCUMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO OR TO
ANY LOAN DOCUMENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
MAKER AND HOLDER TO ENTER INTO THE LOAN TRANSACTION EVIDENCED BY
THIS NOTE.
----- Maker
----- Holder
29. WAIVER OF PREPAYMENT RIGHT WITHOUT PENALTY. MAKER
HEREBY EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE UNDER APPLICABLE
LAW TO PREPAY THIS NOTE, IN WHOLE OR IN PART, WITHOUT PREPAYMENT
PREMIUM, UPON ACCELERATION OF THE MATURITY DATE OF THIS NOTE, AND
AGREES THAT, IF FOR ANY REASON A PREPAYMENT OF ALL OR ANY PART OF
THIS NOTE IS MADE, WHETHER VOLUNTARILY OR FOLLOWING ANY
ACCELERATION OF THE MATURITY DATE OF THIS NOTE BY HOLDER ON
ACCOUNT OF THE OCCURRENCE OF ANY EVENT OF DEFAULT ARISING FOR ANY
REASON, INCLUDING, WITHOUT LIMITATION, AS A RESULT OF ANY
PROHIBITED OR RESTRICTED TRANSFER, FURTHER ENCUMBRANCE OR
DISPOSITION OF THE PROPERTY OR ANY PART THEREOF SECURING THIS
NOTE, THEN MAKER SHALL BE OBLIGATED TO PAY, CONCURRENTLY WITH
SUCH PREPAYMENT, THE PREPAYMENT PREMIUM PROVIDED FOR IN THIS NOTE
OR, IN THE EVENT OF PREPAYMENT FOLLOWING ACCELERATION OF THE
MATURITY DATE HEREOF WHEN THIS NOTE IS CLOSED TO PREPAYMENT, AS
PROVIDED IN THE MORTGAGE. MAKER HEREBY DECLARES THAT HOLDER'S
AGREEMENT TO MAKE THE LOAN EVIDENCED BY THIS NOTE AT THE INTEREST
RATE AND FOR THE TERM SET FORTH IN THIS NOTE CONSTITUTES ADEQUATE
CONSIDERATION, GIVEN INDIVIDUAL WEIGHT BY MAKER, FOR THIS WAIVER
AND AGREEMENT.
IN WITNESS WHEREOF and intending to be legally bound,
Maker has duly executed this Note as of the date first above
written.
MARK CENTERS LIMITED PARTNERSHIP, a Delaware
limited partnership
By: Mark Centers Trust, a Maryland business
trust, its General Partner
By: /s/ Joshua Kane
Name: Joshua Kane
Title: Senior Vice President and CFO