PROMISSORY NOTE
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$5,535,000 Harrisburg, Pennsylvania
________________, 2003
To be delivered on ________________, 2003
FOR VALUE RECEIVED, the undersigned, NEWPORT PLAZA ASSOCIATES, L.P., a
Delaware limited partnership, d/b/a Newport Plaza Shopping Center, with an
office in care of Cedar Bay Realty Advisors, Inc., 44 South Bayles Avenue, Suite
304, Port Washington, New York 11050 ("Maker"), promises to pay to the order of
CITIZENS BANK OF PENNSYLVANIA, a Pennsylvania state chartered savings bank, with
an office at 2001 Market Street, 6th Floor, Philadelphia, Pennsylvania
19103-7053, or any successor holder of this Note ("Payee"), the principal sum of
FIVE MILLION FIVE HUNDRED THIRTY FIVE THOUSAND DOLLARS ($5,535,000), or so much
thereof as has been advanced to Maker pursuant to the Loan Agreement (as
hereinafter defined), together with interest at the rates and at the times
specified in the Loan Agreement.
1. Loan Documents. This Note is issued pursuant to that certain Loan
Agreement dated this date (as amended, restated, supplemented or otherwise
modified from time to time, the "Loan Agreement"), between Maker and Payee, to
which Loan Agreement reference is hereby made for a statement of all of the
terms and conditions under which the Loan is being made, and is entitled to the
benefit and security of the Loan Documents. Capitalized terms used in this Note
without definition shall have the same meanings ascribed to those terms in the
Loan Agreement.
2. Principal and Interest. The principal amount of the indebtedness
evidenced hereby shall be payable in the amounts and on the dates specified in
the Loan Agreement. Interest thereon shall be paid until such principal amounts
are paid in full at such interest rates and at such times as are specified in
the Loan Agreement.
3. Payments. Payments of both principal and interest shall be made
without set-off, counterclaim or other deduction of any nature at the office of
Payee located at 2001 Market Street, 6th Floor, Philadelphia, Pennsylvania
19103-7053, in immediately available funds and otherwise in accordance with the
requirements of the Loan Agreement.
4. Event of Default; Acceleration. Upon and after the occurrence of an
Event of Default, this Note may, as provided in the Loan Agreement, and without
demand, notice or legal process of any kind (except as may be expressly provided
in the Loan Documents), be declared, and immediately shall become, due and
payable.
5. Remedies. Upon and after the occurrence of an Event of Default,
Maker's payment and performance obligations hereunder and under the Loan
Documents may be enforced and recovered in whole or in part at any time and from
time to time by one or more of the remedies provided to Payee in the Loan
Agreement or in any other Loan Document or as otherwise provided at law or in
equity, all of which remedies are cumulative and concurrent.
6. Waivers. Maker waives diligence, demand, presentment, protest and
notice of nonpayment, protest and any renewals or extensions of this Note.
7. Governing Law. This Note shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
8. Amendments. This Note may only be amended by an instrument in
writing signed by both Maker and Payee.
9. Captions. The captions or headings of the paragraphs of this Note
are for convenience only and shall not control or affect the meaning or
construction of any of the terms or provisions of this Note.
10. CONFESSION OF JUDGMENT. THE FOLLOWING PARAGRAPH SETS FORTH A
WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST MAKER. IN GRANTING THIS WARRANT
OF ATTORNEY, MAKER HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, AND ON THE
ADVICE OF ITS SEPARATE COUNSEL, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS WITH
RESPECT TO SUCH WARRANT AND ANY EXECUTION THEREON THAT MAKER MAY HAVE TO PRIOR
NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE CONSTITUTION AND LAWS OF THE
UNITED STATES AND THE COMMONWEALTH OF PENNSYLVANIA.
UPON THE OCCURRENCE OF AN EVENT OF DEFAULT HEREUNDER, MAKER HEREBY
IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF RECORD, OR THE PROTHONOTARY
OR CLERK OF ANY COURT IN THE COMMON WEALTH OF PENNSYLVANIA OR ELSEWHERE, TO
APPEAR FOR MAKER AT ANY TIME OR TIMES, IN ANY SUCH COURT IN ANY ACTION BROUGHT
AGAINST MAKER WITH RESPECT TO THE AGGREGATE AMOUNTS PAYABLE HEREUNDER, WITH OR
WITHOUT DECLARATION FILED, AS OF ANY TERM, AND THEREIN TO CONFESS OR ENTER
JUDGMENT AGAINST MAKER FOR ALL SUMS PAYABLE BY MAKER TO PAYEE HEREUNDER, AS
EVIDENCED BY AN AFFIDAVIT SIGNED BY A DULY AUTHORIZED DESIGNEE OF PAYEE SETTING
FORTH SUCH AMOUNT THEN DUE FROM MAKER TO PAYEE, PLUS REASONABLE ATTORNEYS FEES,
WITH COSTS OF SUIT, RELEASE OF PROCEDURAL ERRORS. IF A COPY OF THIS NOTE,
VERIFIED BY AFFIDAVIT, SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT BE
NECESSARY TO FILE THE ORIGINAL AS A WARRANT OF ATTORNEY. MAKER WAIVES THE RIGHT
TO ANY STAY OF EXECUTION AND THE BENEFIT OF ALL EXEMPTION LAWS NOW OR HEREAFTER
IN EFFECT. NO SINGLE EXERCISE OF THE FOREGOING WARRANT AND POWER TO BRING ANY
ACTION OR CONFESS JUDGMENT THEREIN SHALL BE DEEMED TO EXHAUST THE POWER, BUT THE
POWER SHALL CONTINUE UNDIMINISHED AND MAY BE EXERCISED FROM TIME TO TIME AS
OFTEN AS PAYEE SHALL ELECT UNTIL ALL AMOUNTS PAYABLE TO PAYEE HEREUNDER SHALL
HAVE BEEN PAID IN FULL.
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11. WAIVER OF JURY TRIAL. MAKER AND PAYEE (BY ACCEPTANCE OF THIS NOTE)
MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A
TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS NOTE OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE
EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING,
WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR
ACTIONS OF PAYEE RELATING TO THE ADMINISTRATION OF THE LOAN OR ENFORCEMENT OF
THE LOAN DOCUMENTS, AND AGREE THAT NEITHER PARTY WILL SEEK TO CONSOLIDATE ANY
SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT
BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, MAKER HEREBY WAIVES ANY RIGHT IT MAY
HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. MAKER CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF PAYEE HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT PAYEE WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. THIS WAIVER CONSTITUTES A
MATERIAL INDUCEMENT FOR PAYEE TO ACCEPT THIS NOTE AND MAKE THE LOAN.
12. Successors and Assigns. This Note shall bind Maker and its
successors and assigns and the benefits hereof shall inure to the benefit of
Payee and its successors and assigns.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, Maker has
caused this Note to be duly executed as of the day and year first above written.
NEWPORT PLAZA ASSOCIATES, L.P., a
Delaware limited partnership, d/b/a Newport
Plaza Shopping Center, by its sole
general partner, as follows:
CIF-Newport Plaza Associates, LLC, a
Delaware limited liability company,
by its sole member, as follows:
Cedar Income Fund Partnership, L.P., a
Delaware limited partnership, by its sole
general partner, as follows:
Cedar Income Fund, Ltd., a
Maryland corporation
Attest: By:
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Stuart H. Widowski Brenda J. Walker
Secretary Vice President