PROMISSORY NOTE
$26,743,000.00 November 3, 2003
Philadelphia, Pennsylvania
FOR VALUE RECEIVED, FIREHOUSE REALTY CORP., a Pennsylvania corporation
("Firehouse"), REED DEVELOPMENT ASSOCIATES, INC., a Pennsylvania corporation
("Reed"), SOUTH RIVER VIEW PLAZA, INC., a Pennsylvania corporation ("South"),
RIVER VIEW DEVELOPMENT CORP., a Pennsylvania corporation ("Development"),
RIVERVIEW COMMONS, INC., a Pennsylvania corporation ("Commons"; and together
with Firehouse, Reed, South and Development, "Borrower"), each having an address
c/o Tower Investments, Inc., One Reed Street, Philadelphia, Pennsylvania 19147,
hereby unconditionally promise to pay to the order of CEDAR LENDER LLC, a
Delaware limited liability company having an address at 44 South Bayles Avenue,
Port Washington, New York 11050 ("Lender"), or at such other place as the holder
hereof may from time to time designate in writing, the principal sum of Twenty
Six Million Seven Hundred Forty-Three Thousand ($26,743,000.00) Dollars,
constituting the principal amount of the Loan made to Borrower pursuant to the
Loan Agreement, of even date herewith between Borrower and Lender (as the same
may be amended from time to time, the "Loan Agreement"). Any undefined
capitalized terms used herein shall have the meanings ascribed to them in the
Loan Agreement.
1. PAYMENT TERMS
Borrower agrees to pay the principal sum of this Note and interest on
the unpaid principal sum of this Note from time to time outstanding at the rates
and at the times specified in the Loan Agreement, and in any event with a final
maturity, at which time all amounts remaining outstanding under this Note shall
be repaid in full, on the Maturity Date.
2. DEFAULT AND ACCELERATION
(i) The whole of the principal sum of this Note, (ii) interest, default
interest and other sums, as provided in this Note, (iii) all other monies or
costs agreed or provided to be paid by Borrower in this Note or in the other
Loan Documents (the sums referred to in (i) through (iii) above shall
collectively be referred to as the "Debt") shall become immediately due and
payable at the option of Lender upon the happening of any Event of Default.
3. LOAN DOCUMENTS
This Note is secured by the Security Agreement. All of the terms,
covenants and conditions contained in the Security Agreement and the other Loan
Documents are hereby made a part of this Note to the same extent and with the
same force as if they were fully set forth herein. In the event of a conflict or
inconsistency between the terms of this Note and the Loan Agreement, the terms
and provisions of the Loan Agreement shall govern.
4. SAVINGS CLAUSE
This Note is subject to the express condition that at no time shall
Borrower be obligated or required to pay interest on the principal balance due
hereunder at a rate which could 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 contract or agree to pay. If by the
terms of this Note, Borrower is at any time required or obligated to pay
interest on the principal balance due hereunder at a rate in excess of such
maximum rate, the Interest Rate or the Default Rate, as the case may be, shall
be deemed to be immediately reduced to such maximum rate and all previous
payments in excess of the maximum rate shall be deemed to have been payments in
reduction of principal and not on account of the interest due hereunder. All
sums paid or agreed to be paid to Lender for the use, forbearance, or detention
of the Debt, shall, to the extent permitted by applicable law, be amortized,
prorated, allocated, and spread throughout the full stated term of the Note
until payment in full so that the rate or amount of interest on account of the
Debt does not exceed the maximum lawful rate of interest from time to time in
effect and applicable to the Debt for so long as the Debt is outstanding.
5. NO ORAL CHANGE
This Note may not be modified, amended, waived, extended, changed,
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 of any modification, amendment, waiver, extension,
change, discharge or termination is sought.
6. WAIVERS
Borrower and all others who may become liable for the payment of all or
any part of the Debt do hereby severally waive presentment and demand for
payment, notice of dishonor, protest and notice of protest and non-payment and
all other notices of any kind. No extension of time for payment of this Note or
any installment hereof, and no alteration, amendment or waiver of any provision
of this Note made by agreement between Lender or any other person or party shall
release, modify, amend, waive, extend, change, discharge, terminate or affect
the liability of Borrower, and any other person or entity who may become liable
for the payment of all or any part of the Debt, under this Note. No notice to or
demand on Borrower shall be deemed to be a waiver of the obligation of Borrower
or of the right of Lender to take further action without further notice or
demand as provided for in this Note. If Borrower consists of one or more
partnerships, the agreements herein contained shall remain in force and
applicable, notwithstanding any changes in the individuals comprising the
partnership, and the term "Borrower," as used herein, shall include any
alternate or successor partnership, but any predecessor partnership and their
partners shall not thereby be released from any liability. If Borrower consists
of one or more limited liability companies, the agreements herein contained
shall remain in force and applicable, notwithstanding any changes in the
individuals comprising the limited liability company, and the term "Borrower,"
as used herein, shall include any alternate or successor limited liability
company, but any predecessor limited liability company and their members shall
not thereby be released from any liability. If Borrower consists of one or more
corporations, the agreements contained herein shall remain in full force and
applicable
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notwithstanding any changes in the shareholders comprising, or the officers and
directors relating to, the corporation, and the term "Borrower" as used herein,
shall include any alternative or successor corporation, but any predecessor
corporation shall not be relieved of liability hereunder.
7. WAIVER OF TRIAL BY JURY
BORROWER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN
CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS NOTE OR ANY
ACTS OR OMISSIONS OF LENDER, ITS MEMBERS, PARTNERS, OFFICERS, EMPLOYEES,
DIRECTORS OR AGENTS IN CONNECTION THEREWITH.
8. NOTICES
All notices or other written communications hereunder shall be delivered
in accordance with the terms of the Loan Agreement.
9. AUTHORITY
Borrower (and the undersigned representative of Borrower, if any)
represents that Borrower has full power, authority and legal right to execute
and deliver this Note and that this Note constitutes valid and binding
obligations of Borrower.
10. APPLICABLE LAW
This Note shall be governed, construed, applied and enforced in
accordance with the laws of the Commonwealth of Pennsylvania and the applicable
laws of the United States of America.
11. COUNSEL FEES
In the event that it should become necessary to employ counsel to
collect the Debt, Borrower also agrees to pay all reasonable fees and expenses
of Lender, including, without limitation, reasonable attorney's fees for the
services of such counsel whether or not suit be brought.
12. JOINT AND SEVERAL LIABILITY
If Borrower consists of more than one person or party, the obligations
and liabilities of each person or party shall be joint and several.
13. EXCULPATION
Notwithstanding any other provision in this Note or the other Loan
Documents, the liability of Borrower under this Note and the other Loan
Documents shall be limited to the Pledged Collateral (as defined in the Security
Agreement), and Lender shall not seek any
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judgment against Borrower or its direct or indirect partners, members,
shareholders, principals, affiliates, officers, directors, employees or agents,
or any representatives of any of the foregoing.
14. MISCELLANEOUS
(a) Wherever pursuant to this Note (i) Lender exercises any right
given to it to approve or disapprove, (ii) any arrangement or term is to be
satisfactory to Lender, or (iii) any other decision or determination is to be
made by Lender, the decision of Lender to approve or disapprove, all decisions
that arrangements or terms are satisfactory or not satisfactory and all other
decisions and determinations made by Lender, shall be in the sole and absolute
discretion of Lender and shall be final and conclusive, except as may be
otherwise expressly and specifically provided herein.
[Signature Page Follows]
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IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day
and year first above written.
FIREHOUSE REALTY CORP.
By: /s/ Bart Blatstein
-------------------------------
Name: Bart Blatstein
Title: President
RIVER VIEW DEVELOPMENT CORP.
By: /s/ Bart Blatstein
-------------------------------
Name: Bart Blatstein
Title: President
SOUTH RIVER VIEW PLAZA, INC.
By: /s/ Bart Blatstein
-------------------------------
Name: Bart Blatstein
Title: President
REED DEVELOPMENT ASSOCIATES, INC.
By: /s/ Bart Blatstein
-------------------------------
Name: Bart Blatstein
Title: President
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COMMONWEALTH OF PENNSYLVANIA )
)ss:
COUNTY OF PHILADELPHIA )
AND NOW, this 31st day of October, 2003 before me, the undersigned Notary
Public, personally appeared Bart Blatstein, who acknowledged himself to be the
President of FIREHOUSE REALTY CORP., a Pennsylvania corporation, and that he, as
such President being authorized to do so, executed the foregoing instrument for
the purposes therein contained by signing the name of the corporation by himself
as President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/
- --------------------------------
Notary Public
My commission expires:
COMMONWEALTH OF PENNSYLVANIA )
)ss:
COUNTY OF PHILADELPHIA )
AND NOW, this 31st day of October, 2003 before me, the undersigned Notary
Public, personally appeared Bart Blatstein, who acknowledged himself to be the
President of RIVER VIEW DEVELOPMENT CORP., a Pennsylvania corporation, and that
he, as such President being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name of the
corporation by himself as President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/
- --------------------------------
Notary Public
My commission expires:
COMMONWEALTH OF PENNSYLVANIA )
)ss:
COUNTY OF PHILADELPHIA )
AND NOW, this 31st day of October, 2003 before me, the undersigned Notary
Public, personally appeared Bart Blatstein, who acknowledged himself to be the
President of SOUTH RIVER VIEW PLAZA, INC., a Pennsylvania corporation, and that
he, as such President being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name of the
corporation by himself as President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/
- --------------------------------
Notary Public
My commission expires:
COMMONWEALTH OF PENNSYLVANIA )
)ss:
COUNTY OF PHILADELPHIA )
AND NOW, this 31st day of October, 2003 before me, the undersigned Notary
Public, personally appeared Bart Blatstein, who acknowledged himself to be the
President of REED DEVELOPMENT ASSOCIATES, INC., a Pennsylvania corporation, and
that he, as such President being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name of the
corporation by himself as President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/
- --------------------------------
Notary Public
My commission expires:
COMMONWEALTH OF PENNSYLVANIA )
)ss:
COUNTY OF PHILADELPHIA )
AND NOW, this 31st day of October, 2003 before me, the undersigned Notary
Public, personally appeared Bart Blatstein, who acknowledged himself to be the
President of RIVERVIEW COMMONS, INC., a Pennsylvania corporation, and that he,
as such President being authorized to do so, executed the foregoing instrument
for the purposes therein contained by signing the name of the corporation by
himself as President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/
- --------------------------------
Notary Public
My commission expires: