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EXHIBIT 10 (MMM)
FOURTH AMENDED AND RESTATED NOTE
Dated as of: June 15, 1998
Philadelphia, PA
For value received and intending to be legally bound, EQK REALTY
INVESTORS I ("Maker"), a Massachusetts business trust whose address is 5775
Peachtree-Dunwoody Road, Suite 200-D, Atlanta, Georgia 30342, promises to pay
to the order of PNC BANK, NATIONAL ASSOCIATION (successor by merger to
Provident National Bank), a national banking association organized and existing
under the laws of the United States of America (hereinafter called "Payee"), at
Real Estate Banking Division, 1600 Market Street, Philadelphia, Pennsylvania
19103 or such other place as Payee may designate in writing, the principal sum
of ONE MILLION FIVE HUNDRED EIGHTY-ONE THOUSAND SEVEN HUNDRED SIXTY-NINE DOLLARS
($1,581,769.00) lawful money of the United States of America, or so much
thereof as shall have been advanced, together with interest on the outstanding
principal balance thereof at a rate or rates per annum (the "Interest Rate") as
provided in the Second Amended and Restated Loan Agreement dated December 16,
1992 between Maker and Payee, as amended by a First Amendment to Second Amended
and Restated Loan Agreement dated as of December 15, 1995, a Second Amendment
to Second Amended and Restated Loan Agreement (the "Second Amendment") dated as
of December, 1996, and a Third Amendment to Second Amended and Restated Loan
Agreement (the "Third Amendment") dated the date hereof (collectively, the
"Loan Agreement"). All interest shall be calculated in accordance with the Loan
Agreement.
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The Note shall be payable as follows:
(a) Interest from and including June 1, 1998 through
June 14, 1998 on the outstanding principal balance of the Prior Note at the
interest rate set forth in the Prior Note shall be paid by Maker to Payee on
July 1, 1998.
(b) Interest from and including June 15, 1998 (the
"Effective Date") through June 30, 1998 on the outstanding principal balance
hereof shall be paid by Maker to Payee at the Interest Rate on July 1, 1998.
(c) Interest on the outstanding principal balance shall
be paid by Maker to Payee at the Interest Rate (the "Provident Monthly Interest
Payment") commencing on the first day of August 1, 1997 and on the first day of
each month thereafter until December 15, 1998 (the "Maturity Date").
On the Maturity Date, the entire amount of principal outstanding shall
be due and payable in full together with all unpaid accrued interest.
If Maker pays all or any portion of the outstanding principal balance
prior to the Maturity Date (whether a voluntary payment or acceleration or
otherwise), Maker shall pay to Payee the amounts as set forth in Section 3 of
the Loan Agreement.
If the Maker fails to make any payment of principal, interest or other
amount coming due pursuant to the provisions of this Note within ten (10)
calendar days of the date due and payable, the Maker shall also pay to the
Payee a late charge equal to five percent (5%) of the amount of such payment.
Such ten (10) day period shall not be construed in any way to extend the due
date of any such payment. The late charge is imposed for the purpose of
defraying the Payee's expenses incident to the handling of delinquent payments
and is in addition to, and not
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in lieu of, the exercise of the Payee of any rights and remedies hereunder,
under the Loan Agreement or any other documents in connection therewith or
under applicable laws, and any fees and expenses of any agents or attorneys
which the Payee may employ.
This Note was issued by Maker to Payee upon to the Loan Agreement,
all of the terms of which are incorporated herein by reference.
This Note continues to be secured by and entitled to all the benefits
of (i) a Mortgage and Security Agreement dated December 16, 1992 from Maker for
the benefit of Payee, secured upon certain land and improvements thereon in
Dauphin County, Pennsylvania (the "Harrisburg Mall") and recorded in the office
for the recording of deeds in and for said County (the "Harrisburg Mortgage");
(ii) an Assignment of Lessor's Interest in Leases for the Harrisburg Mall (the
"Lease Assignment") dated December 16, 1992 between Maker and Payee; and (iii)
security interests (the "Security Interests") granted to Payee under the Loan
Agreement (the Mortgage, the Lease Assignment and the Security Interests are
hereinafter collectively called the "Collateral"). Reference to the Loan
Agreement and the Collateral is made for a description of the properties
mortgaged, secured and pledged as security for this Note, the nature and extent
thereof, the rights of the holder of this Note and the Maker in respect of such
security and otherwise, and the terms upon which this Note is issued.
If any event of default as defined in the Loan Agreement or the
Collateral (an "Event of Default") should occur, the entire unpaid balance of
said principal sum with interest accrued thereon at the rate hereinbefore
specified to the date of said default and thereafter at the lower of (i) five
percent (5%) above the rate then extant hereunder or (ii) the highest
aggregate rate of interest permitted by law, and all other sums due by Maker
hereunder or under the
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provisions of the Collateral or the Loan Agreement, shall at the option of
Payee and without notice to Maker become due and payable immediately, anything
herein or in the Collateral or the Loan Agreement to the contrary
notwithstanding; and payment of the same may be enforced and recovered in whole
or in part at any time by one or more of the remedies provided to Payee in this
Note or in the Collateral or in the Loan Agreement; and in such case Payee may
also recover all costs of suit and other expense in connection therewith,
including a reasonable attorney's fee for collection.
MAKER HEREBY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR ATTORNEYS OR THE
PROTHONOTARY OR CLERK OF ANY COURT OF RECORD IN TBE COMMONWEALTH OF
PENNSYLVANIA, UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, TO APPEAR FOR MAKER IN
ANY SUCH COURT, WITH OR WITHOUT DECLARATION FILED, AS OF ANY TERM OR TIME THERE
OR ELSEWHERE TO BE HELD AND THEREIN TO CONFESS OR ENTER JUDGMENT AGAINST MAKER
IN FAVOR OF PAYEE FOR ALL SUMS DUE OR TO BECOME DUE BY MAKER TO PAYEE UNDER THIS
NOTE, WITH COSTS OF SUIT AND RELEASE OF ERRORS AND WITH THE GREATER OF FIVE
PERCENT (5%) OF SUCH SUMS OR $5,000 ADDED AS A REASONABLE ATTORNEY'S FEE AND FOR
DOING SO THIS NOTE OR A COPY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT.
SUCH AUTHORITY AND POWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF, AND
JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS THERE IS
OCCASION THEREFOR.
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MAKER ACKNOWLEDGES THAT THE PROVISIONS FOR CONFESSION OF JUDGMENT
CONTAINED IN THE ABOVE PARAGRAPH WAIVE ANY RIGHT TO A HEARING THAT WOULD
OTHERWISE BE A CONDITION TO THE PAYEE'S OBTAINING THE JUDGMENT AUTHORIZED BY
SUCH PARAGRAPH, AND THAT THE JUDGMENT SO OBTAINED WILL CONSTITUTE A LIEN ON THE
PROPERTY OF MAKER IN THE COUNTY WHERE THE JUDGMENT IS ENTERED.
The remedies of Payee as provided herein, in the Collateral or in the
Loan Agreement shall be cumulative and concurrent, and may be pursued
singly, successively or together against Maker and/or the property covered by
the Collateral and/or any other property mortgaged, pledged or assigned to
Payee as security for this Note, at the sole discretion of Payee, and such
remedies shall not be exhausted by any exercise thereof but may be exercised as
often as occasion therefor shall occur; provided, however, the exercise of any
such remedies shall be subject to the terms of the Intercreditor Agreement
between Maker, Payee and Prudential dated December 16, 1992.
Maker hereby waives and releases all errors, defects and imperfections
in any proceedings instituted by Payee under the terms of this Note or of the
Loan Agreement or the Collateral, as well as all benefit that might accrue to
Maker by virtue of any present or future laws exempting any of the property
covered by, the Collateral or any other property, real or personal, or any part
of the proceeds arising from any sale of such property, from attachment, levy
or sale under execution or providing for any stay of execution, exemption from
civil process or extension of time for payment, as well as the right of
inquisition on any real estate
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that may be levied upon under a judgment obtained by virtue hereof, and Maker
hereby voluntarily condemns the same and authorizes the entry of such voluntary
condemnation on any writ of execution issued thereon, and agrees that such real
estate may be sold upon any such writ in whole or in part in any order desired
by Payee.
Maker and all indorsers, sureties and guarantors hereof jointly and
severally waive presentment for payment, demand, notice of nonpayment, notice
of protest and protest of this Note, and all other notices in connection with
the delivery, acceptance, performance, default or enforcement of the payment of
this Note except such notices as are specifically required by this Note or by
the Loan Agreement, and they agree that the liability of each of them shall be
unconditional without regard to the liability of any other party and shall not
be in any manner affected by any indulgence, extension of time, renewal, waiver
or modification granted or consented to by Payee; and Maker and all indorsers,
sureties and guarantors hereof 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, or any property now or hereafter securing this
Note with or without substitution, and agree that additional makers, indorsers,
guarantors or sureties may become parties hereto without notice to them or
affecting their liability hereunder.
Payee shall not by any act of omission or commission be deemed to have
waived any of its rights or remedies hereunder unless such waiver be in writing
and signed by Payee, and then only to the extent specifically set forth
therein; a waiver on one event shall not be construed as continuing or as a bar
to or waiver of such right or remedy on a subsequent event.
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Maker shall pay the cost of any revenue, tax or other stamps now or
hereafter required by law at any time to be affixed to this Note or the
Collateral; and if any taxes be imposed with respect to debts secured by
mortgages or deeds of trust, or with respect to notes evidencing debts so
secured, Maker agrees to pay to the holder hereof upon demand the amount of such
taxes, and hereby waives any contrary provisions of any laws or rules of court
now or hereafter in effect.
Notwithstanding any provision contained herein, the total liability of
Maker for payment of interest pursuant hereto, shall not exceed the maximum
amount of such interest permitted by law to be charged, collected or received
from Maker, and if any payments by Maker include interest in excess of such a
maximum amount, Payee shall apply such excess to the reduction of the unpaid
principal amount due pursuant hereto, or if none is due, such excess shall be
refunded to Maker. Any such application or refund shall not cure or waive any
Event of Default. In determining whether or not any interest payable under this
Note or the Loan Agreement or the Collateral exceeds the highest rate permitted
by law, any non-principal payment (except payments specifically stated in this
Note to be "interest"), including without limitation prepayment premiums and
late charges, shall be deemed, to the extent permitted by applicable law, to be
an expense, fee, premium or penalty rather than interest.
If any provision hereof is found by a court of competent jurisdiction
to be prohibited or unenforceable, it shall be ineffective only to the extent
of such prohibition or unenforceability, and such prohibition or
unenforceability shall not invalidate the balance of such provision to the
extent it is not prohibited or unenforceable, nor invalidate the other
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provisions hereof, all of which shall be liberally construed in favor of Payee
in order to effect the provisions of the Note.
The words "Payee" and "Maker" whenever occurring herein shall be
deemed and construed to include the respective successors and assigns of Payee
and Maker. This instrument shall be construed according to and governed by the
substantive laws of the Commonwealth of Pennsylvania.
MAKER ACKNOWLEDGES THAT THIS NOTE CONTAINS CONFESSION OF JUDGMENT
LANGUAGE AND MAKER HAS HAD THE ASSISTANCE OF COUNSEL IN THE REVIEW AND EXECUTION
OF THIS NOTE. MAKER FURTHER ACKNOWLEDGES THAT THE MEANING AND EFFECT OF THE
CONFESSION OF JUDGMENT HAVE BEEN FULLY EXPLAINED TO MAKER BY SUCH COUNSEL.
The Amended and Restated Declaration of Trust establishing Maker dated
February 27, 1985, as amended (the "Declaration"), provides and Payee agrees
that neither the Shareholders nor the Trustees (as such terms are defined in the
Declaration) nor officers, employees or agents of the Trust shall, in their
respective capacities as such, be personally liable, jointly or severally, for
payment of the principal of or interest hereunder or any other amount due under
the Loan Agreement, and all persons shall look solely to the Trust Estate (as
defined in the Declaration), for the payment of any claim hereunder or under the
Loan Agreement or the performance hereof or thereof.
This Note is intended to amend and restate that certain Amended and
Restated Note from Maker in favor of Payee dated December 16, 1992 in the face
amount of
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$3,525,000 as amended and restated by a certain Second Amended and Restated Note
from Maker in favor of Payee dated as of December 15, 1995 in the principal
amount of $1,587,430 and as amended and restated by a certain Third Amended and
Restated Note from Maker in favor of Payee dated as of December 15, 1996 in the
principal amount of $1,585,010.00 (collectively, the "Prior Note") in its
entirety as set forth herein with respect to the unpaid principal balance of the
Prior Note as of the date hereof. This Note evidences the same indebtedness
evidenced by the Prior Note, reduced by the amount of principal payments made by
Maker from the date of the Prior Note through the date hereof and is entitled to
all of the security and rights afforded the Prior Note. This Note does not
constitute, nor is it intended to be, a novation of the Prior Note.
IN WITNESS WHEREOF, Maker has duly executed this Note the day and year
first above mentioned.
EQK REALTY INVESTORS 1, a
Massachusetts business trust
By: /s/ Don Henry
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Name: /s/ Don Henry
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Title: VP
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