AC1 262713v1 11/06/03
FIRST MORTGAGE NOTE
S.V.G. PROPERTIES, L.P., a New Jersey limited partnership
to
NEW YORK COMMUNITY BANK
Dated: November 7, 2003
Amount: $4,000,000.00
FOX ROTHSCHILD LLP
0000 XXXXXXXX XXXXXX, XXXXX 000
XXXXXXXX XXXX, XX 00000
FIRST MORTGAGE NOTE
U.S. $4,000,000.00 Philadelphia,Pennsylvania
(Face Amount) November 7, 2003
1. FOR VALUE RECEIVED, S.V.G. PROPERTIES, L.P., a limited
partnership company duly organized and existing under the laws of
the State of New Jersey, having an address at 000 Xxxx Xxxx
Xxxxxx, Xxxxx Xxxxx, Xxx Xxxxxx 00000 ("Maker") promises to pay
to the order of NEW YORK COMMUNITY BANK, a New York state
chartered banking institution duly organized and validly existing
under and by virtue of the laws of the State of New York, having
an office at 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000
("Payee"), at such offices, or such other place as the holder
hereof may from time to time appoint in writing, or order, in
lawful money of the United States of America, the principal sum
of FOUR MILLION DOLLARS ($4,000,000.00) ("Principal"), together
with interest thereon, together with such charges, payments,
expenses, taxes and fees accrued and unpaid or incurred that are
the obligation of Maker to pay under the terms and conditions of
this Note (hereinafter, the "Indebtedness").
(a) The Maker shall pay interest in lawful money of the
United States of America on the unpaid Principal at an initial
interest rate of four and eight hundred seventy-five one-
thousandths percent (4.875%) per annum, from the date of this
Note to and including the day immediately prior to the first
Change Date, as hereinafter defined. The interest rate shall be
adjusted on the first day after the seventh (7th) anniversary
date of this Note (the "First Change Date") and every year
thereafter on the same date (the "Subsequent Change Dates"), with
amortization to be revised based on the then remaining
amortization period. The interest rate change shall increase or
decrease based upon the "Prime Rate" as published in the New York
Times as of ninety (90) days prior to the First Change Date, plus
two and one-half of one percent (2.50%) (the "One-Year ARM
Rate"). In the event that more than one prime rate is listed,
the highest rate shall prevail. The loan shall have a minimum
interest rate of 4.875% and a maximum interest rate of 16.00%.
The Payee shall give the Maker notice of each new interest rate
at least thirty (30) days prior to the First Change Date and each
of the Subsequent Change Dates.
(b) Provided that the Maker meets the conditions set forth
hereinbelow, the Maker shall have the option to fix the interest
rate after the seventh (7th) year of this Note for the remainder
of the term, to a rate equal to the published yield of the Five
Year United States Treasury Bill as of ninety (90) days prior to
the First Change Date, plus 275 basis points (the "Adjusted Fixed
Rate"). The loan shall have a minimum interest rate of 4.875%
and a maximum interest rate of 16.00%. The Payee will notify
Maker of the Adjusted Fixed Rate within sixty (60) to seventy-
five (75) days prior to the First Change Date.
Maker's option to choose the Adjusted Fixed Rate is
contingent upon the Maker's ability to meet the following
conditions: (i) Maker shall not have breached any of the terms
and conditions of this Note or the Lien Instruments during the
first seven (7) years of this Note, including but not limited to
the obligations to make timely monthly payments hereunder; (ii)
the Maker must exercise such option by written notice to Payee
delivered at least thirty (30) days prior to the First Change
Date; (iii) the Maker will pay to Xxxxx (as a fee not to be
credited against the outstanding principal balance) an amount
equal to one percent (1.00%) of the outstanding principal balance
as of the date of the exercise of the option; and (iv) the Maker
agrees that the prepayment penalty schedule for the remaining
five (5) years of the loan term shall be as hereinafter set
forth.
(c) The Maker shall pay interest on the unpaid Principal
from the date of this Note until the Indebtedness due hereunder
or under the Lien Instruments, as hereinafter defined, has been
paid in full. The interest paid by the Maker shall be calculated
on the basis of a 360-day year and thirty (30) day months.
2. The words Maker and Payee include all makers and all
payees, respectively, under this Note, their representatives,
successors and assigns. The Payee and any other holder of this
Note may transfer this Note. The word Payee includes the
original Payee and anyone who takes this Note by Transfer.
3. (a) On the date of this Note, Maker shall pay interest
from the date of this Note until the last day of this month,
inclusive, in the amount of THIRTEEN THOUSAND DOLLARS
($13,000.00). Thereafter, commencing on the first day of the
second full calendar month after the date hereof and continuing
through and including the day immediately preceding the First
Change Date, unless the due date is accelerated, the Maker shall
pay the Principal and interest by making constant monthly
payments in the amount of TWENTY-ONE THOUSAND ONE HUNDRED SIXTY-
EIGHT DOLLARS AND THIRTY-SEVEN CENTS ($21,168.37) commencing on
January 1, 2004, and the same amount on the first day of each and
every month through and including the First Change Date (the
"Initial Monthly Payments"). Thereafter, until Maturity, when
all of the Principal and interest and any other charges are due,
the Maker shall pay the Principal and interest by making constant
monthly payments on the first day of each and every month, which
constant monthly payments shall be based upon the applicable rate
of interest to be determined pursuant to paragraph 1(a) or 1(b)
of this Note. For the purposes of calculation, the Initial
Monthly Payments are based upon a constant rate of payment using
an original amortization schedule of thirty (30) years. The
monthly payments of Principal and interest will change on the
first day of the month after each respective Change Date to
reflect the new interest rate and constant rate of principal
payment.
Each monthly payment shall be used first to pay all accrued
interest on the unpaid Principal, together with any and all sums,
amounts, fees, charges and expenses accrued and unpaid or
incurred, and the balance, if any, shall be applied in reduction
of outstanding Principal.
This Note shall mature and be due and payable in full,
together with all accrued but unpaid interest and any and all
other charges due hereunder or pursuant to the Lien Instruments,
as hereinafter defined, (sometimes collectively hereinafter
referred to as the "Mortgage Debt" or "Mortgage Indebtedness") on
the earlier of the following dates: (i) December 1, 2015; or (ii)
at acceleration after default. The earlier of said dates is
referred to herein as "Maturity" or the "Maturity Date".
(b) In addition to the monthly payments of Principal and
interest required pursuant to subparagraph 3(a) above, and
in order to more fully protect the security of the Mortgage
(as hereinafter defined), the Maker further agrees to pay to
the Payee (unless expressly waived in writing by Xxxxx), on
each monthly installment date, a sum equal to one-twelfth
(1/12th) of the amount, as estimated from time to time by
the Payee, of the annual real estate taxes and assessments
(the "Municipal Charges") to become due as charges on or
with respect to the Premises (as hereinafter defined) during
the twelve (12) calendar months following the date of the
first monthly installment due hereunder and during the
twelve (12) calendar months following each anniversary of
such date; and one twelfth (1/12th) of the amount of the
annual insurance premiums for hazard, general liability,
boiler and rent loss coverages (including flood insurance
premiums, if applicable) and for any additional coverage
included by the Maker in the policy provided by Maker
pursuant to the terms of the Mortgage (as hereinafter
defined) (the "Insurance Charges", and together with the
Municipal Charges, collectively referred to hereinafter as
the "Carrying Charges"), which payment shall be known for
the purposes hereof as the monthly payment to cover the
Carrying Charges of the Premises, so that no later than one
(1) month prior to the respective due dates for each of such
Carrying Charges there shall be in the hands of the Payee
amounts sufficient to pay such Carrying Charges in full.
Although each such monthly payment is to be in a lump sum,
each component thereof may be held separately by the Payee,
without interest, for, and applied only to, the particular
item for which it was paid over by the Maker, unless the
Payee in its sole discretion elects otherwise, or applicable
law requires otherwise. The Payee may require the Maker to
pay other impositions affecting the Premises in a lump sum
if the Payee shall deem it necessary to protect its
interest.
If at any time prior to the due date of any particular item
of such Carrying Charges, the Payee calculates that there will
not be in its hands one (1) month prior to such due date a sum
sufficient for the payment of such item in full, the Maker upon
demand shall pay the amount of any such deficiency to the Payee
and upon failure of the Maker to pay such deficiency within ten
(10) days of demand therefor, the unpaid balance of the Principal
hereof, shall, at the option of the Payee, become immediately due
and payable, notwithstanding that sums for the payment of other
items of such Carrying Charges not yet due and payable may be in
the hands of the Payee. Notwithstanding the foregoing and
provided that there exists no Event of Default hereunder or under
any of the other Loan Documents, the Payee will not require
monthly escrows for the payment of hazard, general liability,
boiler and rent loss coverages provided that Maker maintains
insurance coverage for the same in accordance with the
requirements of Paragraph 2 of the Mortgage (as hereinafter
defined), nor will Payee collect monthly escrows for the payment
of separately metered sewer and water charges.
Any excess of unneeded funds paid hereunder may be refunded
to the Maker at the discretion of the Payee, so long as all
payments are current, and there is no default under this Note or
any of the Lien Instruments (as hereinafter defined), and
provided, further, that there are no judgments or liens or income
or other tax liens against the Maker or the Premises.
If there shall be a default hereunder resulting in a
judicial sale of the Premises, or if the Payee acquires the
Premises in any other way after such default, the Payee shall
have the right to apply the balance then remaining in said fund
to cover such Carrying Charges against the balance of the
Indebtedness then unpaid, or to the payment of any or all of such
Carrying Charges without obligation to account therefor to the
Maker. The funds deposited by the Maker pursuant to this
Paragraph 3(b) are hereby pledged as additional security for the
Indebtedness evidenced by this Note.
4. (a) During the initial seven (7) year term of this
Note, Maker may prepay the Indebtedness in whole, upon thirty
(30) days advance written notice to the Payee, provided that
additionally there shall be paid as a premium for the privilege
of so prepaying, an amount equal to the following:
(i) Five percent (5%) of the outstanding Principal if
prepayment occurs during the first (1st), second (2nd), or third
(3rd) years of this Note;
(ii) Four percent (4%) of the outstanding Principal if
prepayment occurs during the fourth (4th) year of this Note;
(iii) Three percent (3%) of the outstanding
Principal if prepayment occurs during the fifth (5th) year of
this Note;
(iv) Two percent (2%) of the outstanding Principal if
prepayment occurs during the sixth (6th) year of this Note; and
(v) One percent (1%) of the outstanding Principal if
prepayment occurs during the seventh (7th) year of this Note.
(b) Upon the expiration of the seventh (7th) year of this
Note, in the event that the interest rate is adjusted to the One-
Year ARM Rate in accordance with the provisions of paragraph 1(a)
hereinabove, then Maker may prepay the Indebtedness in whole upon
thirty (30) days advance written notice to the Payee at any time
during the remaining term of this Note without any prepayment
premium.
(c) Upon the expiration of the seventh (7th) year of this
Note, in the event that the interest rate is adjusted to the
Adjusted Fixed Rate in accordance with the provisions of
paragraph 1(b) hereinabove, then Maker may prepay the
Indebtedness in whole upon thirty (30) days advance written
notice to the Payee provided that additionally there shall be
paid as a premium for the privilege of so prepaying, an amount
equal to the following:
(i) Five percent (5%) of the outstanding Principal if
prepayment occurs during the eighth (8th) year of this Note;
(ii) Four percent (4%) of the outstanding Principal if
prepayment occurs during the ninth (9th) year of this Note;
(iii) Three percent (3%) of the outstanding
Principal if prepayment occurs during the tenth (10th) year of
this Note;
(iv) Two percent (2%) of the outstanding Principal if
prepayment occurs during the eleventh (11th) year of this Note;
and
(v) One percent (1%) of the outstanding Principal if
prepayment occurs during the twelfth (12th) year of this Note.
(d) For the purpose of calculating the prepayment premium
as provided in this paragraph, the first (1st) year of this Note
shall commence on the date of this Note and shall expire at 11:59
P.M. on the day prior to the first (1st) anniversary of the first
(1st) day of the month after the month in which this Note is
dated, unless this Note is dated the first (1st) day of the
month, in which event the first (1st) year of this Note shall
expire at 11:59 P.M. on the day prior to the first (1st)
anniversary of the date of this Note. Each year of this Note
thereafter in succession shall commence on the expiration of the
first (1st) year of this Note and on the annual anniversary of
the day following the date of expiration of the first (1st) year
of this Note, respectively; and the use of the term "month" shall
refer to and mean a regular calendar month. The above prepayment
premium shall also be due and payable in the event of an
acceleration of payment of the principal balance of this Note
after a default pursuant to the terms of this Note or the
Mortgage.
(e) No prepayment premium shall apply to any involuntary
prepayment of the Indebtedness.
5. If Payee does not receive any monthly payment of
principal, interest or monthly escrow by the fifteenth (15th)
calendar day of such month, Maker will pay a late charge at the
rate of four (4c) cents for each dollar ($1.00) of the total
monthly payments so overdue for the administrative cost and
expense of handling such late payment. Said late charge shall be
immediately due and payable without demand by the Payee.
6. As security for the payment of this Note, Maker has
executed and delivered to Payee a certain First Mortgage and
Security Agreement (the "Mortgage"), Assignment of Leases and
Rents, and UCC Form 1 financing statements and other documents
and instruments, all dated even date herewith and sometimes
collectively referred to and known as the "Lien Instruments".
The Lien Instruments are made by Maker to and for the benefit of
Xxxxx and encumber the real property, together with the buildings
and improvements erected thereon, owned by the Maker and more
fully described in the Mortgage as Schedule A, and the personalty
attached thereto and the rents and profits derived therefrom (the
"Premises"). This Note and the Lien Instruments are given in
consideration of a loan by Payee to Maker in the amount of the
Principal.
7. The Maker shall remain liable for the payment of this
Note in accordance with the terms hereof, including interest,
notwithstanding any extension or extensions of time of payment,
or any indulgence of any kind or nature that Payee may grant or
permit to any subsequent owner of the encumbered Premises,
whether with notice or without notice to the Maker; and the Maker
hereby expressly waives such notice.
8. Payee has the right to accelerate forthwith or
thereafter, at its option, the payment of this Note and declare
the entire Mortgage Debt due and payable immediately and in full
if: (i) the Maker defaults in making any payment when due and
such default continues for fifteen (15) days; or (ii) Maker fails
to perform any of its promises or obligations or breaches any of
its covenants made pursuant to this Note or the Lien Instruments
beyond any applicable notice or cure period; and all of the
covenants, agreements, terms and conditions of the Lien
Instruments are hereby incorporated herein with the same force
and effect as if fully set forth herein at length.
9. In the event: (a) the Payee retains counsel with
respect to the enforcement of this Note, the Mortgage, or any
other document or instrument given to the Payee by the Maker
(whether or not an action or proceeding is commenced); or (b) any
action or proceeding is commenced to which action or proceeding
the Payee is made a party or in which it becomes necessary to
defend or uphold the lien of the Mortgage, then, in any such
event, all sums incurred by the Payee, including without
limitation, reasonable attorneys' fees, costs, disbursements,
allowances, and additional allowances shall be paid by Maker,
together with interest thereon at the rate established in
Paragraph 10 of this Note, and any such sum and the interest
thereon shall be a lien on said premises, prior to any right,
title to, interest in or claim upon the Premises attaching or
accruing subsequent to the lien of the Mortgage which secures
this Note. The Payee's failure to accelerate for any cause shall
not be deemed a waiver nor shall it prevent Payee from doing so
for a later or another cause.
10. If Xxxxx declares acceleration in accordance with the
terms of this Note or any of the Lien Instruments or institutes
legal proceedings to enforce this Note and Payee's rights
pursuant thereto, or to foreclose the lien of the Mortgage, Maker
agrees that interest shall accrue from the date of said default
or defaults (notwithstanding that the date of acceleration or
notice may be later than the date of default) at the rate per
annum of sixteen percent (16.00%), but in no event in excess of
the applicable usury rate with respect to Maker ("Default Rate"),
until said default is corrected or the Indebtedness is paid in
full (including after entry of final judgment and so long as any
portion of the judgment remains unpaid). Interest at the Default
Rate shall also apply to any advances made by Payee to preserve
and protect the security of the Mortgage and any fees and/or
expenses as described in Paragraph 9 of this Note. If, upon
acceleration, the Default Rate is in excess of the applicable
usury rate, then, in that event, the rate of interest shall be
automatically reduced to the maximum permissible rate applicable
to Maker and any sums which might have been paid at a rate in
excess of the maximum permissible rate shall be deemed to have
been paid in error and shall automatically be applied in
reduction of the outstanding Principal.
11. Payee shall not by any act of omission or commission be
deemed to waive any of its rights or remedies hereunder unless
such waiver be in writing and signed by an authorized officer of
Payee and then only to the extent specifically set forth therein;
a waiver on one occasion shall not be construed as continuing or
as a bar to or waiver of such right or remedy on any other
occasion. All remedies conferred upon Payee by this Note, the
Mortgage or any other Lien Instrument or agreement connected
herewith or related hereto shall be cumulative and none is
exclusive, and such remedies may be exercised concurrently or
consecutively at Xxxxx's option.
12. Maker and every person at any time liable for the
payment of the debt evidenced by this Note waives: (i)
Presentment for payment; (ii) Notice of dishonor for non-payment;
(iii) Protest and notice of protest relating to, or connected
with, this Note or any Lien Instrument given as security
therefor, and consents that Payee may extend the time of payment
of any part or the whole of the debt at any time at the request
of any other person liable.
13. This Note cannot be changed except in writing signed by
the Maker and the Payee.
14. Notwithstanding any provision herein or in any
instrument now or hereafter securing this Note, the total
liability for payments in the nature of interest shall not exceed
the limits now imposed by the usury laws of the State where the
Premises is located. In the event that any interest paid by
Maker exceeds the usury ceiling applicable to Maker then that
portion of the amount received which exceeds the maximum
permissible amount applicable to Maker shall be deemed to have
been paid in error and automatically applied in reduction of
Principal.
15. Should this Note be signed by more than one person,
firm, company or corporation, or combination thereof, all of the
obligations herein contained shall be considered joint and
several obligations of each signer hereof. In such case, the
liability of each Maker shall be absolute and unconditional and
without regard to the liability of any other party hereto. The
singular shall also mean plural, and vice versa, and masculine
shall also mean feminine or neuter, and vice versa, as the
context and case of this Note may require.
16. This Note and the Lien Instruments given pursuant
hereto shall be construed in accordance with and governed by the
laws of the State where the Premises is located, notwithstanding
any rules regarding the conflicts of laws.
17. Any part of this Note being contrary to the laws of the
State where the Premises is located or any other State having
jurisdiction shall not invalidate the other parts of this Note.
If any provision of this Note is determined to be in violation of
any applicable law, or otherwise determined to be invalid and
unenforceable, it shall automatically be severed from the
remaining terms of this Note which shall be read without such
invalid or violative provision, and the remaining terms shall
continue in full force and effect.
18. The Maker waives the right to interpose counterclaims
or setoffs of any kind or description in any litigation arising
hereunder and hereby acknowledges that this Note and Maker's
obligations hereunder shall at all times continue to be absolute
and unconditional in all respects. THE MAKER WAIVES THE RIGHT TO
TRIAL BY JURY AND THE RIGHT TO ASSERT AFFIRMATIVE DEFENSES
RELATING TO ANY STATUTES OF LIMITATIONS OR LACHES IN ANY
LITIGATION IN WHICH IT AND THE PAYEE ARE ADVERSE PARTIES.
19. All notices hereunder shall be in writing and shall be
sufficiently given for all purposes when sent by regular first
class mail to any party hereto at its address on the cover page
or at such other address of which it shall have notified the
party giving such notice in writing in accordance with the
foregoing requirements. Any such notice shall be deemed
effective upon the date it is mailed.
20. Upon any sale, transfer or conveyance of all or any
part of the Premises, or any interest therein, the Payee may
accelerate the payment of the entire Mortgage Indebtedness, and
demand immediate payment thereof in full. Further, it is agreed
as follows: (i) that the control, management and operation of
the Maker by Spring Village Holdings, Inc., a New Jersey
corporation (the "Corporate General Partner") is a material
inducement to the Payee to make the loan evidenced by this Note;
(ii) that the control of the Corporate General Partner by Xxxxxxx
Holdings, Inc., a Delaware corporation ("Xxxxxxx") is a material
inducement to the Payee to make the loan evidenced by this Note;
(iii) that the control of Xxxxxxx by Xxxxx X. Xxxxxxx (as used in
this paragraph only, the "Controlling Principal") is a material
inducement to the Payee to make the loan evidenced by this Note;
and (iv) that the control, management and operation of the
Premises by others, who or which do not, in the Payee's sole and
absolute opinion, possess the business and managerial acumen or
experience of the Corporate General Partner, Xxxxxxx, and the
Controlling Principal, will seriously endanger the status of the
Premises and the security represented by the Mortgage.
Accordingly, the entire Indebtedness shall become immediately due
and payable, at the option of the Payee, at any time: (i) the
control, management, or operation of the Premises, or any part
thereof, is transferred to any individual or entity other than
the Corporate General Partner; or (ii) the control of the
Corporate General Partner is transferred to any individual or
entity other than Xxxxxxx; or (iii) the control of Xxxxxxx is
transferred to any individual or entity other than the
Controlling Principal.
Notwithstanding the foregoing, transfers of interests in
Maker, Corporate General Partner, or Xxxxxxx to immediate family
members, existing partners or shareholders, trusts for the
benefit of themselves and/or members of their families, existing
partners or shareholders, or entities comprised of same, and by
operation of law, shall be permitted without the prior consent of
the Payee, provided the loan is not in default, declared or
undeclared.
Transfer of the Premises to a corporation formed for the
purpose of cooperative ownership shall be absolutely prohibited.
21. If any of the following events occur with respect to
the Maker or any other party primarily or secondarily liable for
any of the Maker's obligations to Payee, present or future, or
with respect to any general partner(s), shareholder(s) or
member(s) of the Maker (collectively with the Maker hereafter in
this paragraph referred to as "them") to wit: dissolution;
liquidation; insolvency; assignment for the benefit of creditors;
calling a meeting of creditors; appointment of a committee of
creditors or liquidating agent; offer to a composition or
extension to creditors; making, or sending notice of, a bulk sale
other than in the ordinary course of business; commencement of
any proceeding, suit or action (at law or in equity, or under any
of the provisions of the Bankruptcy Code, as amended) for
reorganization, composition, extension, arrangement, wage earner
plan, receivership, liquidation or dissolution, by or against any
of them; appointment of, or application for, a receiver,
conservator, rehabilitator or similar officer or committee for
any of them or any property of any of them; commencement of any
proceedings supplementary to execution relating to any judgment
rendered against them, then all obligations to the Payee,
including this Note, although otherwise unmatured or contingent,
shall forthwith become absolute and due and payable without any
notice or demand whatsoever, at the Default Rate defined herein.
22. The Maker consents to the personal jurisdiction of the
courts of the state where the Premises is located, and consents
that it may be served with process within or without said state
as though it were a domiciliary, and according to the laws of
said state, in any action or proceeding involving the Payee and
the Maker. IN ANY ACTION OR PROCEEDING INVOLVING THE MAKER AND
THE PAYEE, THE MAKER HEREBY WAIVES: (I) ANY AND ALL RIGHT TO A
TRIAL BY JURY; AND (II) ANY AND ALL RIGHT TO ASSERT AFFIRMATIVE
DEFENSES RELATING TO ANY STATUTES OF LIMITATIONS OR CLAIMS OF
LACHES.
23. Maker represents and warrants that it is a duly
organized and existing entity as described in Paragraph 1 of this
Note and is authorized to do business in the State where the
Premises is located. Maker further represents that Maker has
full power, authority and legal right to execute and deliver this
Note, and that the debt hereunder constitutes a valid and binding
obligation of Maker.
24. The Payee agrees that the promise of the Maker
contained in this Note to pay the Indebtedness, is included
herein for the sole purpose of establishing the existence of the
Indebtedness, that the Payee's source of satisfaction of the
Indebtedness shall be limited to the Premises, the rents, issues
and profits derived therefrom, whether collected or uncollected,
the improvements and the rights in condemnation awards, or
eminent domain awards, and insurance policies or proceeds therein
described, that the Payee will not seek to enforce out of any
other assets of the Maker or any party constituting the Maker any
judgment for any sum of money which is or may be payable under
this Note or the Mortgage or for the performance of any of the
obligations of the Maker under the Note or the Mortgage, or for
any deficiency remaining after foreclosure of the Mortgage;
provided, however, that nothing herein contained shall be deemed
to be a release from payment of the Indebtedness, or of the
security therefor intended by the Mortgage or any of the Lien
Instruments, or shall preclude the Payee from foreclosing the
Mortgage in case of any default under the Mortgage or the Note,
or from enforcing any of its rights under the Mortgage, including
but not limited to, obtaining the appointment of a receiver or
putting into effect the assignment of leases and rents, issues
and profits contained in the Mortgage or any collateral
assignment of leases and/or rents. Notwithstanding the
foregoing, the terms of this paragraph shall automatically
terminate, and be deemed null and void and of no further force or
effect if: (i) the Maker or owner of the Premises intentionally
impairs the value of the Premises or jeopardizes the adequacy of
the security created by the Mortgage; or (ii) the Maker or owner
of the Premises encumbers the Premises with a subordinate
mortgage prohibited by the terms of this Note or the Mortgage; or
(iii) noxious, toxic, hazardous or environmentally unsound
materials, substances or waste, are now or hereafter buried,
stored, used, placed, incorporated or generated in or on the
Premises; (iv) fraud is committed by the Maker, or any of its
principals (if Maker is not a natural person), against the Payee
in the application for the loan evidenced by this Note; or (v)
the Maker misappropriates any rent or uses any rent other than in
connection with the Premises; or (vi) the Maker misappropriates
the proceeds of insurance or condemnation other than as required
by the Mortgage or this Note; or (vii) the Maker misappropriates
security deposits held by the Payee pursuant to Leases; or (viii)
the Payee incurs any cost for the removal of any asbestos, which
under existing law is or under future law may be required to be
removed from the Premises. With respect to the foregoing items
(i) through (viii), recourse shall be limited to the actual
damages suffered by the Payee.
25. Relief From Bankruptcy Stay. Maker agrees that, in the
event that Maker or any of the persons or parties constituting
Maker shall (i) file with any bankruptcy court of competent
jurisdiction or be the subject of any petition under Title 11 of
the United States Bankruptcy Code, as amended ("Bankruptcy
Code"), (ii) be the subject of any order for relief issued under
the Bankruptcy Code, (iii) file or be the subject of any petition
seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under
any present or future relief for debtors, (iv) have sought or
consented to or acquiesced in the appointment of any trustee,
receiver, conservator or liquidator, or (v) be the subject of any
order, judgment or decree entered by any court of competent
jurisdiction approving a petition filed against such party for
any dissolution or similar relief under any present or future
federal or state act or law relating to bankruptcy, insolvency or
relief for debtors, Payee shall thereupon be entitled and Maker
irrevocably consents to immediate and unconditional relief from
any automatic stay imposed by Section 362 of the Bankruptcy Code,
or otherwise, on or against the exercise of the rights and
remedies otherwise available to Payee as provided for herein, in
the Mortgage, or in any of the other loan documents delivered in
connection herewith, and as otherwise provided by law, and Maker
hereby irrevocably waives any right to object to such relief and
will not contest any motion by Xxxxx seeking relief from the
automatic stay.
26. Limitation of Liability. No claim may be made by Maker,
any specified person or any other person, against Payee or the
affiliates, directors, officers, employees, attorneys or agents
of Payee, for any special, indirect or consequential damages or,
to the fullest extent permitted by law, for any punitive damages
in respect of any claim or cause of action (whether based on
contract, tort, statutory liability, or any other ground) based
on, arising out of or related to this Note or any of the Lien
Instruments or the transactions contemplated hereby or thereby,
or any act, omission or event occurring in connection herewith or
therewith, and Maker (for itself and on behalf of each specified
person) hereby waives, releases and agrees never to sue upon any
claim for any such damages, whether such claim now exists or
hereafter arises, and whether or not it is now known or suspected
to exist in its favor.
27. THE FOLLOWING PARAGRAPH SETS FORTH A WARRANT OF
AUTHORITY FOR AN ATTORNEY TO CONFESS JUDGMENT AGAINST THE MAKER.
IN GRANTING THIS WARRANT OF AUTHORITY TO CONFESS JUDGMENT AGAINST
THE MAKER, THE MAKER HEREBY KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY, AND ON THE ADVICE OF SEPARATE COUNSEL OF MAKER,
UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS THE MAKER HAS OR MAY
HAVE TO PRIOR NOTICE, EXCEPT AS OTHERWISE PROVIDED HEREIN, AND AN
OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND
LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF PENNSYLVANIA.
MAKER IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR
THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF
PENNSYLVANIA, OR ELSEWHERE, TO APPEAR FOR MAKER AT ANY TIME AFTER
DEFAULT UNDER THIS NOTE OR UNDER THE MORTGAGE IN ANY ACTION
BROUGHT AGAINST MAKER ON THIS NOTE AT THE SUIT OF PAYEE, AS OF
SUCH TERM, AND IN THAT ACTION TO CONFESS OR ENTER JUDGMENT
AGAINST MAKER FOR THE ENTIRE UNPAID PRINCIPAL OF THIS NOTE AND
ALL OTHER SUMS PAID BY PAYEE TO OR ON BEHALF OF MAKER PURSUANT TO
THE TERMS OF THIS NOTE OR THE MORTGAGE, AND ALL INTEREST ACCRUED
ON THOSE AMOUNTS, TOGETHER WITH COSTS OF SUIT, ATTORNEYS'
COMMISSION FOR COLLECTION OF FIVE PERCENT (5%) OF THE TOTAL
AMOUNT THEN DUE BY MAKER TO PAYEE, TOGETHER WITH INTEREST ON ANY
JUDGMENT OBTAINED BY PAYEE AT THE RATE OF INTEREST SPECIFIED IN
THE NOTE AFTER DEFAULT, INCLUDING INTEREST AT THAT RATE FROM AND
AFTER ANY SHERIFF'S OR JUDICIAL SALE UNTIL ACTUAL PAYMENT IS MADE
TO PAYEE OF THE FULL AMOUNT DUE PAYEE; AND FOR SO DOING THIS NOTE
OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHALL BE A
SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTE TO
CONFESS JUDGMENT SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF IT BUT
SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT
IN FULL OF ALL AMOUNTS DUE UNDER THIS NOTE.
28. Future Refinance. During the term of the loan hereof,
and upon thirty (30) days prior written notice to the Payee, the
principal amount of this Note may be increased to an amount equal
to seventy-five percent (75%) of the economic or market value of
the Premises, whichever is less (the "Loan Increase"), as
indicated in an updated appraisal to be performed by an appraiser
named by the Payee, provided that the additional funds are used
for capital improvements to the Premises. The rate for the Loan
Increase shall be set at the prevailing rate for comparable
properties, and shall "blend" and run co-terminus with the
original loan evidenced by this Note. In no event shall the
interest rate be less than the interest rate then in effect
pursuant to this Note. At the time of closing of the Loan
Increase, Maker shall pay to Payee a fee equal to one percent
(1%) of the Loan Increase. Additionally, Maker shall pay all
costs related to the updated appraisal and any and all costs
attendant to closing of the Loan Increase, including legal fees
related to documentation required to properly evidence the Loan
Increase, including but not limited to an Amended and Restated
Note and Mortgage Modification Agreement. Xxxxx's obligation to
consummate any Loan Increase is conditioned upon an inspection of
the Premises and a credit review of Maker, both of which shall be
satisfactory to Payee, in its absolute discretion.
The Maker agrees to the terms of this Note by signing below.
If the Maker is a corporation, this Note is executed by a duly
authorized officer. If the Maker is a partnership, this Note is
executed by a duly authorized general partner. If the Maker is a
limited liability company, this Note is executed by a duly
authorized member.
S.V.G. PROPERTIES, L.P., a New Jersey
limited partnership
BY: SPRING VILLAGE HOLDINGS, INC., a
New Jersey corporation, General
Partner
BY:________________________________
Xxxxx X. Xxxxxxx, President
COMMONWEALTH OF PENNSYLVANIA :
COUNTY OF PHILADELPHIA :
BE IT REMEMBERED, that on this 7th day of November, 2003,
before me, the subscriber, personally appeared XXXXX X. XXXXXXX,
who, I am satisfied, is the President of SPRING VILLAGE HOLDINGS,
INC., a New Jersey corporation (the "Corporation"), which is the
General Partner of S.V.G. PROPERTIES, L.P., a New Jersey limited
partnership (the "Limited Partnership"), and thereupon he
acknowledged that he signed and delivered the within instrument
in his capacity as the President of the Corporation in its
capacity as the General Partner of the Limited Partnership, being
duly authorized to do so.
___________________________________
NOTARY PUBLIC
