PROMISSORY NOTE
$23,000,000 March 4, 1997
New York, New York
AS VALUE RECEIVED, the undersigned, XXXX XXXXXXXXX
ASSOCIATES, LIMITED PARTNERSHIP, a Florida limited partnership
with an address of c/o Mark Centers Limited Partnership, 000
Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxx 00000-0000 Attention:
Xxxxxx Xxxx, Telefax Number (000) 000-0000 ("Maker"), promises to
pay to the order of NOMURA ASSET CAPITAL CORPORATION, a Delaware
corporation (together with any subsequent holder of this Note,
"Holder") at its office located at Two World Financial Center,
Building B, New York, New York 10281-1195, Attention: Xxxxxxxxxxx
Xxxxxxx, Telefax Number (000) 000-0000, or at such other address
as Holder may from time to time designate in writing, the
principal sum of TWENTY THREE MILLION DOLLARS ($23,000,000)
together with interest thereon, Late Charges, Default Rate
interest, Yield Maintenance Premium, if any, and other sums to be
calculated and payable as provided in that certain Loan Agreement
of even date herewith between Maker and Holder (as modified and
supplemented and in effect from time to time, the "Loan
Agreement"). Capitalized terms used herein without definition
shall have the meanings ascribed to such terms in the Loan
Agreement.
All payments made hereunder shall be applied as provided in
Section 2.8 of the Loan Agreement.
The Loan Agreement provides for, among other things:
(1) a payment of interest only for the first Interest
Accrual Period on March 4, 1997;
(2) a monthly constant payment of $193,330.26 (which
payment is calculated by using the Initial Interest Rate and an
amortization schedule of 300 months) to be made beginning on
April 11, 1997 and on the eleventh (11th) day of each and every
calendar month thereafter; provided, however, that for purposes
of making payments hereunder, but not for purposes of calculating
interest accrual periods, if the eleventh (11th) day of a given
month is not a Business Day then the Payment Date for such month
shall be the next Business Day;
(3) a maturity date of March 11, 2022;
(4) an Initial Interest Rate of 9.02% per annum;
(5) a Revised Interest Rate equal to the greater of (x) the
sum of the Initial Interest Rate plus five hundred (500) basis
pints, and (y) as of the Optional Prepayment Date, the sum of the
Fifteen Year Treasury Rate plus seven hundred (700) basis points,
such Revised Interest Rate not to exceed the Maximum Amount;
(6) an Optional Prepayment Date of March 11, 1007;
(7) a Default Rate equal to the lessor of (i) the Maximum
Amount or (ii) the Interest Rate plus five percent (5%);
(8) the Loan cannot be voluntarily prepaid prior to the
Optional Prepayment date; on and after the Optional Prepayment
Date, (a) the Loan may be prepaid in whole or in part and
(b) Section 2.7 of the Loan Agreement requires mandatory
prepayment of all Excess Cash Flow; and
(9) interest shall accrue on the outstanding principal
balance of the Loan and all other amounts due to Lender under the
Loan Documents commencing on the Closing Date, and such interest
shall accrue (a) before the Optional Prepayment Date, at the
Initial Interest Rate and (b) on and after the Optional
Prepayment Date, at the Revised Interest Rate. Interest shall be
computed on the actual number of days elapsed, based on a 360 day
year.
The obligations of Maker under this Note are secured by,
among other things, the following:
(1) the Mortgage; and
(2) the other Loan Documents and Liens executed and
delivered by Maker and/or encumbering or affecting Maker's
Facility.
Documentary stamp taxes payable on this Note, in the proper
amount, are being paid in connection with the recordation of the
Mortgage securing this Note.
The principal sum evidenced by this Note, together with
accrued interest, Default Rate interest, Late Charges and Yield
Maintenance Premium, if any, and all other sums due under and
secured by the Mortgage or by any other Loan Document shall
become immediately due and payable at the option of Holder upon
the occurrence of any Event of Default, which such "Events of
Default" are incorporated by reference as if set forth in full
herein.
If Maker fails to make (i) the payment due on Maturity Date
or (ii) any other payment of principal or interest, the Yield
Maintenance Premium, if any, Late Charge or other sum due on any
date on which such payment is due, all amounts due hereunder will
bear interest at the Default Rate. Maker will also pay to
Holder, after the occurrence of an Event of Default, in addition
to the amount due, all reasonable costs of collecting, securing,
or attempting to collect or secure this Note or any other Loan
Document, including, without limitation, court costs and
reasonable attorney's fees (including reasonable attorneys' fees
on any appeal by either Marker or Holder and in any bankruptcy
proceeding).
With respect to the amounts due pursuant to this Note, Maker
waives the following:
(1) All rights of exemption of property from levy or sale
under execution or other process for the collection of debts
under the Constitution or laws of the United States or any State
thereof;
(2) Demand, presentment, protest, notice of dishonor,
notice of nonpayment, notice of protest, notice of intent to
accelerate, notice of acceleration, suit against any party,
diligence in collection of this Note and in the handling of
securities at any time existing in connection herewith, and all
other requirements necessary to enforce this Note except for
notices required by Governmental Authorities and notices required
by the Loan Agreement; and
(3) Any further receipt by Xxxxxx or acknowledgement by
Holder of any collateral now or hereafter deposited as security
for the Loan.
It is the intention of Maker and Holder to conform strictly
to applicable usury laws. Accordingly, if the transactions
contemplated hereby would be usurious under applicable law, then,
in that event, notwithstanding anything to the contrary in any
agreement entered into in connection with or as security for this
Note, it is agreed as follows: (i) the aggregate of all
consideration which constitutes interest under applicable law
that is taken, reserved, contracted for, charged or received
under this Note or under any of the other aforesaid agreements or
otherwise in connection with this Note shall under no
circumstances exceed the maximum amount of interest allowed by
applicable law, and any excess shall be credited on this Note by
the holder hereof (or if this Note shall have been paid in full,
refunded to Maker); and (ii) in the event that maturity of this
Note is accelerated by reason of an election by the Holder
resulting from any default hereunder or otherwise, or in the
event of any required or permitted prepayment, then such
consideration that constitutes interest may never include more
than the maximum amount of interest allowed by applicable law,
and any interest in excess of the maximum amount of interest
allowed by applicable law, if any, provided for in this Note or
otherwise shall be cancelled automatically as of the date of such
acceleration or prepayment and, if theretofore prepaid, shall be
credited on this Note (or if this Note shall have been paid in
full, refunded to Marker).
In determining whether or not the interest paid or payable
under any specific contingency exceeds the maximum amount allowed
by applicable law, the Holder shall, to the maximum extent
permitted under applicable law (a) exclude voluntary prepayments
and the effects thereof, and (b) amortize, prorate, allocate and
spread, in equal parts, the total amount of interest throughout
the entire contemplated term of this Note so that the interest
rate is uniform throughout the entire term of this Note;
provided, that if this Note is paid and performed in full prior
to the end of the full contemplated term hereof, and if the
interest received for the actual period of existence thereof
exceeds the maximum amount allowed by applicable law, Holder
shall refund to Maker the amount of such excess, and in such
event, Holder shall not be subject to any penalties provided by
any laws for contracting for, changing or receiving interest in
excess of the maximum amount allowed by applicable law.
Holder shall not by any act, delay, omission or otherwise be
deemed to have modified, amended, waived, extended, discharged or
terminated any of its rights or remedies, and no modification,
amendment, waiver, extension, discharge or termination of any
kind shall be valid unless in writing and signed by Holder and
Maker. All rights and remedies of Holder under the terms of this
Note and applicable statutes or rules of law shall be cumulative,
and may be exercised successively or concurrently. Maker agrees
that there are no defenses, equities or setoffs with respect to
the obligations set forth herein, and to the extent any such
defenses, equities, or setoffs may exist, the same are hereby
expressly released, forgiven, waived and forever discharged.
Whenever possible, each provision of this Note shall be
interpreted in such manner as to be effective and valid under
applicable Legal Requirements, but if any provision of this Note
shall be prohibited by or invalid under applicable Legal
Requirements, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this
Note.
Holder may, at its option, release any Collateral given to
secure the indebtedness evidenced hereby, and no such release
shall impair the obligations of Maker to Holder.
The proceeds of this Note were disbursed from New York,
which State the parties agree has a substantial relationship to
the parties and to the underlying transaction embodied hereby,
and in all respects, including, without limitation, matters of
construction, validity and performance, this Note and the
obligations arising hereunder shall be governed by, and construed
in accordance with, the laws of the State of New York applicable
to contracts made and performed in such State and any applicable
law of the United States of America. To the fullest permitted by
law, Maker hereby unconditionally and irrevocably waives any
claim to assert that the law of any other jurisdiction governs
this Note, and this Note shall be governed by and construed in
accordance with the laws of the State of New York pursuant to
Subsection 5-1401 of the New York General Obligations Law.
Any legal suit, action or proceeding against Holder or Maker
arising out of or relating to this Note shall be instituted in
any federal court in New York, New York, pursuant to Subsection
5-1402 of the New York General Obligations Law, or in any federal
or state court in the jurisdiction in which any Collateral is
located, and Maker waives any objection which it may now or
hereafter have to the laying of venue of any such suit, action or
proceeding, and Maker hereby irrevocably submits to the
jurisdiction of any such court in any suit, action or proceeding.
Maker does hereby designate and appoint The Prentice Hall
Corporation System, Inc., currently located at 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxx Xxxx 00000-0000 as its authorized agent to
accept and acknowledge on its behalf service of any and all
process which may be served in any such suit, action or
proceeding in any such federal or state court, and agrees that
service of process upon said agent at said address (or at such
other office in New York, New York as may be designated by such
agent in accordance with the terms hereof) with copies to Maker
at the address set forth in the first paragraph of this Note and
written notice of said service of Maker mailed or delivered to
Maker in the manner provided in the Loan Agreement shall be
deemed in every respect effective service of process upon Maker,
in any such suit, action or proceeding. Maker (i) shall give
prompt notice to Holder of any changed address of its authorized
agent hereunder, (ii) may at any time and from time to time
designate a substitute authorized agent (which office shall be
designated as the address for service of process). and (iii)
shall promptly designate such a substitute if its authorized
agent ceases to have an office or is dissolved without leaving a
successor.
MAKER AND HOLDER TO THE FULLEST EXTENT THAT THEY MAY
LAWFULLY DO SO, WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY TORT ACTION,
BROUGHT BY ANY PARTY HERETO WITH RESPECT TO THIS NOTE OR THE
OTHER LOAN DOCUMENTS. EACH OF MAKER AND XXXXXX AGREES THAT THE
OTHER MAY FILE A COPY OF THIS WAIVER WITH ANY COURT AS WRITTEN
EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED AGREEMENT OF THE
OTHER IRREVOCABLY TO WAIVE ITS RIGHT TO TRIAL BY JURY, AND THAT,
TO THE FULLEST EXTENT THAT IT MAY LAWFULLY DO SO, ANY DISPUTE OR
CONTROVERSY WHATSOEVER BETWEEN MAKER AND HOLDER SHALL INSTEAD BE
TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING
WITHOUT A JURY.
IN WITNESS WHEREOF, Maker has caused this Promissory Note to
be properly executed as of the date first written and has
authorized this Promissory Note to be dated as of the day and
year first above written .
MAKER:
MARK NORTHWOOD ASSOCIATES LIMITED
PARTNERSHIP, a Florida limited
partnership
By: Xxxx Xxxxxxxxx Realty, Inc., a
Florida corporation, its
general partner
By: /s/ Xxxxxx Xxxx
Xxxxxx Xxxx
Senior Vice President
