EXHIBIT 10.8
FIXED RATE NOTE
$17,000,000,00 September 6, 2002
FOR VALUE RECEIVED, NEWINGTON TERMINAL ASSOCIATES LLC, a Delaware
limited liability company ("Maker"), having its principal place of business at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, promises to pay to the
order of SUBURBAN CAPITAL MARKETS, INC., a Maryland corporation, its successors
or assigns ("Payee") at the office of Payee or its agent, designee or assignee
at c/o Midland Loan Services, Inc. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, or at such place as the holder hereof may from time to time designate in
writing, the principal sum of SEVENTEEN MILLION AND NO/100 DOLLARS
($17,000,000.00) in lawful money of the United States of America with interest
thereon to be computed on the unpaid principal balance from time to time
outstanding from the date of this Note (herein so called) at the Interest Rate
(hereinafter defined), and to be paid in installments as follows:
1. Payment Terms
(a) A payment of interest only on the date hereof for the
period from the date hereof through September 30, 2002, both inclusive;
(b) A constant payment of $109,697.26, (the "Constant
Payment"), on the first day of November. 2002, and on the first day of each
calendar month thereafter up to and including the first day of September, 2012,
each of such payments to be applied to the payment of interest computed at the
Interest Rate (as defined below); and the balance applied toward the reduction
of the principal sum; and
(c) The balance of said principal sum and all interest
thereon shall be due and payable on the first day of October, 2012 (the
"Maturity Date"). Interest on the principal sum of this Note shall be calculated
by multiplying the actual number of days elapsed in each accrual period by a
daily rate based on a three hundred sixty (360) day year. In computing the
number of days during which such interest accrues, the day on which funds are
initially advanced shall be included regardless of the time of day such advance
is made, and the day on which funds are repaid shall be included unless
repayment is credited prior to close of business. The Constant Payment required
hereunder is based on an amortization schedule of three hundred sixty (360)
months.
In the absence of a specific determination by Payee to the contrary,
all payments paid by Maker to Payee in connection with the obligations of Maker
under this Note and under the other Loan Documents (as hereinafter defined)
shall be applied in the following order of priority: (a) to amounts, other than
principal and interest, due to Payee pursuant to this Note or the other Loan
Documents; (b) to the portion of accrued but unpaid interest accruing on this
Note; and (c) to the unpaid principal balance of this Note. Maker irrevocably
waives the right to direct the application of any and all payments at any time
hereafter received by ▇▇▇▇▇ from or on behalf of
Maker, and Maker irrevocably agrees that ▇▇▇▇▇ shall have the continuing
exclusive right to apply any and all such payments against the then due and
owing obligations of Maker in such order of priority as Payee may deem
advisable.
2. Interest Rate. The term "Interest Rate" as used in this Note
shall mean a rate of six and seventy hundredths percent (6.700%) per annum.
3. Default and Acceleration. The whole of the principal sum of
this Note, together with all interest accrued and unpaid thereon, and all other
sums due under the Mortgage (hereinafter defined), the Loan Documents
(hereinafter defined) and this Note (all such sums hereinafter collectively
referred to as the "Debt") shall without notice become immediately due and
payable at the option of Payee if any payment due on the Maturity Date is not
paid on such date or if any other payment required in this Note is not paid on
or before the fifth (5th) day after the date when due, or if any Event of
Default (as defined in the Mortgage) occurs, or on the happening of any other
default, after the expiration of any applicable notice and grace periods, herein
or under the terms of the Mortgage or other Loan Documents (hereinafter
collectively an "Event of Default"), and further provided that the Debt shall
automatically become immediately due and payable, without notice or any exercise
of any option on the part of Payee, if an Event of Default of the type set forth
in Section 22(g) of the Mortgage occurs with respect to Maker. All of the terms,
covenants and conditions contained in the Mortgage and the other Loan Documents
are hereby made part of this Note to the same extent and with the same force as
if they were fully set forth herein. In the event that it should become
necessary to employ counsel to collect the Debt or to protect or foreclose the
security hereof, Maker also agrees to pay reasonable attorneys' fees for the
services of such counsel whether or not suit be brought.
4. Default Interest. Maker does hereby agree that upon the
occurrence of an Event of Default which is then continuing or upon the failure
of Maker to pay the Debt in full on the Maturity Date, Payee shall be entitled
to receive and Maker shall pay interest on the entire unpaid principal sum at
the rate of the greater of 5% above the Interest Rate or 5% above the Base Rate
(hereinafter defined), in effect at the time of the occurrence of the Event of
Default (the "Default Rate"). The term "Base Rate" shall mean the annual rate
announced by Citibank, N.A., in New York City, New York as its base rate in
effect at the time of the occurrence of the Event of Default. The Default Rate
shall be computed from the occurrence of the Event of Default until the actual
receipt and collection of the Debt. This charge shall be added to the Debt, and
shall be deemed secured by the Mortgage. This section, however, shall not be
construed as an agreement or privilege to extend the date of the payment of the
Debt, nor as a waiver of any other right or remedy accruing to Payee by reason
of the occurrence of any Event of Default. In the event the Default Rate is
above the maximum rate permitted by applicable law, the Default Rate shall be
the maximum rate permitted by applicable law.
5. Prepayment; Defeasance.
(a) The principal balance of this Note may not be prepaid
in whole or in part prior to the date which is sixty (60) calendar days prior to
the Maturity Date.
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(b) After the date which is the earlier to occur of (i)
the second (2nd) anniversary of the "start-up day" .(within the meaning of
Section 860G(a)(9) of the Internal Revenue Code of 1986, as amended from time to
time, or any successor statute (the "Code")), of the "real estate investment
conduit" ("REMIC") that then holds this Note or (ii) the fourth (4th)
anniversary of the-date of this Note, and prior to the date which is sixty (60)
calendar days prior to the Maturity Date, Maker may voluntarily defease the Debt
in whole, but not in part (except as provided in Section 5A below) (such event,
a "Defeasance"), by providing Payee with the Defeasance Collateral (as defined
below) producing payments which replicate the Scheduled Defeasance Payments (as
defined below), provided that any Defeasance by Maker shall be subject to the
satisfaction of the following conditions precedent and other provisions below:
(i) Maker shall provide not less than thirty
(30) days prior written notice to Payee specifying a regularly
scheduled payment date (the "Defeasance Date") on which the
Defeasance is to occur. Such notice shall indicate the
principal amount of this Note to be defeased;
(ii) Maker shall pay to Payee all accrued and
unpaid interest on the principal balance of this Note to, but
not including, the Defeasance Date. If for any reason the
Defeasance Date is not a regularly scheduled payment date,
Maker shall also pay interest that would have accrued on this
Note through the next regularly scheduled payment date;
(iii) Maker shall pay to Payee all other sums, not
including scheduled interest or principal payments, due under
this Note, the Mortgage, and the other Loan Documents;
(iv) Maker shall pay to Payee an amount equal to
the full principal amount of this Note together with an
additional amount such that the aggregate amount (the
"Defeasance Deposit") is at least sufficient to purchase
direct, non- callable obligations of the United States of
America (the "Defeasance Collateral") that provide payments on
or prior to, but as close as possible to, all successive
scheduled payment dates after the Defeasance Date upon which
interest and/or principal payments are due under this Note
through and including the Maturity Date and in amounts equal
to the scheduled payments due on such dates, including, on the
Maturity Date, the outstanding principal balance of this Note,
together with all interest accrued thereon and all other sums
then due and owing upon this Note and under the Loan Documents
(the "Scheduled Defeasance Payments");
(v) Maker shall deliver to Payee on or prior to
the Defeasance Date the following: (a) an executed security
agreement, in form and substance reasonably satisfactory to
Payee, creating a first priority lien on the Defeasance
Deposit and the Defeasance Collateral (the "Defeasance
Security Agreement"); (b) an opinion of counsel for Maker in
form and substance reasonably satisfactory to Payee in its
sole discretion stating, among other things, that Maker has
legally and validly
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transferred and assigned the Defeasance Collateral and all
obligations, nghts and duties under and to this Note to the
Successor Borrower (as defined below), that Payee has a
perfected first priority security interest in the Defeasance
Deposit and the Defeasance Collateral delivered by Maker, and
that any REMIC trust formed pursuant to Section 860D of the
Code that holds this Note will not fail to maintain its status
as a REMIC within the meaning of Section 860D of the Code as a
result of such Defeasance; (c) a certificate of Maker
certifying that all requirements relating to defeasance set
forth in this Note and any other Loan Documents have been
satisfied; (d) evidence in writing from each of the Rating
Agencies (as defined below) to the effect that the Defeasance
will not result in a qualification, downgrade or withdrawal of
any rating in effect immediately prior to the Defeasance Date
for any securities or "Pass-Through Certificates" issued
pursuant to the terms of a trust and servicing agreement in
the event that this Note or any interest therein is included
in a REMIC or other securitization vehicle, and (e) a
certificate from an independent certified public accounting
firm selected by Payee certifying that the Defeasance
Collateral is sufficient to satisfy the payments required
under this Note as described above;
(vi) Maker shall deliver such other certificates,
documents and instruments as Payee may reasonably request; and
(vii) Maker shall pay all costs and expenses to
Payee incurred in connection with the Defeasance, including
any costs and expenses associated with a release of the lien
of the Mortgage as provided below as well as reasonable
accountants' and attorneys' fees and expenses.
(c) For purposes hereof, "Rating Agencies" shall mean,
collectively, (i) Standard and Poor's Rating Services, (ii) ▇▇▇▇▇'▇ Investors
Service, Inc., (iii) Fitch, Inc. (or its affiliates), and (iv) any other rating
agency designated by ▇▇▇▇▇, and the respective successors and assigns of each.
(d) In connection with each Defeasance, Maker hereby
appoints Payee as its agent and attorney-in-fact for the purpose of using the
Defeasance Deposit to purchase the Defeasance Collateral. Maker, pursuant to the
Defeasance Security Agreement or other appropriate document, shall authorize and
direct that the payments received from the Defeasance Collateral may be made
directly to the account maintained by, or for the benefit of, Payee (unless
otherwise directed by ▇▇▇▇▇) and applied to satisfy the obligations of Maker or
Successor Borrower under this Note. If (i) Maker has defeased the entire Note
and the conditions precedent listed above and all other terms and conditions set
forth herein have been satisfied and (ii) the Other Note (hereinafter defined)
has been paid in full or fully defeased in accordance with the terms and
provisions thereof, the Property shall be released from the lien of the Mortgage
and the Defeasance Collateral, pledged pursuant to the Defeasance Security
Agreement, shall be the sole source of collateral securing this Note. In
connection with the release of the lien, Maker shall submit to Payee, not less
than, thirty (30) days prior to the
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Defeasance Date, a release of lien for the Mortgage and related Loan Documents
(including any guaranty) for execution by ▇▇▇▇▇, Such release shall be in form
appropriate in the jurisdiction in which the Property is located and
satisfactory to Payee in its reasonable discretion. In addition, Maker shall pay
all recording costs, fees and expenses associated with recording the release of
lien. Maker shall provide all other documentation Payee reasonably requires to
be delivered by Maker in connection with such release, together with a
certificate certifying that such documentation (i) is in compliance with all
applicable laws, and (ii) will effect such release in accordance with the terms
of this Note.
(e) Payee, at Maker's expense, may form or, at ▇▇▇▇▇'s
request, Maker shall form a special-purpose bankruptcy remote entity (the
"Successor Borrower") to be the obligor under this Note. Maker shall, at Payee's
request, assign all of its obligations and rights under this Note to the
Successor Borrower. In connection therewith, the Successor Borrower shall
execute an assumption agreement in form and substance satisfactory to Payee in
its sole discretion pursuant to which it shall assume Maker's obligations under
this Note and the Defeasance Security Agreement, and Maker and any guarantors
shall be released from their obligations with respect to such assumed documents.
The sole assets of the Successor Borrower shall be the Defeasance Collateral. In
connection with such assignment and assumption, Maker shall:
(i) deliver to Payee an opinion of counsel in
form and substance and delivered by counsel reasonably
satisfactory to Payee in its sole discretion stating, among
other things, that such assumption agreement is enforceable
against Maker and the Successor Borrower in accordance with
its terms, subject to applicable bankruptcy, reorganization,
insolvency and moratorium laws, that the Note, the Defeasance
Security Agreement and any other documents executed in
connection with such Defeasance are enforceable against the
Successor Borrower in accordance with their respective terms,
subject to applicable bankruptcy, reorganization, insolvency
and moratorium laws, and that the delivery of the Defeasance
Deposit and transfer of the Defeasance Collateral to Successor
Borrower does not constitute a fraudulent conveyance or a
preference payment under applicable bankruptcy law;
(ii) pay all costs and expenses incurred by Payee
or its agents in connection with such assignment and
assumption (including, without limitation, any reasonable fees
and disbursements of accountants and legal counsel and rating
agency fees and costs); and
(iii) pay $1,000 to Successor Borrower as
consideration for assuming the obligations under the Note and
the Defeasance Security Agreement and a defeasance processing
fee to the servicer of the Note; provided, notwithstanding
anything to the contrary herein or in the Loan Documents, no
other assumption fee shall be payable by Maker in connection
with such assumption.
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(f) If, prior to the date which is sixty (60) calendar
days prior to the Maturity Date, and following the occurrence of any Event of
Default, Maker shall tender payment of an amount sufficient to satisfy all or
any portion of the Debt, or if the balance of the Debt shall otherwise become
due and owing, as a result of acceleration upon the occurrence of an Event of
Default or otherwise, Maker shall immediately pay, in addition to the Debt and
any other amounts due under the terms of this Note and the other Loan Documents,
an amount equal to the Yield Maintenance Premium (as defined below); provided
that if a complete or partial prepayment results from the application to the
Debt of the casualty or condemnation proceeds from the property, no Yield
Maintenance Premium will be imposed. Partial prepayments of principal resulting
from the application of casualty or insurance proceeds to the Debt shall not
change the amounts of subsequent monthly installments nor change the dates on
which such installments are due, unless Payee shall otherwise agree in writing.
(g) For purposes hereof, "Yield Maintenance Premium"
shall mean an amount equal to the aggregate (without duplication) of:
(i) the product obtained by multiplying (1) the
entire unpaid-principal balance of this Note at the time of prepayment, times
(2) the difference (if a positive number) obtained by subtracting from the
Interest Rate the yield rate (the "Yield Rate") on the 4.375% U.S. Treasury
Security due August 15, 2012 (the "Specified U.S. Treasury Security"), as the
Yield Rate is reported in the Wall Street Journal on the fifth Business Day (as
hereinafter defined) preceding (x) the date notice of prepayment is given to
Payee where prepayment is voluntary, or (y) the date Payee accelerates the Debt
times (3) the present value factor calculated using the following formula:
-n
l-(l+r)
-----------
r
r = Yield Rate
n = the number of years, and any fraction
thereof, remaining between the prepayment
date and the Maturity Date.
In the event that no Yield Rate is published for the Specified U.S. Treasury
Security, then the nearest equivalent U.S. Treasury Security shall be selected
at ▇▇▇▇▇'s sole discretion. If the publication of such Yield Rates in the Wall
Street Journal is discontinued, Payee shall determine such Yield Rates from
another source selected by Payee; and
(ii) an amount equal to the interest which would
have accrued on the amount of such prepayment during the remaining days of the
full calendar month within which such prepayment is made.
(h) Maker acknowledges and agrees that Yield Maintenance
Premium is not a penalty or additional interest, but is ▇▇▇▇▇'s cost of
liquidating its investments in the event of any prepayment of this Note. Maker
hereby covenants and agrees to indemnify Payee and hold it harmless from any
costs, fees, expenses (including attorney's fees) resulting from any action,
litigation or judicial decision alleging, claiming or holding that the Yield
Maintenance Premium
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is a penalty or additional interest, and from any damages (whether compensatory
or punitive) ordered by a court, judge or administrative law judge which may
determine that the Yield Maintenance Premium is a penalty or additional
interest.
(i)- In the event of prepayment of this Note (in whole
but not in part) on or after the date which is sixty (60) calendar days prior to
the Maturity Date, Maker shall pay, together with the amount of such prepayment,
an amount equal to (i) the interest which would have been accrued on the amount
of such prepayment during the remaining days of the full calendar month within
which such prepayment is made, (ii) all accrued and unpaid interest and (iii)
any other sums due under this Note or any other Loan Document.
(j) Notwithstanding anything to the contrary contained
herein, no Defeasance or prepayment of all or any portion of the unpaid
principal balance of this Note shall act to release the Property from the lien
of the Mortgage and the Loan Documents while the other loan in the original
principal amount of 526,950,000.00 made contemporarily herewith by Payee to
Crossways Associates LLC, a Delaware limited liability company (the "Other
Borrower") is outstanding and remains fully or partially undefeased.
6. Security. This Note is evidence of that certain loan made by
Payee to Maker contemporaneously herewith (the "Loan"). This Note is secured by
(a) a Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing of even date herewith in the amount of this Note given by Maker
for the use and benefit of Payee covering the fee estate of Maker in certain
premises as more particularly described therein (the "Mortgaged Property") (as
the same may be amended, restated, extended, supplemented, or otherwise modified
from time to time, the "Mortgage"), (b) an Assignment of Leases and Rents of
even date herewith executed by Maker in favor of ▇▇▇▇▇ (as the same may be
amended, restated, extended, supplemented or otherwise modified from time to
time, the "Assignment of Leases"), and (c) the other Loan Documents (as
hereinafter defined). The term "Loan Documents" as used in this Note relates
collectively to this Note, the Mortgage, the Assignment of Leases and any and
all other documents securing, evidencing, or guaranteeing all or any portion of
the Loan or otherwise executed and/or delivered in connection with this Note and
the Loan, including, without limitation, the Other Mortgage (as hereinafter
defined), provided, however, that such term shall in no event be deemed to
include that certain Environmental Liabilities Agreement dated as of the date
hereof in favor of Payee. This Note is also secured by, among other things, that
certain Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing of even date herewith in the amount of $26,950,000.00 given by
the Other Borrower for the use and benefit of Payee covering the fee estate of
the Other Borrower in certain premises as more particularly described therein
(the "Other Mortgage"), which also secures that certain Fixed Rate Note of even
date herewith in the amount of 526,950,000,00 made by the Other Borrower to the
order of Payee (the "Other Note") that evidences the other loan made
contemporarily herewith by ▇▇▇▇▇ to the Other Borrower and all subject to the
terms of the release of cross collateralization set forth in Section 64 of the
Mortgage.
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7. Maximum Legal Interest. It is expressly stipulated and agreed
to be the intent of Maker and Payee at ail times to comply with applicable state
law or applicable United States federal law (to the extent that it permits Payee
to contract for, charge, take, reserve, or receive a greater amount of interest
than under state law) and that this section shall control every other covenant
and agreement in this Note. If the applicable law (state or federal) is ever
judicially interpreted so as to render usurious any amount called for under this
Note, or contracted for, charged, taken, reserved, or received with respect to
the Debt, or if ▇▇▇▇▇'s exercise of the option to accelerate the Maturity Date,
or if any prepayment by Maker results in Maker having paid any interest in
excess of that permitted by applicable law, then it is Payee's express intent
that all excess amounts theretofore collected by Payee shall be credited on the
principal balance of this Note and all other Debt and the provisions of this
Note immediately be deemed reformed and the amounts thereafter collectible
hereunder and thereunder reduced, without the necessity of the execution of any
new documents, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder or thereunder. All
sums paid or agreed to be paid to Payee 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 of the Debt so that the rate or amount of interest on
account of the Debt does not exceed the maximum lawful rate from time to time in
effect and applicable to the Debt for so long as the Debt is outstanding.
Notwithstanding anything to the contrary contained herein, it is not the
intention of Payee to accelerate the maturity of any interest that has not
accrued at the time of such acceleration or to collect unearned interest at the
time of such acceleration.
8. Late Charges. Notwithstanding any longer period granted under
Section 3 hereof in connection with the occurrence of an Event of Default and
▇▇▇▇▇'s acceleration remedies, if any sum payable under this Note is not paid on
or before the fifth (5th) day after the date on which it is due, Maker shall pay
to Payee upon demand an amount equal to the lesser of five percent (5%) of such
unpaid sum or the maximum amount permitted by applicable law to defray the
expenses incurred by Payee in handling and processing such delinquent payment
and to compensate Payee for the loss of the use of such delinquent payment and
such amount shall be secured by the Mortgage and other Loan Documents.
9. No Oral Changes. 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 Maker or Payee, 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.
10. Joint and Several Liability. If Maker consists of more than
one person or party, the obligations and liabilities of each such person or
party shall be joint and several.
11. Waivers. Except as specifically provided in the Loan
Documents, Maker 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, notice of protest, and non-payment, notice
of intent to accelerate the maturity hereof and notice of such acceleration.
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No release of any security for the Debt or extension of time for payment of this
Note or any installment hereof, and no alteration, amendment or waiver of any
provision of this Note, the Mortgage or the other Loan Documents made by
agreement between Payee and any other person or party shall release, modify,
amend, waive, extend, change, discharge, terminate or affect the liability of
Maker, and any other who may become liable for the payment of all or any part of
the Debt, under this Note, the Mortgage or the other Loan Documents.
12. Limitations on Recourse. Notwithstanding anything in the Loan
Documents to the contrary, but subject to the qualifications and other
provisions in clauses (a), (b) and (c) of this Section 12 below, Payee and Maker
agree that: (i) Maker shall be liable upon the Debt and for the other
obligations arising under the Loan Documents to the full extent (but only to the
extent) of the security therefor, the same being all properties (whether real or
personal), rights, estates and interests now or at any time hereafter securing
the payment of the Debt and/or the other obligations of Maker under the Loan
Documents; (ii) if a default occurs in the timely and proper payment of all or
any part of the Debt, any judicial proceedings brought by Payee against Maker
shall be limited to the preservation, enforcement and foreclosure, or any
thereof, of the liens, security titles, estates, assignments, rights and
security interests now or at any time hereafter securing the payment of the Debt
and/or the other obligations of Maker under the Loan Documents, and no
attachment, execution or other writ of process shall be sought, issued or levied
upon any assets, properties or funds of Maker other than the Mortgaged Property;
and (iii) in the event of a foreclosure of such liens, security titles, estates,
assignments, rights or security interests securing the payment of the Debt, no
judgment for any deficiency upon the Debt shall be sought or obtained by Payee
against Maker.
(a) Nothing contained in this Section 12 shall (1) be
deemed to be a release or impairment of the Debt or the lien of the Loan
Documents upon the Mortgaged Property, or (2) preclude Payee from foreclosing
under the Loan Documents in case of any default or from enforcing any of the
other rights of Payee, including naming Maker as a party defendant in any action
or suit for foreclosure and sale under the Mortgage, or obtaining the
appointment of a receiver or prohibit Payee from obtaining a personal judgment
against Maker on the Debt to the extent (but only to the extent) such judgment
may be required in order to enforce the liens, security titles, estates,
assignments, rights and security interests securing payment of the Debt, or (3)
limit or impair in any way whatsoever the Guaranty (the "Guaranty") of even date
executed and delivered in connection with the indebtedness evidenced by this
Note or release, relieve, reduce, waive or impair in any way whatsoever, any
obligation of any party to the Guaranty or (4) release, relieve, reduce, waive
or impair in any way whatsoever any obligations of any person other than Maker
which is a party to any of the other Loan Documents.
(b) In the event of fraud or material misrepresentation
by Maker or any guarantor in connection with the Loan Documents or the documents
delivered by Maker, or if any petition or proceeding for bankruptcy,
reorganization or arrangement pursuant to federal bankruptcy law, or any similar
federal or state law, shall be filed by Maker (or if any such petition or
proceeding was not so filed by Maker, but Maker or Guarantor or their respective
agents, affiliates, officers or employees consented to, acquiesced in arranged
or otherwise
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participated in bringing about the institution of such petition or proceeding),
or if there shall occur any material breach or default under the provisions of
Section .9 of the Mortgage (entitled "Single Purpose Entitv/Separateness"). the
limitations on recourse set forth in this Section 12, including the provisions
of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void
and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way
release, affect or impair the right of Payee to recover, and Maker shall be
fully and personally liable and subject to legal action, for any loss, cost,
expense, damage, claim or other obligation (including without limitation
reasonable attorneys' fees and court costs) incurred or suffered by Payee
arising out of or in connection with the following:
(A) any breach of the Environmental
Liabilities Agreement executed by Maker for the benefit of
▇▇▇▇▇, dated of even date herewith, including the
indemnification provisions contained therein,
(B) Maker's failure to obtain ▇▇▇▇▇'s
prior written consent to any subordinate financing or any
other encumbrance on the Mortgaged Property, or any transfer
of the Mortgaged'Property or majority ownership in Maker in
violation of the Mortgage;
(C) the misapplication by Maker, its
agents, affiliates, officers or employees of any funds derived
from the Mortgaged Property, including security deposits,
insurance proceeds and condemnation awards, in violation of
the Loan Documents;
(D) Maker's failure to apply proceeds
of rents or any other payments in respect of the leases and
other income from the Mortgaged Property or any other
collateral when received to the costs of maintenance and
operation of the Mortgaged Property and to the payment of
taxes, lien claims, insurance premiums, monthly payments of
principal and interest or escrow payments or other payments
due under the Loan Documents to the extent the Loan Documents
require such proceeds to be then so applied;
(E) any litigation or other legal
proceeding related to the Debt filed by Maker or any guarantor
or indemnitor that delays or impairs Payee's ability to
preserve, enforce or foreclose its lien on the Mortgaged
Property, including, but not limited to, the filing of a
voluntary petition concerning Maker under the U.S. Bankruptcy
Code, in which action a claim, counterclaim, or defense is
asserted against Payee, other than any litigation or other
legal proceeding in which a final, non-appealable judgment for
money damages or injunctive relief is entered against Payee;
(F) the gross negligence or willful
misconduct of Maker, its agents, affiliates, officers or
employees which causes or results in a material
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diminution, or material loss of value, of the Mortgaged
Property that is not reimbursed by insurance or which gross
negligence or willful misconduct exposes Payee to claims,
liability or costs of defense in any litigation or other legal
proceeding;
(G) the seizure or forfeiture of the
Mortgaged Property, or any portion thereof, or ▇▇▇▇▇'s
interest therein, resulting from criminal wrongdoing by Maker,
its agents, affiliates, officers or employees; and
(H) waste to the Mortgaged Property
caused by the acts or omissions of Maker, its agents,
affiliates, officers, employees or contractors, or the removal
or disposal of any portion of the Mortgaged Property after an
Event of Default to the extent such Mortgaged Property is not
replaced by Maker with like property of equivalent value,
function and design.
13. Notices. All notices or other communications required or
permitted to be given pursuant hereto shall be given in the manner and be
effective as specified in the Mortgage, directed to the parties at their
respective addresses as provided therein.
14. Transfers of Note and Loan. Payee shall have the unrestricted
right at any time or from time to time to sell this Note and the Loan or
participation interests therein. Maker shall execute, acknowledge and deliver
any and all instruments requested by ▇▇▇▇▇ to satisfy such purchasers or
participants that the unpaid indebtedness evidenced by this Note is outstanding
upon the terms and provisions set out in this Note and the other Loan Documents.
To the extent, if any specified in such assignment or participation, such
assignee(s) or participant(s) shall have the rights and benefits with respect to
this Note and the other Loan Documents as such assignee(s) or participant(s)
would have if they were the Payee hereunder.
15. Waiver of Trial By Jury; Waiver of Certain Claims. MAKER
HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY
JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH
RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS NOTE OR THE OTHER LOAN
DOCUMENTS, OR ANY CLAM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH INCLUDING, BUT NOT LIMITED TO THOSE RELATING TO (A) ALLEGATIONS THAT A
PARTNERSHIP EXISTS BETWEEN PAYEE AND MAKER, (B) USURY OR PENALTIES OR DAMAGES
THEREFOR; (C) .ALLEGATIONS OF UNCONSCIONABLE ACTS, DECEPTIVE TRADE PRACTICE,
LACK OF GOOD FAITH OR FAIR DEALING, LACK OF COMMERCIAL REASONABLENESS, OR
SPECIAL RELATIONSHIPS (SUCH AS FIDUCIARY, TRUST OR CONFIDENTIAL RELATIONSHIP),
(D) ALLEGATIONS OF DOMINION, CONTROL, ALTER EGO, INSTRUMENTALITY, FRAUD, REAL
ESTATE FRAUD, MISREPRESENTATION, DURESS, COERCION, UNDUE INFLUENCE, INTERFERENCE
OR NEGLIGENCE, (E) ALLEGATIONS OF TORTIOUS INTERFERENCE WITH PRESENT OR
PROSPECTIVE BUSINESS RELATIONSHIPS OR OF ANTITRUST, OR (F) SLANDER, LIBEL OR
DAMAGE TO REPUTATION. THIS WAIVER OF RIGHT TO TRIAL BY JURY
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IS GIVEN KNOWINGLY AND VOLUNTARILY BY MAKER, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. ▇▇▇▇▇ IS HEREBY AUTHORIZED TO FILE A COPY OF THIS
SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY MAKER.
16. Authority. Maker (and the other undersigned representative of
Maker, if any) represents that Maker has full power, authority and legal right
to execute, deliver and perform its obligations pursuant to this Note, the
Mortgage and the other Loan Documents and that this Note, the Mortgage and the
other Loan Documents constitute valid and binding obligations of Maker.
17. Governing Law; Consent to Jurisdiction. This Note shall be
governed and construed in accordance with the laws of the state where the
Mortgaged Property is located and the applicable laws of the United States of
America. Maker hereby irrevocably submits to the jurisdiction of any court of
competent jurisdiction located in the state in which the Mortgaged Property is
located in connection with any proceeding relating to this Note.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, ▇▇▇▇▇ has duly executed this Note the day and year
first above written.
MAKER:
NEWINGTON TERMINAL ASSOCIATES LLC, a
Delaware limited liability company
By: Newington Terminal LLC, a
Delaware limited liability company,
its managing member
By: First Potomac Newington,
Inc., a Delaware corporation,
its managing member
BY: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: President
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