Exhibit 10 (t)
Loan No. WLD540061
PROMISSORY NOTE
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Date of Note:
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January 9th 1998
Note Amount: $ 7,500,000
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Maturity Date: February l, 2008
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THIS PROMISSORY NOTE (this "Note") is made January 5, 1998 by
XXXXXXX PROPERTIES, a New Jersey partnership ("Borrower"), having an address c/o
American Real Estate Investment Corporation, Plymouth Meeting Executive Campus,
000 Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx 00000, to and in
favor of COLUMN FINANCIAL, INC., a Delaware corporation ("Lender"), having an
address at 0000 Xxxxxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000-0000.
FOR VALUE RECEIVED, Borrower promises to pay to the order of Lender,
without any counterclaim, setoff or deduction whatsoever, on the Maturity Date
(as hereinafter defined), at the office of Lender, or at such other place as
Lender may designate to Borrower in writing from time to time, the principal sum
of SEVEN MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($ 7,500,000.00),
together with interest on so much thereof as is from time to time outstanding
and unpaid, from the date of the advance of the principal evidenced hereby, at
the rate of 7.03% per annum (the "Note Rate"), in lawful money of the United
States of America, which shall at the time of payment be legal tender in payment
of all debts and dues, public and private.
ARTICLE I - TERMS AND CONDITIONS
1.01 Payment of Principal and Interest. Said interest shall be
computed hereunder on the basis of the actual number of days elapsed in a three
hundred sixty (360) day year. In computing the number of days during which
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. Payments in federal funds immediately available in the place
designated for payment received by Lender prior to 2:00 p.m. local time at said
place of payment shall be credited prior to close of business, while other
payments may, at the option of Lender, not be credited until immediately
available to Lender in federal funds in the place designated for payment prior
to 2:00 p.m. local time at said place of payment on a day on which Lender is
open for business. Such principal and interest shall be payable, in equal
consecutive monthly installments of $50,048.89 each, beginning on (x) the first
day of the second full calendar month following the date of this Note or (y) the
first day of the first full calendar month following the date hereof in the
event the advance of the principal amount evidenced by this Note is the first
day of a calendar month, and
continuing on the first day of each and every month (the "Payment Date")
thereafter through and including February 1, 2008 (the "Maturity Date"), at
which time the entire outstanding principal balance hereof, together with all
accrued but unpaid interest thereon, shall be due and payable in full. Each such
monthly installment shall be applied first to the payment of accrued interest
and then to reduction of principal. If the advance of the principal amount
evidenced by this Note is made on a date other than the first day of a calendar
month, then Borrower shall pay to Lender contemporaneously with the execution
hereof interest at the foregoing interest rate for a period from the date hereof
through and including the last day of the calendar month in which this Note 102
Prepayment.
(a) Borrower shall have the right and option to release the
Security Property (as hereinafter defined) from the lien of the Security
Instrument (as hereinafter defined) in accordance with the terms and conditions
of Section 1.38 of the Security Instrument. If the indebtedness of this Note is
declared due and payable by Lender due to a default by Borrower, then any tender
of payment of such indebtedness must include a prepayment fee in an amount equal
to the greater of (A) two percent (2.0%) of the principal amount being prepaid,
and (B) the positive excess of (i) the present value ("PV") of all future
installments of principal and interest due under this Note including the
principal amount due at maturity (collectively, "All Future Payments"),
discounted at an interest rate per annum equal to the Treasury Constant Maturity
Yield Index published during the second full week preceding the date on which
such premium is payable for instruments having a maturity coterminous with the
remaining term of this Note, over (ii) the principal amount of this Note
outstanding immediately before such prepayment. "Treasury Constant Maturity
Yield Index" shall mean the average yield for "This Week" as reported by the
Federal Reserve Board in Federal Reserve Statistical Release H. 15 (519). If
there is no Treasury Constant Maturity Yield Index for instruments having a
maturity coterminous with the remaining term of this Note, then the index shall
be equal to the weighted average yield to maturity of the Treasury Constant
Maturity Yield Indices with maturities next longer and shorter than such
remaining average life to maturity, calculated by averaging (and rounding upward
to the nearest whole multiple of 1/100 of 1% per annum, if the average is not
such a multiple) the yields of the relevant Treasury Constant Maturity Yield
indices (rounded, if necessary, to the nearest 1/100 of 1% with any figure of
1/200 of 1% or above rounded upward). In the event that any prepayment fee is
due hereunder, Lender shall deliver to Borrower a statement setting forth the
amount and determination of the prepayment fee, and, provided that Lender shall
have in good faith applied the formula described above, Borrower shall not have
the right to challenge the calculation or the method of calculation set forth in
any such statement in the absence of manifest error, which calculation may be
made by Lender on any day during the thirty (30) day period preceding the date
of such prepayment. No prepayment fee or premium shall be due or payable in
connection with any prepayment of the indebtedness evidenced by this Note (i)
resulting from application of insurance or condemnation proceeds as provided in
the Security Instrument at any time during the loan term or (ii) required
pursuant to Section 1.25 of the Security Instrument.
(b) This Note may not be prepaid in whole or in part except
prepayments resulting from Lender applying insurance or condemnation proceeds to
reduce the outstanding principal balance of this Note as provided in the
Security Instrument or in connection with any
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prepayment pursuant to Section 1.25 of the Security Instrument, in which event
no prepayment fee or premium shall be due. No notice of prepayment shall be
required under the circumstance specified in the preceding sentence. No
principal amount repaid may be reborrowed. Partial payments of principal shall
be applied to the unpaid principal balance evidenced hereby but such application
shall not reduce the amount of the fixed monthly instaliments required to be
paid pursuant to Section 1.01 above.
(c) Except as otherwise expressly provided in Section 1.02(b)
above, the prepayment fees provided in Section 1.02(a) above shall be due, to
the extent permitted by applicable law, under any and all circumstances where
this Note is paid prior to the Maturity Date as a result of Lender's exercise of
its rights upon Borrower's default and acceleration of the maturity date of this
Note (irrespective of whether foreclosure proceedings have been commenced), and
shall be in addition to any other sums due hereunder or under any of the other
Loan Documents. If the indebtedness of this Note shall have been declared due
and payable by Lender pursuant to Section 1.04 hereof due to a default by
Borrower, then any tender of payment of such indebtedness must include a
prepayment fee computed as provided in Section 1.02(a) above.
1.03 Security. The indebtedness evidenced by this Note and the
obligations created hereby are secured by, among other things, (a) that certain
Mortgage and Security Agreement (the "Security Instrument") from Borrower, as
mortgagor, to Lender, as mortgagee, dated as of even date herewith, concerning
certain property located in Cumberland County, Pennsylvania, and (b) an
Assignment of Leases and Rents, dated as of even date herewith, by Borrower in
favor of Lender (the "Assignment"). The Security Instrument and the Assignment,
together with this Note, and all other agreements or documents to or of which
Lender is a party or beneficiary now or hereafter evidencing, securing,
guarantying, modifying or otherwise relating to the indebtedness evidenced
hereby, are herein referred to collectively as the "Loan Documents". All of the
terms and provisions of the Loan Documents are incorporated herein by reference.
Some of the Loan Documents are to be filed for record on or about the date
hereof in the appropriate public records.
1.04 Default. It is hereby expressly agreed that should any default
occur in the payment of principal or interest as stipulated above and such
payment is not made within five (5) days of the date such payment is due
(provided, however, that no grace period is provided for the payment of
principal and interest due on the Maturity Date), or should any other default
occur under any of the Loan Documents which is not cured within any applicable
grace or cure period, including without limitation, any sale, transfer,
conveyance or other violation of the terms of Section 1.13 of the Security
Instrument, then a default shall exist hereunder, and in such event the
indebtedness evidenced hereby, including all sums advanced or accrued hereunder
or under any other Loan Document, and all unpaid interest accrued thereon,
shall, at the option of Lender and without notice to Borrower, at once become
due and payable and may be collected forthwith, whether or not there has been a
prior demand for payment and regardless of the stipulated date of maturity. In
the event that any payment is not received by Lender on the date when due
(subject to the applicable grace period), then in addition to any default
interest payments due hereunder, Borrower shall also pay to Lender a late charge
in an amount equal to five percent (5.0%) of the amount of such overdue payment.
So long as any default exists hereunder, regardless of whether
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or not there has been an acceleration of the indebtedness evidenced hereby, and
at all times after maturity of the indebtedness evidenced hereby (whether by
acceleration or otherwise), interest shall accrue on the outstanding principal
balance of this Note at a rate per anrrum equal to four percent (4.0%) plus the
interest rate which would be in effect hereunder absent such default or
maturity, or if such increased rate of interest may not be collected under
applicable law, then at the maximum rate of interest, if any, which may be
collected from Burrower under applicable law (the "Default Interest Rate"), and
such default interest shall be immediately due and payable. Borrower
acknowledges that it would be extremely difficult or impracticable to determine
Lender's actual damages resulting from any late payment or default, and such
late charges and default interest are reasonable estimates of those damages and
do not constitute a penalty. The remedies of Lender in this Note or in the other
Loan Documents, or at law or in equity, shall be cumulative and concurrent, and
may be pursued singly, successively or together in Lender's discretion. Time is
of the essence of this Note. In the event this Note, or any part hereof, is
collected by or through an attorney-at-law, Borrower agrees to pay all costs of
collection including, but not limited to, reasonable attorney's fees.
1.05 Exculpation. Notwithstanding anything in the Loan Documents to
the contrary, but subject to the qualifications hereinbelow set forth, Lender
agrees that (i) Borrower shall be liable upon the indebtedness evidenced hereby
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 this Note and/or the other
obligations of Borrower under the Loan Documents (collectively, the "Security
Property"), (ii) if default occurs in the timely and proper payment of all or
any part of such indebtedness evidenced hereby or in the timely and proper
performance of the other obligations of Borrower under the Loan Documents, any
judicial proceedings brought by Lender against Borrower 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 this Note and/or the other
obligations of Borrower under the Loan Documents, and confirmation of any sale
under power of sale, and no attachment, execution or other writ of process shall
be sought, issued or levied upon any assets, properties or funds of Borrower
other than the Security Property except with respect to the liability described
below in this section, and (iii) in the event of a foreclosure of such liens,
security titles, estates, assignments, rights or security interests securing the
payment of this Note and/or the other obligations of Borrower under the Loan
Documents, whether by judicial proceedings or exercise of power of sale, no
judgment for any deficiency upon the indebtedness evidenced hereby shall be
sought or obtained by Lender against Borrower, except with respect to the
liability described below in this section; provided, however, that,
notwithstanding the foregoing provisions of this section, Borrower shall be
fully and personally liable and subject to legal action (a) for proceeds paid
under any insurance policies (or paid as a result of any other claim or cause of
action against any person or entity) by reason of damage, loss or destruction to
all or any portion of the Security Property, to the full extent of such proceeds
not previously delivered to Lender, but which, under the terms of the Loan
Documents, should have been delivered to Lender, (b) for proceeds or awards
resulting from the condemnation or other taking in lieu of condemnation of all
or any portion of the Security Property, to the full extent of such proceeds or
awards not previously delivered to Lender, but which, under the terms of the
Loan
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Documents, should have been delivered to Lender, (c) for all tenant security
deposits or other refundable deposits paid to or held by Borrower or any other
person or entity in connection with leases of all or any portion of the Security
Property which are not applied in accordance with the terms of the applicable
lease or other agreement, (d) for rent and other payments received from tenants
under leases of all or any portion of the Security Property paid more than one
(1) month Ain advance, (e) for rents, issues, profits and revenues of all or any
portion of the Security Property received or applicable to a period after any
notice of default from Lender hereunder or under the Loan Documents in the event
of any default by Borrower hereunder or thereunder which are not either applied
to the ordinary and necessary expenses of owning and operating the Security
Property or paid to Lender, (f) for damage to the Security Property as a result
of the intentional misconduct or gross negligence of Borrower or any of its
principals, officers or general partners, Ior any agent or employee of any such
persons, or any removal of the Security Property in violation of the terms of
the Loan Documents, to the full extent of the losses or damages incurred by
Lender on account of such failure, (g) for Borrower's failure to pay any valid
taxes, assessments, mechanic's liens, materialmen's liens or other liens which
could create liens on any portion of the Security Property which would be
superior to the lien or security title of the Security Instrument or the other
Loan Documents, to the full extent of the amount claimed by any such lien
claimant, (h) for all obligations and indemnities of Borrower under the Loan
Documents relating to hazardous or toxic substances or compliance with
environmental laws and regulations to the full extent of any losses or damages
(including those resulting from diminution in value of any Security Property)
incurred by Lender as a result of the existence of such hazardous or toxic
substances or failure to comply with environmental laws or regulations, and (i)
for fraud or material misrepresentation by Borrower or any of its principals,
officers, or general partners, any guarantor, any indemnitor or any agent,
employee or other person authorized or apparently Authorized to make statements
or representations on behalf of Borrower, any principal, officer or partner of
Borrower, any guarantor or any indemnitor, to the full extent of any losses,
damages and expenses of Lender on account thereof. References herein to
particular sections of the Loan Documents shall be deemed references to such
sections as affected by other provisions of the Loan Documents relating thereto.
Nothing contained in this section shall (i) be deemed to be a release or
impairment of the indebtedness evidenced by this Note or the other obligations
of Borrower under the Loan Documents or the lien of the Loan Documents upon the
Security Property, or (ii) preclude Lender from foreclosing the Loan Documents
in case of any default or from enforcing any of the other rights of Lender
except as stated in this section, or (iii) limit or impair in any way whatsoever
the Hazardous Substances Indemnity Agreement, dated as of even date herewith, or
release, relieve, reduce, waive or impair in any way whatsoever, any obligation
of Borrower under such Hazardous Substances Indemnity Agreement. Anything in
this Section 1.05 or any of the other Loan Documents to the contrary
notwithstanding, on December 31, 2004, the indebtedness evidenced hereby shall
be guaranteed on a full recourse basis by American Real Estate Investment
Corporation ("American") pursuant to a guaranty (i) which is satisfactory in
form and substance to Lender and (ii) as to which Lender has received an opinion
from counsel for American (which shall be satisfactory to Lender) which
addresses the enforceability of such guaranty and such other matters Lender
shall specify and which opinion is satisfactory in form and substance to Lender.
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1.06 Defeasance. A Defeasance (as defined in Section 1.38 of the
Security Instrument) shall not constitute a prepayment under Section 1.02 of
this Note.
ARTICLE II - GENERAL CONDITIONS
2.01 No Waiver: Amendment. No failure to accelerate the debt
evidenced hereby by reason of default hereunder, acceptance of a partial or past
due payment, or indulgences granted from time to time shall be construed (i) as
a novation of this Note or as a reinstatement of the indebtedness evidenced
hereby or as a waiver of such right of acceleration or of the right of Lender
thereafter to insist upon strict compliance with the terms of this Note, or (ii)
to prevent the exercise of such right of acceleration or any other right granted
hereunder or by any applicable laws; and Borrower hereby expressly waives the
benefit of any statute or rule of law or equity now provided, or which may
hereafter be provided, which would produce a result contrary to or in conflict
with the foregoing. No extension of the time for the payment of this Note or any
installment due hereunder, made by agreement with any person now or hereafter
liable for the payment of this Note shall operate to release, discharge, modify,
change or affect the original liability of Borrower under this Note, either in
whole or in part unless Lender agrees otherwise in writing. This Note may not be
changed orally, but only by an agreement in writing signed by the party against
whom enforcement of any waiver, change, modification or discharge is sought.
2.02 Waivers. Presentment for payment, demand, protest and notice of
demand, protest and nonpayment and all other notices are hereby waived by
Borrower. Borrower hereby further waives and renounces, to the fullest extent
permitted by law, all rights to the benefits of any statute of limitations and
any moratorium, reinstatement, marshalling, forbearance, valuation, stay,
extension, redemption, appraisement, exemption and homestead now or hereafter
provided by the Constitution and laws of the United States of America and of
each state thereof, both as to itself and in and to all of its property, real
and personal, against the enforcement and collection of the obligations
evidenced by this Note or the other Loan Documents.
2.03 Limit of Validity. The provisions of this Note and of all
agreements between Borrower and Lender, whether now existing or hereafter
arising and whether written or oral, are hereby expressly limited so that in no
contingency or event whatsoever, whether by reason of demand or acceleration of
the maturity of this Note or otherwise, shall the amount paid, or agreed to be
paid ("Interest"), to Lender for the use, forbearance or retention of the money
loaned under this Note exceed the maximum amount permissible under applicable
law. If, from any circumstance whatsoever, performance or fulfillment of any
provision hereof or of any agreement between Borrower and Lender shall, at the
time performance or fulfillment of such provision shall be due, exceed the limit
for Interest prescribed by applicable law or otherwise transcend the limit of
validity prescribed by applicable law, then ipso facto the obligation to be
performed or fulfilled shall be reduced to such limit and if, from any
circumstance whatsoever, Lender shall ever receive anything of value deemed
Interest by applicable law in excess of the maximum lawful amount, an amount
equal to any excessive Interest shall be applied to the reduction of the
principal balance owing under this Note in the inverse order of its maturity
(whether or not then due) or at the option of Lender be paid over to Borrower,
and not to the payment of Interest. All Interest (including any amounts or
payments deemed to be Interest)
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contracted for, charged, taken, reserved, paid or agreed to be paid to Lender
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full term of this Note, including any
extensions or renewals hereof, until payment full of the principal balance of
this Note so that the Interest thereof for such full period will not exceed the
maximum amount permitted by applicable law. This Section 2.03 will control all
agreements between Borrower and Lender pursuant to the Loan Documents.
2.04 Use of Funds. Borrower hereby warrants, represents and
covenants that no funds disbursed hereunder shall be used for personal, family
or household purposes.
2.05 Unconditional Payment. Borrower is and shall be obligated to
pay principal, interest and any and all other amounts which become payable
hereunder or under the other Loan Documents absolutely and unconditionally and
without any abatement, postponement, diminution or deduction and without any
reduction for counterclaim or setoff; provided, however, that no such payment
shall waive any other rights that Borrower may have. In the event that at any
time any payment received by Lender hereunder shall be deemed by a court of
competent jurisdiction to have been a voidable preference or fraudulent
conveyance under any bankruptcy, insolvency or other debtor relief law, then the
obligation to make such payment shall survive any cancellation or satisfaction
of this Note or return thereof to Borrower and shall not be discharged or
satisfied with any prior payment thereof or cancellation of this Note, but shall
remain a valid and binding obligation enforceable in accordance with the terms
and provisions hereof, and such payment shall be immediately due and payable
upon demand.
2.06 Further Assurances. Borrower shall execute and acknowledge (or
cause to be executed and acknowledged) and deliver to Lender all documents, and
take all actions, reasonably required by Lender from time to time to confirm the
rights created or now or hereafter intended to be created under this Note and
the other Loan Documents, to protect the validity, priority and enforceability
of this Note and the other Loan Documents, to subject to the Loan Documents any
property of Borrower intended by the terms of any one or more of the Loan
Documents to be encumbered by the Loan Documents, or otherwise carry out the
purposes of the Loan Documents and the transactions contemplated thereunder;
provided, however, that no such further actions, assurances and confirmations
shall increase, modify or change Borrower's obliga- tions under this Note or
under the other Loan Documents.
2.07 Submission to Jurisdiction: Waiver of Jury Trial (1) BORROWER,
TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, (A) SUBMITS TO
PERSONAL JURISDICTION IN THE COMMONWEALTH OF PENNSYLVANIA OVER ANY SUIT, ACTION
OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS NOTE, (B) AGREES
THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN THE COMMONWEALTH OF PENNSYLVANIA, (C) SUBMITS
TO THE JURISDICTION OF SUCH COURTS, AND (D) TO THE FULLEST EXTENT PERMITTED BY
LAW, AGREES THAT BORROWER WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING
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IN ANY OTHER FORUM (BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF LENDER TO BRING
ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM) AND BORROWER FURTHER CONSENTS
AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY
SUCH SUIT, ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE
PREPAID, TO BORROWER AT THE ADDRESS FOR NOTICES DESCRIBED ON THE FIRST PAGE
HEREOF, AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY
RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE
VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY
LAW). (2) BORROWER, AND BY ITS ACCEPTANCE HEREOF, LENDER, TO THE FULL EXTENT
PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON
THE ADVICE OF COMPETENT COUNSEL, WAIVE, RELINQUISH AND FOREVER FORGO THE RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN
ANY WAY RELATING TO THIS NOTE OR ANY CONDUCT, ACT OR OMISSION OF LENDER, OR ANY
OF ITS DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS,
OR ANY OTHER PERSONS AFFILIATED WITH LENDER, IN EACH OF THE FOREGOING CASES,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
2.08 Miscellaneous. This Note shall be interpreted, construed and
enforced according to the laws of the State of New York. The terms and
provisions hereof shall be binding upon and inure to the benefit of Borrower and
Lender and their respective heirs, executors, legal Irepresentatives,
successors, successors-in-title and assigns, whether by voluntary action of the
parties or by operation of law. As used herein, the terms "Borrower" and
"Lender" shall be deemed to include their respective successors,
successors-in-title and assigns, whether by voluntary action of the parties or
by operation of law, subject to the limitations set forth in Section 1.05 above.
Subject to the limitations set forth in Section 1.05 above, if Borrower consists
of more than one person or entity, each shall be jointly and severally liable to
perform the obligations of Borrower under this Note. All personal pronouns used
herein, whether used in the masculine, feminine or neuter gender, shall include
all other genders; the singular shall include the plural and vice versa. Titles
of articles and sections are for convenience only and in no way define, limit,
amplify or describe the scope or intent of any provisions hereof. Capitalized
terms used in this Note and not otherwise defined herein shall have the meaning
ascribed to them in the Security Instrument or in the other Loan Documents. Time
is of the essence with respect to all provisions of this Note, the Security
Instrument and the other Loan Documents. This Note and the other Loan Documents
contain the entire agreements between the parties hereto relating to the subject
matter hereof and thereof and all prior agreements relative hereto and thereto
which are not contained herein or therein are terminated. This Note is a sealed
instrument.
2.09 Confession of Judgment. (1) THE FOLLOWING PARAGRAPH SETS FORTH
A WARRANT OF AUTHORITY FOR AN ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWER
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IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST THE BORROWER,
THE BORROWER HEREBY KNOWINGLY, IN AND VOLUNTARILY, AND, ON THE ADVICE OF THE
SEPARATE COUNSEL OF BORROWER, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS BORROWER
HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE
RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF
PENNSYLVANIA.
(2) BORROWER IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE
PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR
ELSEWHERE, TO APPEAR FOR BORROWER AT ANY TIME AFTER DEFAULT UNDER THIS NOTE OR
UNDER THE LOAN DOCUMENTS IN ANY ACTIOIN BROUGHT AGAINST BORROWER ON THIS NOTE AT
THE SUIT OF LENDER, AS OF ANY TERM, AND IN THAT ACTION TO CONFESS OR ENTER
JUDGMENT AGAINST BORROWER FOR THE ENTIRE UNPAID PRINCIPAL OF THIS NOTE AND ALL
OTHER SUMS DUE UNDER THIS NOTE OR THE LOAN DOCUMENTS, AND ALL INTEREST ACCRUED
ON THOSE AMOUNTS, TOGETHER WITH COSTS OF SUIT, ATTORNEY'S COMMISSION FOR
COLLECTION OF FIVE PERCENT (5%) OF THE TOTAL AMOUNT THEN DUE BY BORROWER TO
LENDER (BUT IN ANY EVENT NOT LESS THAN TEN THOUSAND DOLLARS
($ 10,000.00)), TOGETHER WITH INTEREST ON ANY JUDGMENT OBTAINED BY
LENDER AT THE DEFAULT INTEREST RATE, SPECIFIED IN THE NOTE AFTER DEFAULT,
INCLUDING INTEREST AT THAT RATE FROM AND AFTER THE DATE OF ANY SHERIFF'S OR
JUDICIAL SALE UNTIL ACTUAL PAYMENT IS MADE TO LENDER OF THE FULL AMOUNT DUE
LENDER; AND FOR SO DOING THIS NOTE OR A COPY OF IT 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 THE AMOUNTS DUE UNDER THIS
NOTE.
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IN WITNESS WHEREOF, the Borrower, intending to be legally bound hereby,
has duly executed this Note on the day and year first written above.
BORROWER: XXXXXXX PROPERTIES, a New Jersey general
partnership
By: American Real Estate Investment
Corporation, its managing general
partner
By: /s/ Xxxxxxx X. Xxxxxx
January 9, 1998
00
XXXXX XX XXX XXXX
XXXXXX XX XXX XXXX
Xx this 9th day of January, 1998, before me, a notary public in and for the
state and county aforesaid, personally appeared Xxxxxxx X. Xxxxxx, to me
personally known, who being by me duly sworn did say that he is the - -
President of American Real Estate Investment Corporation, the general partner of
XxXxxxx Properties, that the foregoing instrument was signed on behalf of said
corporation, as managing general partner of XxXxxxx Properties by authority of
its Board of Directors; and that said Xxxxxxx X. Xxxxxx,as such officer,
acknowledged the execution of the foregoing instrument to be the voluntary act
and deed of said corporation, as managing general partner of XxXxxxx Properties,
by it and by him.
Notary Public
XXXXXX X. XXXXX
Notary Public, State of New York
~No. 01VO50S3588
Oualifled in New York County
Commission Expires [ILLEGIBLE] 18, 1999
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IN WITNESS WHEREOF, the Lender, intending to be legally bound hereby, has
duly executed this Note on the day and year first written above.
LENDER: COLUMN FINANCIAL, INC.,
By:
Name:
Title:Assistant Vice President
00
XXXXX XX XXXXXXX
XXXXXX XX XXXXXX
Xx this 9th day of January, 1998, before me, a notary public in and for the
state and county aforesaid, personally appeared Xxxxx Xxxxxx, to me personally
known, who being by me duly sworn did say that she is the Asdsistant Vice
President of Column Financial, Inc. that the foregoing instrument was signed on
behalf of said corporation, by authority of its Board of Directors; and that
said Xxxxx Xxxxxx, as such officer, acknowledged the execution of the foregoing
instrument to be the voluntary act and deed of said corporation, by it and by
her.
Notary Public
Notary Public, Gwinnett County,
Georgia
13
