EXHIBIT 10.4
PROMISSORY NOTE
$5,725,000.00
March 27, 1998
New York, New York
FOR VALUE RECEIVED, the undersigned, VIRGINIA STREET ASSOCIATES, L.P.,
a Colorado limited partnership ("Borrower"), promises to pay to the order of
COLUMN FINANCIAL, INC., a Delaware Corporation ("Lender"), at the office of
Lender at 0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000-0000, or
at such other place as Lender may designate to Borrower in writing from time to
time, the principal sum of FIVE MILLION SEVEN HUNDRED TWENTY FIVE THOUSAND AND
00/100 DOLLARS ($5,725,000.00), 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 a fluctuating rate equal to the sum, from time to
time, of (a) the LIBOR Rate as in effect from time to time plus (b) two percent
(2.0%) 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. (a) Said interest shall be
computed hereunder based on a 360-day year and based on twelve (12) 30-day
months for each full calendar month and on the actual number of days elapsed for
any partial month in which interest is being calculated. 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. An installment of interest only
shall be payable on May 1, 1998. On May __ , 1998 (the "Maturity Date"), 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 equal the amount of interest accrued during the preceding
month as calculated by Xxxxxx, which calculation shall be final in the absence
of manifest error reported in writing within fifteen days. Each such payment
shall be applied first to the payment of accrued interest and then to reduction
of principal. Borrower shall pay to Xxxxxx 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 funding
occurs.
(b) For all purposes of this Note, "Libor Rate" shall mean the U.S.
Dollar rate (rounded upward to the nearest one-sixteenth of one percent) listed
on page 3750 (I.E., the Libor page) of the Telerate News Services titled
"British Banker Association Interest Settlement Rates" for a designated maturity
of one (1) month determined as of 11:00 a.m. London Time on the second (2nd)
full Eurodollar Business Day next preceding the first day of each month with
respect to which interest is payable hereunder (unless such date is not a
business day (as defined in the Security Instrument (as hereinafter defined)) in
which event the next succeeding Eurodollar Business Day which is also a business
day will be used). If the Telerate News Services (a) publishes more than one
(1) such Libor Rate, the average of such rates shall apply, or (b) ceases to
publish the Libor Rate, then the Libor Rate shall be determined from such
substitute financial reporting service as Lender in its discretion shall
determine. The term "Eurodollar Business Day", shall mean any day on which
banks in the City of London are generally open for interbank or foreign exchange
transactions.
1.02 PREPAYMENT. (a) This Note may be prepaid in whole but not in
part at any time, provided (i) written notice of such prepayment is received by
Lender not more than thirty (30) days and not less than ten (10) days prior to
the date of such prepayment, and (ii) such prepayment is received on the first
day of a calendar month (or, if such prepayment is not received on the first day
of a calendar month, interest is paid through the last day of such calendar
month) and is accompanied by all interest accrued hereunder and all other sums
due hereunder or under the other Loan Documents.
(b) Partial prepayments of this Note shall not be permitted, except
partial prepayments resulting from Lender applying insurance or condemnation
proceeds to reduce the outstanding principal balance of this Note as provided in
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 monthly
installments required to be paid pursuant to Section 1.01 above.
1.03 SECURITY. The indebtedness evidenced by this Note and the
obligations created hereby are secured by that certain Open-End Mortgage and
Security Agreement (the "Security Instrument") from Borrower to Lender, dated as
of even date herewith, concerning property located in Dauphin County,
Pennsylvania. The Security Instrument together with this Note and all other
documents to or of which Xxxxxx 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 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
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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 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 annum
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 Borrower 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 Xxxxxx'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 Loan Documents, or at
law or in equity, shall be cumulative and concurrent, and may be pursued
singly, successively or together in Xxxxxx'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, Xxxxxxxx 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, Xxxxxx
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,
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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 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 month in 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 principals, officers or general partners, or
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, (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, and (j) for any breach of the covenants in the Security Instrument
relating to further assurances and delivery of additional security
documentation, in each case 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 or the Indemnity and Guaranty Agreement each
dated as of even date herewith, or release, relieve, reduce, waive or impair in
any way whatsoever, any obligation of Borrower or American Real Estate
Investment Corporation under such Hazardous Substances Indemnity Agreement or
Indemnity and Guaranty Agreement.
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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
Xxxxxx 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
Xxxxxxxx. 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 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) 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 in full of the principal balance of
this Note so
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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. 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 obligations 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, XXXXXX 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 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
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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, XXXXXX, 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 Xxxxxxxx and
Xxxxxx and their respective heirs, executors, legal representatives, 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 IN GRANTING THIS WARRANT OF
ATTORNEY TO CONFESS JUDGMENT AGAINST THE BORROWER, THE BORROWER HEREBY
KNOWINGLY, INTENTIONALLY 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.
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(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.
IN WITNESS WHEREOF, Xxxxxxxx has executed this Note under seal as of
the date first above written.
BORROWER:
VIRGINIA STREET ASSOCIATES, L.P.
a Colorado limited partnership
By: AMERICAN REAL ESTATE
INVESTMENT, L.P.,
its sole general partner
By: AMERICAN REAL ESTATE
INVESTMENT CORPORATION,
its sole general partner
By: /s/ Xxxxxxx X. Xxxxx
Title: Vice-President
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