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SECOND AMENDED AND
RESTATED MASTER NOTE
$22,619,574.61 Date: March 1, 2000
FOR VALUE RECEIVED, the undersigned, POWER TEST REALTY COMPANY LIMITED
PARTNERSHIP, a limited partnership organized under the laws of New York
(hereinafter, together with its successors in title and assigns, called the
"Borrower"), by this promissory note (hereinafter called this "Note"),
absolutely and unconditionally promises to pay to the order of FLEET NATIONAL
BANK, a national banking association organized under the laws of the United
States of America (successor to Fleet Bank of Massachusetts, N.A. ("Fleet"),
which was successor by name change to Fleet National Bank of Boston, which was
the successor in interest to the Federal Deposit Insurance Corporation, as
Receiver for New Bank of New England, N.A., which was the successor in interest
to the Federal Deposit Insurance Corporation, as Receiver for Bank of New
England, N.A.) (hereinafter, together with its successors in title and assigns,
called the "Bank") at the Bank's head offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the principal sum of Twenty-Two Million Six Hundred
Nineteen Thousand Five Hundred Seventy-Four and 61/100 Dollars ($22,619,574.61),
or, if less, the aggregate unpaid principal amount of the Loan (as defined in
the Loan Agreement) made by the Bank to the Borrower pursuant to the Third
Amendment to the Amended and Restated Loan Agreement between the Bank and the
Borrower dated as of even date herewith (hereinafter, as executed, or if further
varied, amended, modified or supplemented from time to time, as so further
varied, amended, modified or supplemented, called the "Loan Agreement").
This Note is issued in order to further amend and restate the Borrowers
Amended and Restated Master Note dated October 31, 1995 (the "Original Note"),
executed and delivered to Fleet in connection with the Loan Agreement between
the Borrower and Fleet dated as of October 31, 1995, as amended by First
Amendment to the Amended and Restated Loan Agreement dated as of April 18, 1997,
as further amended by Second Amendment to the Amended and Restated Loan
Agreement dated as of January 30, 1998, and is not issued in payment,
satisfaction or
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cancellation of the obligations evidenced by the Original Note, all of which
will be deemed to be continued and to be evidenced by this Note, and is secured
by the Bank's mortgage liens and security interests in property of the Borrower
created pursuant to the agreements and instruments executed and delivered by the
Borrower in connection with such Loan Agreement. The issuance of this Note by
the Borrower shall in no way release, impair or interrupt the continued
perfection and priority of such mortgage liens and security interests in favor
of the Bank as collateral security for the obligations of the Borrower evidenced
hereby.
The Borrower promises to pay interest on the principal sum outstanding
hereunder from time to time from the date hereof until the said principal sum or
the unpaid portion thereof shall have become due and payable at the rates and
terms in all cases in accordance with the terms of the Loan Agreement.
The entire principal amount of this Note shall be payable by the
Borrower to the holder hereof in fifty-nine (59) consecutive monthly
installments of principal on the first day of each month, commencing on April 1,
2000 to and including February 1, 2005, in the amount of $175,000 monthly, with
the Balloon Payment of $12,294,574.61 due on March 1, 2005 (the "Maturity
Date"), as reduced by any prepayments of principal by the Borrower.
On the Maturity Date, there shall become absolutely due and payable
hereunder, and the Borrower hereby promises to pay to the Bank, the balance (if
any) of the principal hereof then remaining unpaid, all of the unpaid interest
accrued hereon and all (if any) other amounts payable on or in respect of this
Note or the indebtedness evidenced hereby.
Each overdue amount (whether of principal, interest or otherwise)
payable on or in respect of this Note or the indebtedness evidenced hereby shall
(to the extent permitted by applicable law) bear interest, from the date on
which such amount shall have become due and payable in accordance with the terms
hereof to the date on which such amount shall be paid to the Bank (whether
before or after judgment), at the rate of interest in effect from time to time
in accordance with the Loan Agreement. The unpaid interest accrued on each
overdue amount in accordance with the foregoing terms of this Paragraph shall
become absolutely due and payable by the Borrower to the Bank on demand by the
Bank. Interest on each overdue amount will continue to accrue, as provided by
the foregoing terms of this Paragraph, and will (to the extent permitted by
applicable law) be compounded monthly until the obligations
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of the Borrower in respect of the payment of such overdue amount shall be
discharged (whether before or after judgment).
All computations of interest payable as provided in this Note shall be
made by the Bank on the basis of the actual number of days elapsed divided by
360.
This Note has been executed and delivered to the Bank by the Borrower
pursuant to the Loan Agreement. Under Section 3-104 of the Uniform Commercial
Code of Massachusetts, this Note is not a negotiable instrument.
Should all or any part of the indebtedness represented by this Note be
collected by action at law, or in bankruptcy, insolvency, receivership or other
court proceedings, or should this Note be placed in the hands of attorneys for
collection after default, the Borrower hereby promises to pay to the Bank, upon
demand by the holder hereof at any time, in addition to principal, interest and
all (if any) other amounts payable on or in respect of this Note or the
indebtedness evidenced hereby, all court costs and reasonable attorneys' fees
and all other reasonable collection charges and expenses incurred or sustained
by or on behalf of the holder of this Note.
The Borrower hereby irrevocably authorizes and empowers any attorney or
attorneys or the Prothonotary or Clerk of any Court of record in the
Commonwealth of Pennsylvania, or in any other jurisdiction which permits the
entry of judgment by confession, at any time after ten (10) days notice to the
Borrower, to appear for the Borrower in such Court in an appropriate action
there brought or to be brought against the Borrower at the suit of the Bank on
this Note, with or without complaint or declaration filed, as of any term or
time, and therein to CONFESS OR ENTER JUDGMENT against the Borrower for all sums
due by the Borrower to the Bank under this Note and the other Loan Documents (as
defined in the Loan Agreement), with or without acceleration of maturity,
including all costs and attorneys' fees. For so doing, this Note or a copy
hereof verified by affidavit shall be a sufficient warrant. The authority to
confess judgment granted herein shall not be exhausted by any exercise thereof
but may be exercised from time to time and at any time as of any term and for
any amount authorized herein. The Borrower expressly authorizes the entry of
repeated judgments under this Paragraph notwithstanding any prior entry of
judgment in the same or any other court for the same obligation or any part
thereof.
THE BORROWER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED BY COUNSEL IN
CONNECTION WITH THE
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EXECUTION AND DELIVERY OF THIS NOTE AND THAT IT UNDERSTANDS THIS PROVISION FOR
CONFESSION OF JUDGMENT, AND WAIVES ANY RIGHT TO NOTICE OR A HEARING WHICH IT
MIGHT OTHERWISE HAVE BEFORE ENTRY OF JUDGMENT.
The Borrower hereby absolutely and irrevocably waives notice of
acceptance, presentment, notice of demand, notice of nonpayment, protest, notice
of protest, notice of dishonor, suit and all other conditions precedent in
connection with the delivery, acceptance, collection and/or enforcement of this
Note or any collateral security therefor, and assents to any extension or
postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
No delay or omission on the part of the Bank or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Bank or such holder, nor shall any delay, omission or waiver
on any one occasion be deemed a bar or waiver of the same or any other right on
any future occasion.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
NOTE MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY
FEDERAL COURT SITTING THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION
OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE
BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN SS.10 OF THE LOAN AGREEMENT. THE
BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
This Note is intended to take effect as a sealed instrument. This Note
has been executed and delivered to the Bank by the Borrower in Boston,
Massachusetts.
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IN WITNESS WHEREOF, this SECOND AMENDED AND RESTATED MASTER NOTE has
been duly executed by the undersigned, POWER TEST REALTY COMPANY LIMITED
PARTNERSHIP, on the day and in the year first above written.
POWER TEST REALTY COMPANY
LIMITED PARTNERSHIP
By: Getty Properties Corp.,
its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President,
Treasurer and Chief
Financial Officer