MOS. Premium Remaining (Years) Factor --------- ------- ------- 180 - 169 (15) .073 168 - 157 (14) .069 156 - 145 (13) .064 144 - 133 (12) .059 132 - 121 (11) .054 120 - 109 (10) .049 108 - 97 ( 9) .044 96 - 85 ( 8) .039 84 - 73 ( 7) .035 72 - 61 ( 6) .030 60 - 49 ( 5) .025 48 - 37 ( 4) .020 36 - 25 ( 3) .015 24 - 13 ( 2) .010 12 - 1 ( 1) .005 If the Federal Reserve Board ceases to publish Statistical Release H.15 [519], ----------------------------- then the decrease in the weekly average yield of ten (10)-year U.S. Treasury Notes will be determined from another source designated by METLIFE. Voluntary prepayment prior to the fifth (5th) anniversary of the due date of the first monthly principal and interest payment due under this Note will be permitted only in the event of a sale of the Property (as hereinafter defined) to a bona- fide third party and only upon payment of the Prepayment Premium set forth above If METLIFE at any time accelerates this Note after an Event of Default (defined below), then BORROWER shall be obligated to pay the Prepayment Premium in accordance with the foregoing schedule. The Prepayment Premium shall not be payable with respect to condemnation awards or insurance proceeds from fire or other casualty which METLIFE applies to prepayment, nor with respect to XXXXXXXX's prepayment of the Note in full during the last twelve (12) months of the term of this Note unless an Event of Default has occurred. BORROWER expressly acknowledges that such Prepayment Premium is not a penalty but is intended solely to compensate METLIFE for the loss of its bargain and the reimbursement of internal expenses and administrative fees and expenses incurred by METLIFE. BORROWER shall be liable on this Note and on all the representations, warranties, indemnities and covenants in the Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing ("Mortgage") covering the property (the "Property") securing this Note and all other documents executed or delivered in connection herewith (the "Loan Documents"). Each of the following shall constitute an Event of Default ("Event of Default") hereunder and under the Mortgage executed contemporaneously herewith: (a) Failure of or refusal by XXXXXXXX to make any payment of principal, interest, or Prepayment Premium upon this Note when due, and such failure or refusal shall continue for a period of ten (10) days after written notice is given to BORROWER by METLIFE specifying such failure; or (b) Failure of BORROWER within the time required by the Mortgage to make any payment for taxes, insurance or for reserves for such payments, or any other payment necessary to prevent filing of or discharge of any lien, and such failure shall continue for a period of ten (10) days after written notice is given to BORROWER by METLIFE specifying such failure; or (c) Failure by BORROWER or Graphic Industries, Inc., a Georgia corporation ("Guarantor"), to observe or perform any obligations of BORROWER or Guarantor to METLIFE on or with respect to any transactions, debts, undertakings or agreements other than the transaction evidenced by this Note following the giving of any required notice and the expiration of any applicable period of grace; or (d) Failure of BORROWER to make any payment or perform any obligation under any superior liens or encumbrances on the Property, within the time required thereunder, or commencement of any suit or other action to foreclose any superior liens or encumbrances; or (e) Failure by XXXXXXXX to observe or perform any of its obligations under any of the lease agreements covering the Property; or (f) The Property is transferred or any agreement to transfer any part or interest in the Property in any manner whatsoever is made or entered into without the prior written consent of METLIFE, except as specifically allowed under the Mortgage, including without limitation creating or allowing any liens on the Property or leasing any portion of the Property; or (g) Filing by BORROWER or Guarantor of a voluntary petition in bankruptcy or filing by BORROWER or Guarantor of any petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, or similar relief for itself under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, or the seeking, consenting to, or acquiescing by BORROWER or Guarantor in the appointment of any trustee, receiver, custodian, conservator or liquidator for BORROWER or Guarantor , any part of the Property, or any of the income or rents of the Property, or the making by BORROWER or Guarantor of any general assignment for the benefit of creditors, or the inability of or failure by BORROWER or Guarantor to pay its debts generally as they become due, or the insolvency on a balance sheet basis or business failure of BORROWER or Guarantor , or the making or suffering of a preference within the meaning of federal bankruptcy law or the making of a fraudulent transfer under applicable federal or state law, or concealment by BORROWER or Guarantor of any of its property in fraud of creditors, or the imposition of a lien upon any of the property of BORROWER or Guarantor which is not discharged in the manner permitted by the Mortgage, or the giving of notice by BORROWER or Guarantor to any governmental body of insolvency or suspension of operations; or (h) Filing of a petition against BORROWER or Guarantor seeking any reorganization, arrangement, composition, readjustment, liquidation, or similar relief under any present or future federal, state or other law or regulation relating to bankruptcy, insolvency or other relief for debts, or the appointment of any trustee, receiver, custodian, conservator or liquidator of BORROWER or Guarantor, of any part of the Property or of any of the income or rents of the Property, unless such petition shall be dismissed within sixty (60) days after such filing, but in any event prior to the entry of an order, judgment or decree approving such petition; or (i) The institution of any proceeding for the dissolution or termination of BORROWER voluntarily, involuntarily, or by operation of law; or (j) A material adverse change occurs in the assets, liabilities or net worth of BORROWER or Guarantor from the assets, liabilities or net worth of BORROWER or Guarantor previously disclosed to METLIFE; or (k) Any warranty, representation or statement furnished to METLIFE by or on behalf of BORROWER under this Note, the Mortgage, or any of the Loan Documents shall prove to have been false or misleading in any material respect; or (l) Failure of BORROWER to observe or perform any other covenant or condition contained in this Note and such default shall continue for thirty (30) days after notice is given to BORROWER specifying the nature of the failure. No notice of default and no opportunity to cure shall be required if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or (m) Failure of BORROWER to observe or perform any other obligation under the Mortgage or any other Loan Document when such observance or performance is due, and such failure shall continue beyond the applicable cure period set forth in such Loan Document, or if the default cannot be cured within such applicable cure period, BORROWER fails within such time to commence and pursue curative action with reasonable diligence or fails at any time after expiration of such applicable cure period to continue with reasonable diligence all necessary curative actions. No notice of default and no opportunity to cure shall be required if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or (n) XXXXXXXX's abandonment of the Property; or (o) Any of the foregoing events occur with respect to any tenant of the Property, with respect to Guarantor or with respect to any guarantor of any tenant's obligations relating to the Property, or such guarantor dies or becomes incompetent; or (p) The occurrence of any default under any of the documents evidencing or securing (i) METLIFE Loan No. 5905292, (ii) METLIFE Loan No. 5905392, (iii) METLIFE Loan No. 5905393, (iv) METLIFE Loan No. 5904594 (v) METLIFE Loan No. 59009791, (vi) METLIFE Loan No. 5922796, (vii) METLIFE Loan No. 5922696, or (viii) any other indebtedness with Borrower or any of the guarantors of the Indebtedness which is now or hereafter owed to METLIFE. Upon the occurrence of any of the foregoing events of default, METLIFE shall have the option to declare the entire amount of principal and interest due under this Note immediately due and payable without notice or demand, and METLIFE may exercise any of its rights under this Note and any document executed or delivered herewith. After acceleration or maturity, BORROWER shall pay interest on the outstanding principal balance of this Note at the rate of five percent (5.00%) per annum above Chase Manhattan Bank's prime interest rate in effect from time to time, or fifteen percent (15.00%) per annum, whichever is higher, provided that such interest rate shall not exceed the maximum interest rate permitted by law. All payments of the principal and interest on this Note shall be made in coin or currency of the United States of America which at the time shall be the legal tender for the payment of public and private debts. If this Note is placed in the hands of an attorney for collection, XXXXXXXX agrees to pay reasonable attorneys' fees and costs incurred by METLIFE in connection therewith, and in the event suit or action is instituted to enforce or interpret this Note (including without limitation efforts to modify or vacate any automatic stay or injunction), the prevailing party shall be entitled to recover all expenses reasonably incurred at, before or after trial and on appeal, whether or not taxable as costs, or in any bankruptcy proceeding, or in connection with post-judgment collection efforts, including, without limitation, attorneys' fees, witness fees (expert and otherwise), deposition costs, copying charges and other expenses. This Note shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts applicable to contracts made and to be performed therein (excluding choice-of-law principles). BORROWER hereby irrevocably submits to the jurisdiction of any state or federal court sitting in Massachusetts in any action or proceeding brought to enforce or otherwise arising out of or relating to this Note, and hereby waives any objection to venue in any such court and any claim that such forum is an inconvenient forum. This Note is given in a commercial transaction for business purposes. This Note may be declared due prior to its expressed maturity date, all in the events, on the terms, and in the manner provided for in the Mortgage. BORROWER and all sureties, endorsers, guarantors and other parties now or hereafter liable for the payment of this Note, in whole or in part, hereby severally (i) waive demand, notice of demand, presentment for payment, notice of nonpayment, notice of default, protest, notice of protest, notice of intent to accelerate, notice of acceleration and all other notices, and further waive diligence in collecting this Note or in enforcing any of the security for this Note; (ii) agree to any substitution, subordination, exchange or release of any security for this Note or the release of any party primarily or secondarily liable for the payment of this Note; (iii) agree that METLIFE shall not be required to first institute suit or exhaust its remedies hereon against BORROWER or others liable or to become liable for the payment of this Note or to enforce its rights against any security for the payment of this Note; and (iv) consent to any extension of time for the payment of this Note, or any installment hereof, made by agreement by METLIFE with any person now or hereafter liable for the payment of this Note, even if BORROWER is not a party to such agreement. All agreements between BORROWER and METLIFE, whether now existing or hereafter arising and whether written or oral, are hereby limited so that in no contingency, whether by reason of demand or acceleration of the final maturity of this Note or otherwise, shall the interest contracted for, charged, received, paid or agreed to be paid to METLIFE exceed the maximum amount permissible under the applicable law. If, from any circumstance whatsoever, interest would otherwise be payable to METLIFE in excess of the maximum amount permissible under applicable law, the interest payable to METLIFE shall be reduced to the maximum amount permissible under applicable law; and if from any circumstance METLIFE shall ever receive anything of value deemed interest by applicable law in excess of the maximum amount permissible under applicable law, an amount equal to the excessive interest or if such excessive amount of interest exceeds the unpaid balance of principal hereof, such excess shall be refunded to BORROWER. All interest paid or agreed to be paid to METLIFE shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full period (including any renewal or extension) until payment in full of the principal so that the interest hereon for such full period shall not exceed the maximum amount permissible under applicable law. METLIFE expressly disavows any intent to contract for, charge or receive interest in an amount which exceeds the maximum amount permissible under applicable law. This paragraph shall control all agreements between BORROWER and METLIFE. IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
Appears in 1 contract
MOS. Premium Remaining (Years) Factor --------- ------- ------- 180 - 169 (15) .073 168 - 157 (14) .069 156 - 145 (13) .064 144 - 133 (12) .059 132 - 121 (11) .054 120 - 109 (10) .049 108 - 97 ( 9) .044 96 - 85 ( 8) .039 84 - 73 ( 7) .035 72 - 61 ( 6) .030 60 - 49 ( 5) .025 .042 48 - 37 ( 4) .020 .036 36 - 25 ( 3) .015 .029 24 - 13 ( 2) .010 .022 12 - 1 ( 1) .005 .013 If the Federal Reserve Board ceases to publish Statistical Release H.15 [519], ----------------------------- then the decrease in the weekly average yield of ten five (10)-year 5)-year U.S. Treasury Notes Constant Maturities will be determined from another source designated by METLIFE. Voluntary prepayment Prepayment prior to the fifth second (5th2nd) anniversary of the due date of the first monthly principal and interest payment due under this Note will not be permitted only in the event of a sale of the Property (as hereinafter defined) to a bona- fide third party and only upon payment of the Prepayment Premium set forth above permitted. If METLIFE at any time accelerates this Note after an Event of Default (defined below), then BORROWER shall be obligated to pay the Prepayment Premium in accordance with the foregoing schedule. The Prepayment Premium shall not be payable with respect to condemnation awards or insurance proceeds from fire or other casualty which METLIFE applies to prepayment, nor with respect to XXXXXXXX's prepayment of the Note in full during the last twelve three (123) months of the term of this Note unless an Event of Default has occurred. BORROWER expressly acknowledges that such Prepayment Premium is not a penalty but is intended solely to compensate METLIFE for the loss of its bargain and the reimbursement of internal expenses and administrative fees and expenses incurred by METLIFE. BORROWER shall be liable on this Note and on all the representations, warranties, indemnities and covenants in the MortgageDeed of Trust, Security Agreement, Assignment of Leases and Rents Rents, and Fixture Filing ("Mortgage"ADeed of Trust@) covering the property (the "Property") securing this Note and all other documents executed or delivered in connection herewith (the "Loan Documents"). Each of the following shall constitute an Event of Default ("Event of Default") hereunder and under the Mortgage executed contemporaneously herewithDeed of Trust:
(a) Failure of or refusal by XXXXXXXX METLIFE to make receive any payment of principal, interest, or Prepayment Premium upon this Note when due, and such failure or refusal shall continue for a period of ten (10) days after written notice is given by METLIFE to BORROWER by METLIFE specifying such failureof the same; or
(b) Failure of BORROWER within the time required by the Mortgage Deed of Trust to pay any sum secured thereby other than the Note or to make any payment for taxes, insurance or for reserves for such payments, or any other payment necessary to prevent filing of or discharge of any lien, and such failure shall continue for a period of ten (10) days after written notice is given to BORROWER by METLIFE specifying such failure; or
(c) Failure by BORROWER or Graphic Industries, Inc., a Georgia corporation ("Guarantor"), XXXXXXXX to observe or perform any obligations of BORROWER or Guarantor to METLIFE on or with respect to any transactions, debts, undertakings or agreements other than the transaction evidenced by this Note following the giving of any required notice and prior to the expiration of any applicable cure period of graceset forth therein; or
(d) Failure of BORROWER to make any payment or perform any obligation under any superior liens or encumbrances on the Property, within the time required thereunder, or commencement of any suit or other action to foreclose any superior liens or encumbrances; or
(e) Failure by XXXXXXXX to observe or perform any of its obligations under any of the lease agreements covering the PropertyProperty prior to the expiration of any applicable cure period set forth therein; or
(f) The Property is transferred or any agreement to transfer any part or interest in the Property in any manner whatsoever is made or entered into without the prior written consent of METLIFE, except as specifically allowed under the MortgageDeed of Trust, including without limitation creating or allowing any liens on the Property or leasing any portion of the Property; or
(g) Filing by BORROWER or Guarantor XXXXXXXX of a voluntary petition in bankruptcy or filing by BORROWER or Guarantor of any petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, or similar relief for itself under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, or the seeking, consenting to, or acquiescing by BORROWER or Guarantor in the appointment of any trustee, receiver, custodian, conservator or liquidator for BORROWER or Guarantor BORROWER, any part of the Property, or any of the income or rents of the Property, or the making by BORROWER or Guarantor of any general assignment for the benefit of creditors, or the inability of or failure by BORROWER or Guarantor to pay its debts generally as they become due, or the insolvency on a balance sheet basis or business failure of BORROWER or Guarantor BORROWER, or the making or suffering of a preference within the meaning of federal bankruptcy law or the making of a fraudulent transfer under applicable federal or state law, or concealment by BORROWER or Guarantor of any of its property in fraud of creditors, or the imposition of a lien upon any of the property of BORROWER or Guarantor which is not discharged in the manner permitted by the MortgageDeed of Trust, or the giving of notice by BORROWER or Guarantor to any governmental body of insolvency or suspension of operations; or
(h) Filing of a petition against BORROWER or Guarantor seeking any reorganization, arrangement, composition, readjustment, liquidation, or similar relief under any present or future federal, state or other law or regulation relating to bankruptcy, insolvency or other relief for debts, or the appointment of any trustee, receiver, custodian, conservator or liquidator of BORROWER or GuarantorBORROWER, of any part of the Property or of any of the income or rents of the Property, unless such petition shall be dismissed within sixty (60) days after such filing, but in any event prior to the entry of an order, judgment or decree approving such petition; or
(i) The institution of any proceeding for the dissolution or termination of BORROWER voluntarily, involuntarily, or by operation of law, or the death of XXXXXXXX; or
(j) A material adverse change occurs in the assets, liabilities or net worth of BORROWER or Guarantor from the assets, liabilities or net worth of BORROWER or Guarantor previously disclosed to METLIFE (the occurrence of such material adverse change being METLIFE'S reasonable determination based on a review of BORROWER'S financial condition); or
(k) Any warranty, representation or statement furnished to METLIFE by or on behalf of BORROWER under this Note, the MortgageDeed of Trust, or any of the Loan Documents shall prove to have been false or misleading in any material respect; or
(l) Failure of BORROWER to observe or perform any other covenant or condition contained in this Note the Deed of Trust and such default shall continue for thirty (30) days after notice is given to BORROWER specifying the nature of the failure, or if the default cannot be cured within such cure period, BORROWER fails within such time to commence and pursue curative action with reasonable diligence or fails at any time after expiration of such cure period to continue with reasonable diligence all necessary curative actions. No notice of default and no opportunity to cure shall be required with respect to defaults under Section 17 of the Deed of Trust or if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or
(m) Failure of BORROWER to observe or perform any other obligation under the Mortgage or any other Loan Document when such observance or performance is due, and such failure shall continue beyond the applicable cure period set forth in such Loan Document, or if the default cannot be cured within such applicable cure period, BORROWER fails within such time to commence and pursue curative action with reasonable diligence or fails at any time after expiration of such applicable cure period to continue with reasonable diligence all necessary curative actions. No notice of default and no opportunity to cure shall be required if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or
(n) XXXXXXXXXxxxxxxx's abandonment of the Property, or the termination before the end of the stated term of that certain lease between BORROWER and Carpet Barn, Inc., dated June 1, 1995; or
(o) Any of the foregoing events occur with respect to any tenant of the Property, with respect to Guarantor guarantor of any of BORROWER's obligations in connection with the indebtedness evidenced by this Note or with respect to any guarantor of any tenant's obligations relating to the Property, or such guarantor dies or becomes incompetent; or
(p) The occurrence of any default under any of the documents evidencing or securing (i) METLIFE Loan No. 5905292, (ii) METLIFE Loan No. 5905392, (iii) METLIFE Loan No. 5905393, (iv) METLIFE Loan No. 5904594 (v) METLIFE Loan No. 59009791, (vi) METLIFE Loan No. 5922796, (vii) METLIFE Loan No. 5922696, or (viii) any other indebtedness with Borrower or any of the guarantors of the Indebtedness which is now or hereafter owed to METLIFE. Upon the occurrence of any of the foregoing events Events of defaultDefault, METLIFE shall have the option to declare the entire amount of principal and interest due under this Note immediately due and payable without notice or demand, and METLIFE may exercise any of its rights under this Note and any document executed or delivered herewith. After acceleration or maturity, BORROWER shall pay interest on the outstanding principal balance of this Note at the rate of five percent (5.00%) per annum above Chase Manhattan Bank's prime interest rate in effect from time to time, or fifteen percent (15.00%) per annum, whichever is higher, provided that such interest rate shall not exceed the maximum interest rate permitted by law. All payments of the principal and interest on this Note shall be made in coin or currency of the United States of America which at the time shall be the legal tender for the payment of public and private debts. If this Note is placed in the hands of an attorney for collection, XXXXXXXX agrees to pay reasonable attorneys' fees and costs incurred by METLIFE in connection therewith, and in the event suit or action is instituted to enforce or interpret this Note (including without limitation efforts to modify or vacate any automatic stay or injunction), the prevailing party shall be entitled to recover all expenses reasonably incurred at, before or after trial and on appeal, whether or not taxable as costs, or in any bankruptcy proceeding, or in connection with post-judgment collection efforts, including, without limitation, attorneys' fees, witness fees (expert and otherwise), deposition costs, copying charges and other expenses. This Note shall be governed and construed in accordance with the laws of the Commonwealth State of Massachusetts Nevada applicable to contracts made and to be performed therein (excluding choice-of-law principles). BORROWER hereby irrevocably submits to the jurisdiction of any state or federal court sitting in Massachusetts Nevada in any action or proceeding brought to enforce or otherwise arising out of or relating to this Note, and hereby waives any objection to venue in any such court and any claim that such forum is an inconvenient forum. This Note is given in a commercial transaction for business purposes. This Note may be declared due prior to its expressed maturity date, all in the events, on the terms, and in the manner provided for in the MortgageDeed of Trust. BORROWER and all sureties, endorsers, guarantors and other parties now or hereafter liable for the payment of this Note, in whole or in part, hereby severally (i) waive demand, notice of demand, presentment for payment, notice of nonpayment, notice of default, protest, notice of protest, notice of intent to accelerate, notice of acceleration and all other notices, and further waive diligence in collecting this Note or in enforcing any of the security for this Note; (ii) agree to any substitution, subordination, exchange or release of any security for this Note or the release of any party primarily or secondarily liable for the payment of this Note; (iii) agree that METLIFE shall not be required to first institute suit or exhaust its remedies hereon against BORROWER or others liable or to become liable for the payment of this Note or to enforce its rights against any security for the payment of this Note; and (iv) consent to any extension of time for the payment of this Note, or any installment hereof, made by agreement by METLIFE with any person now or hereafter liable for the payment of this Note, even if BORROWER is not a party to such agreement. All agreements between BORROWER and METLIFE, whether now existing or hereafter arising and whether written or oral, are hereby limited so that in no contingency, whether by reason of demand or acceleration of the final maturity of this Note or otherwise, shall the interest contracted for, charged, received, paid or agreed to be paid to METLIFE exceed the maximum amount permissible under the applicable law. If, from any circumstance whatsoever, interest would otherwise be payable to METLIFE in excess of the maximum amount permissible under applicable law, the interest payable to METLIFE shall be reduced to the maximum amount permissible under applicable law; and if from any circumstance METLIFE shall ever receive anything of value deemed interest by applicable law in excess of the maximum amount permissible under applicable law, an amount equal to the excessive interest shall be applied to the outstanding principal balance hereof, or if such excessive amount of interest exceeds the unpaid balance of principal hereof, such excess shall be refunded to BORROWER. All interest paid or agreed to be paid to METLIFE shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full period (including any renewal or extension) until payment in full of the principal so that the interest hereon for such full period shall not exceed the maximum amount permissible under applicable law. METLIFE expressly disavows any intent to contract for, charge or receive interest in an amount which exceeds the maximum amount permissible under applicable law. This paragraph shall control all agreements between BORROWER and METLIFE. IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
Appears in 1 contract
MOS. Premium Remaining (Years) Factor --------- --------- ------- ------- 180 - 169 (15) .073 168 - 157 (14) .069 156 - 145 (13) .064 144 - 133 (12) .059 132 - 121 (11) .054 120 - 109 (10) .049 108 - 97 ( 9) .044 96 - 85 ( 8) .039 84 - 73 ( 7) .035 72 - 61 ( 6) .030 60 - 49 ( 5) .025 48 - 37 ( 4) .020 36 - 25 ( 3) .015 24 - 13 ( 2) .010 12 - 1 ( 1) .005 If the Federal Reserve Board ceases to publish Statistical Release H.15 [519], ----------------------------- ------------------------------ then the decrease in the weekly average yield of ten (10)-year U.S. Treasury Notes Constant Maturities will be determined from another source designated by METLIFE. Voluntary prepayment prior to the fifth (5th) anniversary of the due date of the first monthly principal and interest payment due under this Note will be permitted only in the event of a sale of the Property (as hereinafter defined) to a bona- bona-fide third party and only upon payment of the Prepayment Premium set forth above If METLIFE at any time accelerates this Note after an Event of Default (defined below), then BORROWER shall be obligated to pay the Prepayment Premium in accordance with the foregoing schedule. The Prepayment Premium shall not be payable with respect to condemnation awards or insurance proceeds from fire or other casualty which METLIFE applies to prepayment, nor with respect to XXXXXXXX's prepayment of the Note in full during the last twelve three (123) months of the term of this Note unless an Event of Default has occurred. BORROWER expressly acknowledges that such Prepayment Premium is not a penalty but is intended solely to compensate METLIFE for the loss of its bargain and the reimbursement of internal expenses and administrative fees and expenses incurred by METLIFE. This Note has been guaranteed by Presstar Printing Corporation, a Maryland corporation ("Guarantor") pursuant to a Guaranty Agreement ("Guaranty")of even date herewith, which is secured by a certain Indemnity Deed of Trust, Security Agreement, Assignment of Leases and Rents and Fixture Filing ("Deed of Trust") of even date herewith from Guarantor to METLIFE covering certain real property in Xxxxxxxxxx County, Maryland, described therein (the "Property"). (The Guaranty, this Note, the Deed of Trust, and all other documents executed or delivered by BORROWER or Guarantor in connection herewith are hereinafter referred to herein as the "Loan Documents"). BORROWER shall be liable on this Note and on all the representations, warranties, indemnities and covenants in the Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing ("Mortgage") covering the property (the "Property") securing this Note and all other documents executed or delivered in connection herewith (the "Loan Documents"). Each of the following shall constitute an Event of Default ("Event of Default") hereunder and under the Mortgage Deed of Trust executed contemporaneously herewith:
(a) Failure of or refusal by XXXXXXXX to make any payment of principal, interest, or Prepayment Premium upon this Note when due, and such failure or refusal shall continue for a period of ten (10) days after written notice is given to BORROWER by METLIFE specifying such failure; or
(b) Failure of BORROWER Guarantor within the time required by the Mortgage Deed of Trust to make any payment for taxes, insurance or for reserves for such payments, or any other payment necessary to prevent filing of or discharge of any lien, and such failure shall continue for a period of ten (10) days after written notice is given to BORROWER by METLIFE specifying such failure; or
(c) Failure by BORROWER or Graphic Industries, Inc., a Georgia corporation ("Guarantor"), Guarantor to observe or perform any obligations of BORROWER or Guarantor to METLIFE on or with respect to any transactions, debts, undertakings or agreements other than the transaction evidenced by this Note following the giving of any required notice and the expiration of any applicable period of grace; or
(d) Failure of BORROWER or Guarantor to make any payment or perform any obligation under any superior liens or encumbrances on the Property, within the time required thereunder, or commencement of any suit or other action to foreclose any superior liens or encumbrances; or
(e) Failure by XXXXXXXX to observe or perform any of its obligations under any of the lease agreements covering the Property; or
(f) The Property is transferred or any agreement to transfer any part or interest in the Property in any manner whatsoever is made or entered into without the prior written consent of METLIFE, except as specifically allowed under the MortgageDeed of Trust, including without limitation creating or allowing any liens on the Property or leasing any portion of the Property; or
(g) Filing by BORROWER or Guarantor of a voluntary petition in bankruptcy or filing by BORROWER or Guarantor of any petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, or similar relief for itself under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, or the seeking, consenting to, or acquiescing by BORROWER or Guarantor in the appointment of any trustee, receiver, custodian, conservator or liquidator for BORROWER or Guarantor Guarantor, any part of the Property, or any of the income or rents of the Property, or the making by BORROWER or Guarantor of any general assignment for the benefit of creditors, or the inability of or failure by BORROWER or Guarantor to pay its debts generally as they become due, or the insolvency on a balance sheet basis or business failure of BORROWER or Guarantor Guarantor, or the making or suffering of a preference within the meaning of federal bankruptcy law or the making of a fraudulent transfer under applicable federal or state law, or concealment by BORROWER or Guarantor of any of its property in fraud of creditors, or the imposition of a lien upon any of the property of BORROWER or Guarantor which is not discharged in the manner permitted by the MortgageDeed of Trust, or the giving of notice by BORROWER or Guarantor to any governmental body of insolvency or suspension of operations; or
(h) Filing of a petition against BORROWER or Guarantor seeking any reorganization, arrangement, composition, readjustment, liquidation, or similar relief under any present or future federal, state or other law or regulation relating to bankruptcy, insolvency or other relief for debts, or the appointment of any trustee, receiver, custodian, conservator or liquidator of BORROWER or Guarantor, of any part of the Property or of any of the income or rents of the Property, unless such petition shall be dismissed within sixty (60) days after such filing, but in any event prior to the entry of an order, judgment or decree approving such petition; or
(i) The institution of any proceeding for the dissolution or termination of BORROWER voluntarily, involuntarily, or by operation of law; or
(j) A material adverse change occurs in the assets, liabilities or net worth of BORROWER or Guarantor from the assets, liabilities or net worth of BORROWER or Guarantor previously disclosed to METLIFE; or
(k) Any warranty, representation or statement furnished to METLIFE by or on behalf of BORROWER or Guarantor under this Note, the MortgageDeed of Trust, or any of the Loan Documents shall prove to have been false or misleading in any material respect; or
(l) Failure of BORROWER to observe or perform any other covenant or condition contained in this Note and such default shall continue for thirty (30) days after notice is given to BORROWER specifying the nature of the failure. No notice of default and no opportunity to cure shall be required if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or
(m) Failure of BORROWER to observe or perform any other obligation under the Mortgage Deed of Trust or any other Loan Document when such observance or performance is due, and such failure shall continue beyond the applicable cure period set forth in such Loan Document, or if the default cannot be cured within such applicable cure period, BORROWER fails within such time to commence and pursue curative action with reasonable diligence or fails at any time after expiration of such applicable cure period to continue with reasonable diligence all necessary curative actions. No notice of default and no opportunity to cure shall be required if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or
(n) XXXXXXXXGuarantor's abandonment of the Property; or
(o) Any of the foregoing events occur with respect to any tenant of the Property, with respect to Guarantor or with respect to any guarantor of any tenant's obligations relating to the Property, or such guarantor dies or becomes incompetent; or
(p) The occurrence of any default under any of the documents evidencing or securing (i) METLIFE Loan No. 5905292, (ii) METLIFE Loan No. 5905392, (iii) METLIFE Loan No. 59053935903393, (iv) METLIFE Loan No. 5904594 5904594, (v) METLIFE Loan No. 590097915909794, (vi) METLIFE Loan No. 59227965922696, (vii) METLIFE Loan No. 59226965922896, or (viii) any other indebtedness with Borrower or any of the guarantors of the Indebtedness Guarantor which is now or hereafter owed to METLIFE. Upon the occurrence of any of the foregoing events of default, METLIFE shall have the option to declare the entire amount of principal and interest due under this Note immediately due and payable without notice or demand, and METLIFE may exercise any of its rights under this Note and any document executed or delivered herewith. After acceleration or maturity, BORROWER shall pay interest on the outstanding principal balance of this Note at the rate of five percent (5.00%) per annum above Chase Manhattan Bank's prime interest rate in effect from time to time, or fifteen percent (15.00%) per annum, whichever is higher, provided that such interest rate shall not exceed the maximum interest rate permitted by law. All payments of the principal and interest on this Note shall be made in coin or currency of the United States of America which at the time shall be the legal tender for the payment of public and private debts. If this Note is placed in the hands of an attorney for collection, XXXXXXXX agrees to pay reasonable attorneys' fees and costs incurred by METLIFE in connection therewith, and in the event suit or action is instituted to enforce or interpret this Note (including without limitation efforts to modify or vacate any automatic stay or injunction), the prevailing party shall be entitled to recover all expenses reasonably incurred at, before or after trial and on appeal, whether or not taxable as costs, or in any bankruptcy proceeding, or in connection with post-judgment collection efforts, including, without limitation, attorneys' fees, witness fees (expert and otherwise), deposition costs, copying charges and other expenses. This Note shall be governed and construed in accordance with the laws of the Commonwealth State of Massachusetts Maryland applicable to contracts made and to be performed therein (excluding choice-of-law principles). BORROWER hereby irrevocably submits to the jurisdiction of any state or federal court sitting in Massachusetts Maryland in any action or proceeding brought to enforce or otherwise arising out of or relating to this Note, and hereby waives any objection to venue in any such court and any claim that such forum is an inconvenient forum. This Note is given in a commercial transaction for business purposes. This Note may be declared due prior to its expressed maturity date, all in the events, on the terms, and in the manner provided for in the MortgageDeed of Trust. BORROWER BORROWER, Guarantor, and all sureties, endorsers, guarantors and other parties now or hereafter liable for the payment of this Note, in whole or in part, hereby severally (i) waive demand, notice of demand, presentment for payment, notice of nonpayment, notice of default, protest, notice of protest, notice of intent to accelerate, notice of acceleration and all other notices, and further waive diligence in collecting this Note or in enforcing any of the security for this Note; (ii) agree to any substitution, subordination, exchange or release of any security for this Note or the release of any party primarily or secondarily liable for the payment of this Note; (iii) agree that METLIFE shall not be required to first institute suit or exhaust its remedies hereon against BORROWER or others liable or to become liable for the payment of this Note or to enforce its rights against any security for the payment of this Note; and (iv) consent to any extension of time for the payment of this Note, or any installment hereof, made by agreement by METLIFE with any person now or hereafter liable for the payment of this Note, even if BORROWER is not a party to such agreement. All agreements between BORROWER and METLIFE, whether now existing or hereafter arising and whether written or oral, are hereby limited so that in no contingency, whether by reason of demand or acceleration of the final maturity of this Note or otherwise, shall the interest contracted for, charged, received, paid or agreed to be paid to METLIFE exceed the maximum amount permissible under the applicable law. If, from any circumstance whatsoever, interest would otherwise be payable to METLIFE in excess of the maximum amount permissible under applicable law, the interest payable to METLIFE shall be reduced to the maximum amount permissible under applicable law; and if from any circumstance METLIFE shall ever receive anything of value deemed interest by applicable law in excess of the maximum amount permissible under applicable law, an amount equal to the excessive interest or if such excessive amount of interest exceeds the unpaid balance of principal hereof, such excess shall be refunded to BORROWER. All interest paid or agreed to be paid to METLIFE shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full period (including any renewal or extension) until payment in full of the principal so that the interest hereon for such full period shall not exceed the maximum amount permissible under applicable law. METLIFE expressly disavows any intent to contract for, charge or receive interest in an amount which exceeds the maximum amount permissible under applicable law. This paragraph shall control all agreements between BORROWER and METLIFE. IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
Appears in 1 contract
MOS. Premium Remaining (Years) Factor --------- ------- ------- 180 - 169 (15) .073 168 - 157 (14) .069 156 - 145 (13) .064 144 - 133 (12) .059 132 - 121 (11) .054 ------ 120 - 109 (10) .049 .074 108 - 97 ( 9) .044 .068 96 - 85 ( 8) .039 .063 84 - 73 ( 7) .035 .057 72 - 61 ( 6) .030 .051 60 - 49 ( 5) .025 .044 48 - 37 ( 4) .020 .037 36 - 25 ( 3) .015 .030 24 - 13 ( 2) .010 .022 12 - 1 ( 1) .005 .014 If the Federal Reserve Board ceases to publish Statistical Release H.15 [519], ----------------------------- then the decrease in the weekly average yield of ten (10)-year U.S. Treasury Notes will be determined from another source designated by METLIFE. Voluntary prepayment Prepayment prior to the fifth (5th) anniversary of the due date of the first monthly principal and interest payment due under this Note will not be permitted only in the event of a sale of the Property (as hereinafter defined) to a bona- fide third party and only upon payment of the Prepayment Premium set forth above permitted. If METLIFE at any time accelerates this Note after an Event of Default (defined below), then BORROWER shall be obligated to pay the Prepayment Premium in accordance with the foregoing schedule. The Prepayment Premium shall not be payable with respect to condemnation awards or insurance proceeds from fire or other casualty which METLIFE applies to prepayment, nor with respect to XXXXXXXX's prepayment of the Note in full during the last twelve three (123) months of the term of this Note unless an Event of Default has occurred. BORROWER expressly acknowledges that such Prepayment Premium is not a penalty but is intended solely to compensate METLIFE for the loss of its bargain and the reimbursement of internal expenses and administrative fees and expenses incurred by METLIFE. BORROWER shall be liable on this Note and on all the representations, warranties, indemnities and covenants in the Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing ("Mortgage") covering the property (the "Property") securing this Note and all other documents executed or delivered in connection herewith (the "Loan Documents"). Each of the following shall constitute an Event of Default ("Event of Default") hereunder and under the Mortgage executed contemporaneously herewith:
(a) Failure of or refusal by XXXXXXXX to make any payment of principal, interest, or Prepayment Premium upon this Note when due, and such failure or refusal shall continue for a period of ten (10) days after written notice is given to BORROWER by METLIFE specifying such failure; or
(b) Failure of BORROWER within the time required by the Mortgage to make any payment for taxes, insurance or for reserves for such payments, or any other payment necessary to prevent filing of or discharge of any lien, and such failure shall continue for a period of ten (10) days after written notice is given to BORROWER by METLIFE specifying such failure; or
(c) Failure by BORROWER or Graphic Industries, Inc., a Georgia corporation ("Guarantor"), to observe or perform any obligations of BORROWER or Guarantor to METLIFE on or with respect to any transactions, debts, undertakings or agreements other than the transaction evidenced by this Note following the giving of any required notice and the expiration of any applicable period of grace; or
(d) Failure of BORROWER to make any payment or perform any obligation under any superior liens or encumbrances on the Property, within the time required thereunder, or commencement of any suit or other action to foreclose any superior liens or encumbrances; or
(e) Failure by XXXXXXXX to observe or perform any of its obligations under any of the lease agreements covering the Property; or
(f) The Property is transferred or any agreement to transfer any part or interest in the Property in any manner whatsoever is made or entered into without the prior written consent of METLIFE, except as specifically allowed under the Mortgage, including without limitation creating or allowing any liens on the Property or leasing any portion of the Property; or
(g) Filing by BORROWER or Guarantor of a voluntary petition in bankruptcy or filing by BORROWER or Guarantor of any petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, or similar relief for itself under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, or the seeking, consenting to, or acquiescing by BORROWER or Guarantor in the appointment of any trustee, receiver, custodian, conservator or liquidator for BORROWER or Guarantor , any part of the Property, or any of the income or rents of the Property, or the making by BORROWER or Guarantor of any general assignment for the benefit of creditors, or the inability of or failure by BORROWER or Guarantor to pay its debts generally as they become due, or the insolvency on a balance sheet basis or business failure of BORROWER or Guarantor , or the making or suffering of a preference within the meaning of federal bankruptcy law or the making of a fraudulent transfer under applicable federal or state law, or concealment by BORROWER or Guarantor of any of its property in fraud of creditors, or the imposition of a lien upon any of the property of BORROWER or Guarantor which is not discharged in the manner permitted by the Mortgage, or the giving of notice by BORROWER or Guarantor to any governmental body of insolvency or suspension of operations; or
(h) Filing of a petition against BORROWER or Guarantor seeking any reorganization, arrangement, composition, readjustment, liquidation, or similar relief under any present or future federal, state or other law or regulation relating to bankruptcy, insolvency or other relief for debts, or the appointment of any trustee, receiver, custodian, conservator or liquidator of BORROWER or Guarantor, of any part of the Property or of any of the income or rents of the Property, unless such petition shall be dismissed within sixty (60) days after such filing, but in any event prior to the entry of an order, judgment or decree approving such petition; or
(i) The institution of any proceeding for the dissolution or termination of BORROWER voluntarily, involuntarily, or by operation of law; or
(j) A material adverse change occurs in the assets, liabilities or net worth of BORROWER or Guarantor from the assets, liabilities or net worth of BORROWER or Guarantor previously disclosed to METLIFE; or
(k) Any warranty, representation or statement furnished to METLIFE by or on behalf of BORROWER under this Note, the Mortgage, or any of the Loan Documents shall prove to have been false or misleading in any material respect; or
(l) Failure of BORROWER to observe or perform any other covenant or condition contained in this Note and such default shall continue for thirty (30) days after notice is given to BORROWER specifying the nature of the failure. No notice of default and no opportunity to cure shall be required if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or
(m) Failure of BORROWER to observe or perform any other obligation under the Mortgage or any other Loan Document when such observance or performance is due, and such failure shall continue beyond the applicable cure period set forth in such Loan Document, or if the default cannot be cured within such applicable cure period, BORROWER fails within such time to commence and pursue curative action with reasonable diligence or fails at any time after expiration of such applicable cure period to continue with reasonable diligence all necessary curative actions. No notice of default and no opportunity to cure shall be required if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or
(n) XXXXXXXX's abandonment of the Property; or
(o) Any of the foregoing events occur with respect to any tenant of the Property, with respect to Guarantor or with respect to any guarantor of any tenant's obligations relating to the Property, or such guarantor dies or becomes incompetent; or
(p) The occurrence of any default under any of the documents evidencing or securing (i) METLIFE Loan No. 5905292, (ii) METLIFE Loan No. 5905392, (iii) METLIFE Loan No. 5905393, (iv) METLIFE Loan No. 5904594 (v) METLIFE Loan No. 59009791, (vi) METLIFE Loan No. 5922796, (vii) METLIFE Loan No. 5922696, or (viii) any other indebtedness with Borrower or any of the guarantors of the Indebtedness which is now or hereafter owed to METLIFE. Upon the occurrence of any of the foregoing events of default, METLIFE shall have the option to declare the entire amount of principal and interest due under this Note immediately due and payable without notice or demand, and METLIFE may exercise any of its rights under this Note and any document executed or delivered herewith. After acceleration or maturity, BORROWER shall pay interest on the outstanding principal balance of this Note at the rate of five percent (5.00%) per annum above Chase Manhattan Bank's prime interest rate in effect from time to time, or fifteen percent (15.00%) per annum, whichever is higher, provided that such interest rate shall not exceed the maximum interest rate permitted by law. All payments of the principal and interest on this Note shall be made in coin or currency of the United States of America which at the time shall be the legal tender for the payment of public and private debts. If this Note is placed in the hands of an attorney for collection, XXXXXXXX agrees to pay reasonable attorneys' fees and costs incurred by METLIFE in connection therewith, and in the event suit or action is instituted to enforce or interpret this Note (including without limitation efforts to modify or vacate any automatic stay or injunction), the prevailing party shall be entitled to recover all expenses reasonably incurred at, before or after trial and on appeal, whether or not taxable as costs, or in any bankruptcy proceeding, or in connection with post-judgment collection efforts, including, without limitation, attorneys' fees, witness fees (expert and otherwise), deposition costs, copying charges and other expenses. This Note shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts applicable to contracts made and to be performed therein (excluding choice-of-law principles). BORROWER hereby irrevocably submits to the jurisdiction of any state or federal court sitting in Massachusetts in any action or proceeding brought to enforce or otherwise arising out of or relating to this Note, and hereby waives any objection to venue in any such court and any claim that such forum is an inconvenient forum. This Note is given in a commercial transaction for business purposes. This Note may be declared due prior to its expressed maturity date, all in the events, on the terms, and in the manner provided for in the Mortgage. BORROWER and all sureties, endorsers, guarantors and other parties now or hereafter liable for the payment of this Note, in whole or in part, hereby severally (i) waive demand, notice of demand, presentment for payment, notice of nonpayment, notice of default, protest, notice of protest, notice of intent to accelerate, notice of acceleration and all other notices, and further waive diligence in collecting this Note or in enforcing any of the security for this Note; (ii) agree to any substitution, subordination, exchange or release of any security for this Note or the release of any party primarily or secondarily liable for the payment of this Note; (iii) agree that METLIFE shall not be required to first institute suit or exhaust its remedies hereon against BORROWER or others liable or to become liable for the payment of this Note or to enforce its rights against any security for the payment of this Note; and (iv) consent to any extension of time for the payment of this Note, or any installment hereof, made by agreement by METLIFE with any person now or hereafter liable for the payment of this Note, even if BORROWER is not a party to such agreement. All agreements between BORROWER and METLIFE, whether now existing or hereafter arising and whether written or oral, are hereby limited so that in no contingency, whether by reason of demand or acceleration of the final maturity of this Note or otherwise, shall the interest contracted for, charged, received, paid or agreed to be paid to METLIFE exceed the maximum amount permissible under the applicable law. If, from any circumstance whatsoever, interest would otherwise be payable to METLIFE in excess of the maximum amount permissible under applicable law, the interest payable to METLIFE shall be reduced to the maximum amount permissible under applicable law; and if from any circumstance METLIFE shall ever receive anything of value deemed interest by applicable law in excess of the maximum amount permissible under applicable law, an amount equal to the excessive interest or if such excessive amount of interest exceeds the unpaid balance of principal hereof, such excess shall be refunded to BORROWER. All interest paid or agreed to be paid to METLIFE shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full period (including any renewal or extension) until payment in full of the principal so that the interest hereon for such full period shall not exceed the maximum amount permissible under applicable law. METLIFE expressly disavows any intent to contract for, charge or receive interest in an amount which exceeds the maximum amount permissible under applicable law. This paragraph shall control all agreements between BORROWER and METLIFE. IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
Appears in 1 contract
MOS. Premium Remaining (Years) Factor --------- ------- ------- ------ 180 - 169 (15) .073 168 - 157 (14) .069 156 - 145 (13) .064 144 - 133 (12) .059 132 - 121 (11) .054 120 - 109 (10) .049 108 - 97 ( 9) .044 96 - 85 ( 8) .039 84 - 73 ( 7) .035 72 - 61 ( 6) .030 60 - 49 ( 5) .025 48 - 37 ( 4) .020 36 - 25 ( 3) .015 24 - 13 ( 2) .010 12 - 1 ( 1) .005 If the Federal Reserve Board ceases to publish Statistical Release STATISTICAL RELEASE H.15 [519], ----------------------------- then the decrease in the weekly average yield of ten (10)-year U.S. Treasury Notes Constant Maturities will be determined from another source designated by METLIFE. Voluntary prepayment Prepayment prior to the fifth (5th) anniversary of the due date of the first monthly principal and interest payment due under this Note will not be permitted only in the event of a sale of the Property (as hereinafter defined) to a bona- fide third party and only upon payment of the Prepayment Premium set forth above permitted. If METLIFE at any time accelerates this Note after an Event of Default (defined below), then BORROWER shall be obligated to pay the Prepayment Premium in accordance with the foregoing schedule. The Prepayment Premium shall not be payable with respect to condemnation awards or insurance proceeds from fire or other casualty which METLIFE applies to prepayment, nor with respect to XXXXXXXX's prepayment BORRXXXX'x xrepayment of the Note in full during the last twelve three (123) months of the term of this Note unless an Event of Default has occurred. BORROWER expressly acknowledges that such Prepayment Premium is not a penalty but is intended solely to compensate METLIFE for the loss of its bargain and the reimbursement of internal expenses and administrative fees and expenses incurred by METLIFE. BORROWER shall be liable on this Note and on all the representations, warranties, indemnities and covenants in the Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing ("Mortgage") covering the property (the "Property") securing this Note and shall be liable on all other documents executed or delivered in connection herewith (the "Loan Documents"). Each of the following shall constitute an Event of Default ("Event of Default") hereunder and under the Mortgage executed contemporaneously herewithMortgage:
(a) Failure of or refusal by XXXXXXXX METLIFE to make receive any payment of principal, interest, or Prepayment Premium upon this Note when due, and such failure or refusal shall continue for a period of ten (10) days after written notice is given by METLIFE to BORROWER by METLIFE specifying such failureof the same; or
(b) Failure of BORROWER within the time required by the Mortgage to pay any sum secured thereby other than the Note or to make any payment for taxes, insurance or for reserves for such payments, or any other payment necessary to prevent filing of or discharge of any lien, and such failure shall continue for a period of ten (10) days after written notice is given to BORROWER by METLIFE specifying such failure; or
(c) Failure by BORROWER or Graphic Industries, Inc., a Georgia corporation ("Guarantor"), to BORRXXXX xx observe or perform any obligations of BORROWER or Guarantor to METLIFE on or with respect to any transactions, debts, undertakings or agreements other than the transaction evidenced by this Note following the giving of any required notice and the expiration of any applicable period of graceNote; or
(d) Failure of BORROWER to make any payment or perform any obligation under any superior liens or encumbrances on the Property, within the time required thereunder, or commencement of any suit or other action to foreclose any superior liens or encumbrances; or
(e) Failure by XXXXXXXX to BORRXXXX xx observe or perform any of its obligations under any of the lease agreements covering the Property; or
(f) The Property is transferred or any agreement to transfer any part or interest in the Property in any manner whatsoever is made or entered into without the prior written consent of METLIFE, except as specifically allowed under the Mortgage, including without limitation creating or allowing any liens on the Property or leasing any portion of the Property; or
(g) Filing by BORROWER or Guarantor of BORRXXXX xx a voluntary petition in bankruptcy or filing by BORROWER or Guarantor of any petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, or similar relief for itself under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, or the seeking, consenting to, or acquiescing by BORROWER or Guarantor in the appointment of any trustee, receiver, custodian, conservator or liquidator for BORROWER or Guarantor BORROWER, any part of the Property, or any of the income or rents of the Property, or the making by BORROWER or Guarantor of any general assignment for the benefit of creditors, or the inability of or failure by BORROWER or Guarantor to pay its debts generally as they become due, or the insolvency on a balance sheet basis or business failure of BORROWER or Guarantor BORROWER, or the making or suffering of a preference within the meaning of federal bankruptcy law or the making of a fraudulent transfer under applicable federal or state law, or concealment by BORROWER or Guarantor of any of its property in fraud of creditors, or the imposition of a lien upon any of the property of BORROWER or Guarantor which is not discharged in the manner permitted by the Mortgage, or the giving of notice by BORROWER or Guarantor to any governmental body of insolvency or suspension of operations; or
(h) Filing of a petition against BORROWER or Guarantor seeking any reorganization, arrangement, composition, readjustment, liquidation, or similar relief under any present or future federal, state or other law or regulation relating to bankruptcy, insolvency or other relief for debts, or the appointment of any trustee, receiver, custodian, conservator or liquidator of BORROWER or GuarantorBORROWER, of any part of the Property or of any of the income or rents of the Property, unless such petition shall be dismissed within sixty (60) days after such filing, but in any event prior to the entry of an order, judgment or decree approving such petition; or
(i) The institution of any proceeding for the dissolution or termination of BORROWER voluntarily, involuntarily, or by operation of law; or
(j) A material adverse change occurs in the assets, liabilities or net worth of BORROWER or Guarantor from the assets, liabilities or net worth of BORROWER or Guarantor previously disclosed to METLIFE; or
(k) Any warranty, representation or statement furnished to METLIFE by or on behalf of BORROWER under this Note, the Mortgage, or any of the Loan Documents shall prove to have been false or misleading in any material respect; or
(l) Failure of BORROWER to observe or perform any other covenant or condition contained in this Note the Mortgage and such default shall continue for thirty (30) days after notice is given to BORROWER specifying the nature of the failure, or if the default cannot be cured within such cure period, BORRXXXX xxxls within such time to commence and pursue curative action with reasonable diligence or fails at any time after expiration of such cure period to continue with reasonable diligence all necessary curative actions. No notice of default and no opportunity to cure shall be required with respect to defaults under SECTION 17 or SECTION 22 of the Mortgage or if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or
(m) Failure of BORROWER to observe or perform any other obligation under the Mortgage or any other Loan Document when such observance or performance is due, and such failure shall continue beyond the applicable cure period set forth in such Loan Document, or if the default cannot be cured within such applicable cure period, BORROWER fails within such time to commence and pursue curative action with reasonable diligence or fails at any time after expiration of such applicable cure period to continue with reasonable diligence all necessary curative actions. No notice of default and no opportunity to cure shall be required if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or
(n) XXXXXXXX's abandonment Borrxxxx'x xbandonment of the Property; or
(o) Any of the foregoing events occur with respect to any tenant of the Propertyoccur, with respect to Guarantor or with respect to any guarantor of any tenantof BORROWER's obligations relating to in connection with the Propertyindebtedness evidenced by this Note. Notwithstanding the foregoing, or such guarantor dies or becomes incompetent; or
(p) The the occurrence of any default an Event of Default under any of the documents evidencing or securing (i) METLIFE Loan No. 5905292that certain Revolving Credit Facility between Fleet Bank of Massachusetts and Uno Restaurants, Inc. dated December 9, 1994, as the same may be amended from time to time, or (ii) METLIFE Loan No. 5905392, (iii) METLIFE Loan No. 5905393, (iv) METLIFE Loan No. 5904594 (v) METLIFE Loan No. 59009791, (vi) METLIFE Loan No. 5922796, (vii) METLIFE Loan No. 5922696, or (viii) any other indebtedness with Borrower or any unsecured credit facility entered into by Uno Restaurants, Inc. shall not by itself constitute an Event of the guarantors of the Indebtedness which is now or hereafter owed to METLIFEDefault hereunder. Upon the occurrence of any of the foregoing events Events of defaultDefault, METLIFE shall have the option to declare the entire amount of principal and interest due under this Note immediately due and payable without notice or demand, and METLIFE may exercise any of its rights under this Note and any document executed or delivered herewith. After acceleration or maturity, BORROWER shall pay interest on the outstanding principal balance of this Note at the rate of five percent (5.00%) per annum above Chase Manhattan Bank's prime interest rate in effect from time to time, or fifteen percent (15.00%) per annum, whichever is higher, provided that such interest rate shall not exceed the maximum interest rate permitted by law. All payments of the principal and interest on this Note shall be made in coin or currency of the United States of America which at the time shall be the legal tender for the payment of public and private debts. If this Note is placed in the hands of an attorney for collection, XXXXXXXX agrees BORRXXXX xxxees to pay reasonable attorneys' fees and costs incurred by METLIFE in connection therewith, and in the event suit or action is instituted to enforce or interpret this Note (including without limitation efforts to modify or vacate any automatic stay or injunction), the prevailing party shall be entitled to recover all expenses reasonably incurred at, before or after trial and on appeal, whether or not taxable as costs, or in any bankruptcy proceeding, or in connection with post-judgment collection efforts, including, without limitation, attorneys' fees, witness fees (expert and otherwise), deposition costs, copying charges and other expenses. This Note shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts Pennsylvania applicable to contracts made and to be performed therein (excluding choice-of-law principles). BORROWER hereby irrevocably submits to the jurisdiction of any state or federal court sitting in Massachusetts Pennsylvania in any action or proceeding brought to enforce or otherwise arising out of or relating to this Note, and hereby waives any objection to venue in any such court and any claim that such forum is an inconvenient forum. This Note is given in a commercial transaction for business purposes. This Note may be declared due prior to its expressed maturity date, all in the events, on the terms, and in the manner provided for in the Mortgage. BORROWER and all sureties, endorsers, guarantors and other parties now or hereafter liable for the payment of this Note, in whole or in part, hereby severally (i) waive demand, notice of demand, presentment for payment, notice of nonpayment, notice of default, protest, notice of protest, notice of intent to accelerate, notice of acceleration and all other notices, and further waive diligence in collecting this Note or in enforcing any of the security for this Note; (ii) agree to any substitution, subordination, exchange or release of any security for this Note or the release of any party primarily or secondarily liable for the payment of this Note; (iii) agree that METLIFE shall not be required to first institute suit or exhaust its remedies hereon against BORROWER or others liable or to become liable for the payment of this Note or to enforce its rights against any security for the payment of this Note; and (iv) consent to any extension of time for the payment of this Note, or any installment hereof, made by agreement by METLIFE with any person now or hereafter liable for the payment of this Note, even if BORROWER is not a party to such agreement. BORROWER authorizes METLIFE or its agent to insert in the spaces provided herein the appropriate interest rate and the payment amounts as of the date of the initial advance hereunder. All agreements between BORROWER and METLIFE, whether now existing or hereafter arising and whether written or oral, are hereby limited so that in no contingency, whether by reason of demand or acceleration of the final maturity of this Note or otherwise, shall the interest contracted for, charged, received, paid or agreed to be paid to METLIFE exceed the maximum amount permissible under the applicable law. If, from any circumstance whatsoever, interest would otherwise be payable to METLIFE in excess of the maximum amount permissible under applicable law, the interest payable to METLIFE shall be reduced to the maximum amount permissible under applicable law; and if from any circumstance METLIFE shall ever receive anything of value deemed interest by applicable law in excess of the maximum amount permissible under applicable law, an amount equal to the excessive interest shall be applied to the outstanding principal balance hereof, or if such excessive amount of interest exceeds the unpaid balance of principal hereof, such excess shall be refunded to BORROWER. All interest paid or agreed to be paid to METLIFE shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full period (including any renewal or extension) until payment in full of the principal so that the interest hereon for such full period shall not exceed the maximum amount permissible under applicable law. METLIFE expressly disavows any intent to contract for, charge or receive interest in an amount which exceeds the maximum amount permissible under applicable law. This paragraph shall control all agreements between BORROWER and METLIFE. IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
Appears in 1 contract
MOS. Premium Remaining (Years) Factor --------- ------- ------- ------ 180 - 169 (15) .073 168 - 157 (14) .069 156 - 145 (13) .064 144 - 133 (12) .059 132 - 121 (11) .054 120 - 109 (10) .049 108 - 97 ( 9) .044 96 - 85 ( 8) .039 84 - 73 ( 7) .035 72 - 61 ( 6) .030 60 - 49 ( 5) .025 48 - 37 ( 4) .020 36 - 25 ( 3) .015 24 - 13 ( 2) .010 12 - 1 ( 1) .005 If the Federal Reserve Board ceases to publish Statistical Release STATISTICAL RELEASE H.15 [519], ----------------------------- then the decrease in the weekly average yield of ten (10)-year U.S. Treasury Notes Constant Maturities will be determined from another source designated by METLIFE. Voluntary prepayment Prepayment prior to the fifth (5th) anniversary of the due date of the first monthly principal and interest payment due under this Note will not be permitted only in the event of a sale of the Property (as hereinafter defined) to a bona- fide third party and only upon payment of the Prepayment Premium set forth above permitted. If METLIFE at any time accelerates this Note after an Event of Default (defined below), then BORROWER shall be obligated to pay the Prepayment Premium in accordance with the foregoing schedule. The Prepayment Premium shall not be payable with respect to condemnation awards or insurance proceeds from fire or other casualty which METLIFE applies to prepayment, nor with respect to XXXXXXXX's prepayment BORRXXXX'x xrepayment of the Note in full during the last twelve three (123) months of the term of this Note unless an Event of Default has occurred. BORROWER expressly acknowledges that such Prepayment Premium is not a penalty but is intended solely to compensate METLIFE for the loss of its bargain and the reimbursement of internal expenses and administrative fees and expenses incurred by METLIFE. BORROWER shall be liable on this Note and on all the representations, warranties, indemnities and covenants in the Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing ("Mortgage") covering the property (the "Property") securing this Note and shall be liable on all other documents executed or delivered in connection herewith (the "Loan Documents"). Each of the following shall constitute an Event of Default ("Event of Default") hereunder and under the Mortgage executed contemporaneously herewithMortgage:
(a) Failure of or refusal by XXXXXXXX METLIFE to make receive any payment of principal, interest, or Prepayment Premium upon this Note when due, and such failure or refusal shall continue for a period of ten (10) days after written notice is given by METLIFE to BORROWER by METLIFE specifying such failureof the same; or
(b) Failure of BORROWER within the time required by the Mortgage to pay any sum secured thereby other than the Note or to make any payment for taxes, insurance or for reserves for such payments, or any other payment necessary to prevent filing of or discharge of any lien, and such failure shall continue for a period of ten (10) days after written notice is given to BORROWER by METLIFE specifying such failure; or
(c) Failure by BORROWER or Graphic Industries, Inc., a Georgia corporation ("Guarantor"), to BORRXXXX xx observe or perform any obligations of BORROWER or Guarantor to METLIFE on or with respect to any transactions, debts, undertakings or agreements other than the transaction evidenced by this Note following the giving of any required notice and the expiration of any applicable period of graceNote; or
(d) Failure of BORROWER to make any payment or perform any obligation under any superior liens or encumbrances on the Property, within the time required thereunder, or commencement of any suit or other action to foreclose any superior liens or encumbrances; or
(e) Failure by XXXXXXXX to BORRXXXX xx observe or perform any of its obligations under any of the lease agreements covering the Property; or
(f) The Property is transferred or any agreement to transfer any part or interest in the Property in any manner whatsoever is made or entered into without the prior written consent of METLIFE, except as specifically allowed under the Mortgage, including without limitation creating or allowing any liens on the Property or leasing any portion of the Property; or
(g) Filing by BORROWER or Guarantor of BORRXXXX xx a voluntary petition in bankruptcy or filing by BORROWER or Guarantor of any petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, or similar relief for itself under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, or the seeking, consenting to, or acquiescing by BORROWER or Guarantor in the appointment of any trustee, receiver, custodian, conservator or liquidator for BORROWER or Guarantor BORROWER, any part of the Property, or any of the income or rents of the Property, or the making by BORROWER or Guarantor of any general assignment for the benefit of creditors, or the inability of or failure by BORROWER or Guarantor to pay its debts generally as they become due, or the insolvency on a balance sheet basis or business failure of BORROWER or Guarantor BORROWER, or the making or suffering of a preference within the meaning of federal bankruptcy law or the making of a fraudulent transfer under applicable federal or state law, or concealment by BORROWER or Guarantor of any of its property in fraud of creditors, or the imposition of a lien upon any of the property of BORROWER or Guarantor which is not discharged in the manner permitted by the Mortgage, or the giving of notice by BORROWER or Guarantor to any governmental body of insolvency or suspension of operations; or
(h) Filing of a petition against BORROWER or Guarantor seeking any reorganization, arrangement, composition, readjustment, liquidation, or similar relief under any present or future federal, state or other law or regulation relating to bankruptcy, insolvency or other relief for debts, or the appointment of any trustee, receiver, custodian, conservator or liquidator of BORROWER or GuarantorBORROWER, of any part of the Property or of any of the income or rents of the Property, unless such petition shall be dismissed within sixty (60) days after such filing, but in any event prior to the entry of an order, judgment or decree approving such petition; or
(i) The institution of any proceeding for the dissolution or termination of BORROWER voluntarily, involuntarily, or by operation of law; or
(j) A material adverse change occurs in the assets, liabilities or net worth of BORROWER or Guarantor from the assets, liabilities or net worth of BORROWER or Guarantor previously disclosed to METLIFE; or
(k) Any warranty, representation or statement furnished to METLIFE by or on behalf of BORROWER under this Note, the Mortgage, or any of the Loan Documents shall prove to have been false or misleading in any material respect; or
(l) Failure of BORROWER to observe or perform any other covenant or condition contained in this Note the Mortgage and such default shall continue for thirty (30) days after notice is given to BORROWER specifying the nature of the failure, or if the default cannot be cured within such cure period, BORRXXXX xxxls within such time to commence and pursue curative action with reasonable diligence or fails at any time after expiration of such cure period to continue with reasonable diligence all necessary curative actions. No notice of default and no opportunity to cure shall be required with respect to defaults under SECTION 17 or SECTION 22 of the Mortgage or if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or
(m) Failure of BORROWER to observe or perform any other obligation under the Mortgage or any other Loan Document when such observance or performance is due, and such failure shall continue beyond the applicable cure period set forth in such Loan Document, or if the default cannot be cured within such applicable cure period, BORROWER fails within such time to commence and pursue curative action with reasonable diligence or fails at any time after expiration of such applicable cure period to continue with reasonable diligence all necessary curative actions. No notice of default and no opportunity to cure shall be required if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or
(n) XXXXXXXX's abandonment Borrxxxx'x xbandonment of the Property; or
(o) Any of the foregoing events occur with respect to any tenant of the Propertyoccur, with respect to Guarantor or with respect to any guarantor of any tenantof BORROWER's obligations relating to in connection with the Propertyindebtedness evidenced by this Note. Notwithstanding the foregoing, or such guarantor dies or becomes incompetent; or
(p) The the occurrence of any default an Event of Default under any of the documents evidencing or securing (i) METLIFE Loan No. 5905292that certain Revolving Credit Facility between Fleet Bank of Massachusetts and Uno Restaurants, Inc. dated December 9, 1994, as the same may be amended from time to time, or (ii) METLIFE Loan No. 5905392, (iii) METLIFE Loan No. 5905393, (iv) METLIFE Loan No. 5904594 (v) METLIFE Loan No. 59009791, (vi) METLIFE Loan No. 5922796, (vii) METLIFE Loan No. 5922696, or (viii) any other indebtedness with Borrower or any unsecured credit facility entered into by Uno Restaurants, Inc. shall not by itself constitute an Event of the guarantors of the Indebtedness which is now or hereafter owed to METLIFEDefault hereunder. Upon the occurrence of any of the foregoing events Events of defaultDefault, METLIFE shall have the option to declare the entire amount of principal and interest due under this Note immediately due and payable without notice or demand, and METLIFE may exercise any of its rights under this Note and any document executed or delivered herewith. After acceleration or maturity, BORROWER shall pay interest on the outstanding principal balance of this Note at the rate of five percent (5.00%) per annum above Chase Manhattan Bank's prime interest rate in effect from time to time, or fifteen percent (15.00%) per annum, whichever is higher, provided that such interest rate shall not exceed the maximum interest rate permitted by law. All payments of the principal and interest on this Note shall be made in coin or currency of the United States of America which at the time shall be the legal tender for the payment of public and private debts. If this Note is placed in the hands of an attorney for collection, XXXXXXXX agrees BORRXXXX xxxees to pay reasonable attorneys' fees and costs incurred by METLIFE in connection therewith, and in the event suit or action is instituted to enforce or interpret this Note (including without limitation efforts to modify or vacate any automatic stay or injunction), the prevailing party shall be entitled to recover all expenses reasonably incurred at, before or after trial and on appeal, whether or not taxable as costs, or in any bankruptcy proceeding, or in connection with post-judgment collection efforts, including, without limitation, attorneys' fees, witness fees (expert and otherwise), deposition costs, copying charges and other expenses. This Note shall be governed and construed in accordance with the laws of the Commonwealth State of Massachusetts Ohio applicable to contracts made and to be performed therein (excluding choice-of-law principles). BORROWER hereby irrevocably submits to the jurisdiction of any state or federal court sitting in Massachusetts Ohio in any action or proceeding brought to enforce or otherwise arising out of or relating to this Note, and hereby waives any objection to venue in any such court and any claim that such forum is an inconvenient forum. This Note is given in a commercial transaction for business purposes. This Note may be declared due prior to its expressed maturity date, all in the events, on the terms, and in the manner provided for in the Mortgage. BORROWER and all sureties, endorsers, guarantors and other parties now or hereafter liable for the payment of this Note, in whole or in part, hereby severally (i) waive demand, notice of demand, presentment for payment, notice of nonpayment, notice of default, protest, notice of protest, notice of intent to accelerate, notice of acceleration and all other notices, and further waive diligence in collecting this Note or in enforcing any of the security for this Note; (ii) agree to any substitution, subordination, exchange or release of any security for this Note or the release of any party primarily or secondarily liable for the payment of this Note; (iii) agree that METLIFE shall not be required to first institute suit or exhaust its remedies hereon against BORROWER or others liable or to become liable for the payment of this Note or to enforce its rights against any security for the payment of this Note; and (iv) consent to any extension of time for the payment of this Note, or any installment hereof, made by agreement by METLIFE with any person now or hereafter liable for the payment of this Note, even if BORROWER is not a party to such agreement. BORROWER authorizes METLIFE or its agent to insert in the spaces provided herein the appropriate interest rate and the payment amounts as of the date of the initial advance hereunder. All agreements between BORROWER and METLIFE, whether now existing or hereafter arising and whether written or oral, are hereby limited so that in no contingency, whether by reason of demand or acceleration of the final maturity of this Note or otherwise, shall the interest contracted for, charged, received, paid or agreed to be paid to METLIFE exceed the maximum amount permissible under the applicable law. If, from any circumstance whatsoever, interest would otherwise be payable to METLIFE in excess of the maximum amount permissible under applicable law, the interest payable to METLIFE shall be reduced to the maximum amount permissible under applicable law; and if from any circumstance METLIFE shall ever receive anything of value deemed interest by applicable law in excess of the maximum amount permissible under applicable law, an amount equal to the excessive interest shall be applied to the outstanding principal balance hereof, or if such excessive amount of interest exceeds the unpaid balance of principal hereof, such excess shall be refunded to BORROWER. All interest paid or agreed to be paid to METLIFE shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full period (including any renewal or extension) until payment in full of the principal so that the interest hereon for such full period shall not exceed the maximum amount permissible under applicable law. METLIFE expressly disavows any intent to contract for, charge or receive interest in an amount which exceeds the maximum amount permissible under applicable law. This paragraph shall control all agreements between BORROWER and METLIFE. IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
Appears in 1 contract
MOS. Premium Remaining (Years) Factor --------- ------- --------- ------- 180 - 169 (15) .073 168 - 157 (14) .069 156 - 145 (13) .064 144 - 133 (12) .059 132 - 121 (11) .054 120 - 109 (10) .049 108 - 97 ( 9) .044 96 - 85 ( 8) .039 84 - 73 ( 7) .035 72 - 61 ( 6) .030 60 - 49 ( 5) .025 48 - 37 ( 4) .020 36 - 25 ( 3) .015 24 - 13 ( 2) .010 12 - 1 ( 1) .005 If the Federal Reserve Board ceases to publish Statistical Release H.15 [519], ----------------------------- ------------------------------- then the decrease in the weekly average yield of ten (10)-year U.S. Treasury Notes Constant Maturities will be determined from another source designated by METLIFE. Voluntary prepayment prior to the fifth (5th) anniversary of the due date of the first monthly principal and interest payment due under this Note will be permitted only in the event of a sale of the Property (as hereinafter defined) to a bona- bona-fide third party and only upon payment of the Prepayment Premium set forth above above. If METLIFE at any time accelerates this Note after an Event of Default (defined below), then BORROWER shall be obligated to pay the Prepayment Premium in accordance with the foregoing schedule. The Prepayment Premium shall not be payable with respect to condemnation awards or insurance proceeds from fire or other casualty which METLIFE applies to prepayment, nor with respect to XXXXXXXX's prepayment of the Note in full during the last twelve three (123) months of the term of this Note unless an Event of Default has occurred. BORROWER expressly acknowledges that such Prepayment Premium is not a penalty but is intended solely to compensate METLIFE for the loss of its bargain and the reimbursement of internal expenses and administrative fees and expenses incurred by METLIFE. BORROWER shall be liable on this Note and on all the representations, warranties, indemnities and covenants in the MortgageDeed to Secure Debt, Security Agreement, and Assignment of Leases and Rents and Fixture Filing ("MortgageDeed to Secure Debt") covering the property (the "Property") securing this Note and all other documents executed or delivered in connection herewith (the "Loan Documents"). Each of the following shall constitute an Event of Default ("Event of Default") hereunder and under the Mortgage Deed to Secure Debt executed contemporaneously herewith:
(a) Failure of or refusal by XXXXXXXX to make any payment of principal, interest, or Prepayment Premium upon this Note when due, and such failure or refusal shall continue for a period of ten (10) days after written notice is given to BORROWER by METLIFE specifying such failure; or
(b) Failure of BORROWER within the time required by the Mortgage Deed to Secure Debt to make any payment for taxes, insurance or for reserves for such payments, or any other payment necessary to prevent filing of or discharge of any lien, and such failure shall continue for a period of ten (10) days after written notice is given to BORROWER by METLIFE specifying such failure; or
(c) Failure by BORROWER or Graphic Industries, Inc., a Georgia corporation ("Guarantor"), XXXXXXXX to observe or perform any obligations of BORROWER or Guarantor to METLIFE on or with respect to any transactions, debts, undertakings or agreements other than the transaction evidenced by this Note following the giving of any required notice and the expiration of any applicable period of grace; or
(d) Failure of BORROWER to make any payment or perform any obligation under any superior liens or encumbrances on the Property, within the time required thereunder, or commencement of any suit or other action to foreclose any superior liens or encumbrances; or
(e) Failure by XXXXXXXX to observe or perform any of its obligations under any of the lease agreements covering the Property; or
(f) The Property is transferred or any agreement to transfer any part or interest in the Property in any manner whatsoever is made or entered into without the prior written consent of METLIFE, except as specifically allowed under the MortgageDeed to Secure Debt, including without limitation creating or allowing any liens on the Property or leasing any portion of the Property; or
(g) Filing by BORROWER or Guarantor Southern Signatures, Inc. of a voluntary petition in bankruptcy or filing by BORROWER or Guarantor Southern Signatures, Inc. of any petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, or similar relief for itself under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, or the seeking, consenting to, or acquiescing by BORROWER or Guarantor Southern Signatures, Inc. in the appointment of any trustee, receiver, custodian, conservator or liquidator for BORROWER or Guarantor Southern Signatures, Inc., any part of the Property, or any of the income or rents of the Property, or the making by BORROWER or Guarantor Southern Signatures, Inc. of any general assignment for the benefit of creditors, or the inability of or failure by BORROWER XXXXXXXX or Guarantor Southern Signatures, Inc. to pay its debts generally as they become due, or the insolvency on a balance sheet basis or business failure of BORROWER or Guarantor Southern Signatures, Inc., or the making or suffering of a preference within the meaning of federal bankruptcy law or the making of a fraudulent transfer under applicable federal or state law, or concealment by BORROWER or Guarantor Southern Signatures, Inc. of any of its property in fraud of creditors, or the imposition of a lien upon any of the property of BORROWER or Guarantor Southern Signatures, Inc. which is not discharged in the manner permitted by the MortgageDeed to Secure Debt, or the giving of notice by BORROWER or Guarantor Southern Signatures, Inc. to any governmental body of insolvency or suspension of operations; or
(h) Filing of a petition against BORROWER or Guarantor Southern Signatures, Inc. seeking any reorganization, arrangement, composition, readjustment, liquidation, or similar relief under any present or future federal, state or other law or regulation relating to bankruptcy, insolvency or other relief for debts, or the appointment of any trustee, receiver, custodian, conservator or liquidator of BORROWER or GuarantorSouthern Signatures, Inc., of any part of the Property or of any of the income or rents of the Property, unless such petition shall be dismissed within sixty (60) days after such filing, but in any event prior to the entry of an order, judgment or decree approving such petition; or
(i) The institution of any proceeding for the dissolution or termination of BORROWER voluntarily, involuntarily, or by operation of law; or
(j) A material adverse change occurs in the assets, liabilities or net worth of BORROWER or Guarantor any of the guarantors of the indebtedness evidenced by this Note from the assets, liabilities or net worth of BORROWER or Guarantor any of the guarantors of the indebtedness evidenced by this Note previously disclosed to METLIFE; or
(k) Any warranty, representation or statement furnished to METLIFE by or on behalf of BORROWER under this Note, the MortgageDeed to Secure Debt, or any of the Loan Documents shall prove to have been false or misleading in any material respect; or
(l) Failure of BORROWER to observe or perform any other covenant or condition contained in this Note and such default shall continue for thirty (30) days after notice is given to BORROWER specifying the nature of the failure. No notice of default and no opportunity to cure shall be required if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or
(m) Failure of BORROWER to observe or perform any other obligation under the Mortgage Deed to Secure Debt or any other Loan Document when such observance or performance is due, and such failure shall continue beyond the applicable cure period set forth in such Loan Document, or if the default cannot be cured within such applicable cure period, BORROWER fails within such time to commence and pursue curative action with reasonable diligence or fails at any time after expiration of such applicable cure period to continue with reasonable diligence all necessary curative actions. No notice of default and no opportunity to cure shall be required if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or
(n) XXXXXXXX's abandonment of the Property; or
(o) Any of the foregoing events occur with respect to any tenant of the Property, with respect to Guarantor any guarantor of any of BORROWER's obligations in connection with the indebtedness evidenced by this Note or with respect to any guarantor of any tenant's obligations relating to the Property, or such guarantor dies or becomes incompetent; or
(p) The occurrence of any default under any of the documents evidencing or securing (i) METLIFE Loan No. 5905292, (ii) METLIFE Loan No. 5905392, (iii) METLIFE Loan No. 59053935903393, (iv) METLIFE Loan No. 5904594 or (v) METLIFE Loan No. 590097915909794, (vi) vi METLIFE Loan No. 5922796, (vii) METLIFE Loan No. 59226965922896, or (viii) any other indebtedness with Borrower or any of the guarantors of the Indebtedness which is now or hereafter owed to METLIFE. Upon the occurrence of any of the foregoing events of default, METLIFE shall have the option to declare the entire amount of principal and interest due under this Note immediately due and payable without notice or demand, and METLIFE may exercise any of its rights under this Note and any document executed or delivered herewith. After acceleration or maturity, BORROWER shall pay interest on the outstanding principal balance of this Note at the rate of five percent (5.00%) per annum above Chase Manhattan Bank's prime interest rate in effect from time to time, or fifteen percent (15.00%) per annum, whichever is higher, provided that such interest rate shall not exceed the maximum interest rate permitted by law. All payments of the principal and interest on this Note shall be made in coin or currency of the United States of America which at the time shall be the legal tender for the payment of public and private debts. If this Note is placed in the hands of an attorney for collection, XXXXXXXX agrees to pay reasonable attorneys' fees and costs incurred by METLIFE in connection therewith, and in the event suit or action is instituted to enforce or interpret this Note (including without limitation efforts to modify or vacate any automatic stay or injunction), the prevailing party shall be entitled to recover all expenses reasonably incurred at, before or after trial and on appeal, whether or not taxable as costs, or in any bankruptcy proceeding, or in connection with post-judgment collection efforts, including, without limitation, attorneys' fees, witness fees (expert and otherwise), deposition costs, copying charges and other expenses. This Note shall be governed and construed in accordance with the laws of the Commonwealth State of Massachusetts Georgia applicable to contracts made and to be performed therein (excluding choice-of-law principles). BORROWER hereby irrevocably submits to the jurisdiction of any state or federal court sitting in Massachusetts Georgia in any action or proceeding brought to enforce or otherwise arising out of or relating to this Note, and hereby waives any objection to venue in any such court and any claim that such forum is an inconvenient forum. This Note is given in a commercial transaction for business purposes. This Note may be declared due prior to its expressed maturity date, all in the events, on the terms, and in the manner provided for in the MortgageDeed to Secure Debt. BORROWER and all sureties, endorsers, guarantors and other parties now or hereafter liable for the payment of this Note, in whole or in part, hereby severally (i) waive demand, notice of demand, presentment for payment, notice of nonpayment, notice of default, protest, notice of protest, notice of intent to accelerate, notice of acceleration and all other notices, and further waive diligence in collecting this Note or in enforcing any of the security for this Note; (ii) agree to any substitution, subordination, exchange or release of any security for this Note or the release of any party primarily or secondarily liable for the payment of this Note; (iii) agree that METLIFE shall not be required to first institute suit or exhaust its remedies hereon against BORROWER or others liable or to become liable for the payment of this Note or to enforce its rights against any security for the payment of this Note; and (iv) consent to any extension of time for the payment of this Note, or any installment hereof, made by agreement by METLIFE with any person now or hereafter liable for the payment of this Note, even if BORROWER is not a party to such agreement. All agreements between BORROWER and METLIFE, whether now existing or hereafter arising and whether written or oral, are hereby limited so that in no contingency, whether by reason of demand or acceleration of the final maturity of this Note or otherwise, shall the interest contracted for, charged, received, paid or agreed to be paid to METLIFE exceed the maximum amount permissible under the applicable law. If, from any circumstance whatsoever, interest would otherwise be payable to METLIFE in excess of the maximum amount permissible under applicable law, the interest payable to METLIFE shall be reduced to the maximum amount permissible under applicable law; and if from any circumstance METLIFE shall ever receive anything of value deemed interest by applicable law in excess of the maximum amount permissible under applicable law, an amount equal to the excessive interest or if such excessive amount of interest exceeds the unpaid balance of principal hereof, such excess shall be refunded to BORROWER. All interest paid or agreed to be paid to METLIFE shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full period (including any renewal or extension) until payment in full of the principal so that the interest hereon for such full period shall not exceed the maximum amount permissible under applicable law. METLIFE expressly disavows any intent to contract for, charge or receive interest in an amount which exceeds the maximum amount permissible under applicable law. This paragraph shall control all agreements between BORROWER and METLIFE. IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
Appears in 1 contract
MOS. Premium Remaining (Years) Factor --------- ------- ------- 180 - ------ 180-169 (15) .073 168 - 168-157 (14) .069 156 - 156-145 (13) .064 144 - 144-133 (12) .059 132 - 132-121 (11) .054 120 - 120-109 (10) .049 108 - 108- 97 ( 9) .044 96 - 96- 85 ( 8) .039 84 - 84- 73 ( 7) .035 72 - 72- 61 ( 6) .030 60 - 60- 49 ( 5) .025 48 - 48- 37 ( 4) .020 36 - 36- 25 ( 3) .015 24 - 24- 13 ( 2) .010 12 - 12- 1 ( 1) .005 If the Federal Reserve Board ceases to publish Statistical Release H.15 [519], ----------------------------- then the decrease in the weekly average yield of ten (10)-year U.S. Treasury Notes Constant Maturities will be determined from another source designated by METLIFEHolder. Voluntary prepayment Prepayment prior to the fifth (5th) anniversary of the due date of the first monthly principal and interest payment due under this Note will not be permitted only in the event of a sale of the Property (as hereinafter defined) to a bona- fide third party and only upon payment of the Prepayment Premium set forth above permitted. If METLIFE Holder at any time accelerates this Note after an Event of Default (defined below), then BORROWER shall be obligated to pay the Prepayment Premium in accordance with the foregoing schedule. The Prepayment Premium shall not be payable with respect to condemnation awards or insurance proceeds from fire or other casualty which METLIFE Holder applies to prepayment, nor with respect to XXXXXXXX's prepayment BORRXXXX'x xrepayment of the Note in full during the last twelve three (123) months of the term of this Note unless an Event of Default has occurred. BORROWER expressly acknowledges that such Prepayment Premium is not a penalty but is intended solely to compensate METLIFE Holder for the loss of its bargain and the reimbursement of internal expenses and administrative fees and expenses incurred by METLIFEHoldxx. Subject to the exceptions described below, Holder shall not seek any deficiency judgment against BORROWER, it being understood and agreed that BORROWER shall be liable on not have any personal liability for the payment of the indebtedness evidenced by the loan documents executed or delivered in connection with this Note (the "Loan Documents"), and on all such indebtedness shall be considered limited recourse to the representationsBORROWER. The foregoing notwithstanding, warrantiesHolder shall have full recourse against BORROWER for the full payment of (i) any Prepayment Premium due under this Note; (ii) taxes, indemnities insurance premiums, and covenants other amounts advanced by Holder to protect the collateral described in the Mortgage, Security Agreement, and Assignment of Leases and Rents and Fixture Filing ("Mortgage") covering the property (the "Property") securing this Note and all other documents executed or delivered in connection herewith (the "Loan Documents"). Each of the following shall constitute an Event of Default ("Event of Default") hereunder and under the Mortgage executed contemporaneously herewith:
(a) Failure of or refusal by XXXXXXXX to make any payment of principal, interest, or Prepayment Premium upon this Note when due, and such failure or refusal shall continue for a period of ten (10) days after written notice is given to BORROWER by METLIFE specifying such failure; or
(b) Failure of BORROWER within the time required by the Mortgage to make any payment for taxes, insurance or for reserves for such payments, or any other payment necessary to prevent filing of or discharge of any lien, and such failure shall continue for a period of ten (10) days after written notice is given to BORROWER by METLIFE specifying such failure; or
(c) Failure by BORROWER or Graphic Industries, Inc., a Georgia corporation ("Guarantor"), to observe or perform any obligations of BORROWER or Guarantor to METLIFE on or with respect to any transactions, debts, undertakings or agreements other than the transaction evidenced by this Note following the giving of any required notice and the expiration of any applicable period of grace; or
(d) Failure of BORROWER to make any payment or perform any obligation under any superior liens or encumbrances on the Property, within the time required thereunder, or commencement of any suit or other action to foreclose any superior liens or encumbrances; or
(e) Failure by XXXXXXXX to observe or perform any of its obligations under any of the lease agreements covering the Property; or
(f) The Property is transferred or any agreement to transfer any part or interest in the Property in any manner whatsoever is made or entered into without the prior written consent of METLIFE, except as specifically allowed under the Mortgage, including without limitation creating or allowing any liens on the Property or leasing any portion of the Property; or
(g) Filing by BORROWER or Guarantor of a voluntary petition in bankruptcy or filing by BORROWER or Guarantor of any petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, or similar relief for itself under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, or the seeking, consenting to, or acquiescing by BORROWER or Guarantor in the appointment of any trustee, receiver, custodian, conservator or liquidator for BORROWER or Guarantor , any part of the Property, or any of the income or rents of the Property, or the making by BORROWER or Guarantor of any general assignment for the benefit of creditors, or the inability of or failure by BORROWER or Guarantor to pay its debts generally as they become due, or the insolvency on a balance sheet basis or business failure of BORROWER or Guarantor , or the making or suffering of a preference within the meaning of federal bankruptcy law or the making of a fraudulent transfer under applicable federal or state law, or concealment by BORROWER or Guarantor of any of its property in fraud of creditors, or the imposition of a lien upon any of the property of BORROWER or Guarantor which is not discharged in the manner permitted by the Mortgage, or the giving of notice by BORROWER or Guarantor to any governmental body of insolvency or suspension of operations; or
(h) Filing of a petition against BORROWER or Guarantor seeking any reorganization, arrangement, composition, readjustment, liquidation, or similar relief under any present or future federal, state or other law or regulation relating to bankruptcy, insolvency or other relief for debts, or the appointment of any trustee, receiver, custodian, conservator or liquidator of BORROWER or Guarantor, of any part of the Property or of any of the income or rents of the Property, unless such petition shall be dismissed within sixty (60) days after such filing, but in any event prior to the entry of an order, judgment or decree approving such petition; or
(i) The institution of any proceeding for the dissolution or termination of BORROWER voluntarily, involuntarily, or by operation of law; or
(j) A material adverse change occurs in the assets, liabilities or net worth of BORROWER or Guarantor from the assets, liabilities or net worth of BORROWER or Guarantor previously disclosed to METLIFE; or
(k) Any warranty, representation or statement furnished to METLIFE by or on behalf of BORROWER under this Note, the Mortgage, or any of the Loan Documents shall prove to have been false or misleading in any material respect; or
(l) Failure of BORROWER to observe or perform any other covenant or condition contained in this Note and such default shall continue for thirty (30) days after notice is given to BORROWER specifying the nature of the failure. No notice of default and no opportunity to cure shall be required if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or
(m) Failure of BORROWER to observe or perform any other obligation under the Mortgage or any other Loan Document when such observance or performance is due, and such failure shall continue beyond the applicable cure period set forth in such Loan Document, or if the default cannot be cured within such applicable cure period, BORROWER fails within such time to commence and pursue curative action with reasonable diligence or fails at any time after expiration of such applicable cure period to continue with reasonable diligence all necessary curative actions. No notice of default and no opportunity to cure shall be required if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or
(n) XXXXXXXX's abandonment of the Property; or
(o) Any of the foregoing events occur with respect to any tenant of the Property, with respect to Guarantor or with respect to any guarantor of any tenant's obligations relating to the Property, or such guarantor dies or becomes incompetent; or
(p) The occurrence of any default under any of the documents evidencing or securing (i) METLIFE Loan No. 5905292, (ii) METLIFE Loan No. 5905392, (iii) METLIFE Loan No. 5905393, (iv) METLIFE Loan No. 5904594 (v) METLIFE Loan No. 59009791, (vi) METLIFE Loan No. 5922796, (vii) METLIFE Loan No. 5922696, or (viii) any other indebtedness with Borrower or any of the guarantors of the Indebtedness which is now or hereafter owed to METLIFE. Upon the occurrence of any of the foregoing events of default, METLIFE shall have the option to declare the entire amount of principal and interest due under this Note immediately due and payable without notice or demand, and METLIFE may exercise any of its rights under this Note and any document executed or delivered herewith. After acceleration or maturity, BORROWER shall pay interest on the outstanding principal balance of this Note at the rate of five percent (5.00%) per annum above Chase Manhattan Bank's prime interest rate in effect from time to time, or fifteen percent (15.00%) per annum, whichever is higher, provided that such interest rate shall not exceed the maximum interest rate permitted by law. All payments of the principal and interest on this Note shall be made in coin or currency of the United States of America which at the time shall be the legal tender for the payment of public and private debts. If this Note is placed in the hands of an attorney for collection, XXXXXXXX agrees to pay reasonable attorneys' fees and costs incurred by METLIFE in connection therewith, and in the event suit or action is instituted to enforce or interpret this Note (including without limitation efforts to modify or vacate any automatic stay or injunction), the prevailing party shall be entitled to recover all expenses reasonably incurred at, before or after trial and on appeal, whether or not taxable as costs, or in any bankruptcy proceeding, or in connection with post-judgment collection efforts, including, without limitation, attorneys' fees, witness fees (expert and otherwise), deposition costs, copying charges and other expenses. This Note shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts applicable to contracts made and to be performed therein (excluding choice-of-law principles). BORROWER hereby irrevocably submits to the jurisdiction of any state or federal court sitting in Massachusetts in any action or proceeding brought to enforce or otherwise arising out of or relating to this Note, and hereby waives any objection to venue in any such court and any claim that such forum is an inconvenient forum. This Note is given in a commercial transaction for business purposes. This Note may be declared due prior to its expressed maturity date, all in the events, on the terms, and in the manner provided for in the Mortgage. BORROWER and all sureties, endorsers, guarantors and other parties now or hereafter liable for the payment of this Note, in whole or in part, hereby severally (i) waive demand, notice of demand, presentment for payment, notice of nonpayment, notice of default, protest, notice of protest, notice of intent to accelerate, notice of acceleration and all other notices, and further waive diligence in collecting this Note or in enforcing any of the security for this Note; (ii) agree to any substitution, subordination, exchange or release of any security for this Note or the release of any party primarily or secondarily liable for the payment of this Note; (iii) agree that METLIFE shall not be required to first institute suit or exhaust its remedies hereon against BORROWER or others liable or to become liable for the payment of this Note or to enforce its rights against any security for the payment of this Note; and (iv) consent to any extension of time for the payment of this Note, or any installment hereof, made by agreement by METLIFE with any person now or hereafter liable for the payment of this Note, even if BORROWER is not a party to such agreement. All agreements between BORROWER and METLIFE, whether now existing or hereafter arising and whether written or oral, are hereby limited so that in no contingency, whether by reason of demand or acceleration of the final maturity of this Note or otherwise, shall the interest contracted for, charged, received, paid or agreed to be paid to METLIFE exceed the maximum amount permissible under the applicable law. If, from any circumstance whatsoever, interest would otherwise be payable to METLIFE in excess of the maximum amount permissible under applicable law, the interest payable to METLIFE shall be reduced to the maximum amount permissible under applicable law; and if from any circumstance METLIFE shall ever receive anything of value deemed interest by applicable law in excess of the maximum amount permissible under applicable law, an amount equal to the excessive interest or if such excessive amount of interest exceeds the unpaid balance of principal hereof, such excess shall be refunded to BORROWER. All interest paid or agreed to be paid to METLIFE shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full period (including any renewal or extension) until payment in full of the principal so that the interest hereon for such full period shall not exceed the maximum amount permissible under applicable law. METLIFE expressly disavows any intent to contract for, charge or receive interest in an amount which exceeds the maximum amount permissible under applicable law. This paragraph shall control all agreements between BORROWER and METLIFE. IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.this
Appears in 1 contract
MOS. Premium Remaining (Years) Factor --------- ------- ------- ------ 180 - 169 (15) .073 168 - 157 (14) .069 156 - 145 (13) .064 144 - 133 (12) .059 132 - 121 (11) .054 120 - 109 (10) .049 108 - 97 ( 9) .044 96 - 85 ( 8) .039 84 - 73 ( 7) .035 72 - 61 ( 6) .030 60 - 49 ( 5) .025 48 - 37 ( 4) .020 36 - 25 ( 3) .015 24 - 13 ( 2) .010 12 - 1 ( 1) .005 If the Federal Reserve Board ceases to publish Statistical Release STATISTICAL RELEASE H.15 [519], ----------------------------- then the decrease in the weekly average yield of ten (10)-year U.S. Treasury Notes Constant Maturities will be determined from another source designated by METLIFE. Voluntary prepayment Prepayment prior to the fifth (5th) anniversary of the due date of the first monthly principal and interest payment due under this Note will not be permitted only in the event of a sale of the Property (as hereinafter defined) to a bona- fide third party and only upon payment of the Prepayment Premium set forth above permitted. If METLIFE at any time accelerates this Note after an Event of Default (defined below), then BORROWER shall be obligated to pay the Prepayment Premium in accordance with the foregoing schedule. The Prepayment Premium shall not be payable with respect to condemnation awards or insurance proceeds from fire or other casualty which METLIFE applies to prepayment, nor with respect to XXXXXXXX's prepayment BORRXXXX'x xrepayment of the Note in full during the last twelve three (123) months of the term of this Note unless an Event of Default has occurred. BORROWER expressly acknowledges that such Prepayment Premium is not a penalty but is intended solely to compensate METLIFE for the loss of its bargain and the reimbursement of internal expenses and administrative fees and expenses incurred by METLIFE. BORROWER shall be liable on this Note and on all the representations, warranties, indemnities and covenants in the Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing ("Mortgage") covering the property (the "Property") securing this Note and shall be liable on all other documents executed or delivered in connection herewith (the "Loan Documents"). Each of the following shall constitute an Event of Default ("Event of Default") hereunder and under the Mortgage executed contemporaneously herewithMortgage:
(a) Failure of or refusal by XXXXXXXX METLIFE to make receive any payment of principal, interest, or Prepayment Premium upon this Note when due, and such failure or refusal shall continue for a period of ten (10) days after written notice is given by METLIFE to BORROWER by METLIFE specifying such failureof the same; or
(b) Failure of BORROWER within the time required by the Mortgage to pay any sum secured thereby other than the Note or to make any payment for taxes, insurance or for reserves for such payments, or any other payment necessary to prevent filing of or discharge of any lien, and such failure shall continue for a period of ten (10) days after written notice is given to BORROWER by METLIFE specifying such failure; or
(c) Failure by BORROWER or Graphic Industries, Inc., a Georgia corporation ("Guarantor"), to BORRXXXX xx observe or perform any obligations of BORROWER or Guarantor to METLIFE on or with respect to any transactions, debts, undertakings or agreements other than the transaction evidenced by this Note following the giving of any required notice and the expiration of any applicable period of graceNote; or
(d) Failure of BORROWER to make any payment or perform any obligation under any superior liens or encumbrances on the Property, within the time required thereunder, or commencement of any suit or other action to foreclose any superior liens or encumbrances; or
(e) Failure by XXXXXXXX to BORRXXXX xx observe or perform any of its obligations under any of the lease agreements covering the Property; or
(f) The Property is transferred or any agreement to transfer any part or interest in the Property in any manner whatsoever is made or entered into without the prior written consent of METLIFE, except as specifically allowed under the Mortgage, including without limitation creating or allowing any liens on the Property or leasing any portion of the Property; or
(g) Filing by BORROWER or Guarantor of BORRXXXX xx a voluntary petition in bankruptcy or filing by BORROWER or Guarantor of any petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, or similar relief for itself under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, or the seeking, consenting to, or acquiescing by BORROWER or Guarantor in the appointment of any trustee, receiver, custodian, conservator or liquidator for BORROWER or Guarantor BORROWER, any part of the Property, or any of the income or rents of the Property, or the making by BORROWER or Guarantor of any general assignment for the benefit of creditors, or the inability of or failure by BORROWER or Guarantor to pay its debts generally as they become due, or the insolvency on a balance sheet basis or business failure of BORROWER or Guarantor BORROWER, or the making or suffering of a preference within the meaning of federal bankruptcy law or the making of a fraudulent transfer under applicable federal or state law, or concealment by BORROWER or Guarantor of any of its property in fraud of creditors, or the imposition of a lien upon any of the property of BORROWER or Guarantor which is not discharged in the manner permitted by the Mortgage, or the giving of notice by BORROWER or Guarantor to any governmental body of insolvency or suspension of operations; or
(h) Filing of a petition against BORROWER or Guarantor seeking any reorganization, arrangement, composition, readjustment, liquidation, or similar relief under any present or future federal, state or other law or regulation relating to bankruptcy, insolvency or other relief for debts, or the appointment of any trustee, receiver, custodian, conservator or liquidator of BORROWER or GuarantorBORROWER, of any part of the Property or of any of the income or rents of the Property, unless such petition shall be dismissed within sixty (60) days after such filing, but in any event prior to the entry of an order, judgment or decree approving such petition; or
(i) The institution of any proceeding for the dissolution or termination of BORROWER voluntarily, involuntarily, or by operation of law; or
(j) A material adverse change occurs in the assets, liabilities or net worth of BORROWER or Guarantor from the assets, liabilities or net worth of BORROWER or Guarantor previously disclosed to METLIFE; or
(k) Any warranty, representation or statement furnished to METLIFE by or on behalf of BORROWER under this Note, the Mortgage, or any of the Loan Documents shall prove to have been false or misleading in any material respect; or
(l) Failure of BORROWER to observe or perform any other covenant or condition contained in this Note the Mortgage and such default shall continue for thirty (30) days after notice is given to BORROWER specifying the nature of the failure, or if the default cannot be cured within such cure period, BORRXXXX xxxls within such time to commence and pursue curative action with reasonable diligence or fails at any time after expiration of such cure period to continue with reasonable diligence all necessary curative actions. No notice of default and no opportunity to cure shall be required with respect to defaults under SECTION 17 or SECTION 22 of the Mortgage or if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or
(m) Failure of BORROWER to observe or perform any other obligation under the Mortgage or any other Loan Document when such observance or performance is due, and such failure shall continue beyond the applicable cure period set forth in such Loan Document, or if the default cannot be cured within such applicable cure period, BORROWER fails within such time to commence and pursue curative action with reasonable diligence or fails at any time after expiration of such applicable cure period to continue with reasonable diligence all necessary curative actions. No notice of default and no opportunity to cure shall be required if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or
(n) XXXXXXXX's abandonment Borrxxxx'x xbandonment of the Property; or
(o) Any of the foregoing events occur with respect to any tenant of the Propertyoccur, with respect to Guarantor or with respect to any guarantor of any tenantof BORROWER's obligations relating to in connection with the Propertyindebtedness evidenced by this Note. Notwithstanding the foregoing, or such guarantor dies or becomes incompetent; or
(p) The the occurrence of any default an Event of Default under any of the documents evidencing or securing (i) METLIFE Loan No. 5905292that certain Revolving Credit Facility between Fleet Bank of Massachusetts and Uno Restaurants, Inc. dated December 9, 1994, as the same may be amended from time to time, or (ii) METLIFE Loan No. 5905392, (iii) METLIFE Loan No. 5905393, (iv) METLIFE Loan No. 5904594 (v) METLIFE Loan No. 59009791, (vi) METLIFE Loan No. 5922796, (vii) METLIFE Loan No. 5922696, or (viii) any other indebtedness with Borrower or any unsecured credit facility entered into by Uno Restaurants, Inc. shall not by itself constitute an Event of the guarantors of the Indebtedness which is now or hereafter owed to METLIFEDefault hereunder. Upon the occurrence of any of the foregoing events Events of defaultDefault, METLIFE shall have the option to declare the entire amount of principal and interest due under this Note immediately due and payable without notice or demand, and METLIFE may exercise any of its rights under this Note and any document executed or delivered herewith. After acceleration or maturity, BORROWER shall pay interest on the outstanding principal balance of this Note at the rate of five percent (5.00%) per annum above Chase Manhattan Bank's prime interest rate in effect from time to time, or fifteen percent (15.00%) per annum, whichever is higher, provided that such interest rate shall not exceed the maximum interest rate permitted by law. All payments of the principal and interest on this Note shall be made in coin or currency of the United States of America which at the time shall be the legal tender for the payment of public and private debts. If this Note is placed in the hands of an attorney for collection, XXXXXXXX agrees BORRXXXX xxxees to pay reasonable attorneys' fees and costs incurred by METLIFE in connection therewith, and in the event suit or action is instituted to enforce or interpret this Note (including without limitation efforts to modify or vacate any automatic stay or injunction), the prevailing party shall be entitled to recover all expenses reasonably incurred at, before or after trial and on appeal, whether or not taxable as costs, or in any bankruptcy proceeding, or in connection with post-judgment collection efforts, including, without limitation, attorneys' fees, witness fees (expert and otherwise), deposition costs, copying charges and other expenses. This Note shall be governed and construed in accordance with the laws of the Commonwealth State of Massachusetts New York applicable to contracts made and to be performed therein (excluding choice-of-law principles). BORROWER hereby irrevocably submits to the jurisdiction of any state or federal court sitting in Massachusetts New York in any action or proceeding brought to enforce or otherwise arising out of or relating to this Note, and hereby waives any objection to venue in any such court and any claim that such forum is an inconvenient forum. This Note is given in a commercial transaction for business purposes. This Note may be declared due prior to its expressed maturity date, all in the events, on the terms, and in the manner provided for in the Mortgage. BORROWER and all sureties, endorsers, guarantors and other parties now or hereafter liable for the payment of this Note, in whole or in part, hereby severally (i) waive demand, notice of demand, presentment for payment, notice of nonpayment, notice of default, protest, notice of protest, notice of intent to accelerate, notice of acceleration and all other notices, and further waive diligence in collecting this Note or in enforcing any of the security for this Note; (ii) agree to any substitution, subordination, exchange or release of any security for this Note or the release of any party primarily or secondarily liable for the payment of this Note; (iii) agree that METLIFE shall not be required to first institute suit or exhaust its remedies hereon against BORROWER or others liable or to become liable for the payment of this Note or to enforce its rights against any security for the payment of this Note; and (iv) consent to any extension of time for the payment of this Note, or any installment hereof, made by agreement by METLIFE with any person now or hereafter liable for the payment of this Note, even if BORROWER is not a party to such agreement. BORROWER authorizes METLIFE or its agent to insert in the spaces provided herein the appropriate interest rate and the payment amounts as of the date of the initial advance hereunder. All agreements between BORROWER and METLIFE, whether now existing or hereafter arising and whether written or oral, are hereby limited so that in no contingency, whether by reason of demand or acceleration of the final maturity of this Note or otherwise, shall the interest contracted for, charged, received, paid or agreed to be paid to METLIFE exceed the maximum amount permissible under the applicable law. If, from any circumstance whatsoever, interest would otherwise be payable to METLIFE in excess of the maximum amount permissible under applicable law, the interest payable to METLIFE shall be reduced to the maximum amount permissible under applicable law; and if from any circumstance METLIFE shall ever receive anything of value deemed interest by applicable law in excess of the maximum amount permissible under applicable law, an amount equal to the excessive interest shall be applied to the outstanding principal balance hereof, or if such excessive amount of interest exceeds the unpaid balance of principal hereof, such excess shall be refunded to BORROWER. All interest paid or agreed to be paid to METLIFE shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full period (including any renewal or extension) until payment in full of the principal so that the interest hereon for such full period shall not exceed the maximum amount permissible under applicable law. METLIFE expressly disavows any intent to contract for, charge or receive interest in an amount which exceeds the maximum amount permissible under applicable law. This paragraph shall control all agreements between BORROWER and METLIFE. IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
Appears in 1 contract
MOS. Premium Remaining (Years) Factor --------- ------- ------- ------ 180 - 169 (15) .073 168 - 157 (14) .069 156 - 145 (13) .064 144 - 133 (12) .059 132 - 121 (11) .054 120 - 109 (10) .049 108 - 97 ( 9) .044 96 - 85 ( 8) .039 84 - 73 ( 7) .035 72 - 61 ( 6) .030 60 - 49 ( 5) .025 48 - 37 ( 4) .020 36 - 25 ( 3) .015 24 - 13 ( 2) .010 12 - 1 ( 1) .005 If the Federal Reserve Board ceases to publish Statistical Release H.15 [519], ----------------------------- then the decrease in the weekly average yield of ten (10)-year U.S. Treasury Notes Constant Maturities will be determined from another source designated by METLIFE. Voluntary prepayment Prepayment prior to the fifth (5th) anniversary of the due date of the first monthly principal and interest payment due under this Note will not be permitted only in the event of a sale of the Property (as hereinafter defined) to a bona- fide third party and only upon payment of the Prepayment Premium set forth above permitted. If METLIFE at any time accelerates this Note after an Event of Default (defined below), then BORROWER shall be obligated to pay the Prepayment Premium in accordance with the foregoing schedule. The Prepayment Premium shall not be payable with respect to condemnation awards or insurance proceeds from fire or other casualty which METLIFE applies to prepayment, nor with respect to XXXXXXXX's prepayment BORRXXXX'x xrepayment of the Note in full during the last twelve three (123) months of the term of this Note unless an Event of Default has occurred. BORROWER expressly acknowledges that such Prepayment Premium is not a penalty but is intended solely to compensate METLIFE for the loss of its bargain and the reimbursement of internal expenses and administrative fees and expenses incurred by METLIFE. BORROWER shall be liable on this Note and on all the representations, warranties, indemnities and covenants in the MortgageDeed of Trust, Security Agreement, Assignment of Leases and Rents and Fixture Filing ("MortgageDeed of Trust") covering the property (the "Property") securing this Note and all other documents executed or delivered in connection herewith (the "Loan Documents"). Each of the following shall constitute an Event of Default ("Event of Default") hereunder and under the Mortgage executed contemporaneously herewithDeed of Trust:
(a) Failure of or refusal by XXXXXXXX METLIFE to make receive any payment of principal, interest, or Prepayment Premium upon this Note when due, and such failure or refusal shall continue for a period of ten (10) days after written notice is given by METLIFE to BORROWER by METLIFE specifying such failureof the same; or
(b) Failure of BORROWER within the time required by the Mortgage Deed of Trust to pay any sum secured thereby other than the Note or to make any payment for taxes, insurance or for reserves for such payments, or any other payment necessary to prevent filing of or discharge of any lien, and such failure shall continue for a period of ten (10) days after written notice is given to BORROWER by METLIFE specifying such failure; or
(c) Failure by BORROWER or Graphic Industries, Inc., a Georgia corporation ("Guarantor"), to BORRXXXX xx observe or perform any obligations of BORROWER or Guarantor to METLIFE on or with respect to any transactions, debts, undertakings or agreements other than the transaction evidenced by this Note following the giving of any required notice and the expiration of any applicable period of graceNote; or
(d) Failure of BORROWER to make any payment or perform any obligation under any superior liens or encumbrances on the Property, within the time required thereunder, or commencement of any suit or other action to foreclose any superior liens or encumbrances; or
(e) Failure by XXXXXXXX to BORRXXXX xx observe or perform any of its obligations under any of the lease agreements covering the Property; or
(f) The Property is transferred or any agreement to transfer any part or interest in the Property in any manner whatsoever is made or entered into without the prior written consent of METLIFE, except as specifically allowed under the MortgageDeed of Trust, including without limitation creating or allowing any liens on the Property or leasing any portion of the Property; or
(g) Filing by BORROWER or Guarantor of BORRXXXX xx a voluntary petition in bankruptcy or filing by BORROWER or Guarantor of any petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, or similar relief for itself under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, or the seeking, consenting to, or acquiescing by BORROWER or Guarantor in the appointment of any trustee, receiver, custodian, conservator or liquidator for BORROWER or Guarantor BORROWER, any part of the Property, or any of the income or rents of the Property, or the making by BORROWER or Guarantor of any general assignment for the benefit of creditors, or the inability of or failure by BORROWER or Guarantor to pay its debts generally as they become due, or the insolvency on a balance sheet basis or business failure of BORROWER or Guarantor BORROWER, or the making or suffering of a preference within the meaning of federal bankruptcy law or the making of a fraudulent transfer under applicable federal or state law, or concealment by BORROWER or Guarantor of any of its property in fraud of creditors, or the imposition of a lien upon any of the property of BORROWER or Guarantor which is not discharged in the manner permitted by the MortgageDeed of Trust, or the giving of notice by BORROWER or Guarantor to any governmental body of insolvency or suspension of operations; or
(h) Filing of a petition against BORROWER or Guarantor seeking any reorganization, arrangement, composition, readjustment, liquidation, or similar relief under any present or future federal, state or other law or regulation relating to bankruptcy, insolvency or other relief for debts, or the appointment of any trustee, receiver, custodian, conservator or liquidator of BORROWER or GuarantorBORROWER, of any part of the Property or of any of the income or rents of the Property, unless such petition shall be dismissed within sixty (60) days after such filing, but in any event prior to the entry of an order, judgment or decree approving such petition; or
(i) The institution of any proceeding for the dissolution or termination of BORROWER voluntarily, involuntarily, or by operation of law; or
(j) A material adverse change occurs in the assets, liabilities or net worth of BORROWER or Guarantor from the assets, liabilities or net worth of BORROWER or Guarantor previously disclosed to METLIFE; or
(k) Any warranty, representation or statement furnished to METLIFE by or on behalf of BORROWER under this Note, the MortgageDeed of Trust, or any of the Loan Documents shall prove to have been false or misleading in any material respect; or
(l) Failure of BORROWER to observe or perform any other covenant or condition contained in this Note the Deed of Trust and such default shall continue for thirty (30) days after notice is given to BORROWER specifying the nature of the failure, or if the default cannot be cured within such cure period, BORROWER fails within such time to commence and pursue curative action with reasonable diligence or fails at any time after expiration of such cure period to continue with reasonable diligence all necessary curative actions. No notice of default and no opportunity to cure shall be required with respect to defaults under SECTION 17 or SECTION 22 of the Deed of Trust or if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or
(m) Failure of BORROWER to observe or perform any other obligation under the Mortgage or any other Loan Document when such observance or performance is due, and such failure shall continue beyond the applicable cure period set forth in such Loan Document, or if the default cannot be cured within such applicable cure period, BORROWER fails within such time to commence and pursue curative action with reasonable diligence or fails at any time after expiration of such applicable cure period to continue with reasonable diligence all necessary curative actions. No notice of default and no opportunity to cure shall be required if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or
(n) XXXXXXXX's abandonment Borrxxxx'x xbandonment of the Property; or
(o) Any of the foregoing events occur with respect to any tenant of the Propertyoccur, with respect to Guarantor or with respect to any guarantor of any tenantof BORROWER's obligations relating to in connection with the Propertyindebtedness evidenced by this Note. Notwithstanding the foregoing, or such guarantor dies or becomes incompetent; or
(p) The the occurrence of any default an Event of Default under any of the documents evidencing or securing (i) METLIFE Loan No. 5905292that certain Revolving Credit Facility between Fleet Bank of Massachusetts and Uno Restaurants, Inc., dated December 9, 1994, as the same may be amended from time to time, or (ii) METLIFE Loan No. 5905392, (iii) METLIFE Loan No. 5905393, (iv) METLIFE Loan No. 5904594 (v) METLIFE Loan No. 59009791, (vi) METLIFE Loan No. 5922796, (vii) METLIFE Loan No. 5922696, or (viii) any other indebtedness with Borrower or any unsecured credit facility entered into by Uno Restaurants, Inc., shall not by itself constitute an Event of the guarantors of the Indebtedness which is now or hereafter owed to METLIFEDefault hereunder. Upon the occurrence of any of the foregoing events Events of defaultDefault, METLIFE shall have the option to declare the entire amount of principal and interest due under this Note immediately due and payable without notice or demand, and METLIFE may exercise any of its rights under this Note and any document executed or delivered herewith. After acceleration or maturity, BORROWER shall pay interest on the outstanding principal balance of this Note at the rate of five percent (5.00%) per annum above Chase Manhattan Bank's prime interest rate in effect from time to time, or fifteen percent (15.00%) per annum, whichever is higher, provided that such interest rate shall not exceed the maximum interest rate permitted by law. All payments of the principal and interest on this Note shall be made in coin or currency of the United States of America which at the time shall be the legal tender for the payment of public and private debts. If this Note is placed in the hands of an attorney for collection, XXXXXXXX agrees BORRXXXX xxxees to pay reasonable attorneys' fees and costs incurred by METLIFE in connection therewith, and in the event suit or action is instituted to enforce or interpret this Note (including without limitation efforts to modify or vacate any automatic stay or injunction), the prevailing party shall be entitled to recover all expenses reasonably incurred at, before or after trial and on appeal, whether or not taxable as costs, or in any bankruptcy proceeding, or in connection with post-judgment collection efforts, including, without limitation, attorneys' fees, witness fees (expert and otherwise), deposition costs, copying charges and other expenses. This Note shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts Virginia applicable to contracts made and to be performed therein (excluding choice-of-law principles). BORROWER hereby irrevocably submits to the jurisdiction of any state or federal court sitting in Massachusetts Virginia in any action or proceeding brought to enforce or otherwise arising out of or relating to this Note, and hereby waives any objection to venue in any such court and any claim that such forum is an inconvenient forum. This Note is given in a commercial transaction for business purposes. This Note may be declared due prior to its expressed maturity date, all in the events, on the terms, and in the manner provided for in the MortgageDeed of Trust. BORROWER and all sureties, endorsers, guarantors and other parties now or hereafter liable for the payment of this Note, in whole or in part, hereby severally (i) waive demand, notice of demand, presentment for payment, notice of nonpayment, notice of default, protest, notice of protest, notice of intent to accelerate, notice of acceleration and all other notices, and further waive diligence in collecting this Note or in enforcing any of the security for this Note; (ii) agree to any substitution, subordination, exchange or release of any security for this Note or the release of any party primarily or secondarily liable for the payment of this Note; (iii) agree that METLIFE shall not be required to first institute suit or exhaust its remedies hereon against BORROWER or others liable or to become liable for the payment of this Note or to enforce its rights against any security for the payment of this Note; and (iv) consent to any extension of time for the payment of this Note, or any installment hereof, made by agreement by METLIFE with any person now or hereafter liable for the payment of this Note, even if BORROWER is not a party to such agreement. All agreements between BORROWER authorizes METLIFE or its agent to insert in the spaces provided herein the appropriate interest rate and METLIFE, whether now existing or hereafter arising and whether written or oral, are hereby limited so that in no contingency, whether by reason of demand or acceleration the payment amounts as of the final maturity of this Note or otherwise, shall the interest contracted for, charged, received, paid or agreed to be paid to METLIFE exceed the maximum amount permissible under the applicable law. If, from any circumstance whatsoever, interest would otherwise be payable to METLIFE in excess date of the maximum amount permissible under applicable law, the interest payable to METLIFE shall be reduced to the maximum amount permissible under applicable law; and if from any circumstance METLIFE shall ever receive anything of value deemed interest by applicable law in excess of the maximum amount permissible under applicable law, an amount equal to the excessive interest or if such excessive amount of interest exceeds the unpaid balance of principal hereof, such excess shall be refunded to BORROWER. All interest paid or agreed to be paid to METLIFE shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full period (including any renewal or extension) until payment in full of the principal so that the interest hereon for such full period shall not exceed the maximum amount permissible under applicable law. METLIFE expressly disavows any intent to contract for, charge or receive interest in an amount which exceeds the maximum amount permissible under applicable law. This paragraph shall control all agreements between BORROWER and METLIFE. IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENTinitial advance hereunder.
Appears in 1 contract
MOS. Premium Remaining (Years) Factor --------- ------- ------- ------ 180 - 169 (15) .073 168 - 157 (14) .069 156 - 145 (13) .064 144 - 133 (12) .059 132 - 121 (11) .054 120 - 109 (10) .049 108 - 97 ( 9) .044 96 - 85 ( 8) .039 84 - 73 ( 7) .035 72 - 61 ( 6) .030 60 - 49 ( 5) .025 48 - 37 ( 4) .020 36 - 25 ( 3) .015 24 - 13 ( 2) .010 12 - 1 ( 1) .005 If the Federal Reserve Board ceases to publish Statistical Release STATISTICAL RELEASE H.15 [519], ----------------------------- then the decrease in the weekly average yield of ten (10)-year U.S. Treasury Notes Constant Maturities will be determined from another source designated by METLIFE. Voluntary prepayment Prepayment prior to the fifth (5th) anniversary of the due date of the first monthly principal and interest payment due under this Note will not be permitted only in the event of a sale of the Property (as hereinafter defined) to a bona- fide third party and only upon payment of the Prepayment Premium set forth above permitted. If METLIFE at any time accelerates this Note after an Event of Default (defined below), then BORROWER shall be obligated to pay the Prepayment Premium in accordance with the foregoing schedule. The Prepayment Premium shall not be payable with respect to condemnation awards or insurance proceeds from fire or other casualty which METLIFE applies to prepayment, nor with respect to XXXXXXXX's prepayment BORRXXXX'x xrepayment of the Note in full during the last twelve three (123) months of the term of this Note unless an Event of Default has occurred. BORROWER expressly acknowledges that such Prepayment Premium is not a penalty but is intended solely to compensate METLIFE for the loss of its bargain and the reimbursement of internal expenses and administrative fees and expenses incurred by METLIFE. BORROWER shall be liable on this Note and on all the representations, warranties, indemnities and covenants in the Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing ("Mortgage") covering the property (the "Property") securing this Note and shall be liable on all other documents executed or delivered in connection herewith (the "Loan Documents"). Each of the following shall constitute an Event of Default ("Event of Default") hereunder and under the Mortgage executed contemporaneously herewithMortgage:
(a) Failure of or refusal by XXXXXXXX METLIFE to make receive any payment of principal, interest, or Prepayment Premium upon this Note when due, and such failure or refusal shall continue for a period of ten (10) days after written notice is given by METLIFE to BORROWER by METLIFE specifying such failureof the same; or
(b) Failure of BORROWER within the time required by the Mortgage to pay any sum secured thereby other than the Note or to make any payment for taxes, insurance or for reserves for such payments, or any other payment necessary to prevent filing of or discharge of any lien, and such failure shall continue for a period of ten (10) days after written notice is given to BORROWER by METLIFE specifying such failure; or
(c) Failure by BORROWER or Graphic Industries, Inc., a Georgia corporation ("Guarantor"), to BORRXXXX xx observe or perform any obligations of BORROWER or Guarantor to METLIFE on or with respect to any transactions, debts, undertakings or agreements other than the transaction evidenced by this Note following the giving of any required notice and the expiration of any applicable period of graceNote; or
(d) Failure of BORROWER to make any payment or perform any obligation under any superior liens or encumbrances on the Property, within the time required thereunder, or commencement of any suit or other action to foreclose any superior liens or encumbrances; or
(e) Failure by XXXXXXXX to BORRXXXX xx observe or perform any of its obligations under any of the lease agreements covering the Property; or
(f) The Property is transferred or any agreement to transfer any part or interest in the Property in any manner whatsoever is made or entered into without the prior written consent of METLIFE, except as specifically allowed under the Mortgage, including without limitation creating or allowing any liens on the Property or leasing any portion of the Property; or
(g) Filing by BORROWER or Guarantor of BORRXXXX xx a voluntary petition in bankruptcy or filing by BORROWER or Guarantor of any petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, or similar relief for itself under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, or the seeking, consenting to, or acquiescing by BORROWER or Guarantor in the appointment of any trustee, receiver, custodian, conservator or liquidator for BORROWER or Guarantor BORROWER, any part of the Property, or any of the income or rents of the Property, or the making by BORROWER or Guarantor of any general assignment for the benefit of creditors, or the inability of or failure by BORROWER or Guarantor to pay its debts generally as they become due, or the insolvency on a balance sheet basis or business failure of BORROWER or Guarantor BORROWER, or the making or suffering of a preference within the meaning of federal bankruptcy law or the making of a fraudulent transfer under applicable federal or state law, or concealment by BORROWER or Guarantor of any of its property in fraud of creditors, or the imposition of a lien upon any of the property of BORROWER or Guarantor which is not discharged in the manner permitted by the Deed of Trust, / Mortgage, or the giving of notice by BORROWER or Guarantor to any governmental body of insolvency or suspension of operations; or
(h) Filing of a petition against BORROWER or Guarantor seeking any reorganization, arrangement, composition, readjustment, liquidation, or similar relief under any present or future federal, state or other law or regulation relating to bankruptcy, insolvency or other relief for debts, or the appointment of any trustee, receiver, custodian, conservator or liquidator of BORROWER or GuarantorBORROWER, of any part of the Property or of any of the income or rents of the Property, unless such petition shall be dismissed within sixty (60) days after such filing, but in any event prior to the entry of an order, judgment or decree approving such petition; or
(i) The institution of any proceeding for the dissolution or termination of BORROWER voluntarily, involuntarily, or by operation of law; or
(j) A material adverse change occurs in the assets, liabilities or net worth of BORROWER or Guarantor from the assets, liabilities or net worth of BORROWER or Guarantor previously disclosed to METLIFE; or
(k) Any warranty, representation or statement furnished to METLIFE by or on behalf of BORROWER under this Note, the Mortgage, or any of the Loan Documents shall prove to have been false or misleading in any material respect; or
(l) Failure of BORROWER to observe or perform any other covenant or condition contained in this Note the Mortgage and such default shall continue for thirty (30) days after notice is given to BORROWER specifying the nature of the failure, or if the default cannot be cured within such cure period, BORRXXXX xxxls within such time to commence and pursue curative action with reasonable diligence or fails at any time after expiration of such cure period to continue with reasonable diligence all necessary curative actions. No notice of default and no opportunity to cure shall be required with respect to defaults under SECTION 17 or SECTION 22 of the Mortgage or if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or
(m) Failure of BORROWER to observe or perform any other obligation under the Mortgage or any other Loan Document when such observance or performance is due, and such failure shall continue beyond the applicable cure period set forth in such Loan Document, or if the default cannot be cured within such applicable cure period, BORROWER fails within such time to commence and pursue curative action with reasonable diligence or fails at any time after expiration of such applicable cure period to continue with reasonable diligence all necessary curative actions. No notice of default and no opportunity to cure shall be required if during the prior twelve (12) months METLIFE has already sent a notice to BORROWER concerning default in performance of the same obligation; or
(n) XXXXXXXX's abandonment Borrxxxx'x xbandonment of the Property; or
(o) Any of the foregoing events occur with respect to any tenant of the Propertyoccur, with respect to Guarantor or with respect to any guarantor of any tenantof BORROWER's obligations relating to in connection with the Propertyindebtedness evidenced by this Note. Notwithstanding the foregoing, or such guarantor dies or becomes incompetent; or
(p) The the occurrence of any default an Event of Default under any of the documents evidencing or securing (i) METLIFE Loan No. 5905292that certain Revolving Credit Facility between Fleet Bank of Massachusetts and Uno Restaurants, Inc. dated December 9, 1994, as the same may be amended from time to time, or (ii) METLIFE Loan No. 5905392, (iii) METLIFE Loan No. 5905393, (iv) METLIFE Loan No. 5904594 (v) METLIFE Loan No. 59009791, (vi) METLIFE Loan No. 5922796, (vii) METLIFE Loan No. 5922696, or (viii) any other indebtedness with Borrower or any unsecured credit facility entered into by Uno Restaurants, Inc. shall not by itself constitute an Event of the guarantors of the Indebtedness which is now or hereafter owed to METLIFEDefault hereunder. Upon the occurrence of any of the foregoing events Events of defaultDefault, METLIFE shall have the option to declare the entire amount of principal and interest due under this Note immediately due and payable without notice or demand, and METLIFE may exercise any of its rights under this Note and any document executed or delivered herewith. After acceleration or maturity, BORROWER shall pay interest on the outstanding principal balance of this Note at the rate of five percent (5.00%) per annum above Chase Manhattan Bank's prime interest rate in effect from time to time, or fifteen percent (15.00%) per annum, whichever is higher, provided that such interest rate shall not exceed the maximum interest rate permitted by law. All payments of the principal and interest on this Note shall be made in coin or currency of the United States of America which at the time shall be the legal tender for the payment of public and private debts. If this Note is placed in the hands of an attorney for collection, XXXXXXXX agrees BORRXXXX xxxees to pay reasonable attorneys' fees and costs incurred by METLIFE in connection therewith, and in the event suit or action is instituted to enforce or interpret this Note (including without limitation efforts to modify or vacate any automatic stay or injunction), the prevailing party shall be entitled to recover all expenses reasonably incurred at, before or after trial and on appeal, whether or not taxable as costs, or in any bankruptcy proceeding, or in connection with post-judgment collection efforts, including, without limitation, attorneys' fees, witness fees (expert and otherwise), deposition costs, copying charges and other expenses. This Note shall be governed and construed in accordance with the laws of the Commonwealth State of Massachusetts Florida applicable to contracts made and to be performed therein (excluding choice-of-law principles). BORROWER hereby irrevocably submits to the jurisdiction of any state or federal court sitting in Massachusetts Florida in any action or proceeding brought to enforce or otherwise arising out of or relating to this Note, and hereby waives any objection to venue in any such court and any claim that such forum is an inconvenient forum. This Note is given in a commercial transaction for business purposes. This Note may be declared due prior to its expressed maturity date, all in the events, on the terms, and in the manner provided for in the Mortgage. BORROWER and all sureties, endorsers, guarantors and other parties now or hereafter liable for the payment of this Note, in whole or in part, hereby severally (i) waive demand, notice of demand, presentment for payment, notice of nonpayment, notice of default, protest, notice of protest, notice of intent to accelerate, notice of acceleration and all other notices, and further waive diligence in collecting this Note or in enforcing any of the security for this Note; (ii) agree to any substitution, subordination, exchange or release of any security for this Note or the release of any party primarily or secondarily liable for the payment of this Note; (iii) agree that METLIFE shall not be required to first institute suit or exhaust its remedies hereon against BORROWER or others liable or to become liable for the payment of this Note or to enforce its rights against any security for the payment of this Note; and (iv) consent to any extension of time for the payment of this Note, or any installment hereof, made by agreement by METLIFE with any person now or hereafter liable for the payment of this Note, even if BORROWER is not a party to such agreement. BORROWER authorizes METLIFE or its agent to insert in the spaces provided herein the appropriate interest rate and the payment amounts as of the date of the initial advance hereunder. All agreements between BORROWER and METLIFE, whether now existing or hereafter arising and whether written or oral, are hereby limited so that in no contingency, whether by reason of demand or acceleration of the final maturity of this Note or otherwise, shall the interest contracted for, charged, received, paid or agreed to be paid to METLIFE exceed the maximum amount permissible under the applicable law. If, from any circumstance whatsoever, interest would otherwise be payable to METLIFE in excess of the maximum amount permissible under applicable law, the interest payable to METLIFE shall be reduced to the maximum amount permissible under applicable law; and if from any circumstance METLIFE shall ever receive anything of value deemed interest by applicable law in excess of the maximum amount permissible under applicable law, an amount equal to the excessive interest shall be applied to the outstanding principal balance hereof, or if such excessive amount of interest exceeds the unpaid balance of principal hereof, such excess shall be refunded to BORROWER. All interest paid or agreed to be paid to METLIFE shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full period (including any renewal or extension) until payment in full of the principal so that the interest hereon for such full period shall not exceed the maximum amount permissible under applicable law. METLIFE expressly disavows any intent to contract for, charge or receive interest in an amount which exceeds the maximum amount permissible under applicable law. This paragraph shall control all agreements between BORROWER and METLIFE. IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT. Documentary stamp taxes in the amount of $___________ have been paid and affixed to the Mortgage and canceled.
Appears in 1 contract
