PROMISSORY NOTE

Exhibit 10.3

PROMISSORY NOTE

$15,000,000.00 January 23, 2020

FOR VALUE RECEIVED, the undersigned, RIVERBEND CROSSINGS III HOLDINGS LLC (the “Nestle Borrower”) and RIVERBEND UPPER MACUNGIE PROPERTIES I LLC (the “Ambassador Borrower”), each a Pennsylvania limited liability company  (collectively, the Nestle Borrower and the Ambassador Borrower, jointly and severally referred to herein as “Maker”), promise(s) to pay to the order of STATE FARM LIFE INSURANCE COMPANY, an Illinois corporation, its successors or assigns (“State Farm”), the principal sum of Fifteen Million and 00/100 Dollars ($15,000,000.00) (“Principal”), together with interest on the unpaid Principal balance outstanding from the date of disbursement until paid at the rate of three and forty-eight one-hundredths percent (3.48%)  per annum (the “Note Rate”).  Interest shall be computed on the basis of a three hundred sixty (360) day year having twelve, thirty-day months.

I. Payments.

A. On the date of disbursement, Maker shall pay interest only to State Farm for the period from (and including) the date of disbursement to (and including) January 31, 2020.  On March 1, 2020, and on the first day of each succeeding month thereafter (a “Regular Payment Date”), to and including January 1, 2030, Maker shall pay Principal and interest to State Farm in fixed monthly installments of Seventy-Four Thousand Nine Hundred Thirty-Two and 74/100 Dollars ($74,932.74) each (a “Monthly Payment”).  Maker shall pay to State Farm a final payment of all outstanding Principal and accrued and unpaid interest thereon on February 1, 2030 (the “Maturity Date”).

B. All required payments are to be made to State Farm at Xxx Xxxxx Xxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000-0001, Attention: Investment Accounting, D-3, or at any other place State Farm shall designate in writing.

C. All Indebtedness (as defined in the Mortgages) is payable in lawful money of the United States of America that is legal tender for public and private debts.

Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Mortgages.

II. Events of Default.

A. It shall constitute an event of default (an “Event of Default”) of and under this Promissory Note (this “Note”) if any of the following events shall occur:

1. Maker shall fail to pay any Monthly Payment when due under this Note. However, Monthly Payments received by State Farm within ten (10) days of the Regular Payment Date shall be considered made as required.  In the event the Monthly Payment and the Late Charge (as defined below) are not received by State Farm on or before the end of the calendar month in

which such Monthly Payment is due, the Default Rate (as defined below) shall apply from the first day of the month in which such Monthly Payment was due;

2. Maker shall fail to perform or observe any of the other covenants, agreements or conditions of this Note and such failure shall remain uncured for thirty (30) days after notice to Maker of the occurrence of such failure (the “Grace Period”); provided, however, that State Farm shall extend any applicable Grace Period up to ninety (90) days if State Farm determines in good faith that: (i) such default cannot reasonably be cured within such Grace Period but can be cured within ninety (90) days; (ii) no lien or security interest created by the Loan Documents shall be impaired prior to the anticipated completion of such cure; and (iii) State Farm’s immediate exercise of any remedies provided in this Note or by law is not necessary for the protection or preservation of the Secured Property or State Farm’s security interest therein or lien thereon, and Maker shall immediately commence and diligently pursue the cure of such default.; or

3. An “Event of Default” (as defined in any of the Loan Documents) shall occur under any of the other Loan Documents.

B. If any Monthly Payment payable under this Note is not paid on or before the tenth (10th) day after the applicable Regular Payment Date, Maker shall pay to State Farm an amount equal to the lesser of five percent (5%) of such unpaid Monthly Payment or the maximum amount permitted by Applicable Law (as defined below) to defray the expenses incurred by State Farm in handling and processing the delinquent payment and to compensate State Farm for the loss of use of the delinquent payment (the “Late Charge”).

C. While any Event of Default exists, the Note Rate shall be increased to the lesser of eight and forty-eight one-hundredths percent (8.48%) per annum or the maximum amount permitted by Applicable Law (the “Default Rate”).  The Default Rate shall accrue from the date of the first occurrence of the Event of Default to the date upon which the Event of Default is cured.  It is a condition precedent to the cure of any Event of Default that Maker shall pay all Principal and accrued interest required under this Note to the most current Regular Payment Date, plus the difference between the interest on the unpaid Principal balance calculated at the Default Rate and the interest on the unpaid Principal balance calculated at the Note Rate from the date of the first occurrence of the Event of Default to the date upon which the Event of Default is cured.  Interest at the Default Rate shall continue to accrue on any judgment State Farm may obtain against Maker on this Note or the  Mortgages until State Farm or its successor or assign acquires record title to the Secured Property (as hereinafter defined) or the judgment, interest thereon and costs have been paid in full. 

D. Prior to an Event of Default, payments received by State Farm shall be applied first to interest and the remainder to Principal.  After an Event of Default, State Farm may, at its option, apply any payments or other amounts received first to the payment of State Farm’s expenses incurred in accordance with the provisions of the Loan Documents, then to interest, and the remainder to Principal.

E. Upon an Event of Default, State Farm may, at its option and without further notice, declare the Indebtedness, including the entire Principal balance, together with all accrued and

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unpaid interest thereon, to be immediately due and payable.  Failure to exercise this option for a particular Event of Default shall not constitute a waiver of the right to exercise same in case of any subsequent Event of Default.

III. Security.

This Note is secured by, among other Loan Documents (i) an Open-End Mortgage and Security Agreement executed by the Nestle Borrower to and in favor of State Farm of even date with this Note, (ii) an Open-End Mortgage and Security Agreement executed by the Ambassador Borrower to and in favor of State Farm each effective of even date with this Note (each, a  “Mortgage”, and collectively, the “Mortgages”) which Mortgages encumber and constitute first liens upon and security interests in certain real property and fixtures located in Lehigh County, in the Commonwealth of Pennsylvania (the “State”) and certain other property, rights and interests, all as more fully described in the Mortgages (the “Secured Property”), (iii) an Assignment of Rents and Leases executed by the Nestle Borrower to and in favor of State Farm effective of even date with this Note, and (iv) an Assignment of Rents and Leases executed by Ambassador Xxxxxxxx to and in favor of State Farm effective of even date with this Note (each, a  “Assignment of Rents and Leases”, and collectively, the “Assignments of Rents and Leases”) in which Rents (as defined therein) and the Leases (as defined therein) are absolutely and unconditionally assigned by each Maker to State Farm.

IV. Prepayment.

A. This Note shall be closed to prepayment through and including the later to occur of (i) February 1, 2025; or (ii) the date on which sixty (60) Monthly Payments have been paid to State Farm.  Only thereafter, provided Maker first gives State Farm written notice at least thirty (30) days but no more than sixty (60) days before the date selected by Maker for prepayment, which date shall be any business day selected by Maker (the “Prepayment Date”), Maker may prepay the entire outstanding Principal on said Prepayment Date, provided that (i) all other amounts outstanding under the Loan Documents are also paid, and (ii) the amount prepaid is accompanied by a fee (the “Prepayment Fee”) equal to the following:

1.

(a) For a prepayment made between a date after which sixty (60) Monthly Payments have been paid to State Farm and on the date which eighty forty (84) Monthly Payments have been paid to State Farm the Prepayment Fee shall be the "Reinvestment Yield" (as calculated below);

(b) For a prepayment made between a date after which eighty four (84) Monthly Payments have been paid to State Farm and on the date which ninety six (96) Monthly Payments have been paid to State Farm, the Prepayment Fee shall be equal to two percent (2%) of the outstanding principal balance of the Promissory Note;

(c) For a prepayment made between a date after ninety six (96) Monthly Payments have been paid to State Farm and on the date which one hundred eight (108) Monthly Payments have been paid to State Farm, the Prepayment Fee shall be equal to one percent (1%) of the outstanding principal balance of the Promissory Note; or

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2. If at the time of prepayment, the Reinvestment Yield (as defined below) is less than the Note Rate, the Prepayment Fee shall be calculated by:

(a) Using the Reinvestment Yield corresponding to the payment frequency of this Note, adding the present values of: (i) the scheduled Monthly Payments remaining until the Maturity Date; plus (ii) the final Principal and accrued interest payment due on the Maturity Date; and

(b) From the sum so obtained, subtracting the outstanding Principal balance of this Note as of the Prepayment Date.  The remainder shall be the Prepayment Fee (if such amount is greater than the amount determined by subsection 1 above).

As used herein, “Reinvestment Yield” means 50 basis points in excess of the yield on United States Treasury Securities having the closest maturity (month and year) to the Maturity Date.  Should more than one United States Treasury Security be quoted as maturing on the Maturity Date, then the yield of the United States Treasury Security quoted closest to par will be used in the calculation.

The Prepayment Fee shall be calculated two (2) business days before the Prepayment Date. Failure to prepay on the Prepayment Date shall be considered a waiver by Maker of the present right to prepay.

B. If State Farm declares the entire Indebtedness to be immediately due and payable, Maker agrees that the Prepayment Fee, calculated as if the Prepayment Date were the date of acceleration, shall apply.  No Prepayment Fee will be charged in the event the Loan is prepaid in whole or in part by the application of insurance or condemnation proceeds as required by the Loan Documents.

C. No Prepayment Fee shall be payable after one hundred eight (108) Monthly Payments have been made on this Note or February 1, 2029, whichever comes later in time.

V. Limitation of Liability.

In consideration of the security provided by Maker to State Farm for repayment of the Indebtedness, including, without limitation, the liens on and security interests in the Secured Property granted pursuant to the Mortgages and the assignment of the Rents and Leases made pursuant to the Assignments of Rents and Leases, upon the occurrence of an Event of Default under a Mortgage or under any of the other Loan Documents, State Farm agrees that it shall not, except as otherwise set forth in this Section, seek to enforce, nor shall State Farm be entitled to enforce, any deficiency or monetary judgment against Maker, Guarantor (as defined below), any shareholder or other affiliate or subsidiary of Guarantor or Maker, any partner of Maker, any member of Maker, any shareholder of Maker or any beneficiary of Maker (individually, an “Exculpated Party”, and collectively, the “Exculpated Parties”), personally, and shall not levy or execute judgment upon any property of the Exculpated Parties, other than the Secured Property; it being expressly agreed, acknowledged and understood, however, that the foregoing limitation of the liability of an Exculpated Party shall not apply to the extent that such Exculpated Party is, pursuant to the further terms hereof, liable for any Losses (as defined below) and nothing contained herein shall in any manner or way release, affect or impair:

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(a) The existence of the Indebtedness and Obligations created in and evidenced by the Loan Documents;

(b) The enforceability of the liens, security interests and assignments created in and granted by the Loan Documents against the Secured Property;

(c) The enforceability of the Environmental Indemnification Agreement, the Master Lease (as defined in the Mortgages)  and any Guaranty given to State Farm;

(d) The right of State Farm to recover from Maker and any Guarantor (as defined below) all Indebtedness, including Principal, interest and other amounts outstanding under the Loan Documents, following (i) a Transfer of all or any portion of the Secured Property or a Transfer of fifty percent (50%) or more of the interests in the entity (or entities) comprising Maker, each without the prior written consent of State Farm or in violation of Section 3.11 of the Mortgages; and/or (ii) the occurrence of any of the bankruptcy-related Events of Default under Sections 4.1(i)(C), 4.1(j), 4.1(k) (solely with respect to authorizing the action set forth in Section 4.1(i)(C)) or 4.1(l) of the Mortgages; or

(e) The right of State Farm to recover from Maker and Xxxxxxx Industrial Realty, Inc. (whether one or more, the “Guarantor”) (Maker and Guarantor are sometimes hereafter individually called a “Liable Party” and collectively called the “Liable Parties”), who shall be jointly and severally liable for all Losses incurred by State Farm arising from the following:

(i) The failure to apply any Rents received by any of the Exculpated Parties or Liable Parties at any time after an Event of Default (all such Rents received during such period being herein called “Recoverable Rents”) to (A) the payment of any amount due under the Loan Documents, including, without limitation, the Indebtedness; (B) the payment of all operating expenses of the Secured Property; or (C) the performance of any Obligations required under the Loan Documents; provided, however, the Liable Parties shall not be liable to State Farm under this subsection (i) for any Recoverable Rents in excess of the Recoverable Rents applied to the payment of the amounts and the performance of the obligations set forth in (A), (B) and (C) above;

(ii) The misapplication or misappropriation of any tenant security deposits, advance or prepaid Rents, cancellation or termination fees or other similar sums paid to or held by Maker, any affiliate of Maker or any other Person (other than State Farm) in connection with the operation of the Secured Property in violation of the Loan Documents or any Leases affecting the Secured Property;

(iii) The willful or wanton act or omission on the part of any of the Exculpated Parties or Liable Parties resulting in the damage to or destruction of all or any portion of the Secured Property, including, without limitation, waste or any act of arson or malicious destruction by any of the Exculpated Parties or Liable Parties;

(iv) The failure to maintain insurance as required by the Loan Documents or any Leases affecting the Secured Property or the failure to timely pay insurance

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premiums, real estate taxes, regular or special assessments or utility charges affecting the Secured Property;

(v) The failure of the Exculpated Parties or Liable Parties to deliver to State Farm any Proceeds received by any of them relating to the Secured Property, or to use such Proceeds for Restoration of the Secured Property in accordance with the terms of the Loan Documents;

(vi) Any fraud or willful misrepresentation of a material fact by any of the Exculpated Parties or Liable Parties in any document executed or presented to State Farm in connection with the Loan; or

(vii) The failure on the part of any of the Exculpated Parties or Liable Parties to comply with the provisions of the Environmental Indemnification Agreement. Notwithstanding anything contained herein to the contrary, the indemnification obligations under this subsection (vii) shall not apply to any costs incurred by or imposed upon State Farm which arise solely as a consequence of a condition coming into existence on the Secured Property subsequent to the time of both State Farm taking title to the Secured Property by foreclosure or deed in lieu of foreclosure and State Farm taking physical possession of the Secured Property, unless such costs are incurred in connection with an event or events related to a condition existing at the Secured Property prior to or at the time of transfer of title and physical possession of the Secured Property to State Farm; provided, however, Maker shall bear the burden of proof that such event or events: (A) occurred subsequent to the transfer of title and physical possession to State Farm; and (B) did not occur as a result of any action of any of the Exculpated Parties or Liable Parties.

As used herein, “Losses” means any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, costs, fines, penalties, charges, fees, expenses (including, without limitation, reasonable legal fees and expenses and other costs of defense and internal administrative fees assessed by State Farm), judgments, awards or amounts paid in settlement of whatever kind or nature.

VI. Non-Usurious Loan.

A. It is the intention of Maker and State Farm that this Note and all other Loan Documents shall comply with any Applicable Law.  To that end, the parties stipulate and agree that none of the terms and provisions of this Note or the Loan Documents shall ever be construed to create a contract that violates any Applicable Law or exceeds the limits imposed or provided by law for the use or detention of money or for forbearance in seeking its collection.

B. In the event that interest paid or received under this Note or the other Loan Documents shall result, because of any reduction of Principal or any other reason, in an effective rate of interest which for any period is in excess of applicable usury limits, such excess interest for the period in question shall, at State Farm’s option, be refunded to Maker or be applied upon the outstanding Principal without a Prepayment Fee.

C. As used herein, “Applicable Law” means any federal or state statute or other law, including, but not limited to, the applicable usury laws of the State or the United States (whichever

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allows the greater rate of interest), as such Applicable Law now exists, is amended or is enacted during the term of this Note.

D. Maker represents and agrees that the Indebtedness evidenced by this Note constitutes a commercial business loan.

VII. State Farm’s Attorneys’ Fees.

Should the Indebtedness evidenced by this Note or any part thereof be: (i) collected at law or in equity or through any legal, bankruptcy, receivership, probate or other court proceedings; (ii) placed in the hands of attorneys for collection after the occurrence of an Event of Default; or (iii) the subject of any court proceeding involving the lien of the Mortgages or its priority, Maker shall pay to State Farm, in addition to the Principal and interest due and payable hereunder and all other Indebtedness due pursuant to the terms of the Loan Documents, reasonable attorneys’ and paralegals’ fees and collection costs, including those incurred by State Farm on any appeal.

VIII. Maker’s Waivers.

Maker (on behalf of itself and every person or entity at any time liable for the payment of the Indebtedness) hereby waives presentment for payment, demand and notice of demand, dishonor and notice of dishonor, protest and notice of protest, nonpayment and notice of nonpayment of this Note, and all other notices and demands, including without limitation, notice of intention to accelerate the maturity of this Note, notice of acceleration of the maturity of this Note, diligence in collection and the bringing of suit against any other party, and xxxxxx further agrees to all renewals, extensions, modifications, partial payments, releases or substitutions of security, in whole or in part, with or without notice, whether before or after maturity.

IX. Payment of Taxes and Fees.

Maker agrees to pay all costs, expenses, fees and taxes (other than income taxes payable by State Farm arising from repayment of the Indebtedness) on or with respect to the execution, delivery, recordation, existence or possession of this Note, the Mortgages and other Loan Documents, including, without limitation, all recording fees and any documentary stamp tax or intangible personal property tax now or hereafter required by Applicable Law to be affixed or paid with respect to this Note, the Mortgages or the other Loan Documents.

X. Waiver of Trial by Jury.

Maker hereby waives, to the fullest extent permitted by Applicable Law, the right to trial by jury in any action, proceeding or counterclaim filed by any party, whether in contract, tort or otherwise relating directly or indirectly to this Note or any acts or omissions of Maker in connection therewith or contemplated thereby.

XI. Releases.

State Farm may, without notice, and without regard to the consideration, if any, given or paid therefor, release or substitute any part of the Secured Property given as security for the repayment of the Indebtedness without releasing any other property given as security for the

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Indebtedness, or may release any party liable for the payment of the Indebtedness without releasing any other party liable for the Indebtedness, or may agree with any party liable for the Indebtedness to extend the time for payment of any part or all of the Indebtedness without releasing any party liable for the Indebtedness.  Any failure of State Farm to exercise any right granted herein, in the Mortgages or the other Loan Documents shall not constitute a waiver of such right or preclude the subsequent exercise thereof.

XII. Governing Law.

This Note and the rights, duties, obligations and liabilities of the parties hereunder and/or arising from or relating in any way to the Indebtedness or the Loan shall be governed by and construed for all purposes under the law of the State.

XIII. Remedies Cumulative. 

The remedies of State Farm provided herein and in the other Loan Documents shall be in addition to, and not in limitation of, such other remedies as State Farm may have under applicable statutes or laws.   All of such remedies shall be cumulative and concurrent, and may be pursued singularly, successively or together at the sole discretion of State Farm, and may be exercised as often as occasion therefor shall occur; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof.

XIV. Confession of Judgment. 

MAKER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR ATTORNEYS OR THE PROTHONOTARY OR CLERK OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR FOR MAKER IN ANY SUCH COURT IN AN APPROPRIATE ACTION THERE BROUGHT OR TO BE BROUGHT AGAINST MAKER AT THE SUIT OF STATE FARM ON THIS NOTE, AND THEREIN TO CONFESS JUDGMENT AGAINST MAKER FOR ALL SUMS DUE FROM MAKER TOGETHER WITH COSTS OF SUIT AND AN ATTORNEY’S FEE FOR COLLECTION EQUAL TO $25,000.00; AND FOR SO DOING THIS NOTE OR A COPY HEREOF VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT.   THIS WARRANT OF ATTORNEY SHALL BE EFFECTIVE ONLY AFTER AN EVENT OF DEFAULT, BUT SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF.

MAKER HEREBY RELEASES STATE FARM AND SAID ATTORNEY OR ATTORNEYS FROM ALL PROCEDURAL ERRORS, DEFECTS AND IMPERFECTIONS WHATSOEVER IN ENTERING JUDGMENT BY CONFESSION AS AFORESAID OR IN ISSUING ANY PROCESS OR INSTITUTING ANY PROCEEDINGS RELATING THERETO AND HEREBY WAIVES ALL BENEFIT THAT MIGHT ACCRUE TO MAKER BY VIRTUE OF ANY PRESENT OR FUTURE LAWS EXEMPTING THE PREMISES, AND ANY OTHER COLLATERAL FOR THIS NOTE, OR ANY PART OF THE PROCEEDS ARISING FROM ANY SALE OF ANY SUCH PROPERTY, FROM ATTACHMENT, XXXX OR SALE UNDER EXECUTION, OR PROVIDING FOR ANY STAY OF EXECUTION, EXEMPTION FROM CIVIL PROCESS

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OR EXTENSION OF TIME AND AGREES THAT SUCH PROPERTY MAY BE SOLD TO SATISFY ANY JUDGMENT ENTERED ON THIS NOTE OR THE MORTGAGES, IN WHOLE OR IN PART AND IN ANY ORDER AS MAY BE DESIRED BY STATE FARM.

MAKER CONFIRMS TO STATE FARM THAT (I) MAKER IS A BUSINESS ENTITY AND THAT ITS PRINCIPALS ARE KNOWLEDGEABLE IN BUSINESS MATTERS; (II) THE TERMS OF THIS NOTE, INCLUDING THE FOREGOING WARRANT OF ATTORNEY TO CONFESS JUDGMENT, HAVE BEEN NEGOTIATED AND AGREED UPON IN A COMMERCIAL CONTEXT; AND (III) IT HAS FULLY REVIEWED THE AFORESAID WARRANT OF ATTORNEY TO CONFESS JUDGMENT WITH ITS OWN COUNSEL AND IS KNOWINGLY AND VOLUNTARILY WAIVING CERTAIN RIGHTS IT WOULD OTHERWISE POSSESS, INCLUDING BUT NOT LIMITED TO, THE RIGHT TO ANY NOTICE OR A HEARING PRIOR TO THE ENTRY OF JUDGMENT BY STATE FARM PURSUANT TO THE AFORESAID WARRANT OF ATTORNEY.

XV. Joint and Several Liability.

If Maker consists of more than one entity, the word “Maker” shall mean each of them, and their liability shall be joint and several.

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IN WITNESS WHEREOF, Xxxxx has executed this Note as of the day and year first above written.

MAKER:

Nestle Borrower:

RIVERBEND CROSSINGS III HOLDINGS LLC

By: Riverbend Lehigh Valley Holdings I

LLC, its sole member

By: Xxxxxxx Industrial, LLC, its sole member

By: /s/Xxxxxxx Xxxxxx

Name: Xxxxxxx Xxxxxx

Title: Vice President

Ambassador Xxxxxxxx:

RIVERBEND UPPER MACUNGIE PROPERTIES I LLC

By: Riverbend Lehigh Valley Holdings IV

LLC, its sole member

By: Xxxxxxx Industrial, LLC, its sole member

By: /s/Xxxxxxx Xxxxxx

Name: Xxxxxxx Xxxxxx

Title: Vice President

Maker’s Address:

Nestle Borrower

Riverbend Crossings III Holdings LLC

c/x Xxxxxxx Industrial Realty, Inc.

000 Xxxx Xxxxxxxx Xxxx

Bloomfield, CT 06002

Ambassador Xxxxxxxx

Riverbend Upper Macungie Properties I LLC

c/x Xxxxxxx Industrial Realty, Inc.

000 Xxxx Xxxxxxxx Xxxx

Bloomfield, CT 06002

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