PROMISSORY NOTE (Tranche B Note)
EXHIBIT 10.9
(Tranche B Note)
Loan No. 700218A
$9,000,000.00
|
February 7, 2008 |
FOR VALUE RECEIVED, the undersigned, XXXX X. XXXXXXXXXX & SON, INC., a Delaware corporation
(hereafter referred to as “Borrower”), hereby promises to pay to the order of TRANSAMERICA LIFE
INSURANCE COMPANY, an Iowa corporation (hereafter referred to as “Payee”; Xxxxx and/or any
subsequent holder(s) hereof, hereafter referred to as “Holder”), at:
Transamerica Life Insurance Company
c/o AEGON USA Realty Advisors, Inc.
c/o Bank of America
Post Office Box 96273
Chicago, IL 60693-6273
c/o AEGON USA Realty Advisors, Inc.
c/o Bank of America
Post Office Box 96273
Chicago, IL 60693-6273
or at such other place as Holder may designate from time to time in writing, in lawful money of the
United States and in immediately available funds, the principal amount of Nine Million and 00/100
Dollars ($9,000,000.00), together with interest on the outstanding balance thereof, at the rates
set forth below, from the Disbursement Date (as defined below) until the entire balance of
principal has been paid in full, such principal and interest being due and payable as set forth in
Section 1 below. As used in this Note, (1) the “Loan” means the loan evidenced by this
Note and that certain Promissory Note dated as of even date herewith made by Borrower payable to
the order of Payee in the original principal amount of Thirty-six Million and 00/100 Dollars
($36,000,000.00) (the “Tranche A Note”), and (2) the “Disbursement Date” means the date on which
Payee initiates the transfer of funds on the Federal Reserve wire system in disbursement of the
proceeds of the Loan.
1. INTEREST AND PAYMENTS.
1.A. Interest Rate. From the Disbursement Date to March 1, 2010 (the “First Interest
Adjustment Date”), interest will accrue on the outstanding principal balance hereof at the variable
rate of interest determined from time to time as described herein (the “Floating Rate”), but in no
event in excess of the maximum rate of interest allowed by applicable law from time to time. The
initial Floating Rate, at which interest on the Loan shall accrue from the Disbursement Date
through the last day of February, 2008, shall be eight and sixty-four one-hundredths percent
(8.64%) per annum. Effective on the first (1st) day of March, 2008, and thereafter at
intervals of one (1) full calendar months during the Loan’s term (each such period a “Floating Rate
Period”), the Floating Rate shall be adjusted to the rate which is 550 Basis
Points, as defined in Section 1.E below, over the one-month LIBOR rate (the “Floating
Index”),
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as reported in The Wall Street Journal on the last business day of the preceding
Floating Rate Period (the “Determination Date”). If the Floating Index is no longer so published,
the Floating Index used to adjust the rate shall be the one-month LIBOR rate published on the
related Determination Date by a daily business publication or Internet service reasonably
acceptable to Lender. On the First Interest Adjustment Date and on March 1st of years
2012, 2014, 2016, 2018, 2020, and 2022 (each, an “Interest Adjustment Date”), the interest rate
hereunder shall be adjusted and interest will accrue on the outstanding principal balance hereof at
the rate determined in accordance with Section 1.B below (the “Reset Interest Rate”).
1.B. Reset Interest Rate.
(1) Unless an Event of Default (as defined in Section 5 below) has occurred and is
uncured, or Borrower has failed to provide the Financial Information required by Section
1.C. below as and when required, Payee shall propose an interest rate spread and index in
writing (the “Reset Interest Rate Proposal”) to Borrower during the sixty (60)-day period beginning
one hundred twenty (120) days and ending sixty (60) days prior to the applicable Interest
Adjustment Date. The Reset Interest Rate Proposal for the adjustments occurring on March 1, 2010,
March 1, 2012 and March 1, 2014 shall continue to be based on the Floating Index. Thereafter, the
Reset Interest Rate Proposal may be based on any spread and index. If Xxxxxxxx wishes to accept
the Reset Interest Rate Proposal, Borrower shall advise Payee in writing of Borrower’s acceptance
any time within thirty (30) days after the date of the Reset Interest Rate Proposal. Thereafter,
the Reset Interest Rate shall be locked as follows: (a) in the case of a floating rate Reset
Interest Rate Proposal, on the last business day prior to such Interest Adjustment Date, or (b) in
the case of a fixed rate Reset Interest Rate Proposal, upon Xxxxxx’s receipt of Borrower’s written
request to lock not less than ten (10) days nor more than thirty (30) days prior to the applicable
Interest Adjustment Date, provided, if Borrower has not elected to lock the interest rate during
such period, Lender shall lock the interest rate ten (10) days prior to such Interest Adjustment
Date. Once the interest rate has been locked in accordance with (a) or (b) above, the Reset
Interest Rate shall become effective from the applicable Interest Adjustment Date to the first to
occur of the next Interest Adjustment Date or the Maturity Date (as defined below). The principal
balance of the Loan will not be reamortized following an Interest Adjustment Date.
(2) In connection with each Reset Interest Rate and as a condition to the continuance of the
Loan beyond the applicable Interest Adjustment Date, Borrower shall pay Payee’s reasonable counsel
fees, execute such documents and furnish at Borrower’s expense such title evidence assuring Xxxxx’s
continued first lien, as Payee and Xxxxx’s local counsel may require in connection with the
implementation of the Reset Interest Rate.
(3) If Borrower does not accept a Reset Interest Rate Proposal in accordance with this Section
or if Payee is not required to make such Reset Interest Rate
Proposal, then the principal balance, together with all accrued and unpaid interest and all
other amounts outstanding under this Note shall be due and payable without any prepayment premium
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on the Interest Adjustment Date immediately following the date of the Reset Interest Rate Proposal.
1.C. Additional Terms Regarding Rate Reset Proposal.
(1) In addition to any financial information Borrower is required to deliver to Payee under
the terms of the Loan Documents (as hereafter defined), Borrower shall deliver to Payee by no later
than, respectively, the date which is one hundred twenty (120) days immediately prior to the
applicable Interest Adjustment Date, all information Payee needs, in its sole and absolute
discretion, to determine the Reset Interest Rate Proposal (the “Financial Information”). The
Financial Information may include, but is not limited to, current financial statements of the
Borrower, current operating statements for the property encumbered by the Mortgages (the
“Property”), federal income tax returns of Borrower and operating budgets for the Property.
(2) If an Event of Default has occurred and is uncured or Borrower fails to provide the
Financial Information as and when required, Payee shall have no obligation to make a Reset Interest
Reset Proposal; provided, however, if Borrower cures the Event of Default or
provides the requisite Financial Information within ten (10) days from the first day Payee may make
the Reset Interest Rate Proposal, Payee will proceed to make the Reset Interest Rate Proposal,
otherwise, Payee shall be relieved from making such a proposal, at its option, and the interest
rate otherwise applicable under this Note shall remain in effect and this Note shall be due and
payable in full on the Interest Adjustment Date as noted above.
(3) In the event the Reset Interest Rate is a fixed rate, the Borrower shall execute all such
documents as Payee may require to adjust the prepayment premium calculation set forth in
Section 7.A to reflect the prepayment calculation typically used by Payee in connection
with fixed rate loans which calculation shall be set forth in the Reset Interest Rate Proposal.
1.D Payment Terms. Principal and interest shall be due and payable as follows.
(1) On the Disbursement Date, the Borrower shall remit to Payee a payment equal to the
interest accrued on the outstanding principal balance from the Disbursement Date through and
including February 29, 2008.
(2) On April 1, 2008 and May 1, 2008, Borrower shall pay to Payee a monthly installment of
accrued interest only on the outstanding principal balance.
(3) Thereafter, monthly principal payments in the sum of Fifty Thousand Dollars ($50,000) plus
accrued interest at the interest rate then in effect on the
outstanding principal balance of this Note for the previous month, each shall be due and
payable on the first day of each calendar month, beginning on June 1, 2008, and continuing until
March
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1, 2023 (the “Maturity Date”). Monthly installments of principal and interest shall be made
when due, regardless of the prior acceptance by Lender of unscheduled payments.
(4) The entire outstanding principal balance of the indebtedness evidenced hereby, plus all
accrued and unpaid interest thereon, shall be due and payable in full on the Maturity Date.
1.E. Basis Point. As used in this Note, the term “Basis Point” means one
one-hundredth (1/100th) of one percentage point of interest.
1.F. Calculation of Interest. All interest on any indebtedness evidenced by this Note
shall be calculated on the basis of a three hundred sixty (360)-day year composed of twelve (12)
thirty (30)-day months. Interest for partial months shall be calculated by multiplying the
principal balance of this Note by the applicable per annum rate, dividing the product so obtained
by 360, and multiplying the result by the actual number of days elapsed. Calculating interest for
partial months on the basis of a 360-day year results in more interest than if a 365-day year were
used.
1.G. Balloon Payment. THIS NOTE PROVIDES FOR A BALLOON PAYMENT WHICH WILL BE DUE IN
FULL ON THE MATURITY DATE, AND BORROWER ACKNOWLEDGES THAT NO PROVISION OR AGREEMENT HAS BEEN MADE
FOR THE REFINANCING BY HOLDER OF THE AMOUNT TO BE PAID ON SUCH DATE.
2. APPLICATION OF PAYMENTS. All payments made under this Note shall be applied first,
to the following, in such order as Holder may elect in its sole discretion, until all such items
are paid in full: (a) any late charges due in accordance with Section 4 below; (b) any
past-due interest, including without limitation interest accrued at the Default Interest Rate in
accordance with Section 4 below; (c) reimbursement of any sums advanced by Holder to cure
defaults under the Mortgages (to the extent such advances are permitted under the Mortgages or
other Loan Documents (as such terms are defined below)); (d) any applicable prepayment premium due
in accordance with Section 7 below; (e) reimbursement of any expenses to which Xxxxxx is
entitled pursuant to Section 10 below; second, to any past-due principal; third, to current
interest accrued as of the date of Holder’s receipt of such payment; and fourth, to reduce the
outstanding principal balance. No partial prepayment of principal shall result in any adjustment
of the amount of the scheduled installments of principal thereafter becoming due.
3. COLLATERAL. The indebtedness evidenced by this Note is secured by, among other
things, (1) that certain Deed of Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing executed by Xxxxxxxx, as Trustor, in favor of Payee, as Beneficiary, encumbering
property located in the County of Merced, State of California, as more particularly
described therein; (2) that certain Deed of Trust, Security Agreement, Assignment of Leases
and Rents and Fixture Filing executed by Xxxxxxxx, as Trustor, in favor of Xxxxx, as Beneficiary,
encumbering property located in the County of Northampton, State of North Carolina, as more
particularly described
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therein; (3) that certain Mortgage, Security Agreement, Assignment of Leases
and Rents and Fixture Filing executed by Borrower, as Mortgagor, in favor of Payee, as Mortgagee,
encumbering property located in the County of Xxxx, State of Illinois, as more particularly
described therein, and (4) that certain Mortgage, Security Agreement, Assignment of Leases and
Rents and Fixture Filing executed by JBSS Properties, LLC, an Illinois limited liability company
(“JBSS”), as Mortgagor, in favor of Xxxxx, as Mortgagee, encumbering property located in the County
of Xxxx, State of Illinois, as more particularly described therein, each dated as of even date
herewith (collectively herein, the “Mortgages”). Furthermore, certain financial and other
covenants are set forth in that certain Loan Agreement dated as of even date herewith among
Borrower, JBSS and Payee (the “Loan Agreement”). This Note, the Tranche A Note, the Mortgages and
the Loan Agreement, together with all other documents or instruments now or hereafter evidencing,
securing, or otherwise relating to the indebtedness evidenced hereby, as amended or modified in
writing from time to time, are sometimes hereinafter referred to collectively as the “Loan
Documents.”
4. LATE CHARGES AND INTEREST UPON DEFAULT. If Payee does not receive any scheduled
payment on or before the tenth (10th) day of the calendar month in which it is due,
Payee will send the Borrower written notice that a late charge equal to four percent (4%) of the
late payment has accrued. Borrower shall pay such late charge on or before the tenth
(10th) calendar day of the month following the month in which the late payment was to
have been received. In the event that any payment of principal, interest, late charges or
prepayment premium payable under this Note is not paid within ten (10) days from its due date,
whether or not by reason of acceleration, such failure shall constitute an Event of Default
hereunder, and such amount shall bear interest from the due date thereof until paid at a rate per
annum Three Hundred (300) Basis Points above the interest rate otherwise in effect under this Note
or the maximum rate that may be agreed to by law for delinquent payments due under a commercial
loan, whichever is less (the “Default Interest Rate”). Xxxxxxxx acknowledges and agrees that during
the time that any payment of principal, interest or other amount due under this Note or any other
Loan Document is delinquent, Holder will incur additional costs and expenses attributable to its
loss of use of the money due and attributable to the adverse impact on Holder’s ability to meet its
other obligations and avail itself of other opportunities. Xxxxxxxx agrees it is extremely
difficult and impractical to ascertain the extent of such costs and expenses, and Xxxxxxxx
therefore agrees to payment of the above late charge and the accrual of interest at the Default
Interest Rate in accordance with this Section, regardless of whether or not there has been an
acceleration of the maturity of the indebtedness evidenced by this Note. Borrower acknowledges
that the charging of interest at the Default Interest Rate will result in compounded interest
(i.e., interest on interest).
5. EVENT OF DEFAULT. The occurrence of any of the following shall constitute an
“Event of Default” hereunder:
(a) the failure of Borrower to pay, or cause to be paid, any scheduled installment of
principal and interest or any other indebtedness evidenced by this Note or the Tranche A Note
within ten (10) days of the date when due;
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(b) the failure of Borrower to pay, or cause to be paid, the entire indebtedness evidenced
hereby on the Maturity Date or on the Interest Adjustment Date if Borrower fails to accept the
Reset Interest Rate Proposal or on acceleration of the Loan;
(c) the failure of Borrower to pay, or cause to be paid, any other amount due and payable
under the Loan Documents and any applicable cure period has expired; or
(d) the occurrence of a default or Event of Default under any of the other Loan Documents and
the expiration of any applicable cure periods set forth therein, including without limitation the
failure of Borrower to observe the provisions of Section 12 of the Mortgages (entitled “Due on
Transfer or Encumbrance”).
6. ACCELERATION. Upon the occurrence of an Event of Default, Holder may at its
option, in addition to any other remedies to which it may be entitled, declare the total unpaid
principal balance of the indebtedness evidenced hereby, together with all accrued but unpaid
interest thereon and any applicable prepayment premium and all other sums owing under any of the
other Loan Documents, immediately due and payable, including without limitation all costs of
collection, without further presentment, demand, protest or notice of any kind, by so notifying
Borrower in writing; provided, however, that if the Event of Default arises solely as the result of
the failure of Borrower to make a regular monthly payment of interest or principal and interest,
the Holder shall provide notice of its intent to accelerate the indebtedness, and a cure period of
three (3) business days, prior to declaring the indebtedness to be immediately due and payable.
From and after acceleration, all sums then due as a result of acceleration shall bear interest at
the Default Interest Rate. If the Loan has been accelerated and Borrower wishes to pay the Loan in
full, the payment tendered must include the applicable prepayment premium.
7. PREPAYMENT. Upon giving Holder not less than thirty (30) days’ prior written
notice, Borrower may prepay on the first day of any calendar month the principal amount due under
this Note, in whole or in partial payments of not less than One Hundred Thousand Dollars ($100,000)
each, without prepayment premium. No partial prepayment shall result in any adjustment of the
amount of the scheduled installments of principal thereafter becoming due.
8. LITIGATION EXPENSE. If an Event of Default exists and the Holder engages counsel
to collect any amount due under this Note or if the Holder is required to protect or enforce this
Note in any probate, bankruptcy or other proceeding, then any expenses incurred by the Holder in
respect of the engagement, including the reasonable fees and reimbursable expenses of counsel and
including such costs and fees which relate to issues that are particular to any given proceeding,
shall constitute indebtedness evidenced by this Note, shall be payable on demand, and shall
bear interest at the Default Interest Rate. Such fees and expenses include those incurred in
connection with any action against the Borrower for a deficiency judgment after a foreclosure or
trustee’s sale of the Property under the Mortgages, including all of the Holder’s reasonable
attorneys’ fees, property appraisal costs and witness fees. Such fees and costs, if incurred after
a foreclosure or trustee’s sale, shall not be secured by the Mortgages.
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9. REIMBURSEMENT OF COSTS AND EXPENSES. Xxxxxxxx agrees to reimburse Holder within
five (5) days of Holder’s written demand for all costs and expenses (including, but not limited to,
reasonable attorneys’ fees, including allocated costs of in-house counsel which are not duplicative
of any other costs and expenses) incurred by Holder in connection with the exercise of Holder’s
rights under this Note or the other Loan Documents, and the enforcement thereof, whether or not an
action is commenced, and in connection with the administration of Xxxxxx’s rights under this Note,
other than routine servicing matters customarily performed by Holder for loans of a similar nature
and for which no cost is customarily charged.
10. WAIVER. Borrower and any sureties, guarantors and endorsers of this Note hereby
consent to renewals and extensions of time at or after the Maturity Date and hereby waive
diligence, presentment, protest, demand and notice of every kind and (to the full extent permitted
by law) the right to plead any statute of limitations as a defense to any demand hereunder or in
connection with any security herefor, and hereby agree that no failure on the part of Holder to
exercise any power, right or privilege hereunder, or to insist upon prompt compliance with the
terms hereof, shall constitute a waiver thereof.
11. FORBEARANCE. Holder shall not be deemed to have waived any of Holder’s rights or
remedies under this Note unless such waiver is express and in a writing signed by Xxxxxx, and no
delay or omission by Xxxxxx in exercising, or failure by Holder on any one or more occasions to
exercise, any of Holder’s rights hereunder or under the other Loan Documents, or at law or in
equity, including, without limitation, Holder’s right, after any Event of Default, to declare the
entire indebtedness evidenced hereby immediately due and payable, shall be construed as a novation
of this Note or shall operate as a waiver or prevent the subsequent exercise of any or all of such
rights. Acceptance by Xxxxxx of any portion or all of any sum payable hereunder whether before, on
or after the due date of such payment, shall not be a waiver of Holder’s right either to require
prompt payment when due of all other sums payable hereunder or to exercise any of Holder’s rights,
powers and remedies hereunder or under the other Loan Documents. A waiver of any right on one
occasion shall not be construed as a waiver of Xxxxxx’s right to insist thereafter upon strict
compliance with the terms hereof without previous notice of such intention being given to Borrower.
No exercise of any right by Holder shall constitute or be deemed to constitute an election of
remedies by Xxxxxx precluding the subsequent exercise by Xxxxxx of any or all of the rights, powers
and remedies available to it hereunder, under any of the other Loan Documents, or at law or in
equity. Borrower expressly waives, to the extent permitted by law, the benefit of any statute or
rule of law or equity now provided, or which may hereafter be provided, which would
produce a result contrary to, or in conflict with, the foregoing. Borrower consents to any and all
renewals and extensions in the time of payment hereof without in any way affecting the liability of
Borrower or any person liable or to become liable with respect to any indebtedness evidenced
hereby. No extension of the time for the payment of this Note or any installment due hereunder,
made by agreement with any person now or hereafter liable for the payment of this Note shall
operate to release, discharge, modify, change or affect the original liability of Borrower under
this Note, either in whole or in part, unless Xxxxxx agrees otherwise in writing.
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12. RENUNCIATION AND ASSIGNMENT OF EXEMPTIONS. To the extent permitted by law,
Borrower hereby waives and renounces for itself, its legal representatives, successors and assigns,
all rights to the benefits of any statute of limitations and any moratorium, reinstatement,
marshalling, forbearance, valuation, stay, extension, redemption, appraisement, exemption, and
homestead right, entitlement, or exemption now provided, or which may hereafter be provided, by the
Constitution or laws of the United States of America or of any state thereof, both as to itself and
in and to all of its property, real and personal, against the enforcement and collection of the
obligations evidenced by this Note.
13. JURY TRIAL WAIVER. TO THE EXTENT NOW OR HEREAFTER PERMITTED BY APPLICABLE LAW,
THE BORROWER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS (A) UNDER THIS NOTE OR ANY OTHER LOAN DOCUMENT, OR (B) ARISING FROM ANY LENDING
RELATIONSHIP EXISTING IN CONNECTION WITH THIS NOTE OR ANY OTHER LOAN DOCUMENT, AND THE BORROWER
AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A JURY.
Borrower’s Initials
14. APPLICABLE LAW. This Note shall be governed by, enforced under and interpreted in
accordance with the laws of the State of Illinois.
15. AMENDMENT. This Note may be amended or modified only by an instrument in writing
which by its express terms refers to this Note and which is duly executed by each party sought to
be bound thereby.
16. SEVERABILITY. If any provision of this Note or the application thereof to any
person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Note
and the application of such provisions to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
17. TRANSFERS BY HOLDER. This Note and the other Loan Documents may be hypothecated,
transferred or assigned by Holder without the prior consent of Borrower.
18. SUCCESSORS AND ASSIGNS. This Note shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns.
19. TIME. Time is of the essence with respect to each and every term and provision of
this Note.
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20. REPLACEMENT OR BIFURCATION OF NOTE. If this Note is lost or destroyed, the
Borrower shall, at the Holder’s request, execute and return to the Holder a replacement promissory
note identical to this Note, provided the Holder delivers to the Borrower an affidavit to the
foregoing effect. In addition, the Holder may at its sole and absolute discretion require that the
Borrower execute and deliver two separate promissory notes in an aggregate amount equal to the
unpaid principal balance of this Note, which shall replace this Note as evidence of the Borrower’s
obligations. The two replacement promissory notes shall, taken together, evidence the exact
obligations set forth in this Note. The replacement notes shall be independently transferable. No
replacement of this Note under this Section shall result in a novation of the Borrower’s
obligations under this Note.
21. USURY. Notwithstanding any provision in this Note which might otherwise be
construed to the contrary, it is the desire of Holder and Borrower that the total liability for
payments in the nature of interest shall not exceed the limits imposed by any applicable state or
federal interest rate laws. If any payments in the nature of interest, additional interest, and
other charges made under this Note are held to be in excess of the limits imposed by any applicable
state or federal laws, then at Holder’s option, any such excess amount shall either be refunded to
Borrower or shall be considered a premium-free prepayment of principal and the principal balance
shall be reduced by such amount in the inverse order of maturity so that the total liability for
payments in the nature of interest, additional interest and other charges shall not exceed the
limits imposed by any applicable state or federal interest rate laws.
22. NOTICES. All notices, demands or requests provided for or permitted to be given
hereunder shall be in writing and shall be given in the manner set forth in the Mortgages.
23. GENDER AND NUMBER. All personal pronouns used in this Note whether used in the
masculine, feminine, or neuter gender, shall include all other genders; the singular shall include
the plural, and vice versa.
24. HEADINGS. The underlined words appearing at the commencement of the sections are
included only as a guide to the contents thereof and are not to be considered as controlling,
enlarging or restructuring the language or meaning of those sections.
IN WITNESS WHEREOF, the undersigned has executed this Note as of the date first above written.
| BORROWER: XXXX X. XXXXXXXXXX & SON, INC., a Delaware corporation |
||||
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Xxxxxxx X. Xxxxxxxxx | ||||
| Its Chief Financial Officer and Group President | ||||
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