1
PROMISSORY NOTE
$3,000,000 New York, New York
November 28, 1995
ON DEMAND, but not later than the Final Maturity Date, for value
received, XXXXXXXX CORPORATION ("XXXXXXXX"), HRH CONSTRUCTION CORPORATION
("HRH") AND GRENADIER REALTY CORP. ("GRENADIER") (collectively, the "Borrower"),
hereby promise to pay to the order of CHEMICAL BANK, (the "Bank") at the office
of the Bank at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, immediately available
funds, the principal amount of THREE MILLION DOLLARS ($3,000,000), or such
lesser amount as may constitute the aggregate unpaid principal amount of all
Loans made hereunder. The Borrower further promises to pay interest (computed
on the basis of actual number of days elapsed over a year of 360 days) on each
Interest Payment Date at a rate of interest equal to either the Adjusted LIBOR
Rate plus 2.00% or the Prime Rate plus .5% (as recorded on the grid attached
hereto) on the unpaid principal amount of each Loan until such principal amount
is paid in full.
The Bank may lend, in its sole discretion in each instance, such
amounts (each a "Loan" and collectively, the "Loans") as may be requested by
Xxxxxxxx hereunder, which Loans shall in no event exceed $3,000,000 in
aggregate principal amount outstanding at any time. Each LIBOR Loan shall be in
a minimum principal amount of $500,000 and each Prime Rate Loan shall be in a
minimum principal amount of $25,000. Xxxxxxxx shall request each LIBOR Loan
upon at least three (3) Business Days' prior written notice to the Bank and may
request a Prime Rate Loan upon same day written notice to the Bank, and, in
each case of a request for a LIBOR Loan, such request shall be made by 11:00
a.m. on the required day; provided, however there shall be no more than two
LIBOR Loans outstanding at any one time. If the Borrower shall not timely
notify the Bank that it has selected the Adjusted LIBOR Rate plus 2% for a Loan
prior to the expiration of the then-current Interest Period relating to such
Loan, then such Loan shall be a Prime Rate Loan.
The Bank is authorized to enter on the attached grid schedule all the
information specified therein relating to each Loan, all of which entries, in
the absence of manifest error, shall be conclusive and binding on the Borrower;
provided that the failure of the Bank to make any such entries shall not
relieve the Borrower from its obligation to pay any amount due hereunder.
Alternatively, any of Xxxxxxxx, HRH or Grenadier may request Bank (in
Bank's sole discretion in each case) to issue its irrevocable letter of credit
for the benefit of a stated beneficiary (a "Letter of Credit"), provided that no
such Letter of Credit shall have an expiration later than the Letter of Credit
Maturity Date. Borrower shall pay a fee of 1.5% per annum on each such Letter of
Credit. Any drawing made under such Letter of Credit shall automatically become
a Prime Rate Loan hereunder and, if such drawing is made after the Final
Maturity Date, such Prime Rate Loan shall be due and payable on demand.
Anything in this Note to the contrary notwithstanding, no Loan shall be
made hereunder and no Letters of Credit shall be issued hereunder if, as a
result thereof, the aggregate unpaid principal balance of all Loans made by the
Bank to the undersigned hereunder plus the aggregate undrawn face amount of all
Letters of Credit issued hereunder and the aggregate unreimbursed amount of all
drafts drawn under Letters of Credit issued hereunder would exceed $3,000,000.
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INTEREST
(a) Each LIBOR Loan shall bear interest, for each Interest Period,
at a rate per annum equal to 2.00% above the Adjusted LIBOR Rate.
(b) Each Prime Rate Loan shall bear interest, at the rate per annum
for each day equal to .5% above the Prime Rate.
(c) If the principal indebtedness evidenced hereby is declared
immediately due and payable by the Bank pursuant to the provisions of this
Note, or if the Loans are not paid in full on the Maturity Date, the Borrower
shall thereafter, unless and until such date, if any, as the Bank may elect, in
its sole and absolute discretion, to waive in writing, all or any portion of
such interest, pay interest on the principal sum then remaining unpaid from the
date of such declaration or the Maturity Date, as the case may be, until the
date on which the principal sum then outstanding is paid in full (whether before
or after judgment), at a rate per annum (calculated for the actual number of
days elapsed on the basis of a 360-day year) equal to the greater of 20% or 5%
in excess of the Prime Rate, provided, however, that such interest rate shall
in no event exceed the maximum interest rate which the Borrower may by law pay.
In addition, if all or any portion of the indebtedness, whether of principal,
interest, additional interest or other sum (if any) payable under this Note is
not paid within ten (10) days after the date on which it is due, the Borrower
shall pay to the Bank on demand an amount equal to 3% of such unpaid portion as
a late payment charge. It is hereby expressly agreed that such late charge is
to compensate the Bank for costs incurred in connection with the administration
of such default, and does not constitute a penalty.
INCREASED COST
If at any time after the date hereof, the Board of Governors of the Federal
Reserve System or any political subdivision of the United States of America or
any other government, governmental agency or central bank shall impose or
modify any reserve or capital requirement on or in respect of loans made by or
deposits with the Bank or shall impose on the Bank or the Eurocurrency market
any other conditions affecting Loans, and the result of the foregoing is to
increase the cost to (or, in the case of Regulation D, to impose a cost on) the
Bank of making or maintaining any Loan or to reduce the amount of any sum
receivable by such Bank in respect thereof, by an amount deemed by the Bank to
be material, then, within 30 days after notice and demand by the Bank, the
Borrower shall pay to the Bank such additional amounts as will compensate the
Bank for such increased cost or reduction. A certificate of the Bank claiming
compensation hereunder and setting forth the additional amounts to be paid to
it hereunder and the method by which such amounts were calculated shall be
conclusive in the absence of manifest error.
CAPITAL ADEQUACY
If the Bank shall have determined that the applicability of any law, rule,
regulation or guideline adopted pursuant to or arising out of the July 1988
report of the Basle Committee on Banking Regulations and Supervisory Practices
entitled "International Convergence of Capital Measurement and Capital
Standards", or the adoption after the date hereof of any other law, rule,
regulation or guideline regarding capital adequacy, or any change in any of the
foregoing or in the interpretation or administration of any of the foregoing by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Bank (or any
lending office of the Bank) or the Bank's holding company with any request or
directive regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank or comparable agency, has or
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would have the effect of reducing the rate of return on the Bank's capital or
on the capital of the Bank's holding company, if any, as a consequence of its
obligations hereunder to a level below that which the Bank or the Bank's
holding company could have achieved but for such adoption, change or compliance
(taking into consideration the Bank's policies and the policies of such Bank's
holding company with respect to capital adequacy) by an amount deemed by the
Bank to be material, then from time to time the Borrower shall pay to the Bank
such additional amount or amounts as will compensate the Bank or the Bank's
holding company for any such reduction suffered.
INDEMNITY
---------
The Borrower shall indemnify the Bank against (I) any loss or expense which the
Bank may sustain or incur as a consequence of the occurrence of any Event of
Default and (ii) any loss or expense sustained or incurred including without
limitation, in connection with obtaining, liquidating or employing deposits
from third parties as a consequence of the payment of any principal of any Loan
by the Borrower (pursuant to demand, a default, change in legality or
otherwise) on any day other than the last day of an Interest Period, or the
failure by the Borrower to prepay any Loan or part thereof once notice has been
given. The Bank shall provide the Borrower a statement, supported where
applicable by documentary evidence, explaining the amount of any such loss or
expense, which statement shall be conclusive absent manifest error.
CHANGE IN LEGALITY
------------------
(a) Notwithstanding anything to the contrary contained elsewhere in
this Note, if any change after the date hereof in any law or regulation or in
the interpretation thereof by any governmental authority charged with the
administration thereof shall make it unlawful (based on the opinion of any
counsel, whether in-house, special or general, for the Bank) for the Bank to
make or maintain any Loan or to give effect to its obligations as contemplated
hereby with respect to any Loan, then, by written notice to the Borrower by the
Bank, the Bank may require that all outstanding Loans made by it be converted
to Prime Rate Loans, whereupon all such Loans shall be automatically converted
to Prime Rate Loans as of the effective date of such notice as provided in
paragraph (b) below. In addition, upon receipt of such notice by the Bank, the
Borrower shall be prohibited from requesting LIBOR Loans from the Bank unless
such declaration is subsequently withdrawn and the Bank agrees to withdraw any
such declaration if and to the extent that the making and maintenance by the
Bank of its LIBOR Loans shall cease to be unlawful.
(b) For purposes of this Section, a notice to the Borrower by the Bank
pursuant to paragraph (a) above shall be effective, if lawful and if any Loans
shall then be outstanding, on the last day of the then current Interest Period;
otherwise, such notice shall be effective on the date of receipt by the
Borrower.
REPRESENTATIONS AND WARRANTIES
------------------------------
Each entity constituting the Borrower represents and warrants to the
Bank that:
(a) The execution, delivery and performance by it of this Note and the
borrowings hereunder will not violate any indenture, agreement or other
instrument to which it is a party, or by which it or any of its property is
bound, and will not be in conflict with, result in a breach of or constitute
(with due notice and/or lapse of time) a default under, any such indenture,
agreement or other instrument, or result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any of its property
or assets other than as contemplated by this Note.
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This Note constitutes the valid and binding obligations of each such
entity enforceable against such entity Borrower in accordance with its terms.
This Note has been duly authorized by all necessary corporate action of each of
the entities constituting the Borrower.
(b) Each of the entities constituting Borrower has heretofore
furnished to the Bank complete financial statements prepared as of December 31,
1994 together with a schedule of contingent liabilities and guaranties. Each
such entity has also furnished to the Bank balance sheets, cash flow statements
(actual and pro forma), projections and other financial documents with respect
to assets and liabilities. Such financial statements and other financial
information and documents are correct and complete and fairly present the
financial condition of such entity as of such date and there has been no
material adverse change in the financial condition of such entity since
December 31, 1994.
(c) Each of the entities constituting Borrower has filed or caused to
be filed all Federal, state and local tax returns which are required to be
filed, and has paid or has caused to be paid all taxes as shown on said returns
or on any assessment received by such entity to the extent that such taxes have
become due.
(d) Each of the entities constituting Borrower has good and marketable
title solely in its name to its material properties and assets reflected on the
financial statements referred to above, and all such properties and assets are
free and clear of mortgages, pledges, liens, charges and other encumbrances,
except any such encumbrances that do not materially interfere with the use or
operation of such property or assets and except as required or permitted by the
provisions hereof or in writing by the Bank.
(e) (i) There are no actions, suits or proceedings (whether or not
purportedly on its behalf) pending or, to its knowledge, threatened against or
affecting any entity constituting Borrower at law or in equity or before or by
any Federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, which involve
any of the transactions contemplated herein or which, if adversely determined
against it would result in any materially adverse change in its properties or
assets or in its condition, financial or otherwise; and (ii) such entity is not
in default with respect to any judgment, writ, injunction, decree, rule or
regulation of any court or Federal, state, municipal or other governmental
department, omission, board, bureau, agency or instrumentality, domestic or
foreign, which would have a materially adverse effect on its condition
(financial or otherwise).
(f) Each entity constituting Borrower is not a party to any agreement
or instrument or subject to any judgment, order, writ, injunction, decree or
regulation materially and adversely affecting its properties or assets,
operations or condition (financial or otherwise). Such entity is not in default
in any manner which would materially and adversely affect its properties or
assets, or condition (financial or otherwise) in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any
agreement or instrument to which it is a party.
(g) No part of any proceeds of any Loan will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, (I) to
purchase or to carry margin stock (as defined in Regulation U specified below)
or to extend credit to others for the purpose of purchasing or carrying margin
stock, or to refund indebtedness originally incurred for such purpose, or (ii)
for any purpose which violates or is inconsistent with the provisions of
Regulations G, T, U, or X of the Board of Governors of the Federal Reserve
System.
(h) All of the information which is required to be delivered to the
Bank is correct and accurate.
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CONDITIONS OF LENDING
-----------------------
The Bank shall not consider lending hereunder unless the following
conditions precedent have been met:
(a) The Bank shall have received this Note duly executed by the
Borrower.
(b) The representations and warranties contained herein shall be true
and correct on and as of the date of any request for a Loan as though made on
and as of such date and no Event of Default or event which, with the giving of
notice or lapse of time or both would constitute an Event of Default, shall
have occurred and be continuing after giving effect to any requested Loan. Each
request for a Loan hereunder shall be deemed to be a representation by the
Borrower that the conditions set forth in this paragraph (c) have been fully
complied with as of the date of such request.
(c) The Bank shall have received a certificate executed by the Chief
Financial Officer of Xxxxxxxx, HRH or Grenadier, as the case may be, that no
material adverse change has occurred in their respective financial conditions,
that there is no material pending litigation against Xxxxxxxx, HRH, Grenadier
or any other subsidiary of any of them, that Xxxxxxxx, HRH and Grenadier are in
compliance with all of their covenants hereunder and that no events of default
have occurred hereunder or under any document evidencing or relating to any
other indebtedness of any of them.
(d) The Bank shall have received such other and further information and
documentation as it may require.
(e) All documentation and all matters relating to this Note shall be
satisfactory to the Bank and its counsel.
AFFIRMATIVE COVENANT
--------------------
Each entity constituting the Borrower covenants and agrees with the
Bank that it will:
(a) Give the Bank prompt written notice of (i) any action, event or
condition which is, or with notice or lapse of time or both, would constitute,
any Event of Default, (ii) any material adverse change in the condition,
financial or otherwise, of the Borrower and (iii) any action, suit or
proceeding at law or in equity which, if adversely determined against the
Borrower on the basis of the allegations and information set forth in the
complaint or other notice of such action, suit or proceeding, or in the
amendments thereof, if any, would materially and adversely affect the
Borrower's properties, assets or condition, financial or otherwise.
(b) As soon as available, but in no event later than 60 days from the
end of each quarter (or, in the case of annual statements, within 110 days from
the end of each fiscal year) deliver to Bank accrual basis financial
statements, including an income statement, balance sheet, statement of cash
flow and schedule of accounts receivable to be collected within the succeeding
12 months (all of the foregoing including not only all entities constituting
Borrower but also Xxxxxx Corporation), certified by the chief financial officer
of Xxxxxxxx.
(c) Deliver to Bank copies of all registration statements and any
amendments filed with the Securities and Exchange Commission and all quarterly
and annual reports, registrations statements and all other material filings
with the Securities and Exchange Commission or any national securities exchange
within 15 days after delivery to
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the Securities and Exchange Commission. Xxxxxxxx shall also cause all reports
or written information sent to the shareholders of Xxxxxxxx to be promptly
delivered to Bank.
NEGATIVE COVENANTS
------------------
Each entity constituting the Borrower covenants and agrees with the
Bank that it will not, and it will not permit any subsidiary to, directly or
indirectly:
(a) Incur, create, assume or suffer to exist any mortgage, pledge,
lien, charge or other encumbrance of any nature whatsoever (including
conditional sales or other title retention agreements except relating to
purchases of equipment or supplies made in the ordinary course of business) on
any of its assets now or hereafter owned, without the prior written consent of
the Bank; provided, however, that Xxxxxx Corporation shall not be subject to
these prohibitions; and provided, further, that Xxxxxxxx may place non-recourse
mortgages on its real property in connection with any permitted non-recourse
financing.
(b) Assume or suffer to exist or otherwise become liable in respect of
any other indebtedness or liability, contingent or otherwise, evidenced by
notes, guarantees, bonds, debentures, or similar obligations, or accept any
deposits or make any loans or advances of any kind, without the prior written
consent of the Bank, other than indebtedness incurred by HRH in connection with
the obtaining of performance and/or surety bonds necessary in the ordinary
course of HRH's business or indebtedness incurred by HRH or Grenadier to enable
it to carry on its day-to-day operations, but in no event shall indebtedness or
liability, contingent or otherwise, for borrowed money be permitted; provided,
however, that Levite Corporation shall not be subject to these prohibitions;
and provided, further, that Xxxxxxxx shall be permitted to obtain non-recourse
mortgage loans so long as such loan does not exceed the value of the collateral
for such loan; and provided, further, that Xxxxxxxx may issue guarantees of any
permitted indebtedness of HRH; and provided further, that Xxxxxxxx may
guarantee loans of project/development related debt of any wholly owned
subsidiary engaged in the development of real property so long as such
guaranteed loan does not exceed the lesser of (i) 75% of the cost of such
development project or (ii) 75% of the appraised value of such development
project; but Xxxxxxxx may not issue any guarantees of permitted indebtedness of
Xxxxxx Corporation.
(c) Purchase or hold beneficially any stock, other securities or
evidences of indebtedness of, make or permit to exist any loans or advances to,
or make any investment to acquire any interest whatsoever in, any other person,
without the prior written consent of the Bank, other than any such investments
existing on the date hereof or any such transaction with any existing or new
wholly owned subsidiary.
(d) Sell, lease, transfer or otherwise dispose of all or a substantial
portion of its properties and assets.
(e) Sell, transfer or otherwise dispose of any ownership interest in
any existing subsidiary.
(f) Declare dividends in excess (on an annual basis) of the net income
after taxes of the entity declaring such dividends other than dividends payable
to any of the entities constituting Borrower.
EVENTS OF DEFAULT
-----------------
In the case of the happening of any of the following events (herein
called "Events of Default"):
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(a) any representation or warranty made herein shall prove to be
false or misleading in any material respect when made or given or when deemed
made or given;
(b) any report, certificate, financial statement or other instrument
furnished in connection with this Note or any borrowing hereunder, shall prove
to be false or misleading in any material respect when deemed made or given;
(c) default shall occur in the payment of the principal of or
interest on or any fees under this Note as and when due and payable;
(d) default shall be made in respect of any other indebtedness of
any entity constituting the Borrower, or any subsidiary of any entity
constituting Borrower, of any kind, to any person, or in the performance of any
other obligation incurred in connection with any such indebtedness, if the
effect of such default is to accelerate the maturity of such indebtedness or to
permit (or, with the giving of notice or lapse of time or both, to permit) the
holder or obligee thereof (or a trustee on behalf of such holder or obligee) to
cause any such indebtedness to become due prior to the stated maturity thereof,
or any such indebtedness shall not be paid when due; provided, however, that
default under any non-recourse indebtedness permitted hereunder shall not be a
default hereunder provided such default is, in Bank's determination, not a
material adverse change for subsidiary;
(e) default shall be made under any contractual obligation of any
entity constituting Borrower, or any subsidiary of any entity constituting
Borrower if such default is, in Bank's determination, a material adverse change
for such entity;
(f) default shall be made in the due observance or performance of
any covenant, condition or agreement of any entity constituting the Borrower to
be observed or performed pursuant to the terms of this Note or any related
document;
(g) any of the entities constituting the Borrower (or any
subsidiary of such entity) shall become insolvent (however such insolvency may
be evidenced) or proceedings are instituted by or against such entity under the
United States Bankruptcy Code or under any bankruptcy, reorganization or
insolvency law or other law for the relief of debtors;
(h) there shall be a material adverse change, in the Bank's
determination, in the financial condition of any of the entities constituting
the Borrower;
then, the Note, and all amounts accrued hereunder shall automatically become
due and payable, both as to principal and interest, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived, anything contained herein to the contrary notwithstanding. In addition
to and not in limitation of any or all rights of offset that the Bank may have
under applicable law, the Bank shall, upon the occurrence of any Event of
Default and whether or not the Bank has made any demand or the Borrower's
obligations are matured, have the right to appropriate and apply to the payment
of the Borrower's obligations hereunder, all deposits (general or special, time
or demand, provisional or final) then or thereafter held by and other
indebtedness or property then or thereafter owing by the Bank, whether or not
related to this Note or any transaction hereunder.
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PREPAYMENT
----------
(a) The Borrower shall have the right (i) at any time and from time
to time to prepay any Prime Rate Loan in full, or in part, without penalty and
(ii) to prepay any LIBOR Loan in full, or in part, on the last day of the
Interest Period relating to such Loan, without penalty. If any LIBOR Loan is
not prepaid, it shall be automatically be converted to a Prime Rate Loan. Any
prepayment of a LIBOR Loan on a day other than the last day of the Interest
Period elating to such Loan shall be in full, and upon at least three (3)
business Days' prior written notice to the Bank, and shall be subject to the
penalty provisions of paragraph (b) of this Section. A notice of prepayment
shall specify the prepayment date (which shall be a Business Day) and the
principal amount to be prepaid, shall be irrevocable and shall commit the
Borrower to prepay the Loan in full on the date and in the amount stated
therein. Each prepayment hereunder shall be accompanied by accrued interest on
the principal amount of the Loan to the date of prepayment.
(b) The Borrower shall reimburse the Bank on demand for any loss
incurred or to be incurred by it in the reemployment of the funds released by
any prepayment of any Loan permitted under this Section. Such loss shall be the
difference as reasonably determined by the Bank between the cost of obtaining
the funds for such Loan and any lesser amount which may be realized by the Bank
in reemploying the funds received in prepayment during the period from the date
of prepayment to the maturity date of the Loan.
DEFINITIONS
-----------
A. ADJUSTED LIBOR RATE
-------------------
"Adjusted LIBOR Rate" shall mean, with respect to any Loan for
an Interest Period, an interest rate per annum equal to the
product of (i) the LIBOR Rate in effect for such Interest Period
and (ii) Statutory Reserves.
"LIBOR Rate" shall mean, with respect to any Loan for any
Interest Period, the rate (rounded upwards, if necessary, to the
next 1.16 of 1%) at which dollar deposits approximately equal in
principal amount to such Loan and for the maturity equal to the
applicable Interest Period are offered by the Bank in
immediately available funds in the London interbank market at
approximately 11:00 a.m., New York City time, three Business
Days prior to the commencement of such Interest Period.
For so long as any Loan hereunder shall bear interest at the
Adjusted LIBOR Rate such Loan shall be deemed a LIBOR Loan.
B. BUSINESS DAY
------------
A "Business Day" shall mean any day other than a Saturday, Sunday or
other day on which the Bank is authorized or required by law or regulation to
close, and which is a day on which transactions in dollar deposits are being
carried out in London.
C. FINAL MATURITY DATE
-------------------
"Final Maturity Date" shall mean November 13, 1996.
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D. INTEREST PAYMENT DATE
"Interest Payment Date" shall mean as to all Loans the first day
of each calendar month.
E. INTEREST PERIOD
"Interest Period" shall mean for each LIBOR Loan, the period
commencing on the date of such Loan or, as appropriate,
commencing on the last day of the immediately preceding Interest
Period for such Loan, and ending on the numerically
corresponding day (or if there is no numerically corresponding
day, the last day) in the calendar month that is 1, 2 or 3
months thereafter, as the Borrower, provided, however, that (i)
if any Interest Period would end on a day which shall not be a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, with respect to LIBOR Loans,
such next succeeding Business Day would fall in the next
calendar month, in which case (x) such Interest Period shall end
on the first preceding Business Day and (y) the Interest Period
for any continuation of such LIBOR Loan shall end on the last
Business Day of a calendar month; and (ii) no Interest Period
may be selected that expires later than the Final Maturity
Date.
F. LETTER OF CREDIT MATURITY DATE
May 12, 1997.
G. LOAN
"Loan" shall mean each borrowing by the Borrower pursuant to the
terms hereof.
H. PRIME RATE
"Prime Rate" shall mean the interest rate announced to be in
effect by the Bank from time to time as its prime rate.
I. STATUTORY RESERVES
Statutory Reserves shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate of
the maximum reserve percentages, expressed as a decimal
(including, without limitation, any marginal, special,
emergency supplemental reserves) from time to time in effect
under Regulation D or as otherwise established by the board of
Governors of the Federal Reserve System and any other banking
authority to which the Bank is subject for Eurocurrency
Liabilities (as deemed in Regulation D). LIBOR Loans shall be
deemed to constitute Eurocurrency Liabilities and as such shall
be deemed to be subject to such reserve requirements without
benefit of or credit for proration, exceptions or offsets which
may be available from time to time to the Bank under such
Regulation D. Statutory reserves shall be adjusted automatically
on and as of the effective date of any change in any reserve
percentage.
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EXPENSES OF THE BANK
The Borrower will pay all reasonable out-of-pocket expenses incurred by
the Bank in connection with the preparation, amendment or waiver of
this Note (whether or not the transactions hereby contemplated shall be
consummated), the making of the Loans hereunder, the enforcement of the rights
of the Bank in connection with this Note, or with the Loans made hereunder,
and with respect to any action which may be instituted by any person against
the Bank in respect of the foregoing or as a result of any transaction, action
or nonaction arising from the foregoing, including, but not limited to the fees
and disbursements of counsel to the Bank.
WAIVER OF RIGHTS
Neither any failure nor any delay on the part of the Bank in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall a single or partial exercise thereof preclude any other or further
exercise of any other right, power or privilege. The Borrower waives any right
it may have to claim or recover in any litigation with respect to this Note any
special, exemplary, punitive or consequential damages or any damages other
than, or in addition to, actual damages. The Borrower (I) certifies that no
representative, agent or attorney of the Bank has represented, expressly or
otherwise, that the Bank would not, in the event of litigation, seek to enforce
the foregoing waivers or the other waivers contained in this Note and (ii)
acknowledges that the Bank has been induced to enter into this Note by, among
other things, the waivers and certifications herein.
JOIN AND SEVERAL LIABILITY
The obligations and liabilities hereunder of the entities constituting.
Borrower are joint and several.
JURISDICTION AND GOVERNING LAW
IN THE EVENT OF ANY LITIGATION WITH RESPECT TO THIS NOTE OR THE LOANS,
THE BORROWER WAIVES THE RIGHT TO A TRIAL BY JURY AND ALL RIGHTS OF SETOFF AND
RIGHTS TO INTERPOSE COUNTER-CLAIMS AND CROSS-CLAIMS. THE BORROWER HEREBY
IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
LOCATED IN THE CITY OF NEW YORK AND OF ANY FEDERAL COURT LOCATED IN SUCH CITY
AND STATE IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS NOTE OR THE LOANS. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED IN SUCH STATE, AND SHALL BE BINDING UPON THE SUCCESSORS AND
ASSIGNS OF THE BORROWER AND TO THE BENEFIT OF THE BANK, ITS SUCCESSORS,
ENDORSEES AND ASSIGNS.
XXXXXXXX
CORPORATION
By_____________________________
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HRH CONSTRUCTION
CORPORATION
By_______________________
GRENADIER REALTY CORP.
By_______________________
GRID SCHEDULE
AMOUNT AMOUNT
DATE: TYPE OF OF PRINCIPAL INTEREST MATURITY
LOAN LOAN PREPAID RATE DATE
---- ---- ------- ---- ----
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GUARANTY OF SPECIFIC OBLIGATIONS
November 28, 1995
New York, New York
WHEREAS, GRENADIER REALTY CORP., a New York corporation (hereinafter the
"Borrower") performs various real property management services from time to
time for numerous entities which own real estate and which engage the
Borrower's services from time to time pursuant to specific property management
agreement respecting the properties so managed (each a "Property Owner" and
collectively the "Property Owners"); and
WHEREAS, in connection with the rendition of said services, Xxxxxxxx has
occasion from time to time to open and maintain an agency capacity on behalf of
each Property Owner various demand deposit accounts with CHEMICAL BANK, a New
York banking corporation (hereinafter the "Bank"), and to request and obtain
certain financial accommodations from the Bank arising therefrom all as more
specifically set forth below; and
WHEREAS, the Borrower is a wholly owned subsidiary of the undersigned and shall
derive a benefit from the extension of those financial accommodations to the
Borrower; and
WHEREAS, the Bank is unwilling to extend such financial accommodations to the
Borrower unless and until it receives, among other things, this guaranty of the
undersigned;
NOW, THEREFORE, in consideration of the premises and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and in order to induce the Bank from time to time to extend, in its sole
discretion, financial accommodations to the Borrower in the form of honoring
overdrafts or other liabilities created from time to time by the Borrower
arising out of or in connection with the establishment and administration of
various demand deposit accounts created from time to time with the Bank by the
Borrower in its agency capacity in connection with the performance of its
property management services for the Property Owners together with any and all
interest and premiums thereon, any and all costs and expenses related thereto,
including without limitation any renewals, extensions or modifications thereof,
any and all costs of collection associated therewith, as well as any reasonable
attorneys fees and expenses incurred in connection therewith (all of the
foregoing are hereinafter collectively called the "Guaranteed Obligations"),
the undersigned hereby guarantees to the Bank the prompt, absolute and
unconditional payment of the Guaranteed Obligations.
In order to further secure the payment of the Guaranteed Obligations,
the undersigned does hereby give the Bank a continuing lien and right of
set-off for the amount of the Guaranteed Obligations upon any and all moneys,
securities and any and all other property of the undersigned and the proceeds
thereof, now or hereafter actually or constructively held or received by or in
transit in any manner to or from the Bank, Chemical Securities, Inc., or any
other affiliate of the Bank from or for the undersigned, whether for
safekeeping, custody, pledge, transmission, collection or otherwise. The Bank
is also given a continuing lien and right of set-off for the amount of said
Guaranteed Obligations upon any and all deposits (general and special) and
credits of, or for the benefit of the undersigned with, and any and all claims
of the undersigned against the Bank, Chemical Securities, Inc., or any other
affiliate of the Bank at any time existing, and the Bank is hereby authorized
at any time or times, without prior notice, to apply such deposits or credits,
or any part thereof, to such Guaranteed Obligations, although said Guaranteed
Obligations may be contingent or unmatured, and whether the collateral security
therefor is deemed adequate or not.
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The undersigned agrees that, with or without notice or demand, the
undersigned shall reimburse the Bank for all Bank expenses (including
reasonable fees of counsel for the Bank who may be employees thereof) incurred
in connection with any of the Guaranteed Obligations or the collection thereof.
This guaranty is a continuing guaranty and shall remain in full force and
effect irrespective of any interruptions in the business relations of the
Borrower with the Bank; provided, however, that the undersigned may by notice
in writing, delivered personally or received by certified mail, return receipt
requested, addressed to the Bank's office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Real Estate Finance Group, terminate this guaranty with
respect to all Guaranteed Obligations incurred or contracted by the Borrower or
acquired by the Bank after the date on which such notice is so delivered or
received.
All moneys available to the Bank for application in payment or
reduction of the Guaranteed Obligations may be applied by the Bank in such
manner and in such amounts and at such time or times as it may see fit to the
payment or reduction of such of the Guaranteed Obligations as the Bank may
elect.
The undersigned hereby waives (a) notice of acceptance of this guaranty
and of extensions of credit or other financial accommodations by the Bank to
the Borrower; (b) presentment and demand for payment of any of the Guaranteed
Obligations; (c) protest and notice of dishonor or default to the undersigned
or to any other party with respect to any of the Guaranteed Obligations; (d) all
other notices to which the undersigned may otherwise be entitled; and (e) any
demand for payment hereunder.
The undersigned covenants that (a) this guaranty is a valid and binding
obligation of the undersigned enforceable in accordance with its terms; (b) the
execution, delivery and performance of this guaranty will not violate any
provisions of law, regulation, judgment or any other document or agreement to
which the undersigned is a party or by which its assets are bound and (c) no
consent of any other person or entity is required in connection with the
execution, delivery, performance, validity or enforceability of this guaranty.
All liabilities of the undersigned to the Bank hereunder or otherwise,
whether or not then due or absolute or contingent, shall upon notice and demand
become due and payable immediately upon the occurrence of any default or event
of default with respect to any Guaranteed Obligations (or the occurrence of
any other event which results in acceleration of the maturity of any thereof) or
the occurrence of any default hereunder. This is a guaranty of payment and not
of collection, and the undersigned further waives any right to require that any
action be brought against the Borrower or any other person or to require that
resort be had to any security or to any balance of any deposit account or credit
on the books of the Bank in favor of the Borrower or any other person.
The undersigned hereby consents that from time to time, before or after
any default by the Borrower or any notice of termination hereof, with or
without further notice to or assent from the undersigned, any security at any
time held by or available to the Bank for any obligation of the Borrower, by
any security at anytime held by or available to the Bank for any obligation of
any other person secondarily or otherwise liable for any of Guaranteed
Obligations, may be exchanged, surrendered or released and any obligation of
the Borrower, or of any such other person, may be changed, altered, renewed,
extended, continued, surrendered, compromised, waived, discharged or released
in whole or in part (including without limitation any such event resulting from
any insolvency, bankruptcy, reorganization or other similar proceeding
affecting the Borrower or its assets) or any default with respect thereto
waived, and the Bank may fail to set off and may release, in whole or in part,
any balance of any deposit account or credit on the Bank's books in favor of the
Borrower, or of any such other person, and may extend further credit in any
manner whatsoever to the Borrower, and generally deal or take action or no
action with regard to the Borrower or any such security or other person as the
Bank may see fit; and the undersigned shall remain bound under this
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guaranty notwithstanding any such exchange, surrender, release, change,
alteration, renewal, extension, continuance, compromise, waiver, discharge,
inaction, extension or further credit or other dealing.
The obligations of the undersigned are absolute and unconditional and
are valid irrespective of any other agreement or circumstance which might
otherwise constitute a defense to the obligations hereunder or to the
obligations of others related thereto and the undersigned irrevocably waives the
right to assert defenses, set-offs and counterclaims in any litigation relating
to this guaranty and/or the Guaranteed Obligations. This guaranty sets forth the
entire understanding of the parties, and the undersigned acknowledges that no
oral or other agreements, conditions, promises, understandings, representations
or warranties exit in regard to the obligation hereunder, except those
specifically set forth herein.
The undersigned irrevocably waives and shall not seek to enforce or
collect upon any rights which it now has or may acquire against the Borrower,
either by way of subrogation, indemnity, reimbursement or contribution, or any
other similar right, for any amount paid under this guaranty or by way of any
other obligations whatsoever of the Borrower to the undersigned. In the event
either a petition is filed under the Bankruptcy Code in regard to the Borrower
or an action or proceeding is commenced for the benefit of the creditors of the
Borrower, this agreement shall at all times thereafter remain effective in
regard to any payments or other transfers of assets to the Bank received from or
on behalf of the Borrower prior to notice of termination of this guaranty and
which are or may be held voidable or otherwise subject to recision or return on
the grounds of preference, fraudulent conveyance or otherwise, whether or not
the Guaranteed Obligations have been paid in full.
Each reference herein to the Bank shall be deemed to include its
successors and assigns, in which favor the provisions of this guaranty shall
also inure. Each reference herein to the undersigned shall be deemed to include
the successors and assigns of the undersigned, all of whom shall be bound by
the provisions of this guaranty.
No delay on the part of the Bank in exercising any rights hereunder or
failure to exercise the same shall operate as a waiver of such rights; no
notice to or demand on the undersigned shall be deemed to be a waiver of the
obligation of the undersigned or of the right of the Bank to take further
action without notice or demand as provided herein; nor in any event shall any
modification or waiver of the provisions of this guaranty be effective unless
in writing signed by an authorized officer of the Bank nor shall any such waiver
be applicable except in the specific instance for which given.
This guaranty is, and shall be deemed to be, a contract entered into
under and pursuant to the laws of the State of New York and shall be in all
respects governed, construed, applied and enforced in accordance with the laws
of said State; and no defense given or allowed by the laws of any other State
or Country shall be interposed in any action hereon unless such defense is
also given or allowed by the laws of the State of New York.
The undersigned hereby unconditionally WAIVES ANY RIGHT TO JURY TRIAL
in connection with actions by or against the Bank arising out of or in
connection with the Guaranteed Obligations and/or this guaranty.
XXXXXXXX CORP.
Name of Guarantor (Type or Print)
By
---------------------------------
Title: President
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CORPORATE SEAL
STATE OF )
) SS
COUNTY OF )
On this day of 28 day of November, 1995, before me personally came to me known,
who, being by me duly sworn, did depose and say that he/she is of the
corporation described in and which executed the above instrument; that he/she
knows the seal of said corporation, that the seal affixed to said instrument is
such corporate seal; that it was so affixed by order of the board of directors
of said corporation, and that he/she signed his name thereto by like order.
Notary Public
Public, State of New York
Qualified In New York County
Commission Expires June 30, 1997
