Exhibit 2
[M&T BANK LOGO]
LIBOR TERM NOTE
PENNSYLVANIA
October 23, 2003 $6,600,000.00
BORROWER: X. XXXXXX XXXXXXXXXX,
an [X] individual [ ] partnership [ ] corporation [ ] trust ____________________
organized under the laws of _________________ Address of residence: c/o Bon Ton
Stores, Inc., 0000 Xxxx Xxxxxx Xxxxxx, Xxxx, Xxxxxxxxxxxx 00000.
BANK: MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking corporation
with banking offices at Xxx X&X Xxxxx, Xxxxxxx, Xxx Xxxx 00000.
Attention: Office of General Counsel
1. DEFINITIONS. As used in this Note, each capitalized term shall have the
meaning specified in the Note or as it appears in initial capitalization.
Additionally, the following terms shall have the indicated meanings:
a. "APPLICABLE RATE" shall mean either the LIBOR Rate or the Base
Rate, as the case may be.
b. "ADJUSTMENT DATE", when applicable, shall mean:
(i) If the Interest Period duration selected below is
"one day": the first day of the applicable Interest
Period (or, if such date is not a Business Day, the
immediately preceding Business Day).
(ii) If the Interest Period duration selected below is
other than "one day": two (2) Business Days before
the first day of the applicable Interest Period (each
of which shall have a duration as selected below; see
LIBOR Rate definition).
c. "BASE RATE" shall mean one (1) percentage point above the rate
of interest announced by the Bank as its prime rate of
interest.
d. "BUSINESS DAY" shall mean any day of the year on which banking
institutions in New York, New York are not authorized or
required by law or other governmental action to close and, to
the extent the LIBOR Rate is applicable, on which dealings are
carried on in the London interbank market.
e. "CONTINUATION DATE" shall mean the last day of each Interest
Period.
f. "INTEREST PERIOD" shall mean, as to the LIBOR Rate, the period
commencing on the date of this Note or Continuation Date (as
the case may be) and ending on the date that shall be:
(i) If the Interest Period duration selected below is
"one day": the following day; provided, however, that
if an Interest Period would end on a day that is not
a Business Day, such Interest Period shall be
extended to the next succeeding Business Day.
(ii) If the Interest Period duration selected below is
other than "one day": the numerically corresponding
day (or, if there is no numerically corresponding
day, on the last day) of the calendar month that is
one (1), two (2), three (3) or six (6) months
thereafter (as selected below); provided, however,
that if an Interest Period would end on a day that is
not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless
such next succeeding Business Day would fall in the
next calendar month, in which case such Interest
Period shall end on the immediately preceding
Business Day.
g. "LIBOR" shall mean the rate obtained by dividing (i) the
one-day, one-month, two-month, three-month or six-month
interest period London Interbank Offered Rate (as selected
below), fixed by the British Bankers Association for United
States dollar deposits in the London Interbank Eurodollar
Market at approximately 11:00 a.m. London, England time (or as
soon thereafter as practicable) as determined by the Bank from
any broker, quoting service or commonly available source
utilized by the Bank by (ii) a percentage equal to 100% minus
the stated maximum rate of all reserves required to be
maintained against "Eurocurrency Liabilities" as specified in
Regulation D (or against any other category of liabilities
which includes deposits by reference to which the interest
rate on LIBOR Rate loans is determined or any category of
extensions of credit or other assets which includes loans by a
non-United States' office of a bank to United States
residents) on such date to any member bank of the Federal
Reserve System.
h. "LIBOR RATE" shall mean 225 basis points above LIBOR with an
Interest Period duration of:
[X] one day [ ] one month [ ] two months [ ] three months
[ ] six months.
(Select applicable duration for each Interest Period. If no
selection is made, the one-day Interest Period duration shall
apply).
i. "MATURITY DATE" is the Payment Due Date in October 23, 2006.
j. "PAYMENT DUE DATE", when applicable, shall mean the same day
of the calendar month as the date of this Note (or if there is
no numerically corresponding day in a month, on the last day
of such month); provided, however, if that day is not a
Business Day, the Payment Due Date shall be extended to the
next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which
case such Payment Due Date shall be the immediately preceding
Business Day.
k. "PRINCIPAL AMOUNT" shall mean Six Million Six Hundred Thousand
Dollars ($6,600,000.00).
(C) Manufacturers and Traders Trust Company, 2003
1
2. PAYMENT OF PRINCIPAL, INTEREST AND EXPENSES.
a. PROMISE TO PAY. For value received and intending to be legally
bound, Borrower promises to pay to the order of the Bank on the dates set forth
below, the Principal Amount, plus interest as agreed below and all fees and
costs (including without limitation attorneys' fees and disbursements whether
for internal or outside counsel) the Bank incurs in order to collect any amount
due under this Note, to negotiate or document a workout or restructuring, or to
preserve its rights or realize upon any guaranty or other security for the
payment of this Note ("Expenses").
b. INITIAL APPLICABLE RATE. The initial Applicable Rate shall be
the LIBOR Rate (based on the Interest Period duration selected above) in effect
on the date that is:
(i) If the Interest Period duration selected
above is "one day": the date of this Note
(or, if such date is not a Business Day, the
immediately preceding Business Day ).
(ii) If the Interest Period duration selected
above is other than "one day": two (2)
Business Days before the date of this Note.
In either case, the initial Interest Period shall start on the date of this
Note.
c. INTEREST. Interest shall accrue on the outstanding Principal
Xxxxxx calculated on the basis of a 360-day year for the actual number of days
of each year (365 or 366) at the Applicable Rate that on each day shall be:
i. IF THE LIBOR RATE IS THE APPLICABLE RATE. Interest
shall accrue on the Principal Amount from and
including the first day of the Interest Period (with
the duration selected above) until, but not
including, the last day of such Interest Period or
the day the Principal Amount is paid in full (if
sooner), at a rate per annum equal to the LIBOR Rate
determined and in effect on the applicable Adjustment
Date.
ii. IF THE BASE RATE IS THE APPLICABLE RATE. Interest
shall accrue on the Principal Amount from and
including the first date the Base Rate is the
Applicable Rate to but not including, the day such
Principal Amount is paid in full or the Applicable
Rate is converted to the LIBOR Rate, at the rate per
annum equal to the Base Rate. Any change in the Base
Rate resulting from a change in the Bank's prime rate
shall be effective on the date of such change.
d. PAYMENT SCHEDULE. (Check applicable box):
[ ] Borrower shall pay the entire outstanding Principal Amount on
the Maturity Date. In addition, until the outstanding Principal Amount
is paid in full, Borrower shall pay all accrued and unpaid interest, in
amounts which may vary, as follows: (i) if the LIBOR Rate is the
Applicable Rate, on the last day of each Interest Period, (except,
however, if the Interest Period duration selected above is "one day",
in which case such interest payments shall be made on the Payment Due
Date for each month, or as otherwise invoiced by the Bank), (ii) if the
Base Rate is the Applicable Rate, on the Payment Due Date for each
month, and (iii) at maturity (whether by acceleration or otherwise)
and, after such maturity, on demand.
[X] Borrower shall pay interest only until October 23, 2004, then
principal and interest shall be payable in 8 quarterly payments as
follows: (i) if the Interest Period duration is "one day", starting on
the first Payment Due Date after the anniversary date of this Note and
on each Payment Due Date thereafter, or (ii) if the Interest Period
duration is other than "one day", starting on the last day of the
Interest Period that commences on the date of this Note and on last day
of each Interest Period thereafter; in either case, consisting of 7
equal quarterly installments of principal each in the amount of
$300,000.00, plus interest and ONE (1) FINAL INSTALLMENT on the
Maturity Date in an amount equal to the outstanding Principal Amount at
that time together with all other amounts outstanding hereunder
including, without limitation, accrued interest, costs and Expense (the
"Final Installment"); provided, however, if the Applicable Rate is
converted to the Base Rate, Borrower shall pay the outstanding
Principal Amount in consecutive monthly installments commencing on the
first Payment Due Date after the date of such conversion and on the
same Payment Due Date thereafter until conversion back to the LIBOR
Rate (at which time Borrower shall resume the monthly, bi-monthly,
quarterly or semi-annual installments in the amount set forth above or
as otherwise agreed to by the Bank and Borrower in writing) or the
Maturity Date (at which time Borrower shall pay the Final Installment)
with each such installment being equal in an amount to fully amortize
the outstanding Principal Amount of the Note in full by the Maturity
Date or such other date agreed to by the Bank and Borrower in writing.
The determination by the Bank of the foregoing amount shall, in the
absence of manifest error, be conclusive and binding upon Borrower. In
addition, until the outstanding Principal Amount is paid in full,
Borrower shall pay all accrued and unpaid interest, in amounts which
may vary, as follows: (i) if the LIBOR Rate is the Applicable Rate, on
the last day of each Interest Period (except, however, if the Interest
Period duration selected above is "one day", in which case such
interest payments shall be made on the Payment Due Date for each month,
or as otherwise invoiced by the Bank), (ii) if the Base Rate is the
Applicable Rate, on the Payment Due Date for each month, and (iii) at
maturity (whether by acceleration or otherwise) and, after such
maturity, on demand.
e. MAXIMUM LEGAL RATE. It is the intent of the Bank and Borrower
that in no event shall interest be payable at a rate in excess of the maximum
rate permitted by applicable law (the "Maximum Legal Rate"). Solely to the
extent necessary to prevent interest under this Note from exceeding the Maximum
Legal Rate, any amount that would be treated as excessive under a final judicial
interpretation of applicable law shall be deemed to have been a mistake and
automatically canceled, and, if received by the Bank, shall be refunded to
Borrower.
f. DEFAULT RATE. If an Event of Default (defined below) occurs,
the interest rate on the unpaid Principal Amount shall immediately be
automatically increased to 3 percentage points per year above the higher of the
LIBOR Rate or the Base Rate, and any judgment entered hereon or otherwise in
connection with any suit to collect amounts due hereunder shall bear interest at
such default rate.
(C) Manufacturers and Traders Trust Company, 2003
2
g. REPAYMENT OF PRINCIPAL AND INTEREST; LATE CHARGE. Payments
shall be made in immediately available United States funds at any banking office
of the Bank. Interest will continue to accrue until payment is actually
received. If payment is not received within five days of its due date, Borrower
shall pay a late charge equal to the greatest of (a) $50.00, (b) 5% of the
delinquent amount or (c) the Bank's then current late charge as announced from
time to time. If this Note is secured by a one- to six-family owner-occupied
residence, the late charge shall equal 2% of the delinquent amount and shall be
payable if payment is not received within fifteen days of its due date. Payments
may be applied in any order in the sole discretion of the Bank but, prior to
default, shall be applied first to past due interest, Expenses, late charges and
principal, then to current interest, Expenses, late charges and principal, and
last to remaining principal.
h. PREPAYMENT.
i. Subject to the following, during the term of this
Note, Borrower shall have the option of paying the
Principal Amount to the Bank in advance of the
Maturity Date, in whole or in part, at any time and
from time to time upon written notice received by the
Bank at least three (3) business days prior to making
such payment. If (i) Borrower prepays, in whole or in
part, any Principal Amount when the Applicable Rate
is the LIBOR Rate before the end of the Interest
Period, or (ii) there occurs an Event of Default or
the Applicable Rate is converted from the LIBOR Rate
to the Base Rate before the end of an Interest Period
pursuant to Section 3, then Borrower shall be liable
for and shall pay the Bank, on demand, the higher of
$250.00 or the actual amount of the liabilities,
expenses, costs or funding losses that are a direct
or indirect result of such prepayment (based on the
entire Principal Amount pre-paid), failure to draw,
early termination of the Interest Period, revocation,
bankruptcy or otherwise. The determination by the
Bank of the foregoing amount shall, in the absence of
manifest error, be conclusive and binding upon
Borrower. The provisions of this paragraph shall not
be applicable if the Interest Period duration
selected above is "one day".
ii. Upon making any prepayment of the Principal Amount in
whole, Borrower shall pay to the Bank all interest
and Expenses owing pursuant to the Note and remaining
unpaid. Each partial prepayment of the Principal
Amount shall be applied in inverse order of maturity
to the principal included in the installments
provided herein.
iii. In the event the Maturity Date is accelerated
following an Event of Default by Borrower, any tender
of payment of the amount necessary to satisfy the
entire indebtedness made after such Event of Default
shall be expressly deemed a voluntary prepayment. In
such a case, to the extent permitted by law, the Bank
shall be entitled to the amount necessary to satisfy
the entire indebtedness, plus the appropriate
prepayment premium calculated in accordance with this
Section 2(h).
iv. The prepayment premium shall not apply if the
Principal Amount of this Note is $50,000 or less and
is secured by a mortgage on Pennsylvania real
property containing two or less residential units or
on which two or fewer residential units are to be
built (including obligations on a residential
condominium unit).
3. CONTINUATIONS AND CONVERSIONS.
a. EXPIRATION OF INTEREST PERIOD. Subject to Section 3(b), upon
the expiration of the first Interest Period and each Interest Period thereafter,
on the Continuation Date the LIBOR Rate will be automatically continued with an
Interest Period of the same duration as the Interest Period duration initially
selected above.
b. CONVERSION UPON DEFAULT. Unless the Bank shall otherwise
consent in writing, if (i) Borrower has failed to pay when due, in whole or in
part, the indebtedness under the Note (whether upon maturity, acceleration or
otherwise), or (ii) there exists a condition or event which with the passage of
time, the giving of notice or both shall constitute an Event of Default, the
Bank, in its sole discretion, may (i) permit the LIBOR Rate to continue until
the last day of the applicable Interest Period at which time such the Applicable
Rate shall automatically be converted to the Base Rate or (ii) convert the LIBOR
Rate to the Base Rate before the end of the applicable Interest Period.
Notwithstanding the foregoing, upon the occurrence of an Event of Default in
Section 5(ix), the Applicable Rate shall be automatically converted to the Base
Rate without further action by the Bank and Borrower shall have no right to have
the Applicable Rate converted from the Base Rate to the LIBOR Rate. Nothing
herein shall be construed to be a waiver by the Bank to have the Principal
Amount accrue interest at the Default Rate or the right of the Bank to the
amounts set forth in Section 2(h) of this Note, if any.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. Borrower represents and
warrants to and agrees and covenants with the Bank that now and until this Note
is paid in full:
a. BUSINESS PURPOSE. The Loan proceeds shall be used only for a
business purpose and not for any personal, family or household purpose.
b. FINANCIAL AND OTHER INFORMATION. For each year until this Note
is paid in full, Borrower shall provide to the Bank in form and number, within
120 days after the end of each fiscal year of the Borrower, personal financial
statements and tax returns of the Borrower as of the fiscal year end, each in
reasonable detail and in such form as reasonably required by the Bank.
c. TITLE TO ASSETS; INSURANCE. Borrower has good and marketable
title to each of its assets free of security interests and mortgages and other
liens except as disclosed in his financial statements or on a schedule attached
to this Note or pursuant to the Bank's prior written consent. Borrower will
maintain his property in good repair and will maintain and on request provide
the Bank with evidence of insurance coverage satisfactory to the Bank including
without limitation fire and hazard, liability, worker's compensation and
business interruption insurance and flood hazard insurance as required.
d. JUDGMENTS AND LITIGATION. There is no pending or threatened
claim, audit, investigation, action or other legal proceeding or judgment, order
or award of any court, agency or other governmental authority or arbitrator
(each an "Action") which involves
(C) Manufacturers and Traders Trust Company, 2003
3
Borrower or his assets and might have a material adverse effect upon Borrower
or threaten the validity of this Note or any related document or transaction.
Xxxxxxxx will immediately notify the Bank in writing upon acquiring knowledge of
any such Action.
e. NOTICE OF CHANGE OF ADDRESS AND OF DEFAULT. Borrower will
immediately notify the Bank in writing (i) of any change in its address or of
the location of any collateral securing this Note, (ii) of the occurrence of any
Event of Default defined below, and (iii) of any material adverse change in
Borrower's ability to repay this Note.
5. EVENTS OF DEFAULT; ACCELERATION. The following constitute an event of
default ("Event of Default"): (i) failure by Borrower to make any payment when
due (whether at the stated maturity, by acceleration or otherwise) of the
amounts due under this Note, or any part thereof, or there occurs any event or
condition which after notice, lapse of time or both will permit such
acceleration; (ii) Borrower defaults in the performance of any covenant or other
provision with respect to this Note or any other agreement between Borrower and
the Bank or any of its affiliates or subsidiaries (collectively, "Affiliates");
(iii) Borrower fails to pay when due (whether at the stated maturity, by
acceleration or otherwise) any indebtedness for borrowed money owing to the Bank
(other than under this Note), any third party or any Affiliate, the occurrence
of any event which could result in acceleration of payment of any such
indebtedness or the failure to perform any agreement with any third party; (iv)
the death or judicial declaration of incompetency of Borrower, if an individual;
(v) failure to pay, withhold or collect any tax as required by law; the service
or filing against Borrower or any of its assets of any lien (other than a lien
permitted in writing by the Bank), judgment, garnishment, order or award, other
than a judgment, order or award for which Xxxxxxxx is fully insured, if ten (10)
days thereafter such judgment, order or awarded is not satisfied, vacated,
bonded or stayed pending appeal; (vi) if Borrower becomes insolvent (however
such insolvency is evidenced) or is generally not paying its debts as such debts
become due; (viii) the making of any general assignment by Borrower for the
benefit of creditors; the appointment of a receiver or similar trustee for
Borrower or its assets; or the making of any, or sending notice of any intended,
bulk sale; (viii) Borrower commences, or has commenced against it, any
proceeding or request for relief under any bankruptcy, insolvency or similar
laws now or hereafter in effect in the United States of America or any state or
territory thereof or any foreign jurisdiction or any formal or informal
proceeding for the dissolution or liquidation of, settlement of claims against
or winding up of affairs of Borrower; (ix) any representation or warranty made
in this Note, any related document, any agreement between Borrower and the Bank
or any Affiliate or in any financial statement of Borrower proves to have been
misleading in any material respect when made; Borrower omits to state a material
fact necessary to make the statements made in this Note, any related document,
any agreement between Borrower and the Bank or any Affiliate or any financial
statement of Borrower not misleading in light of the circumstances in which they
were made; or, if upon the date of execution of this Note, there shall have been
any materially adverse change in any of the facts disclosed in any financial
statement, representation or warranty that was not disclosed in writing to the
Bank at or prior to the time of execution hereof; (x) the occurrence of any
event described in sub-paragraph (i) through and including (ix) hereof with
respect to any endorser, guarantor or any other party liable for, or whose
assets or any interest therein secures, payment of any of the amounts due under
this Note ("Guarantor");; (xi) Borrower fails to supply new or additional
collateral within ten days of request by the Bank; or (xii) the Bank in good
xxxxx xxxxx itself insecure with respect to payment or performance of under this
Note. All amounts hereunder shall become immediately due and payable upon the
occurrence of Section 5(ix) above, or at the Bank's option, upon the occurrence
of any other Event of Default.
6. RIGHT OF SETOFF. The Bank shall have the right to set off against the
amounts owing under this Note any property held in a deposit or other account
with the Bank or any Affiliate or otherwise owing by the Bank or any Affiliate
in any capacity to Borrower or any guarantor or endorser of this Note. Such
set-off shall be deemed to have been exercised immediately at the time the Bank
or such Affiliate elect to do so.
7. INABILITY TO DETERMINE LIBOR RATES, INCREASED COSTS, ILLEGALITY.
a. INCREASED COSTS. If the Bank shall determine that, due to
either (a) the introduction of any change (other than any change by way of
imposition of or increase in reserve requirements included in the calculation of
the LIBOR) in or in the interpretation of any requirement of law or (b) the
compliance with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law), there shall be
any increase in the cost to the Bank of agreeing to make or making, funding or
maintaining any loans based on LIBOR, then Borrower shall be liable for, and
shall from time to time, upon demand therefor by the Bank and pay to the Bank
such additional amounts as are sufficient to compensate the Bank for such
increased costs.
b. INABILITY TO DETERMINE RATES. If the Bank shall determine that
for any reason adequate and reasonable means do not exist for ascertaining LIBOR
for the Interest Period specified above, the Bank will give notice of such
determination to Borrower. Thereafter, the Bank may not maintain the loan
hereunder at the LIBOR Rate until the Bank revokes such notice in writing and,
until such revocation, the Bank may convert the Applicable Rate from the LIBOR
Rate to the Base Rate.
c. ILLEGALITY. If the Bank shall determine that the introduction
of any law (statutory or common), treaty, rule, regulation, guideline or
determination of an arbitrator or of a governmental authority or in the
interpretation or administration thereof, has made it unlawful, or that any
central bank or other governmental authority has asserted that it is unlawful
for the Bank to make loans at based on LIBOR then, on notice thereof by the Bank
to Borrower, the Bank may suspend the maintaining of the loan hereunder at the
LIBOR Rate until the Bank shall have notified Borrower that the circumstances
giving rise to such determination shall no longer exist. If the Bank shall
determine that it is unlawful to maintain the loan hereunder based on LIBOR, the
Bank may convert the Applicable Rate from the LIBOR Rate to the Base Rate.
8. MISCELLANEOUS. This Note, together with any related loan and security
agreements and guaranties, contains the entire agreement between the Bank and
Borrower with respect to the Note, and supersedes every course of dealing, other
conduct, oral agreement and representation previously made by the Bank. All
rights and remedies of the Bank under applicable law and this Note or amendment
of any provision of this Note are cumulative and not exclusive. No single,
partial or delayed exercise by the Bank of any right or remedy shall preclude
the subsequent exercise by the Bank at any time of any right or remedy of the
Bank without notice. No waiver or amendment of any provision of this Note shall
be effective unless made specifically in writing by the Bank. No course of
(C) Manufacturers and Traders Trust Company, 2003
4
dealing or other conduct, no oral agreement or representation made by the Bank,
and no usage of trade, shall operate as a waiver of any right or remedy of the
Bank. No waiver of any right or remedy of the Bank shall be effective unless
made specifically in writing by the Bank. Xxxxxxxx agrees that in any legal
proceeding, a copy of this Note kept in the Bank's course of business may be
admitted into evidence as an original. This Note is a binding obligation
enforceable against Borrower and its successors and assigns and shall inure to
the benefit of the Bank and its successors and assigns. If a court deems any
provision of this Note invalid, the remainder of the Note shall remain in
effect. Section headings are for convenience only. Borrower hereby waives
protest, presentment and notice of any kind in connection with this Note.
Singular number includes plural and neuter gender includes masculine and
feminine as appropriate.
9. NOTICES. Any demand or notice hereunder or under any applicable law
pertaining hereto shall be in writing and duly given if delivered to Borrower
(at its address on the Bank's records) or to the Bank (at the address on page
one and separately to the Bank officer responsible for Xxxxxxxx's relationship
with the Bank). Such notice or demand shall be deemed sufficiently given for all
purposes when delivered (i) by personal delivery and shall be deemed effective
when delivered, or (ii) by mail or courier and shall be deemed effective three
(3) business days after deposit in an official depository maintained by the
United States Post Office for the collection of mail or one (1) business day
after delivery to a nationally recognized overnight courier service (e.g.,
Federal Express). Notice by e-mail is not valid notice under this or any other
agreement between Borrower and the Bank.
10. JOINT AND SEVERAL. If there is more than one Borrower, each of them
shall be jointly and severally liable for all amounts which become due under
this Note and the term "Borrower" shall include each as well as all of them.
11. GOVERNING LAW; JURISDICTION. This Note has been delivered to and
accepted by the Bank and will be deemed to be made in the Commonwealth of
Pennsylvania. Except as otherwise provided under federal law, this Note will be
interpreted in accordance with the laws of the Commonwealth of Pennsylvania
excluding its conflict of laws rules. BORROWER HEREBY IRREVOCABLY CONSENTS TO
THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE COMMONWEALTH OF
PENNSYLVANIA IN A COUNTY OR JUDICIAL DISTRICT WHERE THE BANK MAINTAINS A BRANCH
AND CONSENTS THAT THE BANK MAY EFFECT ANY SERVICE OF PROCESS IN THE MANNER AND
AT BORROWER'S ADDRESS SET FORTH ABOVE FOR PROVIDING NOTICE OR DEMAND; PROVIDED
THAT NOTHING CONTAINED IN THIS NOTE WILL PREVENT THE BANK FROM BRINGING ANY
ACTION, ENFORCING ANY AWARD OR JUDGMENT OR EXERCISING ANY RIGHTS AGAINST
BORROWER INDIVIDUALLY, AGAINST ANY SECURITY OR AGAINST ANY PROPERTY OF BORROWER
WITHIN ANY OTHER COUNTY, STATE OR OTHER FOREIGN OR DOMESTIC JURISDICTION.
Borrower acknowledges and agrees that the venue provided above is the most
convenient forum for both the Bank and Borrower. Borrower waives any objection
to venue and any objection based on a more convenient forum in any action
instituted under this Note.
12. WAIVER OF JURY TRIAL. XXXXXXXX AND THE BANK HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY BORROWER AND THE
BANK MAY HAVE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION
WITH THIS NOTE OR THE TRANSACTIONS RELATED HERETO. XXXXXXXX REPRESENTS AND
WARRANTS THAT NO REPRESENTATIVE OR AGENT OF THE BANK HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT THE BANK WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THIS JURY TRIAL WAIVER. XXXXXXXX ACKNOWLEDGES THAT THE BANK HAS BEEN
INDUCED TO ENTER INTO THIS NOTE BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS
SECTION.
13. POWER TO CONFESS JUDGMENT. BORROWER HEREBY EMPOWERS ANY ATTORNEY OF ANY
COURT OF RECORD, AFTER THE OCCURRENCE OF ANY EVENT OF DEFAULT HEREUNDER, TO
APPEAR FOR BORROWER AND, WITH OR WITHOUT COMPLAINT FILED, CONFESS JUDGMENT, OR A
SERIES OF JUDGMENTS, AGAINST XXXXXXXX IN FAVOR OF THE BANK OR ANY HOLDER HEREOF
FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE, ALL ACCRUED INTEREST AND ALL
OTHER AMOUNTS DUE HEREUNDER, TOGETHER WITH COSTS OF SUIT AND AN ATTORNEY'S
COMMISSION OF THE GREATER OF FIVE PERCENT (5%) OF SUCH PRINCIPAL AND INTEREST OR
$1,000 ADDED AS A REASONABLE ATTORNEY'S FEE, AND FOR DOING SO THIS NOTE OR A
COPY VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. BORROWER HEREBY
FOREVER WAIVES AND RELEASES ALL ERRORS IN SAID PROCEEDINGS AND ALL RIGHTS OF
APPEAL AND ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY OR EXEMPTION LAWS OF
ANY STATE NOW IN FORCE OR HEREAFTER ENACTED. INTEREST ON ANY SUCH JUDGMENT SHALL
ACCRUE AT THE DEFAULT RATE. NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS
JUDGMENT, OR A SERIES OF JUDGMENTS, SHALL BE DEEMED TO EXHAUST THE POWER,
WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE INVALID,
VOIDABLE, OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE
EXERCISED FROM TIME TO TIME AS OFTEN AS THE BANK SHALL ELECT UNTIL SUCH TIME AS
THE BANK SHALL HAVE RECEIVED PAYMENT IN FULL OF THE DEBT, INTEREST AND COSTS.
PREAUTHORIZED TRANSFERS FROM DEPOSIT ACCOUNT. If a deposit account number is
provided in the following blank Borrower hereby authorizes the Bank to debit
Borrower's deposit account #____________________________with the Bank
automatically for any amount which becomes due under this Note.
(C) Manufacturers and Traders Trust Company, 2003
5
ACKNOWLEDGMENT. Xxxxxxxx acknowledges that he has read and understands all the
provisions of this Note, including the CONFESSION OF JUDGMENT, GOVERNING LAW,
JURISDICTION and WAIVER OF JURY TRIAL, and has been advised by counsel as
necessary or appropriate.
TAX ID/SS # X. Xxxxxx Xxxxxxxxxx
------------------------------
X. Xxxxxx Xxxxxxxxxx
Xxxxx X. Xxxxxxx
--------------------------------------------- ------------------------------
Signature of Witness
Xxxxx X. Xxxxxxx
--------------------------------------------- ------------------------------
Typed Name of Witness
ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA )
: SS.
COUNTY OF YORK )
On the 23rd day of October, in the year 2003, before me, the
undersigned, a Notary Public in and for said Commonwealth, personally appeared
X. Xxxxxx Xxxxxxxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
-------------------------------
Notary Public
FOR BANK USE ONLY
Authorization Confirmed: -------------------------------------------------------
Product Code: 22660
Disbursement of Funds:
Credit A/C # ---------- Off Ck # ----------. Payoff Obligation # -----------
$ ---------- $ ---------- $ -----------
(C) Manufacturers and Traders Trust Company, 2003
6
