EXHIBIT 10(Y)
CROWN XXXXXXXX INC.
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[LOGO] M&T Real Estate, Inc. MORTGAGE NOTE
Syracuse, New York September 28, 2000, 199__ $850,000.00
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BORROWER: Xxxxxxx Envirornmental Company, Inc. a(n) [_] individual(s)
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[_] partnership [X] corporation [_] trust [_] limited liability company
[_]_________________________ organized under the laws of the State of New York
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Address of residence/chief executive office: 0000 Xxxxxxxxxx Xxxxxx Xxxx,
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Syracuse, NY 13209 LENDER: M&T REAL ESTATE, INC., Xxx Xxxxxxxx Xxxxx, Xxxxxxx,
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New York 14203-2399.
Promises to Pay. For value received, the undersigned Borrower promises to pay to
the order of the Lender at its office identified above in lawful money of the
United States and in immediately available funds, the sum, of __________________
EIGHT HUNDRED FIFTY THOUSAND DOLLARS and 00/100 DOLLARS ($850,000.00) (the
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"Principle Sum") plus interest on the unpaid portion of the Principal Sum,
all amounts if any required for an escrow against taxes and other charges
pursuant to the Mortgage defined below (the "Escrow"), and all Expenses (defined
below).
Interest. The Borrower shall pay to the Lender interest, calculated on the basis
of a 360-day year consisting of twelve (12) 30-day months, on the outstanding
Principal Sum from and including the date of this Note to, but not including,
the Maturity date at a rate per year that on each day shall be
[X] 10.39% per annum.
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[_] _____% above the rate in effect as the rate announced by Manufacturers
and Traders Trust Company, as its prime rate of interest on the
first day of the calendar month containing such day.
[_] _____% above LIBOR for a [_] one month period, [_] two month period,
[_] three month period or [_] six month period. If no period is
specified, a one month period shall be used. LIBOR is defined on
Rider B attached hereto and made a part of this Note by this
reference.
[_] See Rider C attached hereto and made part of this Note by reference.
If no rate is specified, interest shall accrue at the Maximum Legal Rate
defined below, fixed as of the date of disbursement.
Maximum Legal Rate. It is the intent of the Lender and the Borrower that in no
event shall such interest be payable at a rate in excess of the maximum rate
permitted by applicable law (the "Maximum Legal Rate"). If this Note is for a
personal loan of less than $2,5000,000 and is secured primarily by a one- to
four-family residence, the interest rate shall not exceed 16%. 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 cancelled and if received by the Lender shall be
refunded to the Borrower.
Default Rate. Upon and after the Maturity Date or the occurrence or existence of
an Event of Default under the Mortgage, the interest rate on the unpaid
Principal Sum shall be increased to 3% per year above the otherwise applicable
rate per year, effective as of the date of the default or maturity. No failure
to impose or delay in imposing this Default Rate shall be construed as a waiver
by the Lender of its right to collect interest at the Default Rate for the
period from the Maturity Date or the commencement of the default, as applicable,
to but not including the earlier of the date (a) the default is cured to the
satisfaction of the Lender in its sole discretion or (b) this Note is paid in
full.
Term. The term of this Note is 5 years from the date of issue. The Maturity
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Date is the first day of the first full month following October 1, 199_ /2005.
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Repayment of Principal and Interest. The Borrower shall pay the Principal Sum
and Interest owing pursuant to this Note to the Lender in installments as
follows:
(1) one installment of Interest payable on the date of this Note equal in
amount to the Interest which will accrue during the period beginning on
the date of this Note and ending on the last calendar day of the same
month and year;
[_] (2) _____ consecutive monthly installments of principal each in the amount
of $_____________________ shall become due and payable on the first of
each month commencing on ________________, 199_; with an equal number
of installments of interest in amounts which may vary, which shall
become due and payable on the first day of each such month;
[X] (2) 60 consecutive level monthly installments consisting of both principal
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and interest amortized over a period of 10 years, each installment
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being in the amount of $11,417.18, shall become due and payable on the
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first day of each month commencing on November 1, 2000, 199_. If the
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Borrower elects a variable interest rate and there is a change in such
interest rate, the remaining consecutive level monthly installments
consisting of both principal and interest may be adjusted to reflect
such change in the interest rate.
OR
[_] (2) See Rider C attached hereto and made part of this Note by reference.
AND
(3) one final installment of principal, interest, premiums and Expenses to
become due on the Maturity Date and to be equal to the total of the
outstanding Principal Sum and all accrued and unpaid interest, premiums
and all other amounts owing pursuant to this Note and the Mortgage and
remaining unpaid.
Late Charge. If the Borrower fails to pay the whole or any installment of
principal or interest owing pursuant to this Note or Escrow payment owing
pursuant to the Morgage within ten days of its due date, the Borrower shall
immediately pay to the Lender a late charge equal to six percent (6%) of the
delinquent amount.
Application of Payments. Each payment pursuant to this Note shall be applied
first to accrued and unpaid interest, next to Principal, next to the Escrow,
next to late charges, and finally to Expenses.
Prepayment. See Rider A attached to and made part of this Note by this
reference.
Event of Default; Acceleration. This Note is secured by a mortgage dated on or
about the date of this Note [or on __________________________________] executed
by the Borrower [or by _______________________________________________________
(if Mortgagor is not Borrower)] (the "Mortgage") and is entitled to the benefits
thereof. An Event of Default under the Mortgage is an Event of Default under
this Note. All amounts under this Note shall become immediately due and payable
without any notice, demand, presentment or protest of any kind (each of which is
waived by the Borrower) (a) automatically, if the Borrower or Mortgagor or any
guarantor commences any bankruptcy or insolvency proceeding, if voluntary, and
upon the lapse of 30 days without dismissal if involuntary, (b) at the sole
option of the Lender, upon or at any time or from time to time after the
occurrence or existence of any other event or condition specified in the
Mortgage as an Event of Default and the passage of any applicable grace period,
and (c) at the sole option of the Lender, upon or at any time after the Maturity
Date, regardless of whether the Lender has accepted any partial payments after
the Maturity Date.
Right of Setoff. If an Event of Default occurs, the Lender or its agents shall
have, in addition to its other rights, the right to set off against the amounts
owing under this Note any deposit account or other property held by the Lender,
its agents or affiliates in any capacity for the Borrower, Mortgagor or any
guarantor. Such right or setoff shall be deemed to have been exercised
immediately at the time of such election.
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Expenses. The Borrower shall pay to the Lender or its agents on demand each cost
and expense (including, but not limited to, the reasonable fees and
disbursements of counsel to the Lender or its agents, whether internal or
external and whether retained for advice, for litigation or for any other
purpose) incurred by the Lender or its agents either directly or indirectly in
connection with this Note including, without limitation endeavoring to (1)
collect any amount owing pursuant to this Note or negotiate or document a
workout or restructuring, (2) enforce or realize upon any guaranty, endorsement
or other assurance, any collateral or other security, or any subordination,
directly or indirectly securing or otherwise directly or indirectly applicable
in any such amount or (3) preserve or exercise any right or remedy of the Lender
or its agents pursuant to this Note ( the "Expenses").
Joint and Several. If the Borrower is more than one legal person, each such
person is 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.
Cumulative Nature of the Lender's Rights and Remedies. All rights and remedies
of the Lender under applicable law, this Note, the Mortgage or any related
security agreement, guaranty or other document if any, are cumulative and not
exclusive. No single, partial or delayed exercise by the Lender or its agents of
any right or remedy shall preclude subsequent exercise by the Lender or its
agents at any time of any right or remedy of the Lender without notice. No
course of dealing or other conduct, no oral agreement or representation made by
the Lender or its agents or usage of trade shall operate as a waiver of any
right or remedy of the Lender.
Miscellaneous. This Note, with the Mortgage and any related security agreements,
guaranties or other documents, if any, contains the entire agreement between the
Lender and the Borrower with respect to the Note and Mortgage, and supersedes
every course of dealing, other conduct, oral agreement and representation
previously made by the Lender or its agents in their capacity as agents for the
Lender. No amendment or waiver of any provision of this Note shall be effective
unless specifically agreed to in writing by the Lender and the Borrower. As to
any notice by the Borrower to the Lender with regard to this Note or any
document executed in connection herewith, such notice shall not be considered
valid if sent by electronic communication (e.g., e-mail). This Note shall be
governed by the laws of the State of New York, without regard to its principles
of conflict of laws. This Note is a binding obligation enforceable against the
Borrower and its successors and assigns and shall inure to the benefit of and be
enforceable by the Lender and its successors, assigns and its agents. References
to the Lender's agent shall include, without limitation, Manufacturers and
Traders Trust Company. 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. Singular number includes plural and neuter gender includes
masculine and feminine as appropriate.
Xxxxxxxx's Waivers and Consents. In any action or other legal proceeding
relating to this Note, the Borrower (1) consents to the personal jurisdiction of
any State or federal court located in the State of New York and (2) agrees that
in any legal proceeding, a copy of this Note kept in the Lender's course of
business may be admitted into evidence as an original.
TRIAL BY JURY. THE BORROWER AND THE LENDER EACH WAIVE ANY RIGHT TO TRIAL BY JURY
IN ANY ACTION IN CONNECTION WITH THIS NOTE.
[_] This Note is given in replacement of and in substitution for, but not in
payment of, a note dated ___________, 19__, in the original, principal
amount of $____________ issued by the Borrower (or ______________) to the
Lender (or its predecessor in interest).
Preauthorized Transfers from Deposit Account. If a deposit number is provided in
the following blank, the Borrower hereby authorizes the Lender to debit the
Borrower's deposit account # _________________ with the Manufacturers and
Traders Trust Company automatically for the full amount of each payment which
becomes due under this Note.
Tax ID # 00-0000000 XXXXXXX ENVIRONMENTAL COMPANY, INC.
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By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx, President
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_____________________________________
STATE OF New York )
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COUNTY OF Onondaga ):SS.
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On the 28th day of September, 2000, before me personally came Xxxxxx Xxxxxxxx
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[_] Individual(s) to me known and known to me to be the person(s)
described in and who executed the above instrument, and
__he (they jointly and severally) acknowledged to me
that _he (they) executed the same
[_] Partnership to me known and known to me to be a general partner of
the partnership described in and which executed the
above instrument, and __he duly acknowledged to me that
__he executed the above instrument for and on behalf of
said partnership.
[X] Corporation to me known, who, being by me duly sworn, did depose and
say that __he resides at________________________________
________________________________________________________
that __he is the President of Xxxxxxx Environmental
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Company, Inc., the corporation described in and which
executed the above instrument and the __he signed his
(her) name thereto by order of the board of directors of
said corporation.
[_] Trust or Estate to me known to be the [executor or the last Will and
testament of] [administrator of the goods, chattels and
credits of] ___________________________________________,
late of __________________ Country, State of___________,
deceased; or Trustee of/under __________________________
________________________________________________________
of the______________________________ [Town, etc.] of
_______________________________, New York; and known to
me to be the person described in and who executed the
foregoing instrument and acknowledged that __he executed
the same as such [executor or administrator or trustee].
[_] LLC to me known, who, being duly sworn, did depose and say
that __he resides at____________________________________
_______________; that __he is the_______________________
_____________ of the limited liability company described
in and which executed the above instrument; and that __
he signed his (her) name thereto by order of the members
/managers of said limited liability company.
/s/ Xxxxx Xxxxxxx Xxxxxx
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Notary Public
My commission expires
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FOR INTERNAL USE ONLY
Authorized Confirmed: /s/ [ILLEGIBLE]
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XXXXX XXXXXXX XXXXXX
Notary Public, State of New York
No. 02HU6023017
Qualified in Cayuga County
Commission Expires, April 30, 2001
[LOGO] M&T Real Estate, Inc.
RIDER A TO
MORTGAGE NOTE
(Yield Maintenance)
Rider A to Mortgage Note dated September, 1999/2000
in the Original Principal Amount of $850,000.00
and Executed by Xxxxxxx Environmental Company, Inc.
Prepayment Premium. During the term of this Note, the Borrower shall have the
option of paying the Principal Sum to the Lender 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 Lender at least thirty (30) days prior to making such
prepayment; provided, however, that together with such prepayment, the Borrower
shall pay to the Lender, as consideration of the privilege of making such
prepayment, a premium equal to the greater of (a) one percent (1%) of the
Principal Sum prepaid, or (b) an amount equal to the present value of the
difference between (i) the amount of interest that would have accrued on the
Principal Sum during the remaining term of the Note, at the interest rate
set forth in Note in effect on the date of prepayment and (ii) the amount of
interest that would have accrued on the Principal Sum during the remaining term
of the Note at the Current Market Rate.
Upon making any prepayment of the Principal Sum in whole, the Borrower shall pay
to the Lender all interest and Expense owing pursuant to this Note and remaining
unpaid. Each partial prepayment of the Principal Sum shall be applied in inverse
order of maturity. In the event the Maturity Date of this Note is accelerated
following an Event of Default, 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 Lender shall be entitled to the amount necessary to satisfy the
entire indebtedness, plus the appropriate prepayment premium calculated in
accordance with this Rider.
. "Current Market Rate" shall mean the most recent yield on United States
Treasury Obligations adjusted to a constant maturity having a term most nearly
corresponding to the term remaining from the date of prepayment to the Maturity
Date, in effect two (2) business days prior to the prepayment date as published
by the Board of Governors of the Federal Reserve System in the Federal Reserve
Statistical H.15(519), or by such other quoting service, index or commonly
available source utilized by Manufacturers and Traders Trust Company.
. "Present value" calculation shall use the Current Market Rate as the
discount rate and shall be calculated as if each installment of the Principal
Sum had been made during the remaining term of the Note.
XXXXXXX ENVIRONMENTAL COMPANY, INC.
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BY: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx, President
