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EXHIBIT (b)(2)
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M&T REAL ESTATE, INC.
MORTGAGE NOTE
NEW YORK
September 21, 2001 $2,500,000.00
BORROWER: ABBA L.P., a New York limited partnership having a business
address of 000 Xxxx xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000
LENDER: M&T Real Estate, Inc., a New York corporation, with offices
located at Xxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000-0000.
DEFINITIONS. The following terms shall have the indicated meanings in this Note:
1. "Escrow" shall mean the escrow required under the Mortgage for the payment
of taxes and/or other charges.
2. "First Payment Date" shall mean the first day of November, 2001.
3. "Maturity Date" shall mean October 1, 2011.
4. "Mortgage" shall mean a mortgage dated September 21, 2001, executed by
Xxxxxxxx, as the same may be amended, modified or replaced from time to
time.
5. "Principal Sum" shall mean Two Million Five Hundred Thousand and 00/100
Dollars ($2,500,000).
PROMISE TO PAY. For value received, and intending to be legally bound, the
undersigned Xxxxxxxx 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 Principal Sum plus interest on the unpaid portion of the
Principal Sum, all amounts, if any, required for the Escrow, and all Expenses
(defined below).
INTEREST. The unpaid Principal Sum shall accrue interest at a per annum rate
equal to:
[ ] ______%
[ ] ______ percentage points 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.
[ ] ______ percentage points above LIBOR for a |_| one month
interest period, |_| two month interest period, |_| three
month interest period or |_| six month interest period ("LIBOR
Rate"). If no interest period is specified, a one month
interest period shall be used. The definition of LIBOR,
adjustments to the LIBOR Rate and other provisions relative
thereto are contained on Rider B attached hereto and made a
part of this Note.
[X] See Rider C attached hereto and made a part of this Note.
If no rate is specified, interest shall accrue at the Maximum Legal Rate defined
below, fixed as of the date of disbursement. Interest shall be calculated on the
basis of a 360-day year consisting of twelve (12) 30-day months.
MAXIMUM LEGAL RATE. It is the intent of the Lender and 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 $2,500,000 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 canceled and if received by the Lender shall be refunded to
Borrower.
DEFAULT RATE. After maturity (whether due to the Maturity Date, by acceleration
or otherwise), the interest rate on the unpaid Principal Sum shall be increased
to three (3) percentage points per year above the otherwise applicable rate per
year (the "Default Rate"). Any judgment entered hereon or otherwise in
connection with any suit to collect amounts due hereunder shall bear interest at
such Default Rate. No failure to impose or delay in imposing the Default Rate
shall be construed as a waiver by the Lender of its right to collect, and
Xxxxxxxx's obligation to pay, interest at the Default Rate effective as of the
date of maturity (whether due to the Maturity Date, by acceleration or
otherwise).
REPAYMENT OF PRINCIPAL AND INTEREST. Xxxxxxxx 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 day of each month commencing on the First Payment Date, 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;
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OR
[X] (2) 119 consecutive level monthly installments consisting of both
principal and interest, each installment being in the amount of
$17,910.78, shall become due and payable on the first day of each month
commencing on NOVEMBER 1, 2001. For variable interest rate loans, the
Lender shall adjust the amount of the remaining level monthly
installments of principal and interest to reflect an interest rate
change.
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,
Expenses, premiums and all other amounts owing pursuant to this Note
and the Mortgage and remaining unpaid.
LATE CHARGE. If 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
Mortgage within ten days of its due date, Borrower shall immediately pay to the
Lender a late charge equal to six percent (6%) of the delinquent amount.
APPLICATION OF PAYMENTS. Payment may be applied in any order at the sole
discretion of the Lender, but prior to an Event of Default or Maturity Date,
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. 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 payment; provided, however, that together with
such prepayment, Borrower shall pay to the Lender a premium set forth on Rider
A, if any, attached to and made a part of this Note by this reference. Upon
making any prepayment of the Principal Sum in whole, Borrower shall pay to the
Lender all interest and Expenses owing pursuant to this Note or the Mortgage and
remaining unpaid. Any partial payment 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 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 Lender shall be entitled to the amount necessary to
satisfy the entire indebtedness, plus the appropriate prepayment premium
calculated in accordance with Rider A.
EVENTS OF DEFAULT; ACCELERATION. This Note is secured by the Mortgage and is
entitled to the benefits thereof. An Event of Default under the Mortgage is an
Event of Default under this Note. The maturity of this Note shall be accelerated
and 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 Borrower) (a) automatically, if Borrower or Mortgagor commences any
bankruptcy or insolvency proceeding, if voluntary, and upon the lapse of 45 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 an Event
of Default and the passage of any applicable grace period; and (c) upon the
Maturity Date. After maturity (whether due to the Maturity Date, by acceleration
or otherwise), interest on the outstanding Principal Sum shall continue to
accrue at the applicable rate and the Lender's acceptance of any partial payment
of the outstanding Principal Sum and/or payment of accrued interest shall not
affect that all amounts under this Note are due and payable in full.
EXPENSES. 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 pursuant to this Note
(collectively, the "Expenses").
RIGHT OF SETOFF. The Lender shall have the right to set off against the amounts
owing under this Note, any property held in a deposit or other account with
Manufacturers and Traders Trust Company, the Lender or any of their affiliates
or otherwise owing by Manufacturers and Traders Trust Company, the Lender or any
of their affiliates 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 Manufacturers and Traders Trust Company, the Lender or any of their
affiliates elect to do so.
MISCELLANEOUS. This Note contains the entire agreement between the Lender and
Borrower with respect to the loan it evidences and supersedes every course of
dealing, other conduct, oral agreement and representation previously made by the
Lender with respect thereto. All rights and remedies of the Lender under
applicable law, the Mortgage, this Note or any document in connection with the
transaction contemplated hereby or amendment thereof are cumulative and not
exclusive. No single, partial or delayed exercise by the Lender or its agents of
any right or remedy shall preclude the subsequent exercise by the Lender or it
agents at any time of any right or remedy of the Lender without notice. No
waiver or amendment of any provision of this Note shall be effective unless made
specifically in writing by the Lender or its agents. No course of dealing or
other conduct, no oral agreement or representation made by the Lender, and no
usage of trade, shall operate as a waiver of any right or remedy of the Lender.
Xxxxxxxx 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. This
Note is a binding obligation enforceable against Borrower and its successors and
assigns and shall inure to the benefit of the Lender 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.
References to the Lender's agent shall include, without limitation,
Manufacturers and Traders Trust Company. Singular number includes plural and
neuter gender includes masculine and feminine as appropriate.
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 Lender's records) or to the Lender (at the address on page one
and separately to the officer of the Lender or Manufacturers and Traders Trust
Company responsible for Xxxxxxxx's relationship with the Lender). 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
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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
Lender.
JOINT AND SEVERAL. If there is more than one Borrower, each of them shall be
jointly and severally liable for all amounts and obligations which become due
under this Note and the term "Borrower" shall include each as well as all of
them.
GOVERNING LAW; JURISDICTION. This Note has been delivered to and accepted by the
Lender and will be deemed to be made in the State of New York. This Note will be
interpreted in accordance with the laws of the State of New York excluding its
conflict of laws rules. BORROWER HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE STATE OF NEW YORK IN A COUNTY
OR JUDICIAL DISTRICT WHERE MANUFACTURERS AND TRADERS TRUST COMPANY MAINTAINS A
BRANCH, AND CONSENTS THAT THE LENDER 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 LENDER 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 Lender and Borrower. Borrower waives any
objection to venue and any objection based on a more convenient forum in any
action instituted under this Note.
WAIVER OF JURY TRIAL. XXXXXXXX AND THE LENDER HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY BORROWER AND THE LENDER 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 LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE LENDER WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS JURY
TRIAL WAIVER. XXXXXXXX ACKNOWLEDGES THAT THE LENDER HAS BEEN INDUCED TO ENTER
INTO THIS NOTE BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION.
PREAUTHORIZED TRANSFERS FROM DEPOSIT ACCOUNT. If a deposit account number is
provided in the following blank Borrower hereby authorizes the Lender to debit
Borrower's deposit account #_________________________ with Manufacturers and
Traders Trust Company automatically for any amount which becomes due under this
Note.
Tax ID # 00-0000000 ABBA L.P., a New York limited partnership
By: ABBA ENTERPRISES, INC., a New York
corporation, its general partner
By: /s/ Xxx X. Xxxxxxxx, President
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Xxx X. Xxxxxxxx, President
ACKNOWLEDGMENT
STATE OF NEW YORK)
COUNTY OF MONROE) ss.:
On the 21st day of September , in the year 2001, before me, the
undersigned, a Notary Public in and for said State, personally appeared XXX X.
XXXXXXXX, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity(ies), and that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
/s/ Xxxxxx X. Xxxxxxxx
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Notary Public
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[M&T REAL ESTATE, INC. LOGO]
RIDER A TO
MORTGAGE NOTE
(Yield Maintenance)
RIDER A TO MORTGAGE NOTE DATED SEPTEMBER 21, 2001 IN THE ORIGINAL
PRINCIPAL AMOUNT OF $2,500,000 AND EXECUTED BY ABBA L.P.
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.
Notwithstanding the foregoing provisions of this Rider A, at any time the
Variable Rate (as hereinafter defined) is in effect, there shall be no premium
for prepayment, provided, however, that if the Variable Rate is in effect, a
prepayment shall only be made on the first day of the month, subject to
thirty(30) days prior written notice.
- "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 Release 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.
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IN WITNESS WHEREOF, the undersigned party has executed this Rider A to Mortgage
Note as of this 21st day of September, 2001.
ABBA L.P., a New York limited partnership
By: ABBA ENTERPRISES, INC., a New York
corporation, its sole general partner
By: /s/ Xxx X. Xxxxxxxx
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Xxx X. Xxxxxxxx, President
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[M&T REAL ESTATE, INC. LOGO]
RIDER B TO
MORTGAGE NOTE
Rider B to Mortgage Note dated September 21, 2001 in the Original
Principal Amount of $2,500,000 and Executed by ABBA, L.P.
NONE
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R I D E R C
TO BE ATTACHED TO THE MORTGAGE NOTE
OF ABBA L.P. EXECUTED AND
DELIVERED AS OF SEPTEMBER 21, 2001
TO M&T REAL ESTATE, INC.
1. The Section entitled "Interest" is completed as follows:
From and including the date of this Note to and including the
Maturity Date, Borrower shall pay to Lender the Principal Sum with interest
calculated on the basis of a 360 day year consisting of twelve (12) 30 day
months at a rate per year which on each day shall be 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 (the
"Variable Rate").
2. At any time prior to September 21, 2003, Borrower shall have the
one-time option, on five (5) days written notice, and upon payment of a
rate-lock fee equal to 0.25% of the then outstanding principal balance, to fix
the interest rate for the remaining term of the Loan (the "Adjusted Fixed
Rate"). The Adjusted Fixed Rate shall be equal to the greater of (1) seven and
one half percent (7.50%) and (2) the rate based on a margin of 200 basis points
above Lender's "Adjusted Cost of Funds". "Adjusted Cost of Funds" shall mean the
most recent yield on United States Treasury Obligations adjusted to a constant
maturity of the remaining term of the Loan in effect two (2) business days prior
to the adjustment date as published by the Board of Governors of the Federal
Reserve System in the Federal Reserve Statistical Release H. 15(519), or by such
other quoting service, index or commonly available source utilized by Lender,
plus the "ask" side of the swap spread for the remaining term of the Loan in
effect two (2) business days prior to the adjustment date as set forth in
Bloomberg, L.P., or by such other quoting service, index or commonly available
source utilized by Lender.
3. In the event the Adjusted Fixed Rate becomes effective, Lender shall
notify the Borrower of the revised amount of the monthly installments of
principal and interest to commence on the first day of the month following the
effective date of the Adjusted Fixed Rate and continuing to and including the
Maturity Date.
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IN WITNESS WHEREOF, the undersigned has executed this Rider C to Note
as of this 21st day of September, 2001.
ABBA L.P., a New York limited partnership
By: ABBA ENTERPRISES, INC., a New York
corporation, its sole general partner
By: /s/ Xxx X. Xxxxxxxx
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Xxx X. Xxxxxxxx, President
