EXHIBIT 10.2
M & T BANK
Manufacturers and Traders Trust Company
CONSTRUCTION LINE OF CREDIT MORTGAGE NOTE
(CONSTRUCTION LOAN)
Pennsylvania
$4,100,000.00
August 20, 2004
BORROWER: Big Boulder Corporation a(n) ( ) individual(s) ( ) partnership (x)
corporation ( ) trust ( ) limited liability company ( ) ____________ organized
under the laws of Pennsylvania
Address of residence/chief executive office: Route 000 xxx Xxxxxxxxx Xxxx, X.X.
Box 707, Blakeslee, Pennsylvania 18610-0747.
LENDER: Manufacturers and Traders Trust Company, a New York banking company,
with offices located at Xxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000. Attn: M&T
Real Estate, Inc.
DEFINITIONS. Each capitalized term shall have the meaning specified herein and
the following terms shall have the indicated meanings:
a. "LOAN AGREEMENT" shall mean the agreement between, inter alia, Borrower and
the Lender dated on or about the date hereof in connection with the construction
and mortgage financing of real property described in the Mortgage, as the same
may be amended modified or replaced from time to time.
b. "MATURITY DATE" is August 1, 2006.
c. "MORTGAGE" shall mean the mortgage dated on or about the date of this Note
executed by Xxxxxxxx as the same may be amended, modified or replaced from time
to time.
e. "PRINCIPAL SUM" shall mean Four Million One Hundred Thousand Dollars
($4,100,000.00).
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 or so much thereof as may be advanced, plus
interest on the unpaid portion of the Principal Sum, and all Expenses (defined
below). Advances under this Note shall be made pursuant to the terms and
conditions of the Loan Agreement.
INTEREST. All outstanding amounts of the Principal Sum advanced to Borrower
under this Note shall accrue interest at a per annum rate equal to:
( ) ___%
(x) equal to the rate in effect as the rate announced by the Lender as its prime
rate of interest on the first day of the calendar month containing such day. The
Prime Rate may be greater or less than other interest rates charged by the Bank
to other borrowers and is not solely based upon or dependent upon the interest
rate which the Bank may charge any particular borrower or class of borrowers.
( ) _______ 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 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 by reference.
( ) See Rider A attached hereto and made a 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. Interest will be calculated on the
basis of a 360-day year consisting of twelve (12) months with the actual number
of days of each month (28, 29, 30 or 31).
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"). 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 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.) Borrower shall pay accrued interest to Xxxxxx on the first day of
September, 2004 and on the first day of each subsequent month
thereafter to, but not including, the Maturity Date; and
(2.) On the Maturity Date, Borrower shall pay the outstanding Principal
Sum and all accrued and unpaid interest, premiums, Expenses and all
other amounts owing pursuant to this Note, the Loan Agreement and
the Mortgage and remaining unpaid. In addition, the Borrower shall
make additional principal payments as set forth in the Loan
Agreement.
LATE CHARGE. If Borrower fails to pay the whole or any installment of principal
or interest owing pursuant to this Note, the Mortgage or the Loan Agreement
including any Escrow payment owing pursuant to the Mortgage or the Loan
Agreement within ten (10) 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 made with respect to this Note may be applied
in any order in the sole discretion of the Lender, but prior to an Event of
Default or maturity, each payment shall be 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, equal to one
percent (1%) of the Principal sum paid. 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, the Mortgage or the Loan Agreement 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, any tender of payment of the amount necessary to satisfy the entire
indebtedness made after maturity 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 as calculated above. No prepayment premium shall
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).
BUSINESS PURPOSE. This Note is being given by Xxxxxxxx to the Lender in
connection with the construction and mortgage financing of real property
described in Mortgage and Borrower warrants that the indebtedness evidenced by
this Note is for a business purpose.
EVENTS OF DEFAULT; ACCELERATION. This Note is issued pursuant to and entitled to
the benefits of the Loan Agreement is secured and entitled to the benefits of
the Mortgage. An Event of Default under either the Mortgage or the Loan
Agreement 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 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 any 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 and be payable at the
applicable rate and the Lender's acceptance of any partial payment shall not
affect that all amounts under this Note are due and payable in full.
RIGHT OF SETOFF. Upon maturity (whether due to the Maturity Date, by
acceleration or otherwise) or the occurrence of an Event of Default, 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 the Lender or any of its
affiliates or otherwise owing by the Lender or any of its affiliates in any
capacity to Borrower or Mortgagor. Such set-off shall be deemed to have been
exercised immediately at the time the Lender or such affiliate elect to do so.
EXPENSES. Borrower shall pay to the Lender on demand each cost and expense
(including, but not limited to, the reasonable fees and disbursements of counsel
to the Lender, 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 (the "Expenses").
JOINT AND SEVERAL. If Borrower is more than one legal person, each such person
is jointly and severally liable for all obligations and amounts which become due
under this Note and the term "Borrower" shall include each as well as all of
them.
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, the Loan Agreement, 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 of any right or remedy shall preclude the subsequent exercise by the
Lender 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. 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. 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 Lender officer 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 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.
GOVERNING LAW; JURISDICTION. This Note has been delivered to and accepted by the
Lender and will be deemed to be made in the Commonwealth of Pennsylvania. 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 LENDER
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.
POWER TO CONFESS JUDGMENT. XXXXXXXX XXXXXX 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 BORROWER IN FAVOR OF THE LENDER 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 TEN
PERCENT (10%)
OF SUCH PRINCIPAL AND INTEREST OR $1,000 ADDED AS A REASONABLE ATTORNEY 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 LENDER SHALL ELECT UNTIL SUCH TIME AS THE LENDER SHALL HAVE
RECEIVED PAYMENT IN FULL OF THE DEBT, INTEREST AND COSTS.
( ) REPLACEMENT NOTE. This Note is given in replacement of and in substitution
for, but not in payment of, a note dated _____________, 19__ / 20__, in the
original principal amount of $__________ issued by Borrower (or
__________________) to the Lender (or its predecessor in interest), as the same
may have been amended from time to time.
PREAUTHORIZED TRANSFERS FROM DEPOSIT ACCOUNT. If a deposit number is provided in
the following blank, Borrower hereby authorizes the Lender to debit Borrower's
deposit account #______________ with the Lender automatically for the full
amount of each payment which becomes due under this Note.
ACKNOWLEDGMENT. Xxxxxxxx acknowledges that it 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 # 29-0822326 BIG BOULDER CORPORATION
BY: /s/ Xxxxx X. Xxxxxxxxxx
XXXXX X. XXXXXXXXXX, Executive
Vice President & Treasurer
ACKNOWLEDGMENTS
COMMONWEALTH OF PENNSYLVANIA )
: SS
COUNTY OF CARBON )
On the 20th day of August, in the year 2004, before me, the undersigned, a
Notary Public in and for said Commonwealth, personally appeared XXXXX X.
XXXXXXXXXX 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/ Xxxx X. Xxxxx
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Xxxx X. Xxxxx, Notary Public
Xxxxxxxxx Xxx., Monroe County
My Commission Expires Jan. 31, 2005
Member, Pennsylvania Association of Notaries
