Exhibit 10 (u)
Two Tabas Lane @
PROMISSORY
NOTE
$4,600,000.00 August 4th, 1995
FOR VALUE RECEIVED, the undersigned, Xxxxx-Xxxx Associates, Inc. a
Pennsylvania corporation (hereinafter referred to as "Maker"), hereby promises
to pay to the order of USG ANNUITY & LIFE COMPANY, an Oklahoma corporation, or
any subsequent holder hereof (hereinafter referred to as "Payee"), at the office
of Payee, 000 Xxxxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000, or at such other place as
Payee may from time to time designate in writing, the principal sum of Four
Million Six Hundred Thousand and No/100 Dollars ($4,600,000.00) and interest
thereon at eight and one-half percent (8 1/2%) per annum, both principal and
interest to be paid in lawful money of the United States of America, as follows:
(i) Interest only from and including the date of disbursement of the loan
proceeds shall be paid on September 1, 1995; and
(ii) Payments of principal and interest shall be made in one hundred
twenty (120) successive monthly installments commencing on October 3, 1995, and
on the first day of each and every calendar month thereafter up to and including
September 1, 2005, the first one hundred nineteen installments to be in the
amount of ThirtyNine Thousand Nine Hundred Nineteen and 87/100 Dollars
($39,919.87) each, and the final installment payable on September 1, 2005
(hereinafter referred to as the "Maturity Date"), to be in the full amount of
principal of this Promissory Note (the "Note"), interest and all other sums
remaining unpaid hereunder and under the Mortgage (as hereinafter defined). If a
payment date is a nonbusiness day, the installment shall be due on the next
business day.
All payments on account of the indebtedness evidenced by this Note shall
be applied: (i) first, to further advances, if any, made by the holder hereof as
provided in the Loan Documents (as hereinafter defined); (ii) next, to any Late
Charge (as hereinafter defined); (iii) next, to interest at the Default Rate (as
hereinafter defined), if applicable; (iv) next, to the Prepayment Premium (as
hereinafter defined), if applicable; (v) next, at the rate of eight and one-half
percent (8 1/2%) per annum on the unpaid principal balance of this Note unless
interest at the Default Rate is applicable; and (vi) lastly, any remainder to
reduce the unpaid principal of this Note. Interest shall be computed on the
basis of a 30-day month and a 360-day year.
MAKER ACKNOWLEDGES THAT THE MONTHLY INSTALLMENTS REFERRED TO ABOVE WILL
NOT AMORTIZE ALL OF THE PRINCIPAL SUM OF THE
INDEBTEDNESS BY THE MATURITY DATE, RESULTING IN A "BALLOON PAYMENT" ON SAID DATE
OF THE ENTIRE UNPAID PRINCIPAL BALANCE OF THIS NOTE AND ACCRUED UNPAID INTEREST.
In the event any installment of principal and/or interest due hereunder,
and/or any escrow fund payment for real estate taxes, assessments, other similar
charges or insurance premiums due under the Mortgage (as hereinafter defined)
shall become overdue for a period in excess of five (5) days, Maker shall pay to
the holder hereof a late charge (hereinafter referred to as a "Late Charge") of
five ($.05) cents for each dollar so overdue in order to defray part of the cost
of collection.
In no event shall the amount of interest due or payable hereunder exceed
the maximum rate of interest allowed by applicable law, and in the event any
such payment is inadvertently paid by the Maker or inadvertently received by the
Payee, then such excess sum shall be credited as a payment of principal, unless
the Maker shall notify the Payee, in writing, that the Maker elects to have such
excess sum returned to it forthwith. It is the express intent hereof that the
Maker not pay and the Payee not receive, directly or indirectly in any manner
whatsoever, interest in excess of that which may be legally paid by the Maker
under applicable law.
Payment of this Note is secured by an Open-End Mortgage, Security
Agreement, Financing Statement and Fixture Filing (hereinbefore and hereinafter
referred to as the "Mortgage") dated of even date herewith from Maker, as
Mortgagor, to Payee, as Mortgagee, encumbering certain real estate and other
property interests situated in the County of Xxxxxxx, Commonwealth of
Pennsylvania and more particularly described in the Mortgage (hereinafter
referred to as the ~Premises"). This Note, the Mortgage, and all other
instruments now or hereafter evidencing or securing the loan evidenced hereby
are hereinafter sometimes collectively referred to as the "Loan Documents". The
Mortgage contains a "Due on Sale and Further Encumbrance" clause which, together
with all other terms of the Mortgage, are incorporated herein by this reference.
Payment of this Note is further secured by the "Other Security Documents"
as defined in the Cross-Collateralization Rider, which is attached to the
Mortgage as Exhibit B.
Except as expressly permitted by this paragraph, no prepayments shall be
made of the indebtedness evidenced by this Note. Maker reserves the privilege to
prepay, in full but not in part, the principal indebtedness evidenced hereby on
any installment payment date, upon ninety (90) days prior written notice to the
holder hereof and upon payment of a premium (hereinafter referred to as the
'Prepayment Premium") equal to the
2
percentage of the principal amount so prepaid in accordance with the following
table:
If Prepayment Made Prepayment Premium
-------------------------------------------------------
During Loan Year: Percentage:
----------------
1 10%
2 9%
3 8%
4 7%
5 6%
6 5%
7 4%
8 3%
9 2%
10 1%
For purposes of calculation of the Prepayment Premium only, a Loan Year during
the term hereof shall be a period of twelve consecutive months, the first of
which shall commence on the first day of the month following the date hereof and
each succeeding Loan Year shall commence on the anniversary of such date.
In the event Payee applies any insurance proceeds or condemnation proceeds
to the reduction of the principal indebtedness under this Note in accordance
with the terms and conditions of the Mortgage, and if, at such time, no Event of
Default (as hereinafter defined) exists hereunder or under the Mortgage at such
time, then no Prepayment Premium shall be due or payable as a result of such
application and the monthly installments due and payable hereunder shall be
adjusted to reflect the reduced principal balance.
In addition to the above, no Prepayment Premium shall be due or payable if
Maker elects to prepay, in full but not in part, the principal indebtedness
evidenced hereby at any time within ninety (90) days prior to the Maturity Date
upon at least forty-five (45) days prior written notice to the holder hereof.
If the maturity of the indebtedness evidenced hereby is accelerated by
Payee as a consequence of the occurrence of an Event of- Default, or in the
event the right to foreclose the Mortgage shall otherwise accrue to Payee, the
Maker agrees that an amount equal to the Prepayment Premium shall be added to
the balance of unpaid principal and interest then outstanding, and that the
indebtedness evidenced hereby shall not be discharged except: (i) by payment of
such Prepayment Premium, together with the balance of principal and interest and
all other sums then outstanding (if the Maker tenders payment of the
indebtedness evidenced hereby prior to judicial confirmation of foreclosure
sale); or (ii) by inclusion of
3
such Prepayment Premium as a part of the indebtedness evidenced hereby in any
such judicial order or judgment of foreclosure.
It is hereby expressly agreed by Maker that time is of the essence hereof
and that each of the following occurrences shall constitute a default ("Event of
Default") under this Note:
(i) The failure of the Maker to:
(a) make any payment of any installment of principal or
interest under this Note within five (5) days after the same
shall fall due, or
(b) comply with any of the other terms of this Note within
thirty (30) days after written notice of such failure has been
given by Payee to Maker or within such longer period of time
as may be reasonably necessary to cure such non-compliance if
Maker is diligently pursuing such cure and the failure is
susceptible of cure within a reasonable time.
(ii) The failure of Maker to make payment of any amount due the
holder hereof under any Loan Documents other than this Note,
on any date on which the same shall fall due (including any
applicable grace period).
(iii) The occurrence of any Event of Default under any of the Loan
Documents other than this Note.
(iv) The occurrence of an Event of Default under any of the "Other
Notes" or the "Other Security Documents I as such terms are
defined in the CrossCollateralization Rider, attached to the
Mortgage as Exhibit B.
Payee shall have the following rights, privileges, powers, options and
remedies whenever any Event of Default shall occur under this Note:
(i) The right to foreclose the Mortgage shall accrue to Payee.
(ii) The entire unpaid principal balance of, and any unpaid
interest then accrued on, this Note together with the
Prepayment Premium, shall, at the option of Payee and without
demand or notice of any kind to the Maker or any other person,
immediately become due and payable.
4
(iii) From and after the date of the occurrence of any Event of
Default and continuing until such Event of Default is fully
cured or until this Note is paid in full, the Maker promises
to pay interest on the principal balance of this Note then
outstanding at the rate (hereinbefore and hereinafter referred
to as the "Default Rate") of twelve and one-half percent (12
1/2~) per annum. The Maker agrees that such additional
interest which has accrued shall be paid at the time of and as
a condition precedent to the curing of such Event of Default.
During the existence of any such Event of Default Payee may
apply payments received on any amounts due hereunder or under
the terms of any of the Loan Documents as Payee shall
determine; and if Payee elects (notice of election being
expressly waived by the Maker), the principal remaining unpaid
with accrued interest shall at once become due and payable, as
provided above.
(iv) Payee shall have, and may exercise any and all rights, powers,
privileges, options and remedies available at law or in equity
and as provided in any of the Loan Documents.
Upon the occurrence of an Event of Default under any of the Loan
Documents, the Maker expressly agrees to pay all costs of collection and
enforcement of every kind, including without limitation, all reasonable
attorneys' fees, court costs, costs of title evidence and insurance, inspection
and appraisal costs and expenses of every kind incurred by Xxxxx in connection
with the protection or realization of any or all of the security for this Note,
whether or not any lawsuit is filed with respect thereto. An Event of Default
under this Note shall constitute a default under each and all of the other Loan
Documents.
The rights, powers, privileges, options and remedies of Payee, as provided
in this Note, in any of the Loan Documents, or otherwise available at law or
equity shall be cumulative and concurrent, and may be pursued singly,
successively or together at the-sole discretion of Payee, and may be exercised
as often as occasion therefor shall occur. No delay or discontinuance in the
exercise of any right, power, privilege, option or remedy hereunder shall be
deemed a waiver of such right, power, privilege, option or remedy, nor shall the
exercise of any right, power, privilege, option or remedy be deemed an election
of remedies or a waiver of any other right, power, privilege, option or remedy.
Without limiting the generality of the foregoing, the failure of the Payee after
the occurrence of any Event of Default to exercise Payee's
5
right to declare the indebtedness remaining unmatured hereunder to be
immediately due and payable shall not constitute a waiver of such right in
connection with any future Event of Default. Acceleration of maturity, once
claimed hereunder by Xxxxx, may, at Xxxxx's option, be rescinded by written
acknowledgment to that effect, but the tender and acceptance of partial payment
or partial performance alone shall not, by itself, in any way affect or rescind
such acceleration.
Maker (and each guarantor hereof, if any) jointly and severally waives
presentment for payment, demand, notice of nonpayment, notice of dishonor,
protest of any dishonor, notice of protest and protest of this Note, and all
other notices in connection with the delivery, acceptance, performance, default
or enforcement of the payment of this Note, except as otherwise provided herein,
and agrees that the liability of each of them hereunder shall be joint, several
and unconditional without regard to the liability of any other party and shall
not be in any manner affected by any indulgence, extension of time, renewal,
waiver or modification granted or consented to by Payee; and Maker (and each
guarantor hereof, if any) consents to any and all extensions of time, renewals,
waivers or modifications that may be granted by Payee with respect to the
payment or other provisions of this Note, and to the release of any collateral
given to secure the payment hereof, or any part thereof, with or without
substitution, and agrees that additional makers or guarantors may become parties
hereto without notice to any of them or affecting any of their liability
hereunder.
Payee shall not by any acts of omission or commission be deemed to waive
any rights or remedies hereunder unless such waiver is in writing and signed by
Xxxxx, and then only to the extent specifically set forth therein; a waiver of
one event shall not be construed as continuing or as a bar to or waiver of such
right or remedy on a subsequent event.
All notices, demands and requests given hereunder by the Maker or Payee,
shall be in writing and shall be delivered either by: (i) hand delivery to the
address for notices; (ii) delivery by overnight courier service to the address
for notices; (iii) by certified mail, return receipt requested, addressed to the
address for-notices by United States mail, postage prepaid.
All notices shall be deemed effective upon the earlier to occur of: (x)
the hand delivery of such notice to the address for notices; (y) one business
day after the deposit of such notice with an overnight courier service by the
time deadline for next day delivery addressed to the address for notices; or (z)
three business days after depositing the notice in the United States mail as set
forth in (iii) above.
6
All notices shall be addressed to the following addresses:
Maker: Xxxxx-Xxxx Associates, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxx, XX 00000
Attn: Xxxx X. Xxxx
With a copy to: Xxxxxxx X. Xxxxxxx, Esq.
Xxxx, Xxxxx, Xxxxxx & Xxxx
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Payee: USG Annuity & Life Company
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Attn: Equitable Investment Services,
Inc.
Managing Director/Real Estate
With a copy to: Nyomaster, Xxxxx, XxXxxxxxxx, Xxxxxx,
Xxxx, Xxxxxxx & X'Xxxxx, P.C.
1900 Hub Tower
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
or to such other person or at such other place as any party hereto may by notice
designate as a place for service of notice.
XXXXX XXXXXX IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE
PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR
ELSEWHERE, TO APPEAR FOR THE UNDERSIGNED AT ANY TIME AFTER AN EVENT OF DEFAULT
HEREUNDER IN ANY ACTION BROUGHT AGAINST XXXXX, ON THIS NOTE AT THE SUIT OF
PAYEE, WITH OR WITHOUT DECLARATION FILED, AS OF ANY TERM, AND THEREIN TO CONFESS
AND ENTER JUDGEMENT AGAINST Ten UNDERSIGNED FOR THE ENTIRE UNPAID PRINCIPAL OF
THIS NOTE AND ALL OTHER SUMS PAID BY PAYEE TO OR ON BEHALF OF THE UNDERSIGNED
PURSUANT TO THE TERMS OF THIS NOTE OR THE MORTGAGE, AND ALL INTEREST THEREON,
TOGETHER WITH COSTS OF SUIT, ATTORNEY'S FEES OF FIVE PERCENT (5%) FOR
COLLECTION; AND FOR SO DOING THIS NOTE OR A COPY HEREOF VERIFIED BY AFFIDAVIT
(WHICH SHALL INCLUDE REFERENCE TO AN EVENT OF DEFAULT WHICH HAS OCCURRED AND NOT
BEEN CURED IN ACCORDANCE WITH THE TERMS OF THIS NOTE) SHALL BE A SUFFICIENT
WARRANT. NOTWITHSTANDING ANYTHING IN THIS PARAGRAPH TO THE CONTRARY, NO SUCH
ACTION TO CONFESS AND ENTER JUDGMENT AGAINST XXXXX WILL BE INITIATED BY PAYEE
UNTIL XXXXX HAS GIVEN XXXXX AT LEAST FIVE (5) DAYS PRIOR NOTICE OF XXXXX'S
INTENTIONS. THE AUTHORITY GRANTED HEREIN TO CONFESS JUDGMENT SHALL NOT BE
EXHAUSTED UNTIL PAYMENT IN FULL OF ALL THE AMOUNTS DUE HEREUNDER.
7
This Note shall be governed by and construed in accordance with the laws
of the Commonwealth of Pennsylvania.
Except as specifically otherwise set forth in subparagraphs (i) through
(viii) below and in that certain Environmental Indemnification Agreement dated
on or about this same date from Maker to Payee, no personal liability under this
Note shall be asserted or enforceable against the Maker personally or any person
interested beneficially or otherwise in the Premises, or in respect of the
making, issuance or transfer hereof, all such liability being expressly waived
by Payee (provided, the foregoing shall not affect the liability of any
guarantor of any obligations arising under a separate guaranty hereof); and
Xxxxx accepts this Note upon the express condition that in case of the
occurrence of an Event of Default, the remedies of the Payee in its sole
discretion shall be any or all of:
(a) foreclosure of the Mortgage in accordance with the terms and
provisions set forth in the Mortgage;
(b) action against any other security at any time given to secure the
payment hereof; and
(c) action to enforce the personal liability of Maker pursuant to
subparagraphs (i) through (viii) below and pursuant to the
Environmental Indemnification Agreement.
MAKER WAIVES ANY RIGHT TO A JURY TRIAL WITH RESPECT TO ANY MATTER ARISING
OUT OF THIS NOTE.
Notwithstanding anything in this Note to the contrary, there shall at no
time be any limitation on Maker's liability for the payment to Payee of:
(i) condemnation proceeds or insurance proceeds which Maker has received
and to which the Payee is entitled pursuant to the terms of this
Note or any of the Loan Documents,
(ii) any security deposits, prepaid rent or lease termination fees, and
any rentals or income which are received by Maker after the
occurrence of an Event of Default,
(iii) all loss, damage, costs, expense and liability (including without
limitation, reasonable attorneys' fees and costs) directly or
indirectly incurred by Payee (and its directors, officers, employees
and agents) arising out of or attributable to the installation, use,
generation, manufacture, production, storage, release, threatened
release, discharge, disposal or presence of a Hazardous Substance
(as defined in the Mortgage), or
8
from the presence of any underground storage tanks, in, on, under or
about the Premises, including without limitation, (a) all
foreseeable consequential damages, (b) the cost of any required or
necessary repair, cleanup or detoxification of the Premises and (c)
the preparation and implementation of any closure, remedial or other
required plans, or damages arising from the presence of any toxic or
hazardous waste or substances, or underground storage tanks, or any
other pollutants in or on the Premises,
(iv) delinquent taxes, assessments and other similar charges levied
against the Premises,
(v) all loss, damages and expenses incurred by Xxxxx and arising from
any misrepresentation or breach of warranty of Maker, or any
certification, financial statement or other information furnished by
or on behalf of Maker to Payee to induce Xxxxx to loan xxx.xxxxx
evidenced by the Note which proves to have been inaccurate or false
in any respect when made, or any willful or wanton act or omission
of Maker,
(vi) all loss or expenses incurred by Payee under the Loan Documents
resulting from Maker declaring bankruptcy or seeking protection
under any provision of any federal or state bankruptcy or insolvency
law, or in the event the Premises shall be subject to the
administration or control of any bankruptcy court, trustee, referee,
or other official,
(vii) any loss, including any Prepayment Premium, cost, or expense
resulting from acceleration of the maturity of the Note due to the
application of the "due on sale or further encumbrance' provisions
contained in the Mortgage, or
(viii) any transfer or other taxes, costs and reasonable attorneys fees
incurred by Payee in connection with the enforcement of the Loan
Documents.
With the exception of those items of liability specifically set forth in items
(i) through (viii) above, the lien of any judgment against Maker in any
proceeding instituted on, under or in connection with this Note or the Mortgage,
or both, shall not extend to any property now or hereafter owned by Maker other
than the interest of the Maker in the Premises and the other security for the
payment of this Note.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ
CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO O~n~R TERMS OR
ORAL PROMISES NOT CONTAINED IN THIS
9
WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE Tn~ TERMS OF THIS
AGREEMENT ours BY ANOTHER WRITTEN AGREEMENT.
Maker acknowledges receipt of a copy of this instrument at the time it was
signed.
XXXXX-XXXX ASSOC,IATES, INC.
By: /s/ Xxxx X. Xxxx
August 4, 1995
Name
Title:
10
