EXHIBIT 10.24
$5,320,000 August 6, 1999
Harrisburg, Pennsylvania
MORTGAGE NOTE
FOR VALUE RECEIVED, and intending to be legally bound, the undersigned,
xXXxX*S DISTRIBUTION COMPANY, a Delaware corporation, with offices at 000 Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000 (the "Maker"), does hereby promise to pay,
without defalcation, to the order of ALLFIRST BANK (the "Payee") at 000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, or at such other place as the holder
hereof may, from time to time, direct Maker in writing, the principal sum of
five Million Three Hundred Twenty Thousand Dollars ($5,320,000) (the "Principal
Sum"), lawful money of the United States of America, or such lesser amount as
may have been advanced by Payee under the terms of the Construction Loan
Agreement (the "Loan Agreement") of even date between Maker and Payee, together
with interest thereon at the rate or rates hereinafter provided, in accordance
with the following:
(a) Commencing as of the date hereof and continuing until the repayment
in full of all sums due under this Note, the outstanding balance of the
Principal Sum shall bear interest at a rate which is at all times equal to the
Libor Rate (as hereinafter defined) plus one hundred eighty-five (185) basis
points per annum. For the purposes hereof, the term "Libor Rate" shall be
defined as the per annum rate of interest published by Telerate News Services on
Page 3750 under the designation of "British Banker Association Interest
Settlement Rate" (or on any successor or substitute for such service, providing
rate quotations comparable to those currently provided on such page of such
service, as determined by the Payee from time to time, for purposes of providing
quotations of interest rates applicable to deposits in U.S. dollars in the
London interbank market) at approximately 11 a.m., London time, two Business
Days (as hereinafter defined) prior to the date the interest rate is to be
adjusted. The rate of interest charged under this subsection (a) shall be
established on the date hereof, but shall be automatically recalculated as of
the first day of each calendar month during the term of this Note based upon the
Libor Rate in effect two (2) Business Days prior to such date. For the purposes
hereof, the term "Business Day" shall be defined as any day other than a
Saturday, Sunday or other day on which banks are required or authorized to close
in the State of New York or on which dealings are not being carried on by
commercial banks in the London Interbank Market.
(b) Commencing September 6, 1999, and continuing monthly on the sixth
day of each month, principal and interest shall be payable in eighty-four (84)
consecutive monthly installments, which installments shall be based on a
twenty-year amortization, and shall be increased or decreased from time to time
to reflect any change(s) in the effective interest rate.
(c) Unless sooner paid, the unpaid Principal Sum, together with
interest accrued and unpaid thereon, shall be due and payable in full on August
6, 2006.
Interest shall be calculated on the basis of the actual number of days
in the current calendar year divided by 360. Interest shall be payable as
provided herein. All then accrued and unpaid interest shall also be payable when
the entire principal balance of this Note becomes due and payable (whether by
stated maturity, demand or acceleration) or, if earlier, when such principal
balance is actually paid to Payee. Interest shall accrue on the unpaid balance
hereof at the rate provided for in this Note until the entire unpaid balance has
been paid in full, notwithstanding the entry of any judgment against Maker.
Maker may prepay the indebtedness evidenced by this Note in whole or in
part at any time(s) without premium or penalty, provided that any prepayment(s)
shall be accompanied by all accrued interest to the date of prepayment(s). Each
partial prepayment shall be applied against the installments of principal last
(by date) due and payable; and no prepayment shall postpone or interrupt payment
of future installments of principal and interest, which shall continue to be due
and payable until payment hereof in full. Prepaid principal may not thereafter
be reborrowed.
If any payment hereunder is not paid when due, and continues unpaid for
a period of ten (10) days thereafter, Payee, at Xxxxx's discretion, may charge
Maker as a late charge an amount computed at a rate of two percent (2%) of such
past due amount. The late charge shall be in addition to any interest due.
Notwithstanding the foregoing, in no event shall any late charge be less than
ten dollars ($10).
This Note is secured by, among other things, a Mortgage(s) and Security
Agreement(s) from Maker to Payee of even date herewith and intended to be
recorded forthwith (the "Mortgage"), secured upon premises in Penn Township,
York County, Pennsylvania, as described in said Mortgage (the "Mortgaged
Property"). All of the agreements, conditions, covenants, provisions and
stipulations contained in the Mortgage which are to be kept and performed by
Maker, are hereby made a part of this Note to the same extent and with the same
force and effect as if they were fully set forth herein, and Maker covenants and
agrees to keep and perform them, or cause them to be kept and performed,
strictly in accordance with their terms.
This Note, the Loan Agreement, the Mortgage, the Assignment(s) and the
related collateral documents are referred to herein collectively as the "Loan
Documents," and the provisions thereof are incorporated herein by reference.
Capitalized terms used herein without definition that are defined in the Loan
Agreement shall have the same meanings herein.
Subject to any applicable notice and grace period(s), if the Maker
shall fail to observe or perform any of the terms, agreements, covenants and
conditions of the
Maker contained herein or in any other Loan Document, the Payee, in its
discretion, but without any duty to do so, and without waiving any default, may
perform any of such
Maker contained herein or in any other Loan Document, the Payee, in its
discretion, but without any duty to do so, and without waiving any default, may
perform any of such terms, agreements, covenants and conditions, in whole or in
part, and any money advanced or expended by the Payee in or toward the
fulfillment of such terms, agreements, covenants and conditions shall be due on
demand and shall become a part of and be added to the indebtedness due under
this Note, with interest to be paid thereon at the then current rate provided
herein from the date of the respective advance or expenditure, and secured by
the Mortgage and Security Agreement and the related collateral documents.
The occurrence of any one or more of the events, conditions or
occurrences identified in the Loan Agreement as an "Event of Default" shall be
an Event of Default hereunder.
In the event of any default hereunder, or if an event of default, as
described in the Mortgage(s) and Security Agreement(s) or any other Loan
Document, shall occur and be continuing beyond any applicable grace period, an
event of default shall occur hereunder, and Payee, at its option and without
further notice to Maker, may declare immediately due and payable the entire
unpaid balance of the principal sum of this Note with interest accrued thereon
at the rate specified to the date of default and thereafter at the rate provided
herein from time to time, and all other sums due by Maker under the Loan
Documents, anything in any of the Loan Documents to the contrary
notwithstanding; and payment thereof may be enforced and recovered in whole or
in part at any time by one or more of the remedies provided to Payee in the Loan
Documents. In such case, Xxxxx may also recover all reasonable costs of suit and
other reasonable expenses in connection therewith, together with a reasonable
attorney's commission for collection, together with interest on any judgment
obtained by Xxxxx at the rate provided herein from time to time, including
interest at that rate from and after the date of any Sheriff's sale until actual
payment is made by the Sheriff to Payee of the full amount.
The remedies of Payee as provided in the Loan Documents and the
warrants contained therein 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; and the failure to
exercise any such right or remedy shall in no event be construed as a waiver or
release thereof or of any other right or remedy.
Except for any required notice(s) under the Loan Documents, Maker
hereby waives and releases all errors, defects and imperfections in any
proceedings instituted by Xxxxx under the terms of the Loan Documents, as well
as all benefits that might accrue to Maker by virtue of any present or future
laws exempting the Mortgaged Property, or any other property, real or personal,
or any part of the proceeds arising from any sale of any such property, from
attachment, levy or sale under execution, or
providing for any stay of execution, exemption from civil process, or extension
of time for payment. Xxxxx agrees that any real estate that may be levied upon
pursuant to a judgment obtained by virtue hereof, or any writ of execution
issued thereon, may be so levied solely, in whole or in part, in any order
desired by Xxxxx.
Maker hereby waives presentment for payment, demand, notice of demand,
notice of nonpayment or dishonor, protest and notice of protest of this Note,
and all other notices in connection with the delivery, acceptance, performance,
default or enforcement of the payment of this Note, and agrees that its
liability shall not be affected in any manner by any indulgence, extension of
time, renewal, waiver or modification granted or consented to by Payee. Maker
consents to any and all extensions of time, renewals, waivers or modifications
that may be granted in favor of Maker by Xxxxx with respect to the payment or
other provisions of this Note, and to the release of the collateral or any part
thereof, with or without substitution.
Payee shall not be deemed, by any act of omission or commission, to
have waived any of its rights or remedies hereunder unless such waiver is in
writing and signed by Xxxxx, and then only to the extent specifically set forth
in said writing. A waiver of one event shall not be construed as continuing or
as a bar to or waiver of any right or remedy to a subsequent event.
Upon the occurrence and during the continuance of an Event of Default,
Maker does hereby irrevocably authorize and empower any attorney of any court of
record of Pennsylvania or elsewhere to appear for the Maker and on its behalf
and to confess judgment against the Maker in favor of the Payee, with or without
declaration filed, for the unpaid principal balance hereof, together with all
amounts for which the Maker may be liable to the Payee hereunder, including, but
not limited to, unpaid interest, costs and other expenses of suit and reasonable
attorney's fees, all as aforesaid. If a copy hereof, verified by affidavit,
shall have been filed in said proceedings, it shall not be necessary to file the
original as a warrant of attorney. The authority granted herein to confess
judgment shall not be exhausted by any exercise thereof, but shall continue, and
may be exercised as aforesaid, from time to time and at all times until payment
in full of all the amounts due hereunder.
Maker shall pay the cost of any revenue, tax or other stamps now or
hereafter required by law at any time to be affixed to this Note or the
Mortgage; and if any taxes are imposed with respect to debts secured by
mortgages, or with respect to notes evidencing debts so secured, Maker agrees to
pay to the holder hereof upon demand the amount of such taxes, and hereby waives
any contrary provisions of any laws or rules of court now or hereafter in
effect.
Notwithstanding anything to the contrary herein contained, the total
liability of Maker for payment of interest pursuant hereto shall not exceed the
maximum amount, if any, of such interest permitted by applicable law to be
contracted for, charged or received, and if any payments by Maker to Payee
include interest in excess of such a
maximum amount, Payee shall apply such excess to the reduction of the unpaid
principal amount due pursuant hereto, or if none is due, such excess shall be
refunded to Maker. Any such application or refund shall not cure or waive any
Event of Default. In determining whether or not any interest payable under this
Note or the Loan Documents exceeds the highest rate permitted by law, any
non-principal payment (except payments specifically stated in this Note to be
"interest"), including without limitation prepayment premiums and late charges,
shall be deemed, to the extent permitted by applicable law, to be an expense,
fee, premium or penalty rather than interest.
If any provision hereof is found by a court of competent jurisdiction
to be prohibited or unenforceable, it shall be ineffective only to the extent of
such prohibition or unenforceability, and such prohibition or unenforceability
shall not invalidate the balance of such provision to the extent it is not
prohibited or unenforceable, nor invalidate the other provisions hereof, all of
which shall be liberally construed in favor of Payee in order to effect the
provisions of the Note.
THE MAKER, AND ANY ENDORSERS, SURETIES AND GUARANTORS HEREBY WAIVE ANY
RIGHT TO TRIAL BY JURY OF ANY ISSUES OF FACT IN ANY ACTION RELATING TO ANY
RIGHTS OR OBLIGATIONS UNDER THIS NOTE OR OTHER DOCUMENTS RELATING TO THIS
TRANSACTION.
THE MAKER, AND ANY ENDORSERS, SURETIES AND GUARANTORS HEREBY AGREE THAT
ANY ACTION OR PROCEEDING AGAINST IT TO ENFORCE THIS NOTE MAY BE COMMENCED IN
STATE OR FEDERAL COURT IN ANY COUNTY IN THE COMMONWEALTH OF PENNSYLVANIA IN
WHICH THE PAYEE PRESENTLY HAS AN OFFICE, AND THE MAKER, AND ANY ENDORSERS,
SURETIES AND GUARANTORS WAIVE PERSONAL SERVICE OF PROCESS AND AGREE THAT A
SUMMONS AND COMPLAINT COMMENCING AN ACTION OR PROCEEDING IN ANY SUCH COURT SHALL
BE PROPERLY SERVED AND SHALL CONFER PERSONAL JURISDICTION IF SERVED BY
REGISTERED OR CERTIFIED MAIL.
The Maker intends this to be a sealed instrument and to be legally
bound hereby. This instrument has been executed in, and shall be governed by and
construed according to the laws of, the Commonwealth of Pennsylvania.
The terms "Note" and "Mortgage," as used herein, shall mean the same as
amended, modified or altered, from time to time.
Whenever used, the singular shall include the plural, the plural the
singular and the use of any gender shall be applicable to all genders, and the
words "Payee" and "Maker" shall be deemed to include the respective heirs,
personal representatives, successors and permitted assigns of Payee and Maker.
This obligation shall be legally binding upon the Maker and the heirs,
personal representatives, successors and assigns of the Maker and the benefits
hereof shall inure to the Payee and the successors and assigns of the Payee.
IN WITNESS WHEREOF, the Maker has duly executed this Note under seal
the day and year first above written.
WITNESS: xXXxX*S DISTRIBUTION COMPANY
----------------------- By:-------------------------
Title:----------------------
