EXHIBIT 2
Loan No. 000-0000000-000
PROMISSORY NOTE
(000 Xxxx Xxxxxxxxxx Xxxxxxxxx, Xxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx)
$500,000 May 13, 1998
FOR VALUE RECEIVED, C.B. REALTY OF DELAWARE, INC., a Delaware
corporation ("BORROWER"), promises to pay to the order of METLIFE CAPITAL
FINANCIAL CORPORATION ("METLIFE") at METLIFE's office at 00000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000, attention: Real Estate
Department, or at such other address as the holder hereof may from time to time
designate in writing, the principal sum of Five Hundred Thousand and no
hundredths Dollars ($500,000.00) together with interest from the date the
proceeds of the loan (the "Loan") evidenced by this Promissory Note (this
"Note") are initially disbursed until maturity on the principal balance from
time to time remaining unpaid hereon at the rate of nine percent (9.0%) per
annum (computed on the basis of a 360-day year of twelve (12) consecutive thirty
(30)-day months) in installments as follows: (i) interest only in advance at the
rate of $125.00 per day shall be due and payable on the date the proceeds of the
Loan are initially disbursed to or for the benefit of BORROWER (including,
without limitation, disbursement into an escrow for the benefit of BORROWER) for
the period beginning on the date of such disbursement and ending on the last day
of the month during which such disbursement occurs, and (ii) fifty-nine (59)
installments of principal and interest in the amount of $5,690.15 each shall be
payable commencing on the first day of the second month following the month in
which funds are advanced and continuing on the first day of each and every
succeeding month until June 1, 2003, at which time all then unpaid principal and
interest hereon shall be due and payable.
If any payment shall not be received by METLIFE when due and
shall not be received within ten (10) days thereafter, BORROWER shall pay an
additional charge equal to five percent (5.00%) of the delinquent payment or the
highest additional charge permitted by law, whichever is less.
Except as is expressly provided for herein, this Note may not
be prepaid in whole or in part without the prior written consent of METLIFE.
Upon not less than thirty (30) days' advance written notice to METLIFE at any
time after the second (2nd) anniversary of the due date of the first monthly
principal and interest payment due under this Note, and upon payment of a
prepayment premium as set forth below (the APrepayment Premium@), BORROWER shall
have the right to prepay all, but not less than all, of the outstanding balance
of this Note on any regularly scheduled principal and interest payment date. The
Prepayment Premium shall be determined by (i) calculating the decrease
(expressed in basis points) in the current weekly average yield of five (5)-year
U.S. Treasury Constant Maturities (as published in Federal Reserve Statistical
Release H.15 [519]) (the "Index") from Friday, February 13, 1998, to the Friday
immediately preceding the week in which the prepayment is made, (ii) dividing
the decrease by 100, (iii) multiplying the result by the following described
applicable premium factor (the "Premium Factor"), and (iv) multiplying the
product by the principal balance to be prepaid. If the Index is unchanged or has
increased from Friday, February 13, 1998, to the Friday immediately preceding
the prepayment date, no Prepayment Premium shall be due. The Premium Factor
shall be the amount shown on the following chart for the month in which
prepayment occurs:
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No. Mos. Premium
Remaining (Years) Factor
--------- ------- -------
60 - 49 ( 5) .042
48 - 37 ( 4) .036
36 - 25 ( 3) .029
24 - 13 ( 2) .022
12 - 1 ( 1) .013
If the Federal Reserve Board ceases to publish Statistical Release H.15 [519],
then the decrease in the weekly average yield of five (5)-year U.S. Treasury
Constant Maturities will be determined from another source designated by
METLIFE. Prepayment prior to the second (2nd) anniversary of the due date of the
first monthly principal and interest payment due under this Note will not be
permitted.
If METLIFE at any time accelerates this Note after an Event of
Default (defined below), then BORROWER shall be obligated to pay the Prepayment
Premium in accordance with the foregoing schedule. The Prepayment Premium shall
not be payable with respect to condemnation awards or insurance proceeds from
fire or other casualty which METLIFE applies to prepayment, nor with respect to
XXXXXXXX's prepayment of the Note in full during the last three (3) months of
the term of this Note unless an Event of Default has occurred. BORROWER
expressly acknowledges that such Prepayment Premium is not a penalty but is
intended solely to compensate METLIFE for the loss of its bargain and the
reimbursement of internal expenses and administrative fees and expenses incurred
by METLIFE.
BORROWER shall be liable on this Note and on all the
representations, warranties, indemnities and covenants in the Deed of Trust,
Security Agreement, Assignment of Leases and Rents, and Fixture Filing (ADeed of
Trust@) covering the property (the "Property") securing this Note and all other
documents executed or delivered in connection herewith (the "Loan Documents").
Each of the following shall constitute an Event of Default
("Event of Default") hereunder and under the Deed of Trust:
(a) Failure of METLIFE to receive any payment of principal,
interest, or Prepayment Premium upon this Note when due, and such failure shall
continue for ten (10) days after written notice is given by METLIFE to BORROWER
of the same; or
(b) Failure of BORROWER within the time required by the Deed
of Trust to pay any sum secured thereby other than the Note or to make any
payment for taxes, insurance or for reserves for such payments, or any other
payment necessary to prevent filing of or discharge of any lien, and such
failure shall continue for a period of ten (10) days after written notice is
given to BORROWER by METLIFE specifying such failure; or
(c) Failure by XXXXXXXX to observe or perform any obligations
of BORROWER to METLIFE on or with respect to any transactions, debts,
undertakings or agreements other than the transaction evidenced by this Note
prior to the expiration of any applicable cure period set forth therein; or
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(d) Failure of BORROWER to make any payment or perform any
obligation under any superior liens or encumbrances on the Property, within the
time required thereunder, or commencement of any suit or other action to
foreclose any superior liens or encumbrances; or
(e) Failure by XXXXXXXX to observe or perform any of its
obligations under any of the lease agreements covering the Property prior to the
expiration of any applicable cure period set forth therein; or
(f) The Property is transferred or any agreement to transfer
any part or interest in the Property in any manner whatsoever is made or entered
into without the prior written consent of METLIFE, except as specifically
allowed under the Deed of Trust, including without limitation creating or
allowing any liens on the Property or leasing any portion of the Property; or
(g) Filing by XXXXXXXX of a voluntary petition in bankruptcy
or filing by BORROWER of any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, or similar
relief for itself under any present or future federal, state or other statute,
law or regulation relating to bankruptcy, insolvency or other relief for
debtors, or the seeking, consenting to, or acquiescing by BORROWER in the
appointment of any trustee, receiver, custodian, conservator or liquidator for
BORROWER, any part of the Property, or any of the income or rents of the
Property, or the making by BORROWER of any general assignment for the benefit of
creditors, or the inability of or failure by BORROWER to pay its debts generally
as they become due, or the insolvency on a balance sheet basis or business
failure of BORROWER, or the making or suffering of a preference within the
meaning of federal bankruptcy law or the making of a fraudulent transfer under
applicable federal or state law, or concealment by BORROWER of any of its
property in fraud of creditors, or the imposition of a lien upon any of the
property of BORROWER which is not discharged in the manner permitted by the Deed
of Trust, or the giving of notice by BORROWER to any governmental body of
insolvency or suspension of operations; or
(h) Filing of a petition against BORROWER seeking any
reorganization, arrangement, composition, readjustment, liquidation, or similar
relief under any present or future federal, state or other law or regulation
relating to bankruptcy, insolvency or other relief for debts, or the appointment
of any trustee, receiver, custodian, conservator or liquidator of BORROWER, of
any part of the Property or of any of the income or rents of the Property,
unless such petition shall be dismissed within sixty (60) days after such
filing, but in any event prior to the entry of an order, judgment or decree
approving such petition; or
(i) The institution of any proceeding for the dissolution or
termination of BORROWER voluntarily, involuntarily, or by operation of law, or
the death of XXXXXXXX; or
(j) A material adverse change occurs in the assets,
liabilities or net worth of BORROWER from the assets, liabilities or net worth
of BORROWER previously disclosed to METLIFE (the occurrence of such material
adverse change being METLIFE'S reasonable determination based on a review of
BORROWER'S financial condition); or
(k) Any warranty, representation or statement furnished to
METLIFE by or on behalf of BORROWER under this Note, the Deed of Trust, or any
of the Loan Documents shall prove to have been false or misleading in any
material respect; or
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(l) Failure of BORROWER to observe or perform any other
covenant or condition contained in the Deed of Trust and such default shall
continue for thirty (30) days after notice is given to BORROWER specifying the
nature of the failure, or if the default cannot be cured within such cure
period, BORROWER fails within such time to commence and pursue curative action
with reasonable diligence or fails at any time after expiration of such cure
period to continue with reasonable diligence all necessary curative actions. No
notice of default and no opportunity to cure shall be required with respect to
defaults under Section 17 of the Deed of Trust or if during the prior twelve
(12) months METLIFE has already sent a notice to BORROWER concerning default in
performance of the same obligation; or
(m) Failure of BORROWER to observe or perform any other
obligation under any other Loan Document when such observance or performance is
due, and such failure shall continue beyond the applicable cure period set forth
in such Loan Document, or if the default cannot be cured within such applicable
cure period, BORROWER fails within such time to commence and pursue curative
action with reasonable diligence or fails at any time after expiration of such
applicable cure period to continue with reasonable diligence all necessary
curative actions. No notice of default and no opportunity to cure shall be
required if during the prior twelve (12) months METLIFE has already sent a
notice to BORROWER concerning default in performance of the same obligation; or
(n) Xxxxxxxx's abandonment of the Property, or the termination
before the end of the stated term of that certain lease between BORROWER and
Carpet Barn, Inc., dated June 1, 1995; or
(o) Any of the foregoing events occur with respect to any
tenant of the Property, with respect to guarantor of any of BORROWER's
obligations in connection with the indebtedness evidenced by this Note or with
respect to any guarantor of any tenant's obligations relating to the Property,
or such guarantor dies or becomes incompetent.
Upon the occurrence of any of the foregoing Events of Default,
METLIFE shall have the option to declare the entire amount of principal and
interest due under this Note immediately due and payable without notice or
demand, and METLIFE may exercise any of its rights under this Note and any
document executed or delivered herewith. After acceleration or maturity,
BORROWER shall pay interest on the outstanding principal balance of this Note at
the rate of five percent (5.00%) per annum above Chase Manhattan Bank's prime
interest rate in effect from time to time, or fifteen percent (15.00%) per
annum, whichever is higher, provided that such interest rate shall not exceed
the maximum interest rate permitted by law.
All payments of the principal and interest on this Note shall
be made in coin or currency of the United States of America which at the time
shall be the legal tender for the payment of public and private debts.
If this Note is placed in the hands of an attorney for
collection, XXXXXXXX agrees to pay reasonable attorneys' fees and costs incurred
by METLIFE in connection therewith, and in the event suit or action is
instituted to enforce or interpret this Note (including without limitation
efforts to modify or vacate any automatic stay or injunction), the prevailing
party shall be entitled to recover all expenses reasonably incurred at, before
or after trial and on appeal, whether or not taxable as costs, or in any
bankruptcy proceeding, or in connection with post-judgment collection efforts,
including, without limitation, attorneys' fees, witness fees (expert and
otherwise), deposition costs, copying charges and other expenses.
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This Note shall be governed and construed in accordance with
the laws of the State of Nevada applicable to contracts made and to be performed
therein (excluding choice-of-law principles). BORROWER hereby irrevocably
submits to the jurisdiction of any state or federal court sitting in Nevada in
any action or proceeding brought to enforce or otherwise arising out of or
relating to this Note, and hereby waives any objection to venue in any such
court and any claim that such forum is an inconvenient forum.
This Note is given in a commercial transaction for business
purposes.
This Note may be declared due prior to its expressed maturity
date, all in the events, on the terms, and in the manner provided for in the
Deed of Trust.
BORROWER and all sureties, endorsers, guarantors and other
parties now or hereafter liable for the payment of this Note, in whole or in
part, hereby severally (i) waive demand, notice of demand, presentment for
payment, notice of nonpayment, notice of default, protest, notice of protest,
notice of intent to accelerate, notice of acceleration and all other notices,
and further waive diligence in collecting this Note or in enforcing any of the
security for this Note; (ii) agree to any substitution, subordination, exchange
or release of any security for this Note or the release of any party primarily
or secondarily liable for the payment of this Note; (iii) agree that METLIFE
shall not be required to first institute suit or exhaust its remedies hereon
against BORROWER or others liable or to become liable for the payment of this
Note or to enforce its rights against any security for the payment of this Note;
and (iv) consent to any extension of time for the payment of this Note, or any
installment hereof, made by agreement by METLIFE with any person now or
hereafter liable for the payment of this Note, even if BORROWER is not a party
to such agreement.
All agreements between BORROWER and METLIFE, whether now
existing or hereafter arising and whether written or oral, are hereby limited so
that in no contingency, whether by reason of demand or acceleration of the final
maturity of this Note or otherwise, shall the interest contracted for, charged,
received, paid or agreed to be paid to METLIFE exceed the maximum amount
permissible under the applicable law. If, from any circumstance whatsoever,
interest would otherwise be payable to METLIFE in excess of the maximum amount
permissible under applicable law, the interest payable to METLIFE shall be
reduced to the maximum amount permissible under applicable law; and if from any
circumstance METLIFE shall ever receive anything of value deemed interest by
applicable law in excess of the maximum amount permissible under applicable law,
an amount equal to the excessive interest shall be applied to the outstanding
principal balance hereof, or if such excessive amount of interest exceeds the
unpaid balance of principal hereof, such excess shall be refunded to BORROWER.
All interest paid or agreed to be paid to METLIFE shall, to the extent permitted
by applicable law, be amortized, prorated, allocated, and spread throughout the
full period (including any renewal or extension) until payment in full of the
principal so that the interest hereon for such full period shall not exceed the
maximum amount permissible under applicable law. METLIFE expressly disavows any
intent to contract for, charge or receive interest in an amount which exceeds
the maximum amount permissible under applicable law. This paragraph shall
control all agreements between BORROWER and METLIFE.
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IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT
SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING
ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED
IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY
CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN
AGREEMENT.
IN WITNESS WHEREOF, XXXXXXXX has caused this Note to be
executed by its duly authorized officers under seal as of the year and day first
written above.
BORROWER:
C.B. REALTY OF DELAWARE, INC.,
a Delaware corporation
By:________________________________
Title:_____________________________
Attest:____________________________
Title:_____________________________
Prepared by, recording requested by, and after recording, return to:
Xxxxxxxx X. Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxx & Xxxx, P.C.
000 Xxxx Xxxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
MetLife Capital Financial Corporation
Loan Number: 000-0000000-000
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