Item 2.03
EXHIBIT 10.29
NOTE
$1,400,000.00 Malvern, Pennsylvania
December 28, 2004
FOR VALUE RECEIVED, the undersigned DVL MORTGAGE HOLDINGS, LLC, a Delaware
limited liability company with principal place of business at Heron Tower, 00
Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000 ("Holdings") and DVL, INC., a
Delaware corporation with principal place of business at Heron Tower, 00 Xxxx
00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000 ("DVL") (Holdings and DVL are
sometimes referred to herein individually as a "Borrower" and collectively as
"Borrowers") hereby jointly and severally promise to pay to the order of
HARLEYSVILLE NATIONAL BANK AND TRUST COMPANY, a national banking association
with offices at 000 Xxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000, Attention: Loan
Administration ("Bank") the principal sum of ONE MILLION FOUR HUNDRED THOUSAND
DOLLARS ($1,400,000.00), together with interest on the outstanding balance
thereof at the "Applicable Interest Rate" set forth below. The loan evidenced by
the advances under this Note is being made in a single advance on this date and
is sometimes referred to herein as the "Loan."
1. Payments. Principal and interest shall be payable, in lawful money of
the United States, at Bank's office first designated above, or at such other
place as the holder of this Note may designate from time to time, in the
following manner:
(a) Commencing January 28, 2005, and on the same day of each calendar
month thereafter, Borrowers will make consecutive monthly payments of interest
only as it accrues.
(b) On or before December 28 in each calendar year hereafter, Borrowers
will make a principal installment payment of $50,000.00 per year.
(c) The entire outstanding balance of the Loan (if not sooner repaid)
shall in any event be repaid on January 31, 2009 (the "Maturity Date").
2. Interest. Absent default, the interest rate on the Loan shall be a
variable per annum rate equal to the sum of an "Index" plus a "Margin." The
"Index" shall be Bank's "prime rate" as it may change from time to time. The
"Margin" shall be 0.50% per annum (50 basis points). The interest rate on the
Loan shall change with each change in Bank's prime rate. If the Bank ceases to
maintain a prime rate, the Bank may select another commercial loan index as the
"Index" used with respect to Loan interest. The prime rate is not necessarily
the lowest rate charged by the Bank on any class of loans, but is an index from
which some loan rates are calculated.
-1-
Item 2.03
3. Unpaid Interest Added to Principal. Should any payment of interest or
interest and principal be overdue for a period of thirty (30) days the unpaid
interest shall be added to the principal and interest shall then be calculated
on the new higher principal.
4. Prepayments. Prepayments may be made in whole or part without
prepayment premium, fee or penalty providing Borrower shall have given Bank 30
days prior written notice of the date and amount of the prepayment. Any partial
prepayment shall be applied to principal, and no partial prepayment shall
postpone or interrupt monthly payments of principal, interest, fees and charges
or the installment of principal or the payment of the remaining principal
balance, all of which shall continue to be due and payable at the time and in
the manner set forth herein.
5. Application of Payments. Bank shall have the right to apply any
installment to principal, interest, late fees or other charges due hereunder or
any amount due under the Security Documents at Bank's sole discretion.
6. Late Charges. Borrower agrees that in the event any payment set forth
above shall not be paid within fifteen (15) days after the same shall become
due, Borrower shall pay to Bank a late charge of Five Cents ($0.05) for each
dollar so overdue to cover the direct and indirect additional expense and
overhead and lost profits incident to such delinquency. The imposition of any
late charge shall not be construed to obligate Bank to accept any overdue
installment nor to limit Bank's rights and remedies for either Xxxxxxxx's
default, as hereinafter set forth. Bank may deduct accrued late charges from any
payments thereafter made, and any deficiency in the regular payment created
thereby shall continue to bear interest as provided herein, until paid.
7. Default Rate of Interest. If any Event of Default occurs hereunder,
then so long as any such Event of Default continues uncured, interest hereunder
shall accrue at a rate (the "Default Rate") which shall be four percent (4.00%)
per annum in excess of the rate otherwise in effect hereunder from time to time,
and the amounts of all payments shall be adjusted accordingly to provide for
payment of all interest as accrued and to preserve the original schedule for
amortization of principal.
8. Security Documents. This Note is secured by certain security documents
(the "Security Documents"), including inter alia a Loan Agreement (the "Loan
Agreement"), a Pledge, Collateral Assignment and Security Agreement (the
"Security Agreement") covering the Borrowers' interest in certain "Collateral
Loans" (as defined in the Loan Agreement), and Collateral Assignments Mortgages
or Deeds of Trust. Any failure by Borrower to comply within the relevant grace
periods specified therein, or with the terms, covenants or conditions of any of
the Security Documents shall automatically constitute an "Event of Default"
under this Note.
9. Events of Default. The occurrence of any one or more of the following
shall be an "Event of Default" hereunder: if Borrowers shall fail to pay any sum
when due hereunder; or if an Event of Default shall occur under any Security
Document; or if either Borrower shall in any other way be in default hereunder
and such default is not cured within thirty (30) days after written notice
thereof by Bank, or, if such failure can not be cured using diligent efforts in
said thirty (30) day period, then such longer period of time as Bank determines
-2-
Item 2.03
to be reasonable under the circumstances, but in no event longer than sixty (60)
days provided Borrowers are diligently pursuing such cure); or if any
certification, warranty or representation made or hereafter made by either
Borrower to Bank hereunder or under any of the other Security Documents should
prove to be materially false as of the date made or deemed made. Upon an Event
of Default the entire unpaid principal balance on this Note together with
interest accrued thereon and with all other sums due or owed by Borrower
hereunder (including any unpaid fees) and under the terms of the Security
Documents shall at the option of Bank and without notice to Borrower become due
and payable immediately with interest at the rate set forth herein, together
with its reasonable attorney's fees incurred in connection with any such Event
of Default or the enforcement or modification thereafter of the terms of the
loan; and payment of the same may be enforced and recovered inter alia, by the
entry of judgment on this Note and the issuance of execution thereon.
10. Warrant of Attorney to Confess Judgment for Money. EACH BORROWER
HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR ATTORNEYS OR THE
PROTHONOTARY OR CLERK OF ANY COURT OF RECORD IN THE COMMONWEALTH OF
PENNSYLVANIA, OR ELSEWHERE, TO APPEAR FOR EITHER OR BOTH BORROWERS AT ANY TIME
AFTER THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT IN ANY
SUCH COURT IN AN APPROPRIATE ACTION THERE BROUGHT OR TO BE BROUGHT AGAINST ONE
OR BOTH BORROWERS AT THE SUIT OF BANK OR ANY HOLDER OF THIS NOTE, AND THEREIN TO
CONFESS JUDGMENT AGAINST ONE OR BOTH BORROWERS FOR ANY OR ALL SUMS DUE HEREUNDER
AND UNDER THE SECURITY DOCUMENTS TOGETHER WITH COSTS OF SUIT, AND THE REASONABLE
ATTORNEYS FEES OF THE HOLDER IN ENFORCING THIS NOTE, PLUS ENFORCEMENT AND
COLLECTION DISBURSEMENTS AND EXPENSES; AND FOR SO DOING THIS NOTE OR A VERIFIED
COPY HEREOF SHALL BE A SUFFICIENT WARRANT. THIS POWER SHALL NOT BE EXHAUSTED BY
ANY EXERCISE, BUT JUDGMENT MAY BE CONFESSED AND ENTERED REPEATEDLY AND
SEPARATELY AGAINST EACH BORROWER UNTIL BANK RECEIVES SATISFACTION IN FACT OF ALL
OBLIGATIONS UNDER THIS NOTE AND THE SECURITY DOCUMENTS. This warrant of attorney
to confess judgment shall not be deemed a "power of attorney" within the meaning
of the Pennsylvania Probate, Estates and Fiduciaries Code.
11. Bank's Remedies. The remedies of Bank provided herein and in the
Security Documents and the warrants of attorney herein or therein contained,
shall be cumulative and concurrent, and may be pursued singly, successively and
together at the sole discretion of Bank, 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 of the same.
-3-
Item 2.03
12. Waivers.
(a) Borrower hereby waives all benefit that might accrue to Borrower 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, and agrees that such property may be sold to satisfy any judgment
entered on this Note or the Security Documents, in whole or in part and in any
order as may be desired by Bank.
(b) Borrower (and all endorsers, sureties an guarantors) waive 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 (except as otherwise provided in the
loan documents), or enforcement of the payment of this Note; liability hereunder
shall be unconditional.
13. Taxes. Borrower 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
Security Documents; and if any taxes be imposed with respect to debts secured by
the Security Documents, or with respect to notes evidencing debts so secured
Borrower agrees to pay or to reimburse Bank upon demand the amount of such taxes
and if Borrower fails or refuses or is not legally permitted to do so, Bank may
at its option accelerate this Note to maturity as in the case of default by
Xxxxxxxx. Nothing in this Paragraph shall be deemed to require Borrower to pay
income taxes payable by the Bank.
14. Construction of Terms. The words "Bank" and "Borrower" whenever
occurring herein shall be deemed and construed to include the respective heirs
and assigns of Bank and Borrower, the singular shall include the plural and the
neuter, male and female shall each include the others. If more than one person
or entity executes this Note as "Borrower," their obligations under this Note
shall be joint and several.
15. Governing Law. This instrument shall be construed according to and
governed by the internal laws of the Commonwealth of Pennsylvania (without
regard to rules of choice of law or conflicts of laws), except to the extent
that those laws may be preempted by the United States of America.
16. Savings Clause. Should any provision of this Note be held to be
illegal or unenforceable the balance of the document shall be construed as if
the illegal or unenforceable provision were not included.
17. Business Purpose. This Note is executed in connection with a business
transaction.
18. Balloon Payment. This Note provides for a balloon payment at maturity.
-4-
Item 2.03
19. Waiver of Jury Trial. AS AN INDEPENDENT COVENANT, EACH BORROWER AND
BANK HEREBY MUTUALLY WAIVE AND AGREE TO WAIVE TRIAL BY JURY WITH RESPECT TO ANY
DISPUTE BETWEEN OR AMONG EITHER OR BOTH OF THE BORROWERS AND ANY HOLDER OF THIS
NOTE, ARISING UNDER OR WITH REFERENCE TO THIS NOTE, THE LOAN TRANSACTION TO
WHICH IT REFERS, ANY OF THE SECURITY DOCUMENTS OR THE TRANSACTIONS TO WHICH THEY
RELATE.
20. Consent to Jurisdiction, Venue, Forum. EACH BORROWER AND THE HOLDER OF
THIS NOTE HEREBY CONSENT TO THE JURISDICTION OF THE COURT OF COMMON PLEAS OF
XXXXXXXXXX COUNTY OR THE FEDERAL DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA FOR ANY PROCEEDING IN CONNECTION HEREWITH, AND HEREBY MUTUALLY
WAIVE OBJECTIONS AS TO VENUE AND CONVENIENCE OF FORUM IF VENUE IS IN XXXXXXXXXX
COUNTY, PENNSYLVANIA OR IN THE FEDERAL DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA.
21. Service of Process. EACH BORROWER AND BANK MUTUALLY AGREE THAT INITIAL
PROCESS IN ANY SUCH PROCEEDING SHALL BE DEEMED PROPERLY SERVED IF MAILED BY
CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, TO EITHER (I) THE
RECIPIENT'S ADDRESS AS FIRST SHOWN ABOVE, UNLESS THE RECIPIENT SHALL HAVE
EXPRESSLY DESIGNATED ANOTHER SERVICE ADDRESS BY CERTIFIED OR REGISTERED MAIL,
RETURN RECEIPT REQUESTED, ADDRESSED TO SENDER, OR (II) THE ACTUAL PLACE OF
BUSINESS OF RECIPIENT AT THE TIME.
IN WITNESS WHEREOF, each of the Borrowers has duly executed this Note
under seal the date and year first above mentioned.
Witness: DVL MORTGAGE HOLDINGS, LLC, a Delaware
limited liability company
By DVL, INC., a Delaware corporation,
its sole member
By:___________________________________
________________________________ Xxxx X. Xxxxxxx
(Signature) President
Print Name: ____________________
Attest: DVL, INC.
________________________________ By:___________________________________
(Signature) Xxxx X. Xxxxxxx
Print Name: ____________________ President
Secretary
-5-
