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PROMISSORY NOTE
$1,500,000 New York, New York
July 23, 1996
ON DEMAND, but no later than the Final Maturity Date, for value
received, XXXXXXXX CORPORATION ("XXXXXXXX"), HRH CONSTRUCTION CORPORATION
("HRH") AND GRENADIER REALTY CORP. ("GRENADIER") (collectively, the
"Borrower"), hereby promise to pay to the order of THE CHASE MANHATTAN BANK
(the "Bank") at the office of the Bank at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, in immediately available funds, the principal amount of ONE MILLION FIVE
HUNDRED THOUSAND DOLLARS ($1,500,000), or such lesser amount as may constitute
the aggregate unpaid principal amount hereunder. The Borrower further promises
to pay interest (computed on the basis of actual number of days elapsed over a
year of 360 days) on each Interest Payment Date at a rate of interest equal to
either the Adjusted LIBO Rate plus 2.00% or the Prime Rate plus .5% (as
recorded on the grid attached hereto) on the unpaid principal amount of each
Loan until such principal amount is paid in full.
The Loan shall be a Prime Rate Loan unless Xxxxxxxx shall request the
Loan be convened to a LIBOR Loan upon at least three (3) Business Days' prior
written request to the Bank, such request to be made by 11:00 a.m. on the
required day; provided, however, there shall be no LIBOR Loan outstanding if the
principal amount of the Loan outstanding is less than $500,000. If the Borrower
shall not timely notify the Bank that it has selected the Adjusted LIBO Rate
plus 2% for a LIBOR Loan prior to the expiration of the then-current Interest
Period relating to such Loan, then such Loan shall be convened to a Prime Rate
Loan. The Bank is authorized to enter on the attached grid schedule all the
information specified therein relating to the Loan, all of which entries, in
the absence of manifest error, shall be conclusive and binding on the Borrower,
provided that the failure of the Bank to make any such entries shall not
relieve the Borrower from its obligation to pay any amount due hereunder.
INTEREST
(a) A LIBOR Loan shall bear interest, for each Interest
Period, at a rate per annum equal to 2.00% above the Adjusted LIBO
Rate.
(b) A Prime Rate Loan shall bear interest, at the rate per
annum for each day equal to .5% above the Prime Rate.
(c) If the principal indebtedness evidenced hereby is
declared immediately due and payable by the Bank pursuant to the
provisions of this Note, or if the Loan is not paid in full on the
Maturity Date, the Borrower shall thereafter, unless and until such
date, if any, as the Bank may elect, in its sole and absolute
discretion, to waive, in writing, all or any portion of such interest,
pay interest on the principal sum then
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remaining unpaid from the date of such declaration or the Maturity Date,
as the case may be, until the date on which the principal sum then
outstanding is paid in full (whether before or after judgment), at a
rate per annum (calculated for the actual number of days elapsed on the
basis of a 360-day year) equal to the greater of 20% or 5% in excess of
the Prime Rate, provided, however, that such interest rate shall in no
event exceed the maximum interest rate which the Borrower may by law
pay. In addition, if all or any portion of the indebtedness, whether of
principal, interest, additional interest or other sum (if any) payable
under this Note is not paid within ten (10) days after the date on which
it is due, the Borrower shall pay to the Bank on demand an amount equal
to 3% of such unpaid portion as a late payment charge. It is hereby
expressly agreed that such late charge is to compensate the Bank for
costs incurred in connection with the administration of such default,
and does not constitute a penalty.
INCREASED COST
If at any time after the date hereof, the Board of Governors of the
Federal Reserve System or any political subdivision of the United States of
America or any other government, governmental agency or central bank shall
impose or modify any reserve or capital requirement on or in respect of loans
made by or deposits with the Bank or shall impose on the Bank or the
Eurocurrency market any other conditions affecting the Loan, and the result of
the foregoing is to increase the cost to (or, in the case of Regulation D, to
impose a cost on) the Bank of making or maintaining the Loan or to reduce the
amount of any sum receivable by such Bank in respect thereof, by an amount
deemed by the Bank to be material, then, within 30 days after notice and
demand by the Bank, the Borrower shall pay to the Bank such additional amounts
as will compensate the Bank for such increased cost or reduction. A certificate
of the Bank claiming compensation hereunder and setting forth the additional
amounts to be paid to it hereunder and the method by which such amounts were
calculated shall be conclusive in the absence of manifest error.
CAPITAL ADEQUACY
If the Bank shall have determined that the applicability of any law,
rule, regulation or guideline adopted pursuant to or arising out of the July
1988 report of the Basle Committee on Banking Regulations and Supervisory
Practices entitled "International Convergence of Capital Measurement and
Capital Standards", or the adoption after the date hereof of any other law,
rule, regulation or guideline regarding capital adequacy, or any change in any
of the foregoing or in the interpretation or administration of any of the
foregoing by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by the
Bank (or any lending office of the Bank) or the Bank's holding company with any
request or directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on the Bank's capital or
on the capital of the Bank's holding company, if any, as a consequence of its
obligations hereunder to a level below that which the Bank or the Bank's holding
company could have achieved but for such adoption, change or compliance (taking
into consideration
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the Bank's policies and the policies of such Bank's holding company with
respect to capital adequacy) by an amount deemed by the Bank to be material,
then from time to time the Borrower shall pay to the Bank such additional
amount or amounts as will compensate the Bank or the Bank's holding company for
any such reduction suffered.
INDEMNITY
The Borrower shall indemnify the Bank against (i) any loss or
expense which the Bank may sustain or incur as a consequence of the occurrence
of any Event of Default and (ii) any loss or expense sustained or incurred
including, without limitation, in connection with obtaining, liquidating or
employing deposits from third parties as a consequence of the payment of any
principal of any Loan by the Borrower (pursuant to demand, a default, change in
legality or otherwise) on any day other than the last day of an Interest
Period, or the failure by the Borrower to prepay any Loan or part thereof once
notice has been given. The Bank shall provide to the Borrower a statement,
supported where applicable by documentary evidence, explaining the amount of
any such loss or expense, which statement shall be conclusive absent manifest
error.
CHANGE IN LEGALITY
(a) Notwithstanding anything to the contrary contained
elsewhere in this Note, if any change after the date hereof in any law or
regulation or in the interpretation thereof by any governmental authority
charged with the administration thereof shall make it unlawful (based on the
opinion of any counsel, whether in-house, special or general, for the Bank) for
the Bank to make or maintain any Loan or to give effect to its obligations as
contemplated hereby with respect to any Loan, then, by written notice to the
Borrower by the Bank, the Bank may require that the Loan made by it be
converted to a Prime Rate Loan, whereupon the Loan shall be automatically
converted to a Prime Rate Loan as of the effective date of such notice as
provided in paragraph (b) below. In addition, upon receipt of such notice by
the Bank, the Borrower shall be prohibited from requesting a LIBOR Loan from
the Bank unless such declaration is subsequently withdrawn and the Bank agrees
to withdraw any such declaration if and to the extent that the making and
maintenance by the Bank of its LIBOR Loans shall cease to be unlawful.
(b) For purposes of this Section, a notice to the Borrower
by the Bank pursuant to paragraph (a) above shall be effective, if lawful and
if any Loan shall then be outstanding, on the last day of the then current
Interest Period; otherwise, such notice shall be effective on the date of
receipt by the Borrower.
REPRESENTATIONS AND WARRANTIES
Each entity constituting the Borrower represents and warrants
to the Bank that:
(a) The execution, delivery and performance by it of this
Note and the borrowings hereunder will not violate any indenture, agreement or
other instrument to
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which it is a party, or by which it or any of its property is bound, and will
not be in conflict with, result in a breach of or constitute (with due notice
and/or lapse of time) a default under, any such indenture, agreement or other
instrument, or result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of its property or assets other
than as contemplated by this Note.
This Note constitutes the valid and binding obligations of each
such entity enforceable against such entity Borrower in accordance with its
terms. This Note has been duly authorized by all necessary corporate action of
each of the entities constituting the Borrower.
(b) Each of the entities constituting Borrower has heretofore
furnished to the Bank complete financial statements prepared as of December 31,
1995 together with a schedule of contingent liabilities and guaranties. Each
such entity has also furnished to the Bank balance sheets, cash flow statements
(actual and pro forma), projections and other financial documents with respect
to assets and liabilities. Such financial statements and other financial
information and documents are correct and complete and fairly present the
financial condition of such entity as of such date and there has been no
material adverse change in the financial condition of such entity since
December 31, 1995.
(c) Each of the entities constituting Borrower has filed or
caused to be filed all Federal, state and local tax returns which are required
to be filed, and had paid or has caused to be paid all taxes as shown on said
returns or on any assessment received by such entity to the extent that such
taxes have become due.
(d) Each of the entities constituting Borrower has good and
marketable title solely in its name to its material properties and assets
reflected on the financial statements referred to above, and all such
properties and assets are free and clear of mortgages, pledges, liens, charges
and other encumbrances, except any such encumbrances that do not materially
interfere with the use or operation of such property or assets and except as
required or permitted by the provisions hereof or in writing by the Bank.
(e) (i) There are no actions, suits or proceedings (whether or
not purportedly on its behalf) pending or, to its knowledge, threatened
against or affecting any entity constituting Borrower at law or in equity or
before or by any Federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
which involve any of the transactions contemplated herein or which, if
adversely determined against it would result in any materially adverse change
in its properties or assets or in its condition, financial or otherwise; and
(ii) such entity is not in default with respect to any judgment, writ,
injunction, decree, rule or regulation of any court or Federal, state,
municipal or other governmental department, commission, board, bureau, agency
or instrumentality, domestic or foreign, which would have a materially adverse
effect on its condition (financial or otherwise).
(f) Each entity constituting Borrower is not a party to any
agreement or instrument or subject to any judgment, order, writ, injunction,
decree or
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regulation materially and adversely affecting its properties or assets,
operations or condition (financial or otherwise). Such entity is not in default
in any manner which would materially and adversely affect its properties or
assets, or condition (financial or otherwise) in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any
agreement or instrument to which it is a party.
(g) No part of any proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately, (i)
to purchase or to carry margin stock (as defined in Regulation U specified
below) or to extend credit to others for the purpose of purchasing or carrying
margin stock, or to refund indebtedness originally incurred for such purpose, or
(ii) for any purpose which violates or is inconsistent with the provisions of
Regulations G, T, U, or X of the Board of Governors of the Federal Reserve
System.
(h) All of the information which is required to be delivered to the
Bank is correct and accurate.
CONDITIONS OF LENDING
The Bank shall not consider lending hereunder less the following
conditions precedent have been met:
(a) The Bank shall have received this Note duly executed by the
Borrower.
(b) The representations and warranties contained herein shall be
true and correct on and as of the date hereof and no Event of Default or event
which, with the giving of notice or lapse of time or both would constitute an
Event of Default, shall have occurred and be continuing after giving effect to
any requested Loan. The request for the Loan hereunder shall be deemed to be a
representation by the Borrower that the conditions set forth in this paragraph
(c) have been fully complied with as of the date of such request.
(c) The Bank shall have received a certificate executed by the
Chief Financial Officer of Xxxxxxxx, HRH or Grenadier, as the case may be, that
no material adverse change has occurred in their respective financial
conditions, that there is no material pending litigation against Xxxxxxxx, HRH,
Grenadier or any other subsidiary of any of them, that Xxxxxxxx, HRH and
Grenadier are in compliance with all of their covenants hereunder and that no
events of default have occurred hereunder or under any document evidencing or
relating to any other indebtedness of any of them.
(d) The Bank shall have received such other and further information
and documentation as it may require.
(e) All documentation and all matters relating to this Note shall
be satisfactory to the Bank and its counsel.
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AFFIRMATIVE COVENANTS
Each entity constituting the Borrower covenants and agrees with the
Bank that it will:
(a) Give the Bank prompt written notice of (i) any action, event or
condition which is, or with notice or lapse of time or both, would constitute,
any Event of Default, (ii) any material adverse change in the condition,
financial or otherwise, of the Borrower and (iii) any action, suit or
proceeding at law or in equity which, if adversely determined against the
Borrower on the basis of the allegations and information set forth in the
complaint or other notice of such action, suit or proceeding, or in the
amendments thereof, if any, would materially and adversely affect the
Borrower's properties, assets or condition, financial or otherwise.
(b) As soon as available, but in no event later than 60 days from
the end of each quarter (or, in the case of annual statements, within 110 days
from the end of each fiscal year) deliver to Bank accrual basis financial
statements, including an income statement, balance sheet, statement of cash
flow and schedule of accounts receivable to be collected within the succeeding
12 months (all of the foregoing including not only all entities constituting
Borrower but also Xxxxxx Corporation), certified by the chief financial officer
of Xxxxxxxx. The Bank shall, at the same time, have received a certificate
executed by the Chief Financial Officer of Xxxxxxxx, HRH or Grenadier, as the
case may be, that no material adverse change has occurred in their respective
financial conditions, that all representations and warranties made by any of
them herein continue to be true and correct as of the date of such certificate,
that there is no material pending litigation against Xxxxxxxx, HRH, Grenadier
or any other subsidiary of any of them, that Xxxxxxxx, HRH and Grenadier are in
compliance with all of their covenants hereunder and that no events of default
have occurred hereunder or under any document evidencing or relating to any
other indebtedness of any of them.
(c) Deliver to Bank copies of all registration statements and any
amendments filed with the Securities and Exchange Commission and all quarterly
and annual reports, registrations statements and all other material filings
with the Securities and Exchange Commission or any national securities exchange
within 15 days after delivery to the Securities and Exchange Commission.
Xxxxxxxx shall also cause all reports or written information sent to the
shareholders of Xxxxxxxx to be promptly delivered to Bank.
(d) In the event of a sale by Xxxxxxxx of any of its development
rights with respect to the Gateway Estates property in Brooklyn, New York,
Xxxxxxxx shall pay to the Bank, in reduction of the principal amount of the
Loan then outstanding, 50% of the proceeds of such sale which exceed $3,000,000.
NEGATIVE COVENANTS
Each entity constituting the Borrower covenants and agrees with the
Bank that it will not, and it will not permit any subsidiary to, directly or
indirectly:
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(a) Incur, create, assume or suffer to exist any mortgage, pledge,
lien, charge or other encumbrance of any nature whatsoever (including
conditional sales or other title retention agreements except relating to
purchases of equipment or supplies made in the ordinary course of business) on
any of its assets now or hereafter owned, without the prior written consent of
the Bank; provided, however, that Xxxxxx Corporation shall not be subject to
these prohibitions; and provided, further, that Xxxxxxxx or any of its
subsidiaries (except Grenadier) may place non-recourse mortgages on its real
property in connection with any permitted non-recourse financing.
(b) Assume or suffer to exist or otherwise become liable in respect of
any other indebtedness or liability, contingent or otherwise, evidenced by
notes, guarantees, bonds, debentures, or similar obligations, or accept any
deposits or make any loans or advances of any kind, without the prior written
consent of the Bank, other than indebtedness incurred by HRH in connection with
the obtaining of performance and/or surety bonds necessary in the ordinary
course of HRH's business or indebtedness incurred by HRH or Grenadier to enable
it to carry on its day-to-day operations, but in no event shall indebtedness or
liability, contingent or otherwise, for borrowed money be permitted; provided,
however, that Xxxxxx Corporation shall not be subject to these prohibitions;
and provided, further, that Xxxxxxxx or any of its subsidiaries (except
Grenadier) shall be permitted to obtain non-recourse mortgage loans so long as
such loan does not exceed the value of the collateral for such loan; and
provided, further, that Xxxxxxxx may issue guarantees of any permitted
indebtedness of HRH; and provided further, that Xxxxxxxx may guarantee loans of
project/development related debt of any wholly owned subsidiary engaged in the
development of real property so long as such guaranteed loan does not exceed
the lesser of (i) 75% of the cost of such development project or (ii) 75% of
the appraised value of such development project; but Xxxxxxxx may not issue any
guarantees of permitted indebtedness of Xxxxxx Corporation.
(c) Purchase or hold beneficially any stock, other securities or
evidences of indebtedness of, make or permit to exist any loans or advances to,
or make any investment to acquire any interest whatsoever in, any other person,
without the prior written consent of the Bank, other than any such investments
existing on the date thereof or any such transaction with any existing or new
wholly owned subsidiary.
(d) Sell, lease, transfer or otherwise dispose of all or a substantial
portion of its properties and assets or merge with or into any other entity in
whatever manner.
(e) Sell, transfer or otherwise dispose of any ownership interest in
any existing subsidiary.
(f) Declare dividends in excess (on an annual basis) of the lesser of
(a) 50% of the net income after taxes of the entity declaring such dividends;
or (b) an amount equal to the prior year's dividend amount of such entity
increased by the percentage growth in such entity's ordinary net income, in
neither instance taking into account dividends payable to any of the entities
constituting Borrower.
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(g) Allow the consolidated stockholders' equity of Xxxxxxxx to fall
below $52,000,000.
(h) Allow Xxxxxx to enter into any loan covenants with any lender
regarding Xxxxxx'x ability to declare and pay cash dividends to Xxxxxxxx which
would reduce any such permitted dividends below the lesser of 25% of Xxxxxx'x
consolidated net income or $1,500,000.
EVENTS OF DEFAULT
In the case of the happening of any of the following events (herein
called "Events of Default"):
(a) any representation or warranty made herein shall prove to be false
or misleading in any material respect when made or given or when deemed made
or given;
(b) any report, certificate, financial statement or other instrument
furnished in connection with this Note or any borrowing hereunder, shall prove
to be false or misleading in any material respect when deemed made or given;
(c) default shall occur in the payment of the principal of or interest
on or any fees under this Note as and when due and payable;
(d) default shall be made in respect of any other indebtedness of any
entity constituting the Borrower, or any subsidiary of any entity constituting
Borrower, of any kind, to any person, or in the performance of any other
obligation incurred in connection with any such indebtedness, if the effect of
such default is to accelerate the maturity of such indebtedness or to permit
(or, with the giving of notice or lapse of time or both, to permit) the holder
or obligee thereof (or a trustee on behalf of such holder or obligee) to cause
any such indebtedness to become due prior to the stated maturity thereof, or
any such indebtedness shall not be paid when due; provided, however, that
default under any non-recourse indebtedness permitted hereunder shall not be a
default hereunder provided such default is, in Bank's determination, not a
material adverse change for such entity;
(e) default shall be made under any contractual obligation of any
entity constituting Borrower, or any subsidiary of any entity constituting
Borrower if such default is, in Bank's determination, a material adverse change
for such entity;
(f) default shall be made in the due observance or performance of any
covenant, condition or agreement of any entity constituting the Borrower to be
observed or performed pursuant to the terms of this Note or any related
document;
(g) any of the entities constituting the Borrower (or any subsidiary of
such entity) shall become insolvent (however such insolvency may be evidenced)
or proceedings are instituted by or against such entity under the United States
Bankruptcy Code
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or under any bankruptcy, reorganization or insolvency law or other law for the
relief of debtors;
(h) there shall be a material adverse change, in the Bank's
determination, in the financial condition of any of the entities constituting
the Borrower;
(i) any person or entity shall become the beneficial owner
of more than 30% of the outstanding voting stock of Xxxxxxxx other than any such
individual or entity that owns such voting stock as of the date hereof;
(j) Xxxxxxxx shall merge into or with any other entity in
whatever manner;
then, the Note, and all amounts accrued hereunder shall automatically become
due and payable, both as to principal and interest, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived, anything contained herein to the contrary notwithstanding. In addition
to and not in limitation of any or all rights of offset that the Bank may have
under applicable law, the Bank shall, upon the occurrence of any Event of
Default and whether or not the Bank has made any demand or the Borrower's
obligations are matured, have the right to appropriate and apply to the
payment of the Borrower's obligations hereunder, all deposits (general or
special, time or demand, provisional or final) then or thereafter held by and
other indebtedness or property then or thereafter owing by the Bank, whether or
not related to this Note or any transaction hereunder.
PREPAYMENT
(a) The Borrower shall pay, in reduction of the principal
amount of the Loan, the amount of $100,000 commencing on September 15, 1997.
The Borrower shall have the right (i) at any time and from time to time to
prepay any Prime Rate Loan in full, or in part, without penalty and (ii) to
prepay any LIBOR Loan in full, or in part, on the last day of the Interest
Period relating to such Loan, without penalty. If any LIBOR Loan is not
prepaid, it shall be automatically be converted to a Prime Rate Loan. Any
prepayment of a LIBOR Loan on a day other than the last day of the Interest
Period relating to such Loan shall be in full, and upon at least three (3)
Business Days' prior written notice to the Bank, and shall be subject to the
penalty provisions of paragraph (b) of this Section. A notice of prepayment
shall specify the prepayment date (which shall be a Business Day) and the
principal amount to be prepaid, shall be irrevocable and shall commit the
Borrower to prepay the Loan in full on the date and in the amount stated
therein. Each prepayment hereunder shall be accompanied by accrued interest on
the principal amount of the Loan to the date of prepayment. Amounts prepaid may
not be reborrowed.
(b) The Borrower shall reimburse the Bank on demand for any
loss incurred or to be incurred by it in the reemployment of the funds released
by any prepayment of any Loan permitted under this Section. Such loss shall be
the difference as reasonably determined by the Bank between the cost of
obtaining the funds for such Loan and any lesser
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amount which may be realized by the Bank in reemploying the funds received in
prepayment during the period from the date of prepayment to the maturity date
of the Loan.
DEFINITIONS
A. ADJUSTED LIBO RATE
"Adjusted LIBO Rate" shall mean, with respect to any Loan for
any Interest Period, an interest rate per annum equal to the
product of (i) the LIBO Rate in effect for such Interest Period
and (ii) Statutory Reserves.
"LIBO Rate" shall mean, with respect to any Loan for any
Interest Period, the rate (rounded upwards, if necessary, to the
next 1/16 of 1%) at which dollar deposits approximately equal in
principal amount to such Loan and for the maturity equal to the
applicable Interest Period are offered by the Bank in
immediately available funds in the London interbank market at
approximately 11:00 a.m., New York City time, three Business
Days prior to the commencement of such Interest Period.
For so long as any Loan hereunder shall bear interest at the
Adjusted LIBO Rate such Loan shall be deemed a LIBOR Loan.
B. BUSINESS DAY
A "Business Day" shall mean any day other than a Saturday,
Sunday or other day on which the Bank is authorized or required
by law or regulation to close, and which is a day on which
transactions in dollar deposits are being carried out in London.
C. FINAL MATURITY DATE
"Final Maturity Date" shall mean February 15, 1998.
D. INTEREST PAYMENT DATE
"Interest Payment Date" shall mean the first day of each
calendar month.
E. INTEREST PERIOD
"Interest Period" shall mean for each LIBOR Loan, the period
commencing on the date of such Loan or, as appropriate,
commencing on the last day of the immediately preceding Interest
Period for such Loan, and ending on the numerically
corresponding day (or if there is
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no numerically corresponding day, the last day) in the calendar
month that is 1, 2 or 3 months thereafter, as the Borrower,
provided, however, that (i) if any Interest Period would end on
a day which shall not be a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless,
with respect to a LIBOR Loan, such next succeeding Business Day
would fall in the next calendar month, in which case (x) such
Interest Period shall end on the first preceding Business Day
and (y) the Interest Period for any continuation of such LIBOR
Loan shall end on the last Business Day of a calendar month; and
(ii) no Interest Period may be selected that begins earlier than
August 15, 1996 nor expires later than the Final Maturity Date.
F. LOAN
"Loan" shall mean the borrowing by the Borrower pursuant to the
terms hereof.
G. PRIME RATE
"Prime Rate" shall mean the interest rate announced to be in
effect by the Bank from time to time as its prime rate.
H. STATUTORY RESERVES
Statutory Reserves shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate of
the maximum reserve percentages, expressed as a decimal
(including, without limitation, any marginal, special, emergency
or supplemental reserves) from time to time in effect under
Regulation D or as otherwise established by the Board of
Governors of the Federal Reserve System and any other banking
authority to which the Bank is subject for Eurocurrency
Liabilities (as defined in Regulation D). A LIBOR Loan shall be
deemed to constitute Eurocurrency Liabilities and as such shall
be deemed to be subject to such reserve requirements without
benefit of or credit for proration, exceptions or offsets which
may be available from time to time to the Bank under such
Regulation D. Statutory Reserves shall be adjusted automatically
on and as of the effective date of any change in any reserve
percentage.
EXPENSES OF THE BANK
The Borrower will pay all reasonable out-of-pocket expenses incurred by
the Bank in connection with the preparation, amendment or waiver of this Note
(whether or not the transactions hereby contemplated shall be consummated), the
making of the Loan
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hereunder, the enforcement of the rights of the Bank in connection with this
Note, or with the Loan made hereunder, and with respect to any action which may
be instituted by any person against the Bank in respect of the foregoing or as a
result of any transaction, action or nonaction arising from the foregoing,
including, but not limited to the fees and disbursements of counsel to the Bank.
WAIVER OF RIGHTS
Neither any failure nor any delay on the part of the Bank in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall a single or partial exercise thereof preclude any other or further
exercise of any other right, power or privilege. The Borrower waivers any right
it may have to claim or recover in any litigation with respect to this Note any
special, exemplary, punitive or consequential damages or any damages other
than, or in addition to, actual damages. The Borrower (i) certifies that no
representative, agent or attorney of the Bank has represented, expressly or
otherwise, that the Bank would not, in the event of litigation, seek to enforce
the foregoing waivers or the other waivers contained in this Note and (ii)
acknowledges that the Bank has been induced to enter into this Note by, among
other things, the waivers and certifications herein.
JOINT AND SEVERAL LIABILITY
The obligations and liabilities hereunder of the entities constituting
Borrower are joint and several.
JURISDICTION AND GOVERNING LAW
IN THE EVENT OF ANY LITIGATION WITH RESPECT TO THIS NOTE OR THE LOAN, THE
BORROWER WAIVES THE RIGHT TO A TRIAL BY JURY AND ALL RIGHTS OF SETOFF AND RIGHTS
TO INTERPOSE COUNTER-CLAIMS AND CROSS-CLAIMS. THE BORROWER HEREBY IRREVOCABLY
CONSENTS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN
THE CITY OF NEW YORK AND OF ANY FEDERAL COURT LOCATED IN SUCH CITY AND STATE IN
CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE
OR THE LOAN. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED
IN SUCH STATE, AND SHALL BE BINDING UPON THE SUCCESSORS AND ASSIGNS OF THE
BORROWER AND INURE TO THE BENEFIT OF THE BANK, ITS SUCCESSORS, ENDORSEES AND
ASSIGNS.
XXXXXXXX CORPORATION
By
---------------------------
President
96
13
HRH CONSTRUCTION
CORPORATION
By
------------------------
Executive Vice President
GRENADIER REALTY CORP.
By
------------------------
Chief Executive Officer
97
14
GRID SCHEDULE
AMOUNT AMOUNT OF
TYPE OF OF PRINCIPAL INTEREST MATURITY
DATE LOAN LOAN REPAID RATE DATE
---- ------- ------ --------- -------- --------
98
