M&T Bank
Manufacturers and Traders Trust Company
SITE DEVELOPMENT MORTGAGE NOTE
(Construction Loan)
Pennsylvania
August 20, 2004
$864,820.00
BORROWER:
Big Boulder Corporation
a(n) ( ) individual(s) ( ) partnership ( x
) corporation ( ) trust ( ) limited
liability company ( )
organized under the laws of Pennsylvania
Address of residence/chief executive office: Route 940 and
Moseywood Road, P.O. Box 707, Blakeslee, Pennsylvania
18610-0747.
LENDER: Manufacturers and Traders Trust Company, a New York banking
company, with offices located at One Fountain Plaza, Buffalo, New
York 14203. Attn: M&T Real Estate, Inc.
Definitions. Each capitalized term shall have the meaning specified
herein and the following terms shall have the indicated
meanings:
a.
"Loan Agreement" shall mean the agreement
between, inter alia, Borrower and the Lender dated on or about
the date hereof in connection with the construction and mortgage
financing of real property described in the Mortgage, as the
same may be amended, modified or replaced from time to time.
b.
"Maturity Date" is August 1, 2006.
c.
"Mortgage" shall mean the mortgage dated on or
about the date of this Note executed by Borrower as the same may
be amended, modified or replaced from time to time.
e.
"Principal Sum" shall mean Eight Hundred Sixty-Four Thousand Eight
Hundred Twenty Dollars ($864,820.00).
Promise to Pay. For value received, and
intending to be legally bound, the undersigned Borrower promises
to pay to the order of the Lender at its office identified above
in lawful money of the United States and in immediately
available funds, the Principal Sum or so much thereof as may be
advanced, plus interest on the unpaid portion of the Principal
Sum, and all Expenses (defined below). Advances under this Note
shall be made pursuant to the terms and conditions of the Loan
Agreement
Interest. All outstanding amounts of the
Principal Sum advanced to Borrower under this Note shall accrue
interest at a per annum rate equal to:
( )
%
( x )
equal to the rate in effect as the rate
announced by the Lender as its prime rate of interest on the
first day of the calendar month containing such day. The Prime
Rate may be greater or less than other interest rates charged by
the Bank to other borrowers and is not solely based upon or
dependent upon the interest rate which the Bank may charge any
particular borrower or class of borrowers.
( )
percentage points above LIBOR for a (
) one month interest period, ( ) two
month interest period, ( ) three month interest
period or ( ) six month interest period ("LIBOR
Rate"). If no interest period is specified, a one month period
shall be used. The definition of LIBOR, adjustments to the LIBOR
Rate and other provisions relative thereto are contained on
Rider B attached hereto and made a part of this Note by
reference.
( )
See Rider A attached hereto and made a part of this Note by
reference.
If no rate is specified, interest shall accrue at the Maximum Legal
Rate defined below, fixed as of the date of disbursement. Interest
will be calculated on the basis of a 360-day year consisting of
twelve (12) months with the actual number of days of each month
(28, 29, 30 or 31).
Maximum Legal Rate. It is the intent of the
Lender and Borrower that in no event shall such interest be
payable at a rate in excess of the maximum rate permitted by
applicable law (the "Maximum Legal Rate"). Solely to the extent
necessary to prevent interest under this Note from exceeding the
Maximum Legal Rate, any amount that would be treated as
excessive under a final judicial interpretation of applicable
law shall be deemed to have been a mistake and automatically
canceled and if received by the Lender shall be refunded to
Borrower.
Default Rate. After maturity (whether due to the
Maturity Date, by acceleration or otherwise), the interest rate
on the unpaid Principal Sum shall be increased to 3 percentage
points per year above the otherwise applicable rate per year
(the "Default Rate"). Any judgment entered hereon or otherwise
in connection with any suit to collect amounts due hereunder
shall bear interest at such Default Rate. No failure to impose
or delay in imposing the Default Rate shall be construed as a
waiver by the Lender of its right to collect, and Borrower's
obligation to pay, interest at the Default Rate effective as of
the date of maturity (whether due to the Maturity Date, by
acceleration or otherwise).
Repayment of Principal and Interest. Borrower shall pay the
Principal Sum and interest owing pursuant to this Note to the
Lender in installments as follows:
(1.)
Borrower shall pay accrued interest to Lender on the first day of
September, 2004 and on the first day of each subsequent month
thereafter to, but not including, the Maturity Date; and
(2.)
On the Maturity Date, Borrower shall pay the
outstanding Principal Sum and all accrued and unpaid interest,
premiums, Expenses and all other amounts owing pursuant to this
Note, the Loan Agreement and the Mortgage and remaining unpaid.
In addition, the Borrower shall make additional principal
payments as set forth in the Loan Agreement.
Late Charge. If Borrower fails to pay the whole
or any installment of principal or interest owing pursuant to
this Note, the Mortgage or the Loan Agreement including any
Escrow payment owing pursuant to the Mortgage or the Loan
Agreement within ten (10) days of its due date, Borrower shall
immediately pay to the Lender a late charge equal to six percent
(6%) of the delinquent amount.
Application of Payments. Payment made with
respect to this Note may be applied in any order in the sole
discretion of the Lender, but prior to an Event of Default or
maturity, each payment shall be shall be applied first to
accrued and unpaid interest, next to Principal, next to the
Escrow, next to late charges, and finally to Expenses.
Prepayment. Borrower shall have the option of paying the Principal
Sum to the Lender in advance of the Maturity Date, in whole or in
part, at any time and from time to time upon written notice
received by the Lender at least thirty (30) days prior to making
such payment; provided, however, that together with such
prepayment, Borrower shall pay to the Lender a premium, equal to
one percent (1%) of the Principal sum paid. Upon making any
prepayment of the Principal Sum in whole, Borrower shall pay to the
Lender all interest and Expenses owing pursuant to this Note, the
Mortgage or the Loan Agreement and remaining unpaid. Any partial
payment of the Principal Sum shall be applied in inverse order of
maturity. In the event the Maturity Date of this Note is
accelerated, any tender of payment of the amount necessary to
satisfy the entire indebtedness made after maturity shall be
expressly deemed a voluntary prepayment. In such a case, to the
extent permitted by law, the Lender shall be entitled to the amount
necessary to satisfy the entire indebtedness, plus the appropriate
prepayment premium as calculated above. No prepayment premium shall
apply if the principal amount of this Note is $50,000 or less and
is secured by a mortgage on Pe
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