EXHIBIT 2.4
DEED OF TRUST NOTE
(ACTUAL)
NEW YORK
[M&T BANK LOGO]
JULY 5, 2001 $2,800,000.00
BORROWER: ALTRECO, INCORPORATED a(n)
/ / individual(s) / / partnership /X/ corporation / / trust
/ / limited liability company / / organized under the laws of
Delaware. Address of residence/chief executive office: 608 Allen Street,
Jamestown, New York 14701
LENDER: M&T REAL ESTATE, INC., One Fountain Plaza, Buffalo, New York
14203-2399.
PROMISE TO PAY. For value received, and intending to be legally bound, the
undersigned Borrower promises to pay to the order of the Lender at its office
identified above, in lawful money of the United States and in immediately
available funds, the sum of TWO MILLION EIGHT HUNDRED THOUSAND------------------
DOLLARS ($ 2,800,000.00--------------------)(the "Principal Sum") plus interest
on the unpaid portion of the Principal Sum as set forth hereafter, all amounts,
if any, required for an escrow against taxes and other charges pursuant to the
Deed of Trust defined below (the "Escrow"), and all Expenses (defined below).
INTEREST. The unpaid Principal Sum shall accrue interest at a per annum rate
per to:
/X/ 8.04 %
/ / percentage points above the rate in effect as the
rate announced by Lender as its prime rate of
interest on the first day of the calendar month
containing such day.
/ / 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 interest 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 this reference.
/ / see Rider C attached hereto and made a part of this Note.
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"). If this Note is for a personal
loan of less than $2,500,000 and is secured primarily by a one-to-four family
residence, the interest rate shall not exceed sixteen percent (16%). 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 three (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).
TERM. The Maturity Date is AUGUST 1, 2006.
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) one installment of interest payable on the date of this Note
equal in amount to the interest which will accrue during the
period beginning on the date of this Note and ending on the
last calendar day of the same month and year;
(2) 59 consecutive level monthly installments consisting of both
principal and interest, each installment being in the amount
of $ 26,822.96, shall become due and payable on the
first day of each month commencing on SEPTEMBER 1 , 2001. If
Borrower elects a variable interest rate and there is a
change in such interest rate, the remaining consecutive
level monthly installments consisting of both principal and
interest may be adjusted to reflect such change in the
interest rate and absent manifest error, the Lender's
determination of the amount of such level monthly
installment of principal and interest shall be conclusive;
and
(3) ONE FINAL INSTALLMENT of principal, interest, premiums and
Expenses to become due on the Maturity Date and to be equal to
the total of the outstanding Principal Sum and all accrued and
unpaid interest, Expenses, premiums and all other amounts
owing pursuant to this Note and the Deed of Trust and
remaining unpaid.
LATE CHARGE. If Borrower fails to pay the whole or any installment of principal
or interest owing pursuant to this Note or Escrow payment owing pursuant to the
Deed of Trust 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. If this Note is secured by a one-to-six family owner-occupied residence,
the late charge shall equal two percent (2%) of the delinquent amount and shall
be payable if payment is not received within fifteen(15) days of its due date.
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 maturity
(whether due to the Maturity Date, by acceleration or otherwise), each payment
pursuant to this Note 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 as set forth on
Rider A, if any, attached to and made a part of this Note. 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 and the Deed of Trust and
remaining unpaid. Any partial payment of the Principal Sum shall be applied in
inverse order of maturity. In the event the maturity 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 calculated in accordance with Rider A.
BUSINESS PURPOSE. Borrower warrants that the indebtedness evidenced by this
Note is for a business purpose.
EVENTS OF DEFAULT; ACCELERATION. This Note is secured by a Deed of Trust dated
on or about the date of this Note, executed by Borrower (the "Deed of Trust")
and is entitled to the benefits thereof. An Event of Default under the Deed of
Trust is an Event of Default under this Note. The maturity of this Note shall be
accelerated and all amounts under this Note shall become immediately due and
payable without any notice, demand, presentment or protest of any kind (each of
which is waived by Borrower) (a) automatically, if Borrower commences any
bankruptcy or insolvency proceeding, if voluntary, and upon the lapse of 45 days
without dismissal if involuntary; (b) at the sole option of the Lender, upon or
at any time or from time to time after the occurrence or existence of an Event
of Default and the passage of any applicable grace period; and (c) upon the
Maturity Date. After maturity (whether due to the Maturity Date, by acceleration
or otherwise), interest on the outstanding Principal Sum shall continue to
accrue and be payable at the applicable rate and the Lender's acceptance of any
partial payment shall not affect that all amounts under this Note are due and
payable in full.
EXPENSES. Borrower shall pay to the Lender on demand each cost and expense
(including, but not limited to, the reasonable fees and disbursements of counsel
to the Lender, whether internal or external and whether retained for advice,
litigation or any other purpose) incurred by the Lender or its agents either
directly or indirectly in connection with this Note including, without
limitation, endeavoring to (1) collect any amount owing pursuant to this Note or
negotiate or document a workout or restructuring; (2) enforce or realize upon
any guaranty, endorsement or other assurance, any collateral or other security,
or any subordination, directly or indirectly securing or otherwise directly or
indirectly applicable in any such amount; or (3) preserve or exercise any right
or remedy of the Lender pursuant to this Note (the "Expenses").
RIGHT OF SETOFF. Upon maturity (whether due to the Maturity Date, by
acceleration or otherwise) or the occurrence of an Event of Default, the Lender
shall have the right to set off against the amounts owing under this Note any
property held in a deposit or other account with the Lender or any of its
affiliates or otherwise owing by the Lender or any of its affiliates in any
capacity to Borrower. Such set-off shall be deemed to have been exercised
immediately at the time the Lender or such affiliate elect to do so.
MISCELLANEOUS. This Note contains the entire agreement between the Lender and
Borrower with respect to the loan it evidences and supersedes every course of
dealing, other conduct, oral agreement and representation previously made by the
Lender with respect thereto. All rights and remedies of the Lender under
applicable law, the Deed of Trust, this Note or any document in connection with
the transaction contemplated hereby or amendment thereof are cumulative and not
exclusive. No single, partial or delayed exercise by the Lender of any right or
remedy shall preclude the subsequent exercise by the Lender at any time of any
right or remedy of the Lender without notice.
No waiver or amendment of any provision of this Note shall be effective unless
made specifically in writing by the Lender. No course of dealing or other
conduct, no oral agreement or representation made by the Lender, and no usage of
trade, shall operate as a waiver of any right or remedy of the Lender.
Borrower agrees that in any legal proceeding, a copy of this Note kept in the
Lender's course of business may be admitted into evidence as an original. This
Note is a binding obligation enforceable against Borrower and its successors and
assigns and shall inure to the benefit of the Lender and its successors and
assigns. If a court deems any provision of this Note invalid, the remainder of
the Note shall remain in effect.
Section headings are for convenience only. Singular number includes plural and
neuter gender includes masculine and feminine as appropriate.
NOTICES. Any demand or notice hereunder or under any applicable law pertaining
hereto shall be in writing and duly given if delivered to Borrower (at its
address on the Lender's records) or to the Lender (at the address on page one
and separately to the Lender officer responsible for Borrower's relationship
with the Lender). Such notice or demand shall be deemed sufficiently given for
all purposes when delivered (i) by personal delivery and shall be deemed
effective when delivered, or (ii) by mail or courier and shall be deemed
effective three (3) business days after deposit in an official depository
maintained by the United States Post Office for the collection of mail or one
(1) business day after delivery to a nationally recognized overnight courier
service (e.g., Federal Express). Notice by e-mail is not valid notice under this
or any other agreement between Borrower and the Lender.
JOINT AND SEVERAL. If there is more than one Borrower, each of them shall be
jointly and severally liable for all amounts and obligations which become due
under this Note and the term "Borrower" shall include each as well as all of
them.
GOVERNING LAW; JURISDICTION. This Note has been delivered to and accepted by the
Lender and will be deemed to be made in the State of New York. This Note will be
interpreted in accordance with the laws of the State of New York excluding its
conflict of laws rules. BORROWER HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE STATE OF NEW YORK IN A COUNTY
OR JUDICIAL DISTRICT WHERE THE LENDER MAINTAINS A BRANCH AND CONSENTS THAT THE
LENDER MAY EFFECT ANY SERVICE OF PROCESS IN THE MANNER AND AT BORROWER'S ADDRESS
SET FORTH ABOVE FOR PROVIDING NOTICE OR DEMAND; PROVIDED THAT NOTHING CONTAINED
IN THIS NOTE WILL PREVENT THE LENDER FROM BRINGING ANY ACTION, ENFORCING ANY
AWARD OR JUDGMENT OR EXERCISING ANY RIGHTS AGAINST BORROWER INDIVIDUALLY,
AGAINST ANY SECURITY OR AGAINST ANY PROPERTY OF BORROWER WITHIN ANY OTHER
COUNTY, STATE OR OTHER FOREIGN OR DOMESTIC JURISDICTION. Borrower acknowledges
and agrees that the venue provided above is the most convenient forum for both
the Lender and Borrower. Borrower waives any objection to venue and any
objection based on a more convenient forum in any action instituted under this
Note.
WAIVER OF JURY TRIAL. BORROWER AND THE LENDER HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY BORROWER AND THE LENDER MAY HAVE
IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS NOTE
OR THE TRANSACTIONS RELATED HERETO. BORROWER REPRESENTS AND WARRANTS THAT NO
REPRESENTATIVE OR AGENT OF THE LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE LENDER WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS JURY
TRIAL WAIVER. BORROWER ACKNOWLEDGES THAT THE LENDER HAS BEEN INDUCED TO ENTER
INTO THIS NOTE BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION.
/ / REPLACEMENT NOTE. This Note is given in replacement of and in
substitution for, but not in payment of, a note dated ,
----------------
19 /20 , in the original principal amount of $
--- --- ----------------------
issued by Borrower (or )to the Lender (or its
---------------------
predecessor in interest).
PREAUTHORIZED TRANSFERS FROM DEPOSIT ACCOUNT. If a deposit number is provided in
the following blank, Borrower hereby authorizes the Lender to debit Borrower's
deposit account # with the Lender automatically for the full amount of each
payment which becomes due under this Note.
ACKNOWLEDGMENT. Borrower acknowledges that it has read and understands all the
provisions of this Note, including the GOVERNING LAW, JURISDICTION and WAIVER OF
JURY TRIAL, and has been advised by counsel as necessary or appropriate.
TAX ID/SS # ALTRECO, INCORPORATED
------------------------ --------------------------------------
By EDWARD F. RUTTENBERG
------------------------------------
Chairman and Chief Executive Officer
ACKNOWLEDGMENT
STATE OF PENNSYLVANIA )
-----------------------------------
: SS.
COUNTY OF ALLEGHENY )
----------------------------------
On the 5TH day of JULY , in the year 2001 , before me, the undersigned,
a Notary Public in and for said State, personally appeared EDWARD F. RUTTENBERG
, personally known to me or proved to me on the basis of satisfactory evidence
to be the individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity(ies), and that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
/s/ GEORGANNA BROOKS
---------------------------------
Georganna Brooks
Notary Public