EXHIBIT 10.1
PROMISSORY NOTE
$1,450,000
Date: April 28, 2004
Philadelphia, Pennsylvania
1. BORROWER'S PROMISE TO PAY
In return for a loan that it has received, DVL, INC. ("DVL"), a
Delaware corporation with an address at 70 E. 55th Street, New York, NY 10022,
and DVL MORTGAGE HOLDINGS, LLC ("DVL HOLDINGS"), a Delaware limited liability
company with an address at 70 E. 55th Street, New York, NY 10022 (DVL and DVL
Holdings hereinafter being referred to individually and collectively as the
"BORROWER"), promise to pay U.S. One Million Four Hundred Fifty Thousand Dollars
($1,450,000) (the "PRINCIPAL"), or so much of the Principal as may be advanced
under this Note, plus interest, to the order of PENNSYLVANIA BUSINESS BANK
(hereinafter referred to as "BANK" or "LENDER"). Borrower understands that the
Lender may transfer this Note. The Lender or anyone who takes this Note by
transfer and who is entitled to receive payments under this Note is called the
"NOTE HOLDER". This Note evidences a Loan from Lender to Borrower pursuant to a
Loan Agreement dated the same date as this Note ("LOAN AGREEMENT"). Terms
defined in the Loan Agreement and not defined in this Note are used with the
meanings defined for those terms in the Loan Agreement. The terms and conditions
of the Loan Agreement are made part of this Note.
2. INTEREST
Interest will be charged on unpaid Principal until the full amount of
Principal advanced has been paid. Interest on unpaid Principal shall accrue at a
rate per annum (the "INTEREST RATE") from time to time equal to one and one-half
percent (1.5%) above the "Prime Commercial Rate" as published daily in the Wall
Street Journal, provided that under no circumstances shall the Interest Rate be
less than six percent (6%) per annum. In the event that the "Prime Rate" shall
no longer be quoted, then such rate shall be substituted by a similar floating
rate as reasonably determined by Lender. Interest shall accrue hereunder on the
basis of a 365/360 day year.
The Interest Rate required by this Section 2 is the rate Borrower shall
pay before any Event of Default described in Section 6(B) of this Note. Upon the
occurrence of an Event of Default, the Interest Rate shall be increased to the
Default Rate of Interest specified in Section 6(D) below.
3. PAYMENTS
Time and Place of Payments
Beginning on June 1, 2004, Borrower shall make monthly payments of principal and
interest, in immediately available funds, in equal installments of principal of
$24,166.67 per month, plus monthly payments of interest as billed by the Lender,
on or before the first (1st) day of each month until the Maturity Date (as
defined below). In addition, and anything to the contrary notwithstanding, all
outstanding principal and unpaid interest shall be due and payable on or before
May 1, 2009 (the "MATURITY DATE").
Borrower shall make all monthly payments by the first (1st) day of each month,
from and after the first disbursement of the Loan, at: Pennsylvania Business
Bank, 1401 Walnut Street, Suite 400, Philadelphia, Pennsylvania 19102, or at a
different place if required by the Note Holder.
(B) Amount of Monthly Payments
The amount of each monthly payment may change depending on the unpaid Principal
of the Loan and the then applicable Interest Rate.
(C) Straight Extension of Credit
The Loan is a non-revolving, straight extension of credit; once the total
Principal has been advanced, Borrower is not entitled to further loan
disbursements. Borrower agrees to be liable for all sums either: (a) advanced in
accordance with the instructions of an authorized person, or (b) credited to any
of Borrower's accounts with Note Holder. The unpaid Principal balance owing on
this Note at any time may be evidenced by endorsements on this Note or by Note
Holder's internal records, including daily computer printouts, as acknowledged
by Borrower.
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4. BORROWER'S RIGHT TO PREPAY
Borrower may prepay this Note, in whole or in part, at any time and from time to
time without premium or penalty.
Any partial prepayment of principal shall not affect the timing of subsequent
payments due under the Note.
5. LOAN CHARGES
If a law, which applies to the loan and which sets maximum loan
charges, is finally interpreted so that the interest or other loan charges
collected or to be collected in connection with the Loan exceed the permitted
limits, then: (i) any such loan charge shall be reduced by the amount necessary
to reduce the charge to the permitted limit; and (ii) any sums already collected
from Borrower which exceeded permitted limits will be refunded. The Note Holder
may choose to make this refund by reducing the Principal owed under this Note or
by making a direct payment to Borrower. If a refund reduces Principal, the
reduction will be treated as a partial prepayment without assessment of any
prepayment penalty.
6. BORROWER'S FAILURE TO PAY AS REQUIRED
(A) Late Charge for Overdue Payments
If the Note Holder has not received the full amount of any monthly payment by
the end of ten (10) calendar days after the date it is due, Borrower shall pay a
late charge to the Note Holder. The amount of the late charge will be ten
percent (10%) of the overdue payment of Principal and interest. Borrower shall
pay this late charge promptly but only once on each late payment.
(B) Event Default
The occurrence of an Event of Default as defined and described in the Loan
Agreement shall constitute an Event of Default under this Note and the other
Bank Loan Documents.
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(C) Remedies Cumulative
Upon the occurrence of an Event of Default, the entire unpaid balance
of Principal (including any additional loans or advances in all other sums paid
by Note Holder to or on behalf of Borrower or add it to the principal hereof
pursuant to the terms of this Note or any of the Bank Loan Documents), together
with all accrued interest thereon, and all other sums due and owing under this
Note or under the Bank Loan Documents shall, at the option of Note Holder,
become immediately due and payable without presentment, demand or further action
of any kind. Even if, at a time when Borrower is in default, the Note Holder
does not require it to pay immediately in full as described above, the Note
Holder will still have the right to do so at a later date (or if Borrower is in
default at a later time). The Note Holder can exercise all the remedies it has
under this Note or the Bank Loan Documents at the same time.
(D) Default Rate of Interest
Upon an Event of Default, at the option of the Note Holder, interest on the
unpaid Principal balance shall be increased to and shall accrue at a rate per
annum equal to the interest rate provided for in Section 2, above, plus five
percent (5%); provided, however, that no interest shall accrue hereunder in
excess of the maximum rate of interest then allowed by law. Borrower agrees to
pay such accrued interest on demand. The default rate of interest set forth
herein is strictly a measure of liquidated damages to the Note Holder and is not
meant to be construed as a penalty.
(E) Payment of Note Holder's Costs and Expenses
Borrower shall reimburse the Note Holder for all of the Note Holder's costs and
expenses in enforcing this Note and any of the other Bank Loan Documents to the
extent not prohibited by applicable law. Those expenses include, for example,
reasonable attorneys' fees.
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(F) Confession of Judgment
FOLLOWING THE OCCURRENCE OF ANY EVENT OF DEFAULT HEREUNDER, SUBJECT TO
APPLICABLE GRACE OR CURE PERIODS, BORROWER HEREBY IRREVOCABLY AUTHORIZES AND
EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA
OR ELSEWHERE TO APPEAR AS ATTORNEY FOR BORROWER AND ALL PERSONS CLAIMING UNDER
OR THROUGH BORROWER TO SIGN AN AGREEMENT IN ANY COMPETENT COURT AND, WITH OR
WITHOUT COMPLAINT FILED, TO CONFESS JUDGMENT OR A SERIES OF JUDGMENTS AGAINST
BORROWER AND AGAINST ALL PERSONS CLAIMING THROUGH OR UNDER BORROWER, IN FAVOR OF
THE NOTE HOLDER AND ITS SUCCESSORS AND ASSIGNS, AS OF ANY TERM, FOR THE UNPAID
BALANCE OF ALL PRINCIPAL, INTEREST AND ALL OTHER SUMS OWING UNDER THIS NOTE,
TOGETHER WITH COSTS OF SUIT AND REASONABLE ATTORNEY'S FEES FOR COLLECTION, ON
WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE FORTHWITH. FOR
PURPOSES OF CONFESSING JUDGMENT AGAINST BORROWER AND ALL PERSONS CLAIMING UNDER
OR THROUGH BORROWER, AS AFORESAID, THIS NOTE OR A COPY HEREOF VERIFIED BY
AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. BORROWER HEREBY FOREVER WAIVES AND
RELEASES ALL ERRORS IN SAID PROCEEDINGS, AND WAIVES STAY OF EXECUTION AND THE
RIGHT OF INQUISITION AND EXTENSION OF TIME OF PAYMENT, AGREES TO CONDEMNATION OF
ANY PROPERTY LEVIED UPON BY VIRTUE OF ANY SUCH EXECUTION, AND WAIVES ALL
EXEMPTIONS FROM LEVY AND SALE OF ANY PROPERTY THAT NOW IS OR HEREAFTER MAY BE
EXEMPTED BY LAW. THE AUTHORITY AND POWER HEREIN GRANTED SHALL NOT BE EXHAUSTED
BY ANY EXERCISE OR ATTEMPTED EXERCISE THEREOF BUT MAY BE EXERCISED TO CONFESS
JUDGMENT AS AFORESAID FROM TIME TO TIME.
BORROWER ACKNOWLEDGES THAT IT HAS KNOWINGLY AND VOLUNTARILY WAIVED THE RIGHT TO
SERVICE AND NOTICE AND DESCRIBED ABOVE WITH THE ADVICE OF COUNSEL.
7. GIVING OF NOTICES
Unless applicable law requires a different method, any notice that must
be given to Borrower under this Note will be given by delivering it or by
mailing it by registered or certified mail, postage prepaid, and to the address
set forth for Borrower in the Loan Agreement or at such other address as
Borrower may provide to Note Holder pursuant to notice hereunder.
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Any notice that must be given to the Note Holder under this Note will
be given by registered or certified mail, postage prepaid, addressed to the Note
Holder at the address stated in Section 3(A) above or at such other address as
Note Holder may provide to Note Holder pursuant to notice hereunder.
8. OBLIGATIONS OF PERSONS UNDER THIS NOTE
If more than one person signs this Note, each person is fully and
personally obligated to keep all of the promises made in this Note, including
the promise to pay the full amount owed. Any person who is a guarantor, surety
or endorser of this Note is also obligated to do these things. Any person who
takes over these obligations, including the obligations of a guarantor, surety
or endorser of this Note, is also obligated to keep all of the promises made in
this Note. The Note Holder may enforce its rights under this Note and the
obligations under this Note shall be jointly and severally.
9. WAIVERS
Borrower and any other person who has obligations under this Note waive
the rights of presentment and notice of dishonor. "Presentment" means the right
to require the Note Holder to demand payment of amounts due. "Notice of
dishonor" means the right to require the Note Holder to give notice to other
persons that amounts due have not been paid.
BORROWER, AND LENDER BY ITS ACCEPTANCE HEREOF, EACH HEREBY ABSOLUTELY,
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY AND THE RIGHT TO CLAIM OR
RECEIVE CONSEQUENTIAL OR PUNITIVE DAMAGES IN ANY LITIGATION, ACTION, CLAIM, SUIT
OR PROCEEDING, AT LAW OR IN EQUITY, ARISING OUT OF, PERTAINING TO OR IN ANY WAY
ASSOCIATED WITH THE INDEBTEDNESS EVIDENCED HEREBY, THE RELATIONSHIP OF THE
PARTIES HERETO AS LENDER AND BORROWER, THIS NOTE, THE MORTGAGE, THE OTHER BANK
LOAN DOCUMENTS, THE PREMISES OR THE ACTIONS OF THE PARTIES HERETO IN CONNECTION
WITH ANY OF THE FOREGOING.
10. SECURED NOTE
In addition to the protections given to the Note Holder under this
Note, the Collateral Assignment Documents, the St. Albans Mortgage, the
Environmental Indemnity Agreement, and the other Bank Loan Documents protect the
Note Holder from possible losses which might result if Borrower does not keep
the promises it has made in this Note. The Bank Loan Documents describe how
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and under what conditions Borrower may be required to make immediate payment in
full of all amounts owed this Note.
11. MISCELLANEOUS
This instrument shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania and the parties submit to the
jurisdiction of the courts of that state. The captions and headings in this Note
are inserted for convenience only, and in no way describe, or limit the scope or
intent of this Note or any of its provisions. The provisions of the Note are
severable, which means that if any provision of this Note is held to be invalid
or unenforceable in any Court which has jurisdiction over the matter, all other
provisions of this Note shall remain in full force and effect in that and all
other jurisdictions, and the provision held invalid or unenforceable in that
jurisdiction shall nevertheless be and remain in full force and effect in all
other jurisdictions and shall be liberally construed in favor of Lender.
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IN WITNESS WHEREOF, Borrower, intending to be legally bound, has duly
executed this Note the day and year first above written and has hereunto set
Borrower's hand and seal.
BORROWER:
Witness/Attest: DVL, INC., a Delaware corporation
By: By:
---------------------------------- ----------------------------------
Name: Name:
Title: Title:
Witness/Attest: DVL MORTGAGE HOLDINGS, LLC,
a Delaware limited liability company
By: By:
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Name: Name: Alan E. Casnoff
Title: Title: Manager
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