REVOLVING DEMAND NOTE November 5, 2007
EXHIBIT
10.6
For
value
received, the undersigned PREMIER
ONCOLOGY MANAGEMENT OF NASSAU, LLC, a New York limited liability
company,
with an
address of 0
Xxxxxxxxxx Xxxxx, Xxxxx 00 Xxxxx, Xxxxx 00, Xxxxxx, Xxx Xxxxxx,
00000
(the
"Borrower"), promises to pay to the order of Manufacturers and Traders Trust
Company,
a New
York banking corporation with an address of One M&T Plaza (Attn: Office of
General Counsel), Buffalo, New York 14203
(together with its successors and assigns, the "Bank"),
ON
DEMAND,
the
principal amount of Five
Hundred Thousand Dollars and Zero Cents
($500,000.00)
or, if
less, such amount as may be the aggregate unpaid principal amount of all loans
or advances made by the Bank to the Borrower pursuant hereto,
together with interest from the date hereof on the unpaid principal balance
from
time to time outstanding until paid in full
Reference
is hereby made to a certain loan agreement dated on or about the date hereof,
as
amended, between the Borrower and the Bank for additional terms and conditions
applicable to this Note.
As
used
in this Note, each capitalized term shall have the meaning specified in the
Note
or as it appears in initial capitalization. Additionally, the following terms
shall have the indicated meanings:
"Adjustment
Date", when applicable, means the first day of the applicable Interest Period
(or if such date is not a Business Day, the immediately preceding Business
Day).
"Applicable
Rate" means either the LIBOR Rate or the Base Rate, as the case may
be.
"Base
Rate" means One
(1.00)
percentage points above the rate of interest announced by the Bank as its prime
rate of interest.
"Business
Day" means any day of the year on which banking institutions in New York, New
York are not authorized or required by law or other governmental action to
close, except
to
the extent used in the context of defining LIBOR herein, in which case it means
any day of the year
on which
dealings are carried on in the London Interbank Eurodollar Market.
"Continuation
Date" means the last day of each Interest Period.
"LIBOR"
means the
rate
per annum (rounded upward, if necessary, to the nearest 1/16th of 1%) obtained
by dividing (i) the one-day (or multiple day, as applicable, in contemplation
of
succeeding non-Business Days) interest period London Interbank Offered Rate,
as
fixed by the British Bankers Association for United States dollar deposits
in
the London Interbank Eurodollar Market at approximately 11:00 a.m. London,
England time (or as soon thereafter as practicable) each day (or, if such day
is
a non-Business Day, as fixed in the same manner on the immediately preceding
Business Day, which day’s rate shall apply to the immediately succeeding
non-Business Days), as determined by the Bank from any broker, quoting service
or other commonly available source utilized by the Bank, by (ii) a percentage
equal to 100% minus the stated maximum rate of all reserves required to be
maintained against "Eurocurrency Liabilities" as specified in Regulation D
(or
against any other category of liabilities, which includes deposits by reference
to which the interest rate on LIBOR-based loans is determined, or any category
of extensions of credit or other assets, which includes loans by a non-United
States' office of a Bank to United States’ residents) on such date to any member
Bank of the Federal Reserve System. Notwithstanding any provision above, the
practice of rounding to determine LIBOR may be discontinued at any time in
the
Bank's sole discretion.
"Payment
Due Date", when applicable, means the same day of the calendar month as the
date
of this Note (or if there is no numerically corresponding day in a month, on
the
last day of such month); provided, however, if that day is not a Business Day,
the Payment Due Date shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar month,
in which case such Payment Due Date shall end on be the immediately preceding
Business Day.
Principal
and interest shall be payable at the Bank's main office or at such other place
as the Bank may designate in writing in immediately available funds in lawful
money of the United States of America without set-off, deduction or
counterclaim.
Interest
shall be calculated on the basis of actual number of days elapsed in a 360-day
year.
To
the
extent the LIBOR Rate is the Applicable Rate, interest shall accrue on the
outstanding principal balance from and including the first day of each Interest
Period until, but not including, the last day of such Interest Period (or the
day the outstanding principal balance is paid in full, if sooner), at a rate
per
annum equal to the LIBOR Rate determined and in effect on the applicable
Adjustment Date. If and to the extent the Base Rate is the Applicable Rate,
interest shall accrue on the outstanding principal balance from and including
the first date the Base Rate is the Applicable Rate to but not including, the
day such outstanding principal balance is paid in full or the Applicable Rate
is
converted to the LIBOR Rate, at the rate per annum equal to the Base Rate.
Any
change in the Base Rate resulting from a change in the Bank's Prime Rate shall
be effective on the date of such change.
Subject
to the terms of this paragraph, upon the expiration of the first Interest Period
and each Interest Period thereafter, the LIBOR Rate will be automatically
continued on the Continuation Date for an additional Interest Period of the
same
duration. Unless the Bank shall otherwise consent in writing, if (i) the
Borrower has failed to pay when due, in whole or in part, the indebtedness
under
the Note (whether upon maturity, acceleration or otherwise), or (ii) there
exists a condition or event which with the passage of time, the giving of notice
or both shall constitute an
event
of default under any agreement with the Bank,
the
Bank, in its sole discretion, may (i) permit the LIBOR Rate to continue until
the last day of the applicable Interest Period at which time the Applicable
Rate
shall automatically be converted to the Base Rate or (ii) convert the LIBOR
Rate
to the Base Rate before the end of the applicable Interest Period.
Notwithstanding the foregoing, upon the occurrence of such
an
event of default,
the
Applicable Rate shall be automatically converted to the Base Rate without
further action by the Bank and Borrower shall have no right to have the
Applicable Rate converted from the Base Rate to the LIBOR Rate. Nothing herein
shall be construed to be a waiver by the Bank to have the outstanding principal
balance accrue interest at the default rate or the right of the Bank to any
prepayment premium set forth in this Note, if any.
If
the
Bank shall determine that, due to either (a) the introduction of any change
(other than any change by way of imposition of or increase in reserve
requirements included in the calculation of LIBOR) in or in the interpretation
of any requirement of law or (b) the compliance with any guideline or request
from any central Bank or other governmental authority (whether or not having
the
force of law), there shall be any increase in the cost to the Bank of agreeing
to make or making, funding or maintaining any loans based on LIBOR, then
Borrower shall be liable for, and shall from time to time, upon demand therefor
by the Bank and pay to the Bank such additional amounts as are sufficient to
compensate the Bank for such increased costs. If the Bank shall determine that
for any reason adequate and reasonable means do not exist for ascertaining
LIBOR
for any Interest Period, the Bank will give notice of such determination to
the
Borrower. Thereafter, the Bank may not maintain the loan hereunder at the LIBOR
Rate until the Bank revokes such notice in writing and, until such revocation,
the Bank may convert the Applicable Rate from the LIBOR Rate to the Base
Rate.
If
the
Bank shall determine that the introduction of any law (statutory or common),
treaty, rule, regulation, guideline or determination of an arbitrator or of
a
governmental authority or in the interpretation or administration thereof,
has
made it unlawful, or that any central Bank or other governmental authority
has
asserted that it is unlawful for the Bank to make loans based on LIBOR then,
on
notice thereof by the Bank to the Borrower, the Bank may suspend the maintaining
of the loan hereunder at the LIBOR Rate until the Bank shall have notified
the
Borrower that the circumstances giving rise to such determination shall no
longer exist. If the Bank shall determine that it is unlawful to maintain the
loan hereunder based on LIBOR, the Bank may convert the Applicable Rate from
the
LIBOR Rate to the Base Rate.
This
Note
is a revolving note and, subject to the foregoing and in accordance with the
provisions hereof and of any and all other agreements between the Borrower
and
the Bank related hereto, the Borrower may, at its option, borrow, pay, prepay
(without premium) and reborrow hereunder at any time prior to demand for payment
hereunder or such earlier date as the obligations of the Borrower to the Bank
under this Note, and any other agreements between the Bank and the Borrower
related hereto, shall become due and payable,
or the
obligation of the Bank to extend financial accommodations to the Borrower shall
terminate;
provided, however, that in any event the principal balance outstanding hereunder
shall at no time exceed the face amount of this Note.
This
Note shall continue in full force and effect until all obligations and
liabilities evidenced by this Note are paid in full
and the
Bank is no longer obligated to extend financial accommodations to the
Borrower,
even
if, from time to time, there are no amounts outstanding respecting this
Note.
Any
payments received by the Bank on account of this Note shall, at the Bank's
option, be applied first, to any costs, expenses or charges then owed to the
Bank by the Borrower; second, to accrued and unpaid interest; third, to the
unpaid principal balance hereof; and the balance to escrows, if any.
Notwithstanding the foregoing, any payments received after demand for payment
shall be applied in such manner as the Bank may determine.
The
Borrower hereby authorizes the Bank to charge any deposit account which the
Borrower may maintain with the Bank for any payment required hereunder without
prior notice to the Borrower.
If
pursuant to the terms of this Note, the Borrower is at any time obligated to
pay
interest on the principal balance at a rate in excess of the maximum interest
rate permitted by applicable law for the loan evidenced by this Note, the
applicable interest rate shall be immediately reduced to such maximum rate
and
all previous payments in excess of the maximum rate shall be deemed to have
been
payments in reduction of principal and not on account of the interest due
hereunder.
The
Borrower represents to the Bank that the proceeds of this Note will not be
used
for personal, family or household purposes or for the purpose of purchasing
or
carrying margin stock or margin securities within the meaning of Regulations
U
and X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts
221 and 224.
The
Borrower and each endorser and guarantor hereof grant to the Bank a continuing
lien on and security interest in any and all deposits or other sums at any
time
credited by or due from the Bank or any Bank Affiliate (as hereinafter defined)
to the Borrower and/or each endorser or guarantor hereof and any cash,
securities, instruments or other property of the Borrower and each endorser
and
guarantor hereof in the possession of the Bank or any Bank Affiliate, whether
for safekeeping or otherwise, or in transit to or from the Bank or any Bank
Affiliate (regardless of the reason the Bank or Bank Affiliate had received
the
same or whether the Bank or Bank Affiliate has conditionally released the same)
as security for the full and punctual payment and performance of all of the
liabilities and obligations of the Borrower and/or any endorser or guarantor
hereof to the Bank or any Bank Affiliate and such deposits and other sums may
be
applied or set off against such liabilities and obligations of the Borrower
or
any endorser or guarantor hereof to the Bank or any Bank Affiliate at any time,
whether or not such are then due, whether or not demand has been made and
whether or not other collateral is then available to the Bank or any Bank
Affiliate.
No
delay
or omission on the part of the Bank in exercising any right hereunder shall
operate as a waiver of such right or of any other right of the Bank, nor shall
any delay, omission or waiver on any one occasion be deemed a bar to or waiver
of the same or any other right on any future occasion. The Borrower and every
endorser or guarantor of this Note, regardless of the time, order or place
of
signing, waives presentment, demand, protest, notice of intent to accelerate,
notice of acceleration and all other notices of every kind in connection with
the delivery, acceptance, performance or enforcement of this Note and assents
to
any extension or postponement of the time of payment or any other indulgence,
to
any substitution, exchange or release of collateral, and to the addition or
release of any other party or person primarily or secondarily liable and waives
all recourse to suretyship and guarantor defenses generally, including any
defense based on impairment of collateral. To the maximum extent permitted
by
law, the Borrower and each endorser and guarantor of this Note waive and
terminate any homestead rights and/or exemptions respecting any premises under
the provisions of any applicable homestead laws, including without limitation,
Section 5206 of the Civil Practice Law and Rules of New York.
The
Borrower and each endorser and guarantor of this Note shall indemnify, defend
and hold the Bank and the Bank Affiliates and their directors, officers,
employees, agents and attorneys (each an "Indemnitee") harmless against any
claim brought or threatened against any Indemnitee by the Borrower, by any
endorser or guarantor, or by any other person (as well as from attorneys'
reasonable fees and expenses in connection therewith) on account of the Bank's
relationship with the Borrower or any endorser or guarantor hereof (each of
which may be defended, compromised, settled or pursued by the Bank with counsel
of the Bank's selection, but at the expense of the Borrower and any endorser
and/or guarantor), except for any claim arising out of the gross negligence
or
willful misconduct of the Bank.
The
Borrower and each endorser and guarantor of this Note agree to pay, upon demand,
costs of collection of all amounts under this Note including, without
limitation, principal and interest, or in connection with the enforcement of,
or
realization on, any security for this Note, including, without limitation,
to
the extent permitted by applicable law, reasonable attorneys' fees and expenses.
Upon demand for payment of any amounts due hereunder, interest shall accrue
at a
rate
per
annum equal to the aggregate of 4.0% plus the rate provided for herein. If
any
payment due under this Note is
unpaid
for 5 days
or
more, the Borrower shall pay, in addition to any other sums due under this
Note
(and without limiting the Bank's other remedies on account thereof), a late
charge equal to the
greater of $50 or 5.0% of such unpaid amount
(which
amount shall be subject to and limited so as to not be in violation of the
provisions of Section 254-b of New York Real Property Law, if
applicable).
This
Note
shall be binding upon the Borrower and each endorser and guarantor hereof and
upon their respective heirs, successors, assigns and legal representatives,
and
shall inure to the benefit of the Bank and its successors, endorsees and
assigns.
The
liabilities of the Borrower and any endorser or guarantor of this Note are
joint
and several; provided, however, the release by the Bank of the Borrower or
any
one or more endorsers or guarantors shall not release any other person obligated
on account of this Note.
Any and
all present and future debts of the Borrower to any endorser or guarantor of
this Note are subordinated to the full payment and performance of all present
and future debts and obligations of the Borrower to the Bank. Each reference
in
this Note to the Borrower, any endorser, and any guarantor, is to such person
individually and also to all such persons jointly. No person obligated on
account of this Note may seek contribution from any other person also obligated,
unless and until all liabilities, obligations and indebtedness to the Bank
of
the person from whom contribution is sought have been irrevocably satisfied
in
full. The release or compromise by the Bank of any collateral shall not release
any person obligated on account of this Note.
The
Borrower and each endorser and guarantor hereof each authorizes the Bank to
complete this Note if delivered incomplete in any respect. A
photographic or other reproduction of this Note may be made by the Bank, and
any
such reproduction shall be admissible in evidence with the same effect as the
original itself in any judicial or administrative proceeding, whether or not
the
original is in existence.
This
Note
is delivered to the Bank at one of its offices in New York and shall be governed
by the laws of the State
of New
York without giving effect to the conflicts of laws principles thereof.
Any
demand or notice hereunder or under any applicable law pertaining hereto shall
be in writing and duly given if delivered to any party hereto at the address
for
such party as set forth herein, or at such other address as any party may from
time to time designate in written notice received by the other parties hereto;
provided, however, that in order for any notice to the Bank to be deemed
effective, a duplicate notice shall be separately delivered to the Bank at
the
current office address of the Bank officer primarily responsible for the
customer account to which this document relates (which address will be furnished
to Borrower by the Bank in writing). Copies of any such notices, demands, or
other communications required hereunder shall be sent to The Sagemark Companies,
Ltd., 0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn:
Xxx Xxxxxxxx, Chief Executive Officer. Copies of notices, demands or other
communications to Borrower hereunder shall be sent to Xxxxxx X. Xxxxxxx, Esq.,
00 Xxxx Xxxxx Xxxx, Xxxxxxx, Xxx Xxxx 00000 and Xxxxx X. Xxxxx, Esq., c/o
mpowermed, 0 Xxxxxxxxxx Xxxxx, Xxxxx 00 Xxxxx, Xxxxx 00, Xxxxxx, Xxx Xxxxxx
00000. Any such demand or notice 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. Notice
by
e-mail is not valid notice under this or any other agreement between the
undersigned parties.
The
term
"Bank Affiliate" as used in this Note shall mean any banking or lending
affiliates of the Bank, any party acting as a participant lender in the credit
arrangements contemplated herein, or any third party acting on the Bank's
behalf.
Except
as
set forth below, no change in this Note or waiver of any right or remedy
hereunder can be made except in a writing signed by the Bank, and, if a change
by Borrower as well. No course of dealing or other conduct, no oral agreement
or
representation made by the Bank, and no usage of trade, shall operate as a
waiver of any right or remedy of the Bank. No waiver of any right or remedy
of
the Bank shall be effective unless made specifically in writing by the
Bank.
This
Note, together with any related loan and security agreements and guaranties,
contains the entire agreement between the Borrower and the Bank with respect
to
the Note, and supersedes every course of dealing, other conduct, oral agreement
and representation previously made by the Bank.
If
there
is more than one obligor to the Bank named herein and signing below, each such
obligor shall be jointly and severally liable for the payment of all amounts
and
performance of all obligations required hereunder.
Preauthorized
Transfers from Deposit Account.
If a
deposit account number is provided, Xxxxxxxx hereby authorizes the Bank to
debit
Borrower’s deposit account # [Redacted]with the Bank automatically for any
amount which becomes due under this Note.
The
Borrower and each endorser and guarantor of this Note each irrevocably submits
to the nonexclusive jurisdiction of any Federal or state
court
sitting in New York, over any suit, action or proceeding arising out of or
relating to this Note. Each of the Borrower and each endorser and guarantor
irrevocably waives, to the fullest extent it may effectively do so under
applicable law, any objection it may now or hereafter have to the laying of
the
venue of any such suit, action or proceeding brought in any such court and
any
claim that the same has been brought in an inconvenient forum. Each of the
Borrower and each endorser and guarantor hereby consents to any and all process
which may be served in any such suit, action or proceeding, (i) by mailing
a
copy thereof by registered and certified mail, postage prepaid, return receipt
requested, to the Borrower's, endorser's or guarantor's address shown below
or
as notified to the Bank and (ii) by serving the same upon the Borrower(s),
endorser(s) or guarantor(s) in any other manner otherwise permitted by law,
and
agrees that such service shall in every respect be deemed effective service
upon
the Borrower or such endorser or guarantor.
THE
BORROWER AND EACH ENDORSER AND GUARANTOR ACKNOWLEDGE THAT THIS NOTE IS A DEMAND
NOTE AND THE RIGHT OF THE BANK TO DEMAND PAYMENT OF THIS NOTE IN WHOLE OR IN
PART AT ANY TIME SHALL BE ABSOLUTE, UNCONDITIONAL AND IN THE SOLE DISCRETION
OF
THE BANK. THE INCLUSION OF EVENTS OF DEFAULT AND COVENANTS IN ANY LOAN DOCUMENTS
BETWEEN THE BANK AND THE BORROWER OR ANY ENDORSER OR GUARANTOR OR OTHER PARTY
DELIVERED IN CONNECTION WITH THIS NOTE OR OTHERWISE SHALL NOT IN ANY WAY LIMIT
THE DEMAND NATURE OF THIS NOTE AND THE BANK MAY MAKE DEMAND FOR PAYMENT AT
ANY
TIME FOR ANY OR NO REASON, WHETHER OR NOT AN EVENT OF DEFAULT HAS OCCURRED
UNDER
ANY SUCH LOAN DOCUMENTS.
THE
BORROWER, EACH ENDORSER AND GUARANTOR AND THE BANK EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY, AND AFTER AN OPPORTUNITY TO CONSULT WITH LEGAL
COUNSEL, (A) WAIVES ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING IN CONNECTION WITH THIS NOTE, ANY OF THE OBLIGATIONS OF THE BORROWER,
EACH ENDORSER AND GUARANTOR TO THE BANK, AND ALL MATTERS CONTEMPLATED HEREBY
AND
DOCUMENTS EXECUTED IN CONNECTION XXXXXXXX AND (B) AGREES NOT TO SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CAN
NOT
BE, OR HAS NOT BEEN, WAIVED. THE BORROWER, EACH ENDORSER AND GUARANTOR AND
THE
BANK EACH CERTIFIES THAT NEITHER THE BANK NOR ANY OF ITS REPRESENTATIVES, AGENTS
OR COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE BANK WOULD NOT
IN
THE EVENT OF ANY SUCH PROCEEDING SEEK TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL
BY JURY.
| Executed as of November 5, 2007 | |
| Witness: |
Borrower:
PREMIER ONCOLOGY MANAGEMENT OF NASSAU, LLC
By: /s/
Xxxxx Xxxxxxxxxx
Xxxxx
Xxxxxxxxxx, Manager
|
|
0
Xxxxxxxxxx Xxxxx
Xxxxx
00 Xxxxx, Xxxxx 00
Xxxxxx,
Xxx Xxxxxx
00000
|
SS.
COUNTY
OF
____________________ :
On
the
5th
day of
November in the year 2007, before me, the undersigned, a Notary Public in and
for said State, personally appeared, Xxxxx Xxxxxxxxxx, personally known to
me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her capacity, and that by his/her signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument.
__________________________________
NOTARY
PUBLIC
__________________________________
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