Exhibit 10.08(r)
TERM PROMISSORY NOTE
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$1,000,000 New York, New York
June __, 1992
FOR VALUE RECEIVED, I.C. XXXXXX & COMPANY L.P., a Delaware limited
partnership (the "Debtor"), hereby unconditionally promises to pay to the order
of CONGRESS FINANCIAL CORPORATION, a California corporation (the "Payee"), at
the offices of Payee at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or at such other place as the Payee or any holder hereof may from time to time
designate, the principal sum of ONE MILLION ($1,000,000) DOLLARS in lawful money
of the United States of America and in immediately available funds, in sixty
(60) consecutive monthly installments (or earlier as hereinafter referred to)
on the first day of each month commencing August 1, 1992 of which the first
fifty-nine (59) installments shall each be in the amount of SIXTEEN THOUSAND SIX
HUNDRED SIXTY SEVEN ($16,667) DOLLARS, and the last and sixtieth (60th)
installment shall be in the amount of the entire unpaid balance of this Note.
Debtor hereby further promises to pay interest to the order of Payee in
like money at said office or place from the date hereof, commencing July 1,
1992 and on the first day of each month thereafter, on the unpaid principal
balance hereof at a rate prior to an Event of Default (as hereinafter defined)
or termination or non-renewal of the Financing Agreements (as hereinafter
defined), of two and one-half (2 1/2%) percent per annum in excess of the Prime
Rate (as hereinafter defined), and at a rate, upon and after a Event of Default
or termination or non-renewal of the Financing Agreements, of four and one-half
(4 1/2%) percent per annum in excess of the Prime Rate. For purposes hereof,
"Prime Rate" shall mean the prime commercial interest rate from time to time
publicly announced by Philadelphia National Bank, incorporated as CoreStates
Bank, N.A., Philadelphia, Pennsylvania, or its successors or assigns, whether or
not such announced rate is the best rate available at such bank. For purposes
hereof, "Event of Default" shall mean an Event of Default, as such term is
defined in the Accounts Financing Agreement [Security Agreement], dated of even
date herewith, between Debtor and Payee (the "Accounts Agreement").
The interest rate payable hereunder shall increase or decrease by an amount
equal to each increase or decrease, respectively, in such Prime Rate, effective
on the first day of the month after any change in such Prime Rate, based on the
Prime Rate in effect on the
last day of the month in which any such change occurs. Interest shall be
calculated on the basis of a three hundred sixty (360) day year and actual days
elapsed. In no event shall the interest charged hereunder exceed the maximum
permitted under the laws of the State of New York or other applicable law.
This Note is issued pursuant to the terms and provisions of the Accounts
Agreement, together with all supplements thereto, to evidence the "Term Loan"
(as defined in the Covenant Supplement to the Accounts Agreement) by Payee to
Debtor. This Note is secured by the "Collateral" described in the Accounts
Agreement and any agreement, document or instrument now or at any time hereafter
executed and/or delivered in connection therewith or related thereto (the
foregoing, as the same now exist or may hereafter be amended, modified,
supplemented, renewed, extended, restated or replaced, are hereinafter
collectively referred to as the "Financing Agreements"), and is entitled to all
of the benefits and rights thereof and of the Financing Agreements. At the time
any payment is due hereunder, at its option, Xxxxx may charge the amount thereof
to any account of Debtor maintained by Xxxxx.
[Debtor may prepay this Note in whole or in part at any time without early
termination fee, penalty or premium.]
If any principal or interest payment is not made within five (5) days after
it is due and payable hereunder, or if any other Event of Default shall occur
for any reason which has not been waived in writing by Payee, or if the
Financing Agreements shall be terminated or not renewed for any reason
whatsoever, then and in any such event, in addition to all rights and remedies
of Payee under the Financing Agreements, applicable law or otherwise, all such
rights and remedies being cumulative, not exclusive and enforceable
alternatively, successively and concurrently, Payee may, at its option, declare
any or all of Debtor's obligations, liabilities and indebtedness owing to Payee
under the Financing Agreements (the "Obligations"), including, without
limitation, all amounts owing under this Note, to be due and payable, whereupon
the then unpaid balance hereof, together with all interest accrued thereon,
shall forthwith become due and payable, together with interest accruing
thereafter at the then applicable rate stated above until the indebtedness
evidenced by this Note is paid in full, plus the costs and expenses of
collection hereof, including, but not limited to, reasonable attorneys' fees and
expenses.
Debtor (i) waives diligence, demand, presentment, protest and notice of any
kind, other than such notices, if any, as may be required under the Financing
Agreements, (ii) agrees that it will not be necessary for any holder hereof to
first institute suit in
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order to enforce payment of this Note and bill, consents to pay any one or more
extensions or postponements of time of payment, release, surrender or
substitution of collateral, security, or forbearance or other indulgence,
without notice or consent. The pleading of any statute of limitations as a
defense to any demand against Debtor is expressly hereby waived. Upon any Event
of Default or termination or non-renewal of the Financing Agreements, Payee
shall have the right, but not the obligation to setoff against this Note all
money owed by Payee to Debtor.
Payee shall not be required to resort to any Collateral for payment, but
may proceed against Debtor and any guarantors or endorsers hereof in such order
and manner as Payee may choose. None of the rights of Payee shall be waived or
diminished by any failure or delay in the exercise thereof.
Debtor hereby waives the right to a trial by jury and all rights of setoff
and rights to interpose counterclaims and crossclaims, (other than compulsory
counterclaims), in any litigation or proceeding arising in connection with this
Note, the Accounts Agreement, the other Financing Agreements, the Obligations or
the Collateral. Debtor hereby irrevocably consents to the non-exclusive
jurisdiction of the Supreme Court of the State of New York and the United States
District Court for the Southern District of New York for all purposes in
connection with any action or proceeding arising out of or relating to this
Note, the Accounts Agreement, the other Financing Agreements, the Obligations or
the Collateral and further consents that any process or notice of motion or
other application to said Courts or judge thereof, or any notice in connection
with any proceeding hereunder may be served (i) inside or outside the State of
New York by registered or certified mail, return receipt requested, and service
or notice so served shall be deemed complete five (5) days after the same shall
have been posted or (ii) in such other manner as may be permissible under the
rules of said Courts.
The execution and delivery of this Note has been authorized by the board of
directors of the general partner of Debtor, all necessary partnership action and
by any necessary vote or consent of the limited partners of Debtor.
This Note, the other Obligations and the Collateral shall be governed by
and construed in accordance with the laws of the State of New York and shall be
binding upon the successors and assigns of Debtor and inure to the benefit of
Payee and its successors, endorsees and assigns. If any term or provision of
this Note shall
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be held invalid, illegal or unenforceable, the validity of all other terms and
provisions hereof shall in no way be affected thereby.
This Note may not be changed, modified or terminated orally, but only by an
agreement in writing signed by the Payee or the holder hereof.
Whenever used herein, the terms "Debtor" and "Payee" shall be deemed to
include their respective successors and assigns.
I.C. XXXXXX & COMPANY L.P.
By: ISBUYCO, INC. General Partner
By:
/s/ Xxxxxx X. Xxxx
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Title: President/CEO
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