EX-10.29
Master Note
[LOGO]
MASTER NOTE
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$2,000,000 Date: 9/13, 1996
FOR VALUE RECEIVED, the undersigned, a New York corporation, promises to
pay to the order of EUROPEAN AMERICAN BANK (the "Bank"), on or before May 31,
1997 (the "Maturity Date"), the sum of Two Million Dollars ($2,000,000), or, if
less, the aggregate unpaid principal amount of all advances made by the Bank
pursuant to the line of credit, not to exceed an aggregate amount at any one
time outstanding of Two Million Dollars ($2,000,000), available to the
undersigned hereunder (the "Line").
The undersigned also promises to pay interest in like money on the unpaid
principal amount hereof from time to time outstanding at a fluctuating rate per
annum equal to the rate of interest as is publicly announced by the Bank at its
principal office from time to time as its prime rate (the "Prime Rate") plus a
margin of 1/4% per annum (the "Prescribed Rate"). Any change in the Prime Rate
shall be effective on the date such change is announced by the Bank. Interest
shall be calculated on the basis of a 360-day year for the actual number of days
elapsed and shall be payable on the first day of each month commencing on the
first such date to occur after the date the first advance is made, and on the
Maturity Date. All payments hereunder shall be payable in immediately available
funds in lawful money of the United States. The undersigned authorizes the Bank
to charge any of the undersigned's accounts for payments of principal or
interest.
Any payment of principal of or interest payable hereunder which is not paid
when due, whether at maturity, by acceleration, or otherwise, shall bear
interest from the date due until paid in full at a rate per annum equal to three
percent (3%) above the Prescribed Rate.
All requests for advances shall be irrevocable and shall be for a minimum
of $25,000 and must be received by the Bank no later than 12:00 noon on the date
of the proposed advance, The Bank may act without liability upon the basis of
telephonic notice believed by the Bank in good faith to be from the undersigned.
In each such case, the undersigned hereby waives the right to dispute the Bank's
record of the terms of such telephonic notice. The undersigned shall immediately
confirm to the Bank in writing each telephonic notice. All advances under the
Line are at the Bank's sole and absolute discretion and the Bank, at its option
and in its sole and absolute discretion and without notice to the undersigned,
may decline to make any advance requested by the undersigned.
Subject to the terms and conditions hereof and the terms and conditions set
forth in any agreement in writing between the Bank and the undersigned, the
undersigned may borrow, repay in whole or in part, and reborrow on a revolving
basis, up to the maximum amount of the Line. Advances may Be prepaid without
premium or penalty together with accrued interest thereon to and including the
date of prepayment. The Bank shall maintain its records to reflect the amount
and date of each advance and of each payment of principal and interest thereon.
All such records shall, absent manifest error, be conclusive as to the
outstanding principal amount hereof; provided, however, that the failure to make
any notation to the Bank's records shall not limit or otherwise affect the
obligations of the undersigned to repay each advance made by the Bank, in
accordance with the terms hereof.
As security for the payment of this Note and of all other obligations and
liabilities of the undersigned to the Bank, whether now or hereafter existing,
joint, several, direct, indirect, absolute, contingent, secured, matured or
unmatured, the undersigned grants to the Bank a right of setoff against, a
continuing security interest in, and an assignment and pledge of all moneys,
deposits (general or special), securities and other property of the undersigned
and the proceeds thereof, now or hereafter held by the Bank on deposit, in
safekeeping, in transit or otherwise, at any time credited by or due from the
Bank to the undersigned, or in which the undersigned shall have an interest.
Upon the occurrence and continuance of any of the following (each an "Event
of Default"): (a) default in the payment when due of any amount hereunder; (b)
filing by or against the undersigned of a petition commencing any proceeding
under any bankruptcy, reorganization, rearrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction, now or hereafter
in effect, (c) making by the undersigned of an assignment for the benefit of
creditors; (d) petitioning or applying to any tribunal for the appointment of a
custodian, receiver or trustee for the undersigned or for a substantial part of
its assets; (e) death or incapacity of the undersigned (if an individual); (f)
entry of any judgment or order of attachment, injunction or governmental tax
lien or levy issued against the undersigned or against any property of the
undersigned; (g) consent by the undersigned to assume, suffer or allow to exist,
without the prior written consent of the Bank, any lien, mortgage, assignment or
other encumbrance on any of its assets or personal property, now owned or
hereafter acquired, except those liens, mortgages, assignments or other
encumbrances in existence on the date hereof and consented to in writing by the
Bank; (h) default in the punctual payment or performance of this or any other
obligation to the Bank or to any other lender at any time: (i) the existence or
occurrence at any time of one or more conditions or events which, in the sole
opinion of the Bank, has resulted or may result in a material adverse change in
the business, properties or financial condition of the undersigned; (j) failure
on request to furnish any financial information or to permit inspection of the
books and records of the undersigned; (1:)any warranty, representation or
statement in
any application, statement or agreement with the Bank proves false in any
material respect, (l) default in the observance or performance of any covenant
or agreement of the undersigned herein or in any other agreement between the
Bank and the undersigned; or (m) any of the foregoing events (other than the
event described in clause (a)) shall occur with respect to any guarantor of the
undersigned's obligations hereunder then this Note shall, at the sole option of
the Bank, become due and payable without notice or demand; provided, however, if
an event described in clause (b), clause (c) or clause (d) above occurs, this
Note shall automatically become due and payable. Upon the occurrence and during
the continuance of an Event of Default, the Bank shall be entitled to setoff
against and apply to the payment hereof the balance of any account or accounts
maintained with the Bank by the undersigned and to exercise any other right or
remedy granted hereunder, or under any agreement between the undersigned and the
Bank or available at law or in equity, including, but not limited to, the rights
and remedies of a secured party under the New York Uniform Commercial Code. The
failure by the Bank at any time to exercise any such right shall not be deemed a
waiver thereof, nor shall it bar the exercise of any such right at a later date.
Each and every right and remedy granted to the Bank hereunder or under any
agreement between the undersigned and the Bank or available at law or in equity
shall be cumulative and not exclusive of any other rights, powers, privileges or
remedies, and may be exercised by the Bank from time to time and as often as may
be necessary in the sole and absolute discretion of the Bank.
The undersigned agrees to pay, on demand, all of the Bank's costs and
expenses, including reasonable counsel fees (whether in, house or outside
counsel), in connection with the collection of any amounts due to the Bank
hereunder or in connection with the enforcement of the Bank's rights under this
Note.
This Note shall be governed by and construed in accordance with the laws of
the State of New York, without giving effect to principles of conflict or choice
of laws.
THE UNDERSIGNED HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY
FEDERAL OR STATE COURT IN THE STATE OF NEW YORK IN ANY ACTION, SUIT OR
PROCEEDING BROUGHT AGAINST IT AND RELATED TO OR IN CONNECTION WITH THIS NOTE OR
ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY AND CONSENTS TO THE PLACING OF
VENUE IN THE COUNTY OF NASSAU OR OTHER COUNTY PERMITTED BY LAW. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE UNDERSIGNED HEREBY WAIVES AND AGREES NOT TO
ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR
PROCEEDING ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF
SUCH COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT
THIS NOTE OR ANY OTHER DOCUMENT OR INSTRUMENT REFERRED TO HEREIN MAY NOT BE
LITIGATED IN OR BY SUCH COURTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THE UNDERSIGNED AGREES NOT TO SEEK AND HEREBY WAIVES THE RIGHT TO ANY REVIEW OF
THE JUDGMENT OF ANY SUCH COURT BY ANY COURT OF ANY OTHER NATION OR
JURISDICTION WHICH MAY BE CALLED UPON TO GRANT AN ENFORCEMENT OF SUCH
JUDGMENT. THE UNDERSIGNED AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY
CERTIFIED OR REGISTERED MAIL TO ITS ADDRESS SET FORTH BELOW OR SUCH OTHER
ADDRESS THAT THE UNDERSIGNED SHALL HAVE NOTIFIED THE BANK IN WRITING OR ANY
METHOD AUTHORIZED BY THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS PROHIBITED
BY LAW, THE UNDERSIGNED HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS NOTE.
The undersigned or any affiliate of the undersigned, shall not use any
portion of the proceeds of this Note nor have any letter of credit issued,
either directly or indirectly, for the purpose of (i) purchasing any securities
underwritten or privately placed by ABN AMRO Securities (USA) Inc. ("AASI"), an
affiliate of the Bank, or (ii) refinancing or making payments of principal,
interest or dividends on any securities issued by the undersigned or any
affiliate of the undersigned, and underwritten, privately placed or dealt in by
AASI.
The undersigned and the Bank hereby agree and acknowledge that any and all
information relating to the undersigned which is furnished by the undersigned to
the Bank (or to any affiliate of the Bank), and which is non-public,
confidential or proprietary in nature, shall be kept confidential by the Bank or
such affiliate in accordance with applicable law; provided, however, that such
information and other credit information relating to the undersigned may be
distributed by the Bank or such affiliate (a) to the Bank's or such affiliate's
directors, officers, employees, attorneys, affiliates, attorneys, auditors and
regulators, and (b) upon the order of a court or other governmental agency
having jurisdiction over the Bank or such affiliate, to any other party. The
undersigned and the Bank further agree that this provision shall survive the
termination of this Note.
The Bank shall not, by any act, delay, omission or otherwise, be deemed to
have waived any of its rights and/or remedies
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hereunder. No change, amendment, modification, termination, waiver, or
discharge, in whole or in part, of any provision of this Note shall be effective
unless in writing and signed by the Bank, and if so given by the Bank, shall be
effective only in the specific instance in which given. The undersigned
acknowledges that this Note and the undersigned's obligations under this Note
are, and shall at all times continue to be, absolute and unconditional in all
respects, and shall at all times be valid and enforceable irrespective of any
other agreements or circumstances of any nature whatsoever which might otherwise
constitute a defense to this Note and the obligations of the undersigned under
this Note. The undersigned absolutely, unconditionally and irrevocably waives
any and all right to assert any set-off, counterclaim or crossclaim of any
nature whatsoever with respect to this Note or the undersigned's obligations
hereunder.
In the event any one or more of the provisions contained in this Note
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
The undersigned hereby waives presentment, demand for payment, protest,
notice of dishonor, and any and all other notices or demands in connection with
the delivery, acceptance, performance, default, or enforcement of this Note.
The term "Bank" as used herein shall be deemed to include the Bank and its
successors and assigns, and any holder hereof.
The term "undersigned" as used herein shall, if this Note is signed by more
than one party, unless otherwise stated herein, mean the "undersigned and each
of them" and each undertaking herein contained shall be their joint and several
undertaking. The Bank may proceed against one or more of the undersigned at one
time or from time to time as it elects in its sole and absolute discretion.
At no time shall the rate of interest charged under this Note exceed the
maximum rate of interest permitted under applicable law. If at any time the
Prescribed Rate shall exceed such maximum rate, and thereafter the Prescribed
Rate is below such maximum rate, then the Prescribed Rate shall be increased to
the maximum rate for such period of time as is required so that the total amount
of interest received by the Bank is that which would have been received by the
Bank but for the first sentence of this paragraph.
In the event that any change in applicable law or regulation, or in the
interpretation thereof by any governmental authority charged with the
administration thereof, shall impose on or deem applicable to the Bank any
reserve requirements against this Note or the Line or impose upon the Bank any
other costs or assessments, the undersigned shall pay to the Bank on demand an
amount sufficient to compensate the Bank for the additional cost resulting from
the maintenance or imposition of such reserves, costs or assessments.
Any consents, agreements, instructions or requests pertaining to any matter
in connection with this Note, signed by any one of the undersigned, shall be
binding upon all of the undersigned. This Note shall bind the respective
successors, heirs or representatives of the undersigned. This Note and the Line
shall not be assigned by the undersigned without the Bank's prior written
consent.
IN WITNESS WHEREOF, the undersigned has duly executed this Note the day and
year first above written.
Puro Water Group, In
Witness: By: /s/ Xxxxx Xxxx
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EAB Officer Name: Xxxxx Xxxx
Title: President
Xxxxxxxx's Address:
00-00 00xx Xxxxxx
Xxxxxxx, XX 00000
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