EX-10.36
▇▇▇▇▇▇▇ SECURED NOTE
PURO CORPORATION OF AMERICA
$50,000.00 Maspeth, New York
January 28, 1994
FOR VALUE RECEIVED, the undersigned PURO CORPORATION OF AMERICA
(herein called the "Borrower"), a corporation incorporated and existing under
the laws of the State of New York, hereby promises to pay to the order of The
Trust Under Article 16 of the Will of ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, for the Benefit of ▇▇▇▇▇▇
▇▇▇▇▇ and The Trust Under Article 16 of the Will of ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, for the
Benefit of ▇▇▇▇▇ ▇. ▇▇▇▇▇, (herein collectively called the "Holder") the
principal amount of FIFTY THOUSAND DOLLARS ($50,000.00) as hereinafter provided,
or so much thereof as has been advanced hereunder, together with simple interest
thereon (computed on the basis of a 365-day year) on the unpaid principal amount
hereof at the annual rate of Three Quarters Percent (3/4%) above the prime
interest rate then in effect for Chase Manhattan Bank, as published by the Wall
Street Journal, from the date hereof to the Maturity Date (as hereinafter
defined), whether by acceleration or otherwise, which interest shall be payable
as hereinafter provided. In the event of a failure by the Borrower to pay
interest or principal when due, the Borrower shall, unless prohibited by
applicable law, pay interest (computed as aforesaid) on any such overdue
principal or
overdue interest at the rate of Twelve Percent (12%) per annum (or, in each case
at the highest rate permitted by applicable law, whichever is less).
1. Payment.
(a) The principal of this Note shall be paid in full ON DEMAND
(the "Maturity Date").
(b) Interest on the outstanding principal of this Note shall be
payable quarterly, in arrears, commencing on the first day of the next calendar
month occurring after the first advance hereunder until the Maturity Date, when
all accrued and unpaid interest shall be due and payable in full.
2. Method of Payment All payments of principal and interest are to be
made in immediately available funds (checks are acceptable) at Holder's offices,
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at such other place or
into such account or accounts as the Holder shall designate.
3. Lien and Security Interest. The Borrower hereby gives and grants to
the Holder a second lien and security interest, for the amount of this
indebtedness, in and upon all the property and assets, both tangible and
intangible, including but not limited to all inventory and accounts receivable
and all extensions, additions, profits and products thereof and thereto,
wheresoever in the world located, whether or not in the possession of the
Borrower, owned by the Borrower, excluding, however, the Borrower's real
property located at ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "Collateral", more
particularly
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described in the Rider attached hereto and made a part hereof), subject only to
the discrete equipment financing liens set forth on Schedule A, attached hereto,
statutory liens arising and satisfied in the ordinary course and liens or
encumbrances affecting the Collateral arising out of or in connection with that
certain mortgage dated May 24, 1988, granted to Maspeth Federal Savings & Loan
Association, covering the Borrower's real property located at ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ and the lien in favor of ▇▇▇▇▇▇ created by that certain
$250,000.00 Secured Note of even date herewith. The Borrower agrees to execute
and file any and all documentation, including New York Uniform Commercial Code
Financing Statements, necessary to implement, evidence or perfect such lien and
security interest. Upon repayment of all principal, and full payment of all
interest and other charges due hereunder, ▇▇▇▇▇▇ shall execute and record any
and all termination statements necessary to release said lien.
4. Events of Default. If any of the following events shall occur,
hereinafter individually referred to as an Event of Default, then the entire
unpaid principal and accrued interest thereon shall immediately become due and
payable:
(a) Failure in the making of any payment due under this Note when
it becomes due and payable (after written notice is given in accordance with
paragraph 11) and continuance of such failure for a period of ten (10) days; or
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(b) The institution by the Borrower or any other party of
proceedings to have the Borrower adjudicated a bankrupt or insolvent (which
proceedings, brought by another party other than the Borrower have not been
dismissed within 120 days of commencement), or the consent by the Borrower to
the institution of bankruptcy or insolvency proceedings against the Borrower or
the filing by the Borrower of a petition or answer or consent seeking
reorganization or release under the United States Federal Bankruptcy Act or any
other United States, Federal or State Bankruptcy laws, or the consent by the
Borrower to the filing of any such petition or the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other court-appointed official)
of the Borrower (which petition or appointment brought by any other party other
than Borrower has not been dismissed within 120 days of commencement) or of any
substantial part of its property, or the making by the Borrower of a general
assignment for the benefit of creditors, or the admission by the Borrower in
writing of its inability to pay its debts generally as they become due or the
taking of corporate action by the Borrower in furtherance of any such action; or
(c) The entry of a decree or order by a court having jurisdiction
in the premises adjudging the Borrower a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Borrower under the United States Federal
Bankruptcy Act or any other United States estate law, or
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appointing a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Borrower or of any substantial part of its property or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for a period of thirty (30) consecutive days unless
stayed; or
(d) Any material attachment of the Collateral or any other
property or assets of the Borrower which is not discharged or bonded within
thirty (30) days; or
(e) Any default, uncured breach, nonperformance or non-observance
(after application of all applicable cure periods) of any material covenant,
condition, representation, promise or agreement between the Borrower and Holder,
including but not limited to, any default under any other promissory note or
other obligation between the Borrower and Holder, or any material adverse
default by the Borrower, under or with respect to any indebtedness or debt
obligation of the Borrower with any other creditor.
5. Acceleration on Default The Borrower agrees that after the
occurrence of an Event of Default, and the giving of any applicable notice and
cure period, this Note, and, at the option of the Holder, all obligations, if
any, of the Borrower to the Holder, shall become at once due and payable without
notice, presentment, or demand of payment.
6. Remedies and Collateral. Upon the occurrence of any Event of
Default: (i) the Holder shall be entitled to
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exercise forthwith all of the rights and remedies provided for in this Note and
all rights and remedies of a secured party under the New York Uniform Commercial
Code or other applicable law; and (ii) the Holder may, upon ten (10) days prior
written notice to Borrower in accordance with paragraph 11, sell all or any part
of the Collateral, said sale to be either public or private at the Holder's sole
discretion at such prices as it may deem best, for cash or credit, with the
right of the Holder or Borrower at any such sale to purchase all or any part
thereof, free from any right of redemption, applying the net proceeds of such
sale to the payment of this Note or of any other obligations to the Holder of
the Borrower, which shall remain liable to the Holder for any deficiency
hereunder and/or thereunder.
7. Cross Collateralization. All Collateral which the Holder may at any
time acquire from the Borrower from any source in connection with obligations
arising under this Note shall constitute Collateral for each and every
obligation of Borrower to the Holder and/or any affiliate or subsidiary of the
Holder, without apportionment or designation as to particular obligations. All
obligations of the Borrower to the Holder and/or any affiliate or subsidiary of
the Holder, however and whenever incurred, shall be secured by all Collateral
above-referenced however and whenever acquired, and the Holder shall have the
right, in its sole discretion, to determine the order in which the Holder's
rights in or remedies against any such Collateral are to be exercised and which
type of Collateral or
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which portions of such Collateral the Holder shall proceed against and the order
of application of proceeds of such Collateral as against any particular
obligations.
8. Non-waiver. No delay or failure on the part of the Holder to
exercise any power or right hereunder shall operate as a waiver and such rights
and powers shall be deemed continuous, nor shall a partial exercise preclude
full exercise; and no right or remedy of the Holder shall be deemed abridged or
modified by any course of conduct and no waiver thereof shall be predicated
thereon, nor shall failure to exercise any such power or right subject the
Holder to any liability.
9. Jurisdiction. The Borrower hereby consents to submit itself to the
jurisdiction of the United States District Court for the Southern District of
New York, as well as the Courts of the State of New York in connection with any
disputes which may arise hereunder. The Borrower hereby consents to service of
process in the State of New York by naming the Secretary of State of the State
of New York as its agent for such service. Such submission to jurisdiction and
consent to service of process is nonexclusive of any other jurisdiction or
manner of service in which or by which personal jurisdiction over the Borrower
may be obtained.
10. Costs of Collection. Should the indebtedness represented by this
Note or any part thereof be placed in the hands of attorneys for collection
after an Event of Default, as defined herein, the Borrower agrees to pay the
principal, premium
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if any, and interest due and payable hereon and all reasonable costs of
collecting this Note, including but not limited to reasonable attorneys' fees
and expenses.
11. Notices. All notices, elections, demands or other communications
required or permitted to be made or given pursuant to this Note shall be in
writing if sent by pre-paid first-class mail, overnight courier or delivery
service and in addition, if transmitted by any telecommunication device (e.g.
telex or telecopier) and addressed or sent to the respective parties' addresses
specified below and shall be considered given or made when received by
recipient. Either party may change its address by giving prior written notice to
the other party of its new address
To the Borrower: Puro Corporation of America
▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇
P.0. Box 10
Maspeth, NY 11378
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇,
President
With a copy to: ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Green
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
To the Holder: c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇. ▇▇▇, Esquire
Lev, ▇▇▇▇▇▇▇ & Berlin, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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12. Prepayment. The Borrower shall have the privilege of paying the
whole or any part of this indebtedness at any time while this Note remains
unpaid without penalty or premium.
13. App1icab1e Law. 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 conflicts of law.
14. THE BORROWER HEREBY WAIVES TRIAL BY JURY IN ANY COURT IN ANY SUIT,
ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH OR IN ANY WAY
RELATED TO THIS NOTE AND/OR THE DEFENSE OR ENFORCEMENT OF ANY OF THE HOLDER'S
RIGHTS AND REMEDIES IN CONNECTION THEREWITH. ▇▇▇▇▇▇▇▇ ACKNOWLEDGES THAT IT MAKES
THIS WAIVER KNOWINGLY, VOLUNTARILY AND ONLY AFTER EXTENSIVE CONSIDERATION OF THE
RAMIFICATIONS OF THIS WAIVER WITH ITS ATTORNEYS.
PURO CORPORATION OF AMERICA
By /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇,
Its President
Hereunto duly Authorized
Dated: January 28, 1994
Attest:
________________________________
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RIDER TO
SECURED NOTE
(a) All present and future accounts, contract rights, chattel paper, and
general intangibles (including but not limited to all BORROWER's now
existing or hereafter arising tax and duty claims and refunds, all now
owned or hereafter acquired patents, trademarks, copyrights, licenses or
license agreements relative to the rendering of services or the manufacture
of goods, choses in action, rights to sue any third party and proceeds of
any lawsuit or proceeding brought by ▇▇▇▇▇▇▇▇ against any third party)
documents, instruments, customer lists, monies, deposits, securities,
credits and letters of credit whether now owned or hereafter acquired by
the BORROWER; ▇▇▇▇▇▇▇▇'s interest in the goods represented thereby and all
returned, reclaimed or repossessed goods with respect thereto; all rights
and remedies of BORROWER under or in connection with such collateral;
(b) All inventory, wherever located, whether now owned or hereafter acquired by
BORROWER, including without limitation, raw materials, materials used or
consumed in the BORROWER's business, wrapping, packing and shipping
materials, work in process and finished goods of whatever kind, nature and
description wherever located and whether in the possession or control of a
