Exhibit 10.30
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NOTE
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$300,000.00 August 28, 1997
FOR VALUE RECEIVED, the undersigned, TOUCHSTONE APPLIED
SCIENCE ASSOCIATES, INC., a Delaware Corporation with its office
for doing business at Fields Lane, PO Box 382, Brewster, New York
10509-0382 (hereinafter referred to as the "Borrower" or "Obligor),
promises to pay to the order of MSB BANK, a federally chartered
savings bank with its principal office at 00 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxx Xxxx 00000 (hereinafter referred to as "Obligee" or
"Holder"), in such coin or currency as shall be legal tender of the
United States of America at the aforementioned address or at such
other place as Holder may from time to time designate in writing,
the principal sum of THREE HUNDRED THOUSAND AND 00/100
($300,000.00) DOLLARS payable on February 28, 1998 ("Maturity Date")
in the manner set forth below:
[X ] A. INTEREST ONLY. Interest only payable monthly
commencing on September 15, 1997 and on the fifteenth day of each
and every month thereafter until the Maturity Date set forth above,
when the entire remaining indebtedness, principal and interest,
shall become fully due and payable. Interest shall be calculated
at the rate of one-half percent (1/2%) per annum over the Prime
Rate (the highest Prime Rate published in the New York Times,
provided such bank is a bank doing business in the State of New
York and/or is a federally chartered bank (Prime Plus .50%) freely
floating with the changes in interest rate to be made
simultaneously with any change in the Prime Rate indicator set
forth above). This is a note for a revolving line of credit and
the interest payable shall be calculated on the actual amount that
may be advanced by the Obligee or Holder from time to time to the
Obligor. The procedures for drawing on this line of credit shall
follow those that are established from time to time by the Obligee
or Holder.
[ ] B. FIXED INTEREST RATE WITH LEVEL PAYMENTS. Interest
shall be calculated at the rate of ____ per cent (___%) per annum.
Principal and interest payments in the sum of ____________________
Dollars ($ ) commencing on the ___ day of _________________
199__ and on the _____________ day of each and every month
thereafter until the Maturity Date set forth above, with each
payment first to be applied toward payment of accrued interest and
second toward the reduction of the principal indebtedness.
[ ] C. ADJUSTABLE RATE. Monthly payments of principal plus
interest at the rate of ______ per cent ( %) per annum over the
highest Prime Rate published in the New York Times, provided such
bank is a bank doing business in the State of New York and/or is a
federally chartered bank (Prime Plus .50%) freely floating with the
changes in interest rate to be made simultaneously with any change
in the Prime Rate indicator set forth above together with monthly
installments of principal in the sum of ___________ ($ )
Dollars plus interest payable monthly commencing on the ____ day
of ____________ 1997 until the Maturity Date set forth above when
the entire remaining principal balance, plus accrued interest,
shall become fully due and payable.
Interest shall be payable and calculated on the basis of a
three hundred sixty (360) day year on the unpaid principal amount.
The interest rate set forth herein shall not exceed the
maximum interest rate permitted by law.
1. PREPAYMENT. This Note may be prepaid at any time without
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penalty, such prepayment to be applied to the installments hereof
in the inverse order of maturity where applicable.
2. LATE CHARGES. Any payment not paid within ten (10) days
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from its due date shall accrue a late charge of five (5%) per cent
of the amount of the payment then due.
3. EVENTS OF DEFAULT. At the option of the Holder, the
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happening of any one or more of the events hereinafter set forth,
the indebtedness of the Obligor to the Holder whether as principal,
endorser, surety, guarantor or otherwise shall become immediately
due and payable and may be collected forthwith, and holder shall
thereupon be immediately entitled to exercise any and all rights
and remedies for collection of any and all such indebtedness
available to holder, at law, in equity or by virtue of any
instrument, contract or agreement securing repayment thereof:
EVENTS OF DEFAULT
(a) Nonpayment: Nonpayment of any installment of
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principal and interest upon the Note after it shall have become due
and payable, whether at maturity, by acceleration, by notice of
intention to prepay, or otherwise; or
(b) Negative Covenants: Default in the observance of
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any of the covenants or agreements contained in Paragraph "6"
(Negative Covenants) of the Term Loan Agreement executed
simultaneously herewith; or
(c) Other Covenants: Default in the due observance or
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performance of any term, covenant or agreement (other than the
covenant of payment) contained in this Note, the Term Loan
Agreement executed simultaneously herewith, or in any other
agreement between the Borrower and the Bank, and such default shall
have continued unremedied for a period of thirty (30) days or if
there is commenced against the Borrower any such proceedings which
remain undismissed for a period of thirty (30) days, or the
Borrower by any act indicates its consent to, approval of, or
acquiescence in, any such proceeding or the appointment of any
receiver of, or any trustee for, the Borrower or any substantial
part of its property, or suffers any receivership or trusteeship to
continue and undischarged for a period of thirty (30) days;
(d) Representations: If any certificate, statement,
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representation, warranty or financial statement heretofore or
hereafter, furnished by or on behalf of the Borrower pursuant to or
in connection with this Agreement (including, without limitation,
representations and warranties contained herein) or as an
inducement to the Bank to enter into this Agreement or any other
lending agreement with the Borrower, or any material fact required
to be stated therein or necessary to make the statements therein
not misleading, proves to have been false in any material respect
at the time of which the facts therein set forth were stated or
certified, or to have omitted any substantial liability or claim
against the Borrower, or if on the date of execution of this
Agreement there shall have been any materially adverse change in
any of the facts disclosed by any such certificate, statement,
representation, warranty, or financial statement, which change
shall not have been disclosed to the bank at or prior to the time
of such execution; or
(e) CROSS DEFAULTS. In the event the Obligor defaults in
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any payment of principal or interest on any other obligation for
borrowed money beyond any grace period provided with respect
thereto and with respect to any other or further indebtedness with
the Bank or the Holder of this Note or in the performance of any
other term, condition or covenant contained in any agreement under
which any such obligation or obligations are created, the effect of
which causes a default or which permits the holder of such
obligation to cause such obligation to become due and payable prior
to its date of maturity shall be deemed an Event of Default
pursuant to this obligation; or
(f) Voluntary or Involuntary Insolvency Proceedings:
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The Borrower makes an assignment for the benefit of creditors,
files a petition in bankruptcy, is adjudicated insolvent or
bankrupt, petitions or applies to any tribunal for any receiver or
any trustee of the Borrower on any substantial part of its
property, commences any proceeding under any reorganization,
arrangement, or readjustment of debt, or applies for dissolution or
liquidation under any law or statute of any jurisdiction.
(g) Judgments: Any judgment or penalty against the
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Borrower or any lien or attachment against its property for any
amount in excess of FIFTY THOUSAND and 00/100 ($50,000.00) DOLLARS
remains unpaid, unstayed on appeal, unbonded or undismissed for a
period of thirty (30) days;
THEN, upon the happening of any one or more of the foregoing
events of default which shall be continuing, the Bank may declare
the entire Loan granted hereunder to be cancelled and the Notes
shall become and be immediately due and payable upon declaration to
that effect delivered by the Bank to the Borrower; and the Borrower
hereby expressly waives any presentment, demand, protest or other
or further notice of any kind.
4. SECURED TRANSACTION. The Obligor acknowledges that this
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is a secured transaction within the meaning of and governed by
Article 9 of the Uniform Commercial Code of the State of New York.
The Obligor further acknowledges that there is executed, along with
the Note, a Term Loan Agreement and Security Agreement in order to
secure the indebtedness created herein. This Note, the Term Loan
Agreement and Security Agreement together set forth the terms and
conditions of the obligation of the Borrower/Obligor to the
Bank/Obligee and each separate instrument incorporates by reference
the other instruments. Notwithstanding the foregoing, in the event
of default, the Bank (Holder) shall be free to elect any one or a
combination of all of the remedies available to it pursuant to the
provisions of the Loan Documents and the election of any one remedy
shall not preclude the holder from thereafter pursuing any and all
other remedies available to it under law or pursuant to the Loan
Documents. It is further intended that the terms and conditions of
the commitment letter issued by the Bank dated the 15th day of July
1997 are intended to survive the execution of this Note and Loan
Documents and are incorporated by reference herein.
5. None of the rights and remedies of the Holder hereunder
shall be waived or affected by holder's failure or delay if any, to
exercise them. All remedies conferred on Holder by law, or by this
note or by any other instrument or agreement, shall be cumulative
and none is exclusive. Such remedies may be exercised concurrently
or consecutively at Holders' option.
6. Obligor hereby agrees not to demand a trial by jury of
any issue triable of right by jury, and waives any right to trial
by jury fully to the extent that any such right shall now or
hereafter exist with regard to the loan documents, or any claim,
counterclaim or other action arising in connection therewith. This
waiver of right to trial by jury is given knowingly and voluntarily
by xxxxxxx, and is intended to encompass individually each instance
and each issue as to which the right to a trial by jury would
otherwise accrue. Obligee is hereby authorized to file a copy of
this paragraph in any proceeding as conclusive evidence of this
waiver by obligor.
7. The term Obligor as used in this note shall mean and have
reference to collectively all parties and each of them directly or
indirectly obligated for the indebtedness evidenced by this note,
whether as principal, maker, endorser, surety, guarantor or
otherwise together with the respective heirs, administrators,
executors, legal representatives, successors and assigns of each of
the foregoing.
8. All notices permitted as required hereunder shall be in
writing and shall be deemed to have been duly and properly given as
of the date and time the said are deposited with the United States
Postal Service, postage prepaid, to be sent certified mail, return
receipt requested and addressed to the Obligor or holder as the
case may be at their addresses as hereinabove set forth or at any
such other addresses as the Obligor or holder may at any time and
from time to time specify to the other by notice as herein
provided.
9. This note shall be governed as to its validity,
interpretation, and construction and in all other respects by law
and decisions of the State of New York. Any dispute that shall
arise with respect to the enforcement or interpretation of the Loan
Documents shall be heard only in the Supreme Court of the State of
New York, County of Orange or Xxxxxx, which shall be deemed the
designated venue for any such actions.
10. Obligor does hereby agree that upon the occurrence of an
Event of Default (including upon the failure of Obligor to pay the
Debt in full on the Maturity Date), Obligee shall be entitled to
receive and Obligor shall pay interest on the entire unpaid
principal sum and any other amounts due at a rate (the "Default
Rate") equal to the lesser of (a) the maximum rate permitted by
applicable law, or (b) five percent (5%) above the interest rate
set forth in this Note. The Default Rate shall be computed from
the occurrence of the Event of Default until the actual receipt and
collection of the Debt (or that portion thereof that is then due).
This charge shall be added to the Debt and shall be secured by the
Mortgage. This paragraph, however, shall not be construed as an
agreement or privilege to extend the date of the payment of the
Debt, nor as a waiver of any other right or remedy accruing to
Obligee by reason of the occurrence of any Event of Default.
IN WITNESS WHEREOF, the undersigned has executed this note as
of the date and year first above written.
TOUCHSTONE APPLIED
SCIENCE ASSOCIATES, INC.
/s/ XXXXXX X. XXXXX
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XXXXXX X. XXXXX, PRESIDENT
