REVOLVING CREDIT NOTE
$2,250,000.00
As of December 19, 2001
FOR VALUE RECEIVED, the undersigned, DRYCLEAN USA, INC., a Delaware
corporation (the "Borrower"), promises to pay to the order of FIRST UNION
NATIONAL BANK, a national banking association (the "Lender"), and its successors
and assigns, the principal sum of Two Million Two Hundred Fifty Thousand Dollars
and no/100 ($2,250,000.00) or, if less, the aggregate unpaid balance of all
Revolving Credit Loans (as hereinafter defined) at any time outstanding made by
the Lender to the Borrower pursuant to, and in accordance with the terms of, the
Loan Agreement (as hereinafter defined), the provisions of which are
incorporated herein by reference.
All principal shall be paid on the earlier of DEMAND or October 30,
2002 (unless renewed, extended or modified in writing by Xxxxxx, in its sole
discretion), or earlier as provided in the Loan Agreement. Both principal and
interest hereunder shall be paid in lawful money of the United States to the
Lender at its office as Lender shall designate from time to time. The Borrower
also unconditionally promises to pay interest on the unpaid principal amount of
this Note for each day from the date hereof until repaid in full as provided in
the Loan Agreement. Interest shall be paid at the rate or rates per annum set
forth in the Loan Agreement.
Notwithstanding anything herein to the contrary, if at any time the
interest rate applicable to any Revolving Credit Loan, together with all fees,
charges and other amounts which are treated as interest on such Revolving Credit
Loan under applicable law (collectively the "Charges"), shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by the Lender in accordance with applicable law, the rate
of interest payable in respect of such Revolving Credit Loan, together with all
Charges payable in respect thereof, shall be limited to the Maximum Rate and, to
the extent lawful, the interest and Charges that would have been payable in
respect of such Revolving Credit Loan but were not payable as a result of the
operation of these provisions shall be cumulated and the interest and Charges
payable to the Lender in respect of other Revolving Credit Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Adjusted LIBOR Market
Index Rate(Revolving) to the date of repayment, shall have been received by the
Lender.
For the purposes of this Note:
"Loan Agreement" shall mean the Loan and Security Agreement, dated of
even date herewith, by and between the Borrower and the Lender, as the same may
be hereafter amended, supplemented or restated from time to time.
"Revolving Credit Loans" shall mean the Revolving Credit Loans made by
the Lender pursuant to the Loan Agreement.
All other capitalized terms used in this Note without definition shall
have the meanings ascribed to such terms in the Loan Agreement.
The Borrower, for itself and its successors and assigns, expressly
waives presentment for payment, demand, protest and notice of demand, notice of
dishonor and notice of nonpayment and all other notices and consents that the
Lender may release or surrender, exchange or substitute any collateral security
now held or which may hereafter be held as security for the payment of this
Note.
This Note is the Revolving Credit Note and evidences the Revolving
Credit Loans made by the Lender pursuant to the provisions of the Loan
Agreement, and is secured in accordance with the terms of, and is entitled to
the benefits of, the Loan Agreement, including those terms related to the
acceleration of the maturity of this Note upon the occurrence of an Event of
Default. Payment of this Note is secured by the Collateral as described in the
Loan Agreement.
In the event that this Note shall at any time after maturity be placed
with an attorney for collection, the Borrower agrees to pay, in addition to the
entire unpaid principal balance and interest due hereunder, all collection
costs, including reasonable attorneys' fees, incurred by the Lender in
collecting the indebtedness due hereunder.
Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding, any dispute, claim or controversy
arising out of, connected with or relating to this Note and any other Loan
Document ("Disputes") between or among parties to this Note shall be resolved by
binding arbitration as provided herein. Institution of a judicial proceeding by
a party does not waive the right of that party to demand arbitration hereunder.
Disputes may include, without limitation, tort claims, counterclaims, disputes
as to whether a matter is subject to arbitration, claims brought as class
actions, claims arising from Loan Documents executed in the future, or claims
arising out of or connected with the transaction reflected by this Note.
Arbitration shall be conducted under and governed by the Commercial Financial
Disputes Arbitration Rules (the "Arbitration Rules") of the American Arbitration
Association (the "AAA") and Title 9 of the U.S. Code. All arbitration hearings
shall be conducted in the city in which the office of Lender first stated above
is located. The expedited procedures set forth in Rule 51 et seq. of the
Arbitration Rules shall be applicable to claims of less than $1,000,000. All
applicable statutes of limitations shall apply to any Disputes. A judgment upon
the award may be entered in any court having jurisdiction. The panel from which
all arbitrators are selected shall be comprised of licensed attorneys. The
single arbitrator selected for expedited procedure shall be a retired judge from
the highest court of general jurisdiction, state or federal, of the state where
the hearing will be conducted or if such person is not available to serve, the
single arbitrator may be a licensed attorney. Notwithstanding the foregoing,
this arbitration provision does not apply to disputes under or related to swap
agreements. Notwithstanding the preceding binding arbitration provisions, Lender
and Borrower agree to preserve, without diminution, certain remedies that any
party herein may employ or exercise freely, independently or in connection with
an arbitration proceeding or after an arbitration action is brought. Lender and
Xxxxxxxx shall have the right to proceed in any court of proper jurisdiction or
by self-help to exercise or prosecute the following remedies, as applicable: (i)
all rights to foreclose against any real or personal property or other security
by exercising a power of sale granted under
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Loan Documents or under applicable law or by judicial foreclosure and sale,
including a proceeding to confirm the sale; (ii) all rights of self-help
including peaceful occupation of real property and collection of rents, set-off,
and peaceful possession of personal property; (iii) obtaining provisional or
ancillary remedies including injunctive relief, sequestration, garnishment,
attachment, appointment of receiver and filing an involuntary bankruptcy
proceeding; and (iv) when applicable, a judgment by confession of judgment.
Preservation of these remedies does not limit the power of an arbitrator to
grant similar remedies that may be requested by a part in a Dispute. Xxxxxx and
Xxxxxxxx agree that they shall not have a remedy of punitive or exemplary
damages against the other in any Dispute and hereby waive any right or claim to
punitive or exemplary damages they have now or which may arise in the future in
connection with any Dispute whether the Dispute is resolved by arbitration or
judicially.
SUBJECT TO THE TERMS OF THE IMMEDIATELY PRECEDING PARAGRAPH, THIS NOTE
SHALL BE INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO
DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW
PROVISIONS) OF THE STATE OF FLORIDA. SUBJECT TO THE TERMS OF THE IMMEDIATELY
PRECEDING PARAGRAPH, AS PART OF THE CONSIDERATION FOR NEW VALUE THIS DAY
RECEIVED, THE BORROWER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED WITHIN MIAMI-DADE COUNTY, STATE OF FLORIDA, AND CONSENTS
THAT ALL SERVICE OF PROCESS BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED TO
THE BORROWER AT THE ADDRESS STATED IN SECTION 9.4 OF THE LOAN AGREEMENT AND
SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON THE EARLIER OF ACTUAL
RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAILS, PROPER
POSTAGE PREPAID. SUBJECT TO THE TERMS OF THE IMMEDIATELY PRECEDING PARAGRAPH,
EACH OF THE BORROWER AND THE LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY SUIT OR PROCEEDING ARISING OUT OF OR RELATED TO THIS
NOTE OR THE OTHER LOAN DOCUMENTS. SUBJECT TO THE TERMS OF THE IMMEDIATELY
PRECEDING PARAGRAPH, THE BORROWER WAIVES ANY OBJECTION WHICH THE BORROWER MAY
HAVE BASED ON LACK OF JURISDICTION OR IMPROPER VENUE OR FORUM NON CONVENIENS TO
ANY SUIT OR PROCEEDING INSTITUTED BY THE LENDER UNDER THIS NOTE OR THE OTHER
LOAN DOCUMENTS IN ANY STATE OR FEDERAL COURT LOCATED WITHIN MIAMI-DADE COUNTY,
FLORIDA AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS
DEEMED APPROPRIATE BY THE COURT. SUBJECT TO THE TERMS OF THE IMMEDIATELY
PRECEDING PARAGRAPH, NOTHING IN THIS PARAGRAPH SHALL AFFECT THE RIGHT OF THE
LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE
RIGHT OF THE LENDER TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER OR
ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION WHICH HAS JURISDICTION OVER
THE BORROWER OR ITS PROPERTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
LENDER TO ENTER INTO THIS NOTE AND THE OTHER LOAN DOCUMENTS, MAKE THE LOANS AND
EXTEND THE OTHER FINANCIAL ACCOMMODATIONS CONTEMPLATED HEREUNDER AND THEREUNDER.
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IN WITNESS WHEREOF, the Borrower has caused this Note to be executed in
its corporate name by its duly authorized corporate officer as to the date first
above written.
DRYCLEAN USA, INC.,
By: /s/ Xxxxxxx Xxxxxxx, Pres.
--------------------------
Xxxxxxx Xxxxxxx, President
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