Exhibit 10.1
DEMAND NOTE
Manufacturers and Traders Trust Company New York
$1,000,000.00
December 1, 2003
BORROWER: PRO-FAC COOPERATIVE, INC., a corporation organized under the laws of
New York
Address of chief executive office: 00 Xxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000
BANK: MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking
corporation with its principal banking office at Xxx X&X Xxxxx,
Xxxxxxx, Xxx Xxxx 00000 Attention: Office of General Counsel
Promise to Pay. For value received, and intending to be legally bound, Xxxxxxxx
promises to pay to the order of the Bank on demand the principal sum of ONE
MILLION DOLLARS AND NO CENTS ($1,000,000.00) plus interest as agreed below and
all fees and costs (including without limitation attorneys' fees and
disbursements whether for internal or outside counsel) the Bank incurs in order
to collect any amount due under this Note, to negotiate or document a workout or
restructuring, or to preserve its rights or realize upon any guaranty or other
security for a payment of this Note ("Expenses").
Interest. The unpaid principal balance of this Note shall earn interest each day
calculated on the basis of a 360-day year for the actual number of days in each
year (365 or 366) until payment is received at a rate per year which shall on
each day be 0.75 percentage points above the rate in effect on that day as the
rate announced by the Bank as its prime rate of interest. Interest shall accrue
at the Maximum Legal Rate (defined below) if no rate is specified.
Maximum Legal Rate. It is the intent of the Bank and of Borrower that in no
event shall interest be payable at a rate in excess of the maximum rate
permitted by applicable law (the "Maximum Legal Rate"). If this Note is for a
personal loan of less than $2,500,000 and is secured primarily by a
one-to-four-family residence, such interest rate shall not exceed sixteen
percent (16%). Solely to the extent necessary to prevent interest under this
Note from exceeding the Maximum Legal Rate, any amount that would be treated as
excessive under a final judicial interpretation of applicable law shall be
deemed to have been a mistake and automatically canceled, and, if received by
the Bank, shall be refunded to Borrower.
Due on Demand. This is a demand Note and all amounts hereunder shall become
immediately due and payable upon demand by the Bank; provided, however, that all
amounts hereunder shall automatically become immediately due and payable if
Borrower or any guarantor or endorser of this Note commences or has commenced
against it any bankruptcy or insolvency proceeding. Borrower hereby waives
protest, presentment and notice of any kind in connection with this Note.
Payments; Late Charge; Default Rate. Payments shall be made in immediately
available United States funds at any banking office of the Bank. Absent demand
for payment in full, interest shall be due and payable monthly. If payment is
not received within five days of its due date, Borrower shall pay a late charge
equal to the greatest of (a) five percent (5%) of the delinquent amount, (b) the
Bank's then current late charge as announced by the Bank from time to time, or
(c) $50.00, provided, however, that if this Note is secured by one to six (1-6)
family owner-occupied dwelling, the grace period shall be fifteen (15) days, the
late charge shall be two percent (2%) of the delinquent amount, any excess
collected by mistake shall be refunded on request, and each such late charge
shall be separately charged and collected by the Bank. In addition, if the Bank
has not actually received any payment under this Note within thirty days after
it is due date, from and after such thirtieth day the interest rate for all
amounts outstanding under this Note shall automatically increase to five (5)
percentage points above the otherwise applicable rate per year, and any judgment
entered hereon or otherwise in connection with any suit to collect amounts due
hereunder shall bear interest at such Default Rate. Payments may be applied in
any order in the sole discretion of the Bank but prior to demand, shall be
applied first to past due interest, Expenses and late charges, then to scheduled
principal payments, if any, which are past due, then to current interest,
Expenses and late charges, and last to remaining principal.
Setoff. The Bank shall have the right to set off against the amounts owing under
this Note any property held in a deposit or other account with the Bank or any
of its affiliates or otherwise owing by the Bank or any of its affiliates in any
capacity to Borrower or any guarantor or endorser of this Note. Such set-off
shall be deemed to have been exercised immediately at the time the Bank or such
affiliate elect to do so.
Purpose of Loan. Borrower represents, warrants and acknowledges to the Bank that
the proceeds of the loan shall be used for a business purpose, and not for any
personal, family or household purpose, unless the following box is checked: [ ]
Personal Loan.
Authorization. Borrower, if a corporation, partnership, trust or other entity,
represents that it is duly organized and in good standing or duly constituted in
the state of its organization is duly authorized to do business in all
jurisdictions material to the conduct of its business; that the execution,
delivery and performance of this Note have been duly authorized by all necessary
regulatory and corporate or partnership action or by its governing instrument;
that this Note has been duly executed by an authorized officer, partner or
trustee and constitutes a binding obligation enforceable against Borrower and
not in violation of any law, court order or agreement by which Borrower is
bound; and that Xxxxxxxx's performance is not threatened by any pending or
threatened litigation.
Joint and Several. If there is more than one Borrower, each of them shall be
jointly and severally liable for all amounts and obligations which become due
under this Note and the term "Borrower" shall include each as well as all of
them.
Miscellaneous. This Note, together with any related loan and security agreements
and guaranties, contains the entire agreement between the Bank and Borrower with
respect to the Note, and supersedes every course of dealing, other conduct, oral
agreement and representation previously made by the Bank. All rights and
remedies of the Bank under applicable law and this Note or amendment of any
provision of this Note are cumulative and not exclusive. No single, partial or
delayed exercise by the Bank of any right or remedy shall preclude the
subsequent exercise by the Bank at any time of any right or remedy of the Bank
without notice. No waiver or amendment of any provision of this Note shall be
effective unless made specifically in writing by the Bank. No course of dealing
or other conduct, no oral agreement or representation made by the Bank, and no
usage of trade, shall operate as a waiver of any right or remedy of the Bank. No
waiver of any right or remedy of the Bank shall be effective unless made
specifically in writing by the Bank. Xxxxxxxx agrees that in any legal
proceeding, a copy of this Note kept in the Bank's course of business may be
admitted into evidence as an original. This Note is a binding obligation
enforceable against Borrower and its successors and assigns and shall inure to
the benefit of the Bank and its successors and assigns. If a court deems any
provision of this Note invalid, the remainder of the Note shall remain in
effect. Section headings are for convenience only. Singular number includes
plural and neuter gender includes masculine and feminine as appropriate.
Notices. Any demand or notice hereunder or under any applicable law pertaining
hereto shall be in writing and duly given if delivered to Borrower (at its
address on the Bank's records) or to the Bank (at the address on page one and
separately to the Bank officer responsible for Xxxxxxxx's relationship with the
Bank). Such notice or demand shall be deemed sufficiently given for all purposes
when delivered (i) by personal delivery and shall be deemed effective when
delivered, or (ii) by mail or courier and shall be deemed effective three (3)
business days after deposit in an official depository maintained by the United
States Post Office for the collection of mail or one (1) business day after
delivery to a nationally recognized overnight courier service (e.g., Federal
Express). Notice by e-mail is not valid notice under this or any other agreement
between Borrower and the Bank.
Governing Law; Jurisdiction. This Note has been delivered to and accepted by the
Bank and will be deemed to be made in the State of New York. This Note will be
interpreted in accordance with the laws of the State of New York excluding its
conflict of laws rules. BORROWER HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE STATE OF NEW YORK IN A COUNTY
OR JUDICIAL DISTRICT WHERE THE BANK MAINTAINS A BRANCH AND CONSENTS THAT THE
BANK MAY EFFECT ANY SERVICE OF PROCESS IN THE MANNER AND AT BORROWER'S ADDRESS
SET FORTH ABOVE FOR PROVIDING NOTICE OR DEMAND; PROVIDED THAT NOTHING CONTAINED
IN THIS NOTE WILL PREVENT THE BANK FROM BRINGING ANY ACTION, ENFORCING ANY AWARD
OR JUDGMENT OR EXERCISING ANY RIGHTS AGAINST BORROWER INDIVIDUALLY, AGAINST ANY
SECURITY OR AGAINST ANY PROPERTY OF BORROWER WITHIN ANY OTHER COUNTY, STATE OR
OTHER FOREIGN OR DOMESTIC JURISDICTION. Borrower acknowledges and agrees that
the venue provided above is the most convenient forum for both the Bank and
Borrower. Borrower waives any objection to venue and any objection based on a
more convenient forum in any action instituted under this Note.
Waiver of Jury Trial. XXXXXXXX AND THE BANK HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY BORROWER AND THE BANK MAY HAVE IN
ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS NOTE OR
THE TRANSACTIONS RELATED HERETO. XXXXXXXX REPRESENTS AND WARRANTS THAT NO
REPRESENTATIVE OR AGENT OF THE BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE BANK WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS JURY
TRIAL WAIVER. XXXXXXXX ACKNOWLEDGES THAT THE BANK HAS BEEN INDUCED TO ENTER INTO
THIS NOTE BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION.
Replacement Note. The Borrower acknowledges, agrees and understands that this
Note is given in replacement of and in substitution for, but not in payment of,
a note dated on or about March 26, 2003 in the original principal amount of
$500,000.00 issued by PRO-FAC COOPERATIVE, INC. to the Bank (or its predecessor
in interest), as the same may have been amended or modified from time to time
("Prior Note"), and further, that: (a) the obligations of the Borrower as
evidenced by the Prior Note shall continue in full force and effect, as amended
and restated by this Note, all of such obligations being hereby ratified and
confirmed by the Borrower; (b) any and all liens, pledges, assignments and
security interests securing the Borrower's obligations under the Prior Note
shall continue in full force and effect, are hereby ratified and confirmed by
the Borrower, and are hereby acknowledged by the Borrower to secure, among other
things, all of the Borrower's obligations to the Bank under this Note, with the
same priority, operation and effect as that relating to the obligations under
the Prior Note; and (c) nothing herein contained shall be construed to
extinguish, release, or discharge, or constitute, create, or effect a novation
of, or an agreement to extinguish, the obligations of the Borrower with respect
to the indebtedness originally described in the Prior Note or any of the liens,
pledges, assignments and security interests securing such obligations.
Preauthorized Transfers from Deposit Account. If a deposit account number is
provided in this paragraph Borrower hereby authorizes the Bank to xxxxx
Xxxxxxxx's deposit account #_____________________ with the Bank automatically
for any amount which becomes due under this Note or as directed by Xxxxxxxx's
Authorized Representative for such account, by telephone.
Acknowledgment. Borrower acknowledges that it has read and understands all the
provisions of this Note, including the Governing Law, Jurisdiction and Waiver of
Jury Trial, and has been advised by counsel as necessary or appropriate.
Tax ID/SS #00-0000000
PRO-FAC COOPERATIVE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Chief Executive Officer/General Manager
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, Vice President/Assistant Treasurer
Signature of Witness: ____________________________________________
Typed Name of Witness: ___________________________________________
FOR BANK USE ONLY
Authorization Confirmed Product Code:
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(if required per Credit Policy Manual Section 4.15.10 paragraph 1)
Disbursement of Funds: Credit A/C #_________________ Off Ck # _______________ Payoff Obligation #____________
$ _______________ $________________ $____________
