Robocom Systems International Inc. Exhibit 10.8
PROMISSORY NOTE
US $1,250,000 Massapequa, New York
September 19, 2001
FOR VALUE RECEIVED, the undersigned maker, ROBOCOM SYSTEMS INTERNATIONAL
INC., a New York corporation (the "Borrower"), hereby unconditionally promises
to pay to order of BASEBOARD INVESTMENTS LLC, a New York limited liability
company with an office at 00 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (the
"Lender"), at such account as the Lender may designate in writing from time to
time, the outstanding principal amount of (a) ONE MILLION TWO HUNDRED FIFTY
THOUSAND DOLLARS ($1,250,000), or, if less, (b) the aggregate unpaid principal
amount of all loans made by the Lender to the Borrower pursuant to the letter
agreement dated September __, 2001 (the "Agreement") between the Lender and the
Borrower, in same day funds in a single installment on September 19, 2002 (the
"Maturity Date").
Interest shall accrue on the unpaid principal amount of this Note from the
date of this Note until such principal amount is paid in full at the per annum
rate equal to the Prime Rate plus two (2%) percent (collectively, the "Base
Rate"). For the purposes of this Note, the "Prime Rate" refers to the rate of
interest which the principal New York office of Citibank, N.A. establishes as
its prime lending rate, as in effect from time to time, but may not necessarily
represent the lowest or most favorable rate actually charged to any customer.
Interest shall be payable on the Maturity Date.
Interest shall be calculated on the basis of a 360-day year for the actual
number of days elapsed. Any change in the interest rate on this Note shall
become effective as of the opening of business on the day on which such change
in the Base Rate becomes effective. Each determination of an interest rate by
the Lender pursuant to any provision of this Note shall be, absent manifest
error, presumed to be correct.
The Lender is authorized to endorse on the schedule annexed hereto and
made a part hereof the date and amount of each loan made to the Borrower
pursuant to the Credit Agreement and the date and amount of each payment or
prepayment of principal thereof. Each such endorsement shall constitute prima
facie evidence of the accuracy of the information endorsed. The failure to make
any such endorsement shall not effect the obligations of the Borrower in respect
of such loan.
Whenever any payment on this Note shall be stated to be due on a day which
is not a business day, such payment shall be made on the next succeeding
business day and such extension of time shall be included in the computation of
the payment of interest on this Note.
The Borrower shall use the proceeds of this Note for working capital
purposes.
Each payment received by the Lender shall be applied first, against all
costs and expenses of the Lender incurred in connection with this Note, second,
against accrued and unpaid interest on the outstanding principal balance of this
Note, and third, the balance of each such payment shall be applied against the
principal hereof.
In no event shall the interest rate on this Note exceed the maximum
interest rate permitted by applicable law. If, notwithstanding, interest in
excess of said maximum rate shall be paid hereunder, the excess shall be
retained by the Lender as a prepayment of all or part of the unpaid balance of
principal. The Borrower may prepay this Note in whole or in part at any time.
If at any time (i) there occurs a default in the payment by the Borrower
of principal or interest pursuant to this Note, (ii) the Borrower is dissolved,
becomes insolvent under any law, suspends its present business, or agrees to a
merger, bulk sale or transfer of all or substantially all of its assets, (iii)
the Borrower commences or has commenced against it any bankruptcy or insolvency
proceeding or has a trustee or receiver appointed for it or its assets, or (iv)
there occurs a default in the performance of any other obligation of the
Borrower under this Note, (collectively, a "Default"), the Lender shall give
written notice thereof to the Borrower; provided, however, that, upon the
occurrence of an event specified in clauses (i), (ii) or (iii) above, no notice
shall be required. Immediately upon the occurrence of an event specified in
clauses (i), (ii) or (iii) above, or immediately upon the Lender giving the
Borrower notice regarding the occurrence of an event specified in clause (iv)
above, the Lender shall be entitled to retain any and all payments previously
made pursuant to this Note and all amounts owing pursuant to this Note shall
immediately become due and payable. Any amount not paid when due shall continue
to bear interest from the due date at the Base Rate or the highest rate then
permitted by law (if the Base Rate is then in excess of the maximum rate).
If a Default occurs, the Lender shall have in addition to its other rights
the right to set off against the amounts owing under this Note any amount owing
by the Lender in any capacity to the Borrower in any capacity. All rights and
remedies of the Lender under applicable law and this Note are cumulative and not
exclusive. No single, partial or delayed exercise by the Lender of any right or
remedy shall preclude full and timely exercise by the Lender at any time of any
right or remedy of the Lender without notice. No waiver shall be effective
unless made specifically in writing by the Lender.
The Borrower promises to pay all costs and expenses, including all
reasonable attorneys' fees and disbursements, incurred in the preparation,
administration, collection and enforcement of this Note. The Borrower hereby
waives diligence, presentment, protest, demand and notice of every kind and, to
the fullest extent permitted by law, the right to plead any statute of
limitations as a defense to any demand hereunder. The non-exercise by the Lender
of any of its rights under this Note in any particular instance shall not
constitute a waiver hereof in that or any subsequent instance.
The Borrower hereby agrees to indemnify the Lender and to hold the Lender
harmless
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from any loss, liability, cost or expense that the Lender may sustain or incur
as a consequence of, in connection with, arising out of or relating to this
Note.
Any notice, request, demand, statement, authorization, approval or consent
required or permitted under this Note shall be in writing and shall be made by,
and deemed duly given upon, (a) deposit in the United States mail, postage
prepaid, registered or certified, return receipt requested, such mailing to be
effective 3 business days after mailing, (b) personal delivery, (c) delivery by
an overnight courier of recognized reputation (such as Federal Express) or (d)
in the case of notice to the Borrower, transmission by telecopier as provided
below or to such other address and/or such additional parties as either party
may specify by notice given in accordance with this paragraph:
To Borrower at: Robocom Systems International Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Telecopier: 000-000-0000
To Lender at: Baseboard Investments LLC
00 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxx Xxxx 00000
This Note may not be changed or terminated orally. This Note shall bind
the heirs, legal representatives, successors and assigns of the undersigned and
shall enure to the benefit of the Lender and its successors and assigns.
Each provision of this Note shall survive until all amounts due are paid
to Lender's satisfaction and are not subject to any preference period, shall be
interpreted as consistent with existing law and shall be deemed amended to the
extent necessary to comply with any conflicting law. If a court deems any
provision invalid, the remainder of this Note shall remain in effect. Singular
number includes plural and neuter gender includes masculine and feminine as
appropriate.
This Note shall be governed by, and construed an interpreted in accordance
with, the laws of the State of New York, without regard to its conflicts of law
provisions.
In any action or other legal proceeding relating to this Note, the
Borrower (i) consents to the personal jurisdiction of any State or Federal court
located in the State of New York, (ii) waives objection to the laying of venue,
(iii) waives personal service of process, (iv) consents to service of process by
registered or certified mail directed to the Borrower at the last address shown
in the Lender's records relating to this Note, with such service of process to
be deemed completed five days after mailing, (v) waives any right to trial by
jury or to assert any counterclaim or setoff or any defenses based upon a
statute of limitations or upon a claim of laches, (vi) waives its right to
attack any final judgment that is obtained as a direct or indirect result of any
such action, and (vii) consents to each such final judgment being sued upon in
any
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court having jurisdiction. In any proceeding, a copy of this Note kept in the
Lender's course of business shall be admitted into evidence as an original.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed and
delivered as of the day and year and at the place first above written.
ROBOCOM SYSTEMS INTERNATIONAL INC.
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Chief Executive Officer
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SCHEDULE A
LINE OF CREDIT LOANS AND REPAYMENT
OF LINE OF CREDIT LOANS
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AMOUNT OF UNPAID
PRINCIPAL PRINCIPAL
OF LOANS BALANCE NOTATION
DATE AMOUNT OF LOANS REPAID OF LOANS MADE BY
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