EX-10.1 2 d486457dex101.htm EX-10.1 DAILY ADJUSTING LIBOR REVOLVING LINE NOTE New York February 13, 2013 $10,000,000.00
Exhibit 10.1
DAILY ADJUSTING LIBOR REVOLVING LINE NOTE
February 13, 2013 | $10,000,000.00 |
BORROWER: | XXXXXXX & XXXXXX, INC., a Delaware corporation and XXXXXXX & XXXXXX GROUP, LLC., a Delaware limited liability company, joint and several, each with offices at 000 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000 | |
BANK: | M&T BANK, a New York banking corporation with its principal banking office at Xxx X&X Xxxxx, Xxxxxxx, XX 00000. Attention: Office of General Counsel |
a. | “Authorized Person” shall mean, each individually, Xxxxxxx Xxxxxxxxxx, as Chief Executive Officer; or Xxxxxxx X. Xxxxx, as President or Xxxxx Xxxxxxxxxxx, as Chief Financial Officer (include name(s) and title(s), as appropriate), or any other officer, employee or representative of Borrower who is authorized or designated as a signer of loan documents under the provisions of Xxxxxxxx’s most recent resolutions or similar documents on file with the Bank. Notwithstanding that individual names of Authorized Persons may have been provided to the Bank, the Bank shall be permitted at any time to rely solely on an individual’s title to ascertain whether that individual is an Authorized Person. |
b. | “Base Rate” shall mean a rate per annum equal to two (2) percentage point(s) above the rate of interest announced by the Bank from time to time as its prime rate of interest (“Prime Rate”). If the prior blank is not completed, the Base Rate shall be two (2) percentage points above the Prime Rate. |
c. | “Base Rate Loan” shall mean a Loan that accrues interest at the Base Rate. |
d. | “Draw Date” shall mean, in relation to each Loan, the date that such Loan is made or deemed to be made to Borrower pursuant to this Note. |
e. | “LIBOR” shall mean the rate per annum (rounded upward, if necessary, to the nearest 1/16th of 1%) obtained by dividing (i) the applicable London Interbank Offered Rate (see LIBOR Rate definition below), as fixed by the British Bankers Association for United States dollar deposits in the London interbank market at approximately 11:00 a.m. London, England time (or as soon thereafter as practicable) on the appropriate day in accordance with the terms of this Note, as determined by the Bank from any broker, quoting service or commonly available source utilized by the Bank, by (ii) a percentage equal to 100% minus the stated maximum rate of all reserves required to be maintained against “Eurocurrency Liabilities” as specified in Regulation D (or against any other category of liabilities, which includes deposits by reference to which the interest rate on LIBOR Rate Loan(s) is determined, or any category of extensions of credit or other assets which includes loans by a non-United States’ office of a bank to United States’ residents) on such date to any member bank of the Federal Reserve System. Notwithstanding any provision above, the practice of rounding to determine LIBOR may be discontinued at any time in the Bank’s sole discretion. |
f. | “LIBOR Rate” shall mean the rate per annum equal to: |
• | 1.50 percentage point(s) above the greater of (a) one-month LIBOR, adjusting daily, or (b) one-day (i.e., overnight) LIBOR |
g. | “LIBOR Rate Loan” shall mean any Loan that accrues Interest at a LIBOR Rate, as determined by the Bank. |
h. | “Loan” shall mean any advance of funds made to Borrower by the Bank pursuant to this Note. |
i. | “London Business Day” shall mean any day on which dealings in United States dollar deposits are carried on by banking institutions in the London interbank market. |
j. | “Maximum Principal Amount” shall mean Ten Million and 00/100 Dollars ($10,000,000.00). |
k. | “New York Business Day” shall mean any day other than Saturday, Sunday or other day on which commercial banking institutions in New York, New York are authorized or required by law or other governmental action to remain closed for business. |
l. | “Outstanding Principal Amount” shall mean, at any point in time, the aggregate outstanding principal amount of all loans made pursuant to this Note. |
2. PAYMENT OF PRINCIPAL, INTEREST AND EXPENSES.
a. Promise to Pay. For value received, and intending to be legally bound, Borrower promises to pay to the order of the Bank, ON DEMAND, the Maximum Principal Amount or the Outstanding Principal Amount, if less, plus interest as set forth below and all fees and costs (including without limitation the Bank’s 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 the payment of this Note (“Expenses”).
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f. Proauthorized Transfers from Deposit Account. If a deposit account number is provided in the following blank, Borrower hereby authorizes the Bank to debit Borrower’s deposit account # with the Bank automatically for any amount which becomes due under this Note.
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e. Request for LIBOR Rate Loans. In making any Request for a Loan, Borrower shall specify the aggregate amount of such Loan and the Draw Date; provided, however, if a Request is received by the Bank after 2:00 p.m. (Eastern Standard Time) on any given day, the earliest possible Draw Date will be the next New York Business Day; and
M&T Bank
000 Xxxx Xxxxxx
Rochester, New York 14694
Attention: Xxxxxxx Xxxxxxxx
Fax No. 000-000-0000
Telephone No. 000-000-0000
9. INABILITY TO DETERMINE LIBOR RATES, INCREASED COSTS, ILLEGALITY.
a. Increased Costs. If the Bank shall determine that, due to either (a) the introduction of any change in law (other than any change by way of imposition of or increase in reserve requirements included in the calculation of the LIBOR) or in the interpretation of any requirement of law, or (b) the compliance requirements for any guideline or request from any central bank or other governmental authority (whether or not having the force of law), there shall be any increase in the cost to the Bank of agreeing to make or making, funding or maintaining any LIBOR Rate Loans, then Borrower shall be liable for, and shall from time to time, upon demand therefor by the Bank, pay to the Bank such additional amounts as are sufficient to compensate the Bank for such increased costs.
b. Inability to Determine Rates. If the Bank shall determine that for any reason adequate and reasonable means do not exist for ascertaining LIBOR with respect to a proposed LIBOR Rate Loan, the Bank will give notice of such determination to Borrower. Thereafter, the Bank may not make or maintain, as the case may be. LIBOR Rate Loans hereunder until the Bank revokes such notice in writing. Upon receipt of such notice, the Bank may convert any LIBOR Rato Loans to Base Rate Loans, and Borrower may revoke any pending Request that Borrower previously made for a LIBOR Rate Loan. If Borrower does not revoke any such Request, the Bank may make the Loans, as proposed by Xxxxxxxx, in the amount specified in the applicable Request submitted by Borrower, but such Loans shall be made as Base Rale Loans instead of LIBOR Rate Loans.
c. Illegality. If the Bank shall determine that the introduction of any law (statutory or common), treaty, rule, regulation, guideline or determination of an arbitrator or of a governmental authority or in the interpretation or administration thereof, has made it unlawful, or that any central bank or other governmental authority has asserted that it is unlawful for the Bank to make LIBOR Rate Loans, then, on notice thereof by the Bank to Borrower, the Bank may suspend the making of LIBOR Rate Loans until the Bank shall have notified Borrower that the circumstances giving rise to such determination shall no longer exist. If the Bank shall determine that it is unlawful to maintain any LIBOR Rate Loans, Borrower
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shall immediately pay to the Bank the aggregate principal amount of all LIBOR Rate Loans then outstanding, together with accrued interest and related Expenses. If Borrower is required to pay off any LIBOR Rate Loan as set forth in this subsection, then concurrently with such payment, Borrower may borrow from the Bank, in the amount of such payment, a Base Rate Loan.
11. 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) New York Business Days after deposit in an official depository maintained by the United States Post Office for the collection of mail or one (i) New York 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.
13. 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. Except as provided under federal law, 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.
¨ Amended and Restated 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 in the original principal amount of $ issued by 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.
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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.
XXXXXXX & XXXXXX, INC. | ||
By: | /s/ Xxxxxxx Xxxxxxxxxx | |
Xxxxxxx Xxxxxxxxxx, CEO | ||
XXXXXXX & XXXXXX GROUP, LLC | ||
By: | /s/ Xxxxx Xxxxxxxxxxx | |
Xxxxx Xxxxxxxxxxx, CFO |
Xxxxxxxx X. Xxxxxxxxxx |
Signature of Witness |
Xxxxxxxx X. Xxxxxxxxxx Typed Name of Witness |
ACKNOWLEDGMENT
STATE OF | New York ) |
:ss | ||||||||
COUNTY OF | Ontario ) |
On the 13th day of February, in the year 2013, before me, the undersigned, a Notary Public in and for said State, personally appeared Xxxxxxxx X. Xxxxxxxxxx, personally known to me or proved to me on the basis of satisfactory evidence to be the Individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the Instrument, the Individual, or the person upon behalf of which the individual noted, executed the Instrument.
Xxxx X. Xxxxxxxxxx |
Notary Public
XXXX X. XXXXXXXXXX NOTARY PUBLIC-STATE OF NEW YORK No. 01F16217959 Qualified in Ontario County My Commission Expires March 01, 2014 |
FOR BANK USE ONLY | ||
Authorization Confirmed: |
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Product Code: 11900 Disbursement of Funds: |
Credit A/C | # | Off Ck | # | Payoff Obligation | # | |||||
$ | $ | $ |
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