EX-10.30
Commercial Note
[LOGO]
COMMERCIAL NOTE (Term Loan - Floating Rate)
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$ 1,500,000 Date: 9/13, 1996
FOR VALUE RECEIVED, the undersigned a New York corporation, having an
office and principal place of business at 00-00 00xx Xxxxxx, Xxxxxxx, XX 00000
promises to pay to the order of EUROPEAN AMERICAN BANK (the "Bank"), the
principal sum of One Million Five Hundred Thousand ($1,500,000) Dollars, on or
before September 15, 2001 (the "Maturity Date") in fifty-nine (59) equal,
consecutive monthly principal installments of $17,857.14 each on the fifteenth
day of each month commencing October 15, 1996; and a sixtieth (60th) installment
equal to the remaining principal amount outstanding.
The undersigned also promises to pay interest on the unpaid principal
amount hereof on the fifteenth day of each month commencing October 15, 1996 and
on the Maturity Date, at a fluctuating rate per annum equal to the rate of
interest publicly announced from time to time by the Bank at its principal
office to be its prime rate (the "Prime Rate"), plus a margin of 1/2% per annum
(the "Prescribed Rate"). Any change in the Prime Rate shall be effective on the
date such change is announced by the Bank.
Any amount of principal hereunder which is not paid when due (whether at
stated maturity, by acceleration or otherwise) shall bear interest until paid in
full at a rate 3% per annum in excess of the Prescribed Rate. Interest shall be
calculated on the basis of a 360 day year for the actual number of days elapsed.
All payments hereunder shall be payable in immediately available funds in lawful
money of the United States. The undersigned authorizes the Bank to charge any of
the undersigned's accounts for payments of principal or interest.
The undersigned may, at any time and from time to time, prepay this Note,
in whole or in part, without premium or penalty. All prepayments shall be
accompanied by accrued interest on the principal amount being prepaid to the
date of prepayment.
Upon the occurrence and continuance of any of the following (each an "Event
of Default"): (a) default in the payment when due of any amount hereunder; (b)
filing by or against the undersigned of a petition commencing any proceeding
under any bankruptcy, reorganization, rearrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction, now or hereafter
in effect; (c) the undersigned making an assignment for the benefit of
creditors; (d) petitioning or applying to any tribunal for the appointment of a
custodian, receiver or trustee for the undersigned or for a substantial part of
its assets; (e) death or incapacity of the undersigned (if an individual); (f)
entry of any judgment or order of attachment, injunction or governmental tax
lien or levy issued against the undersigned or against any property of the
undersigned; (g) consent by the undersigned to assume, suffer or allow to exist,
without the prior written consent of the Bank, any lien, mortgage, assignment or
other encumbrance on any of its assets, now owned or hereafter acquired, except
those liens, mortgages, assignments or other encumbrances in existence on the
date hereof and consented to in writing by the Bank; (h) default in the punctual
payment or performance of this or any other obligation to the Bank or to any
other lender at any time; (i) the existence or occurrence at any time of one or
more conditions or events which, in the sole opinion of the Bank, has resulted
or may result in a material adverse change in the business, properties or
financial condition of the undersigned; (j) failure on request to furnish any
financial information or to permit inspection of the books and records of the
undersigned; (k) any warranty, representation or statement in any application,
statement or agreement with the Bank proves false in any material respect; (l)
default in the observance or performance of any covenant or agreement of the
undersigned herein or in any other agreement between the Bank and the
undersigned; or (m) any of the foregoing events (other than the event described
in clause (a)) shall occur with respect to any guarantor of the undersigned's
obligations hereunder, then this Note shall, at the sole option of the Bank,
become due and payable without notice or demand; provided, however, if an Event
of Default described in clause (b), clause (c) or clause (d) above occurs, this
Note shall automatically become due and payable.
As security for the payment of all amounts due or to become due under this
Note and of all other obligations and liabilities of the undersigned to the
Bank, whether now or hereafter existing, joint, several, direct, indirect,
absolute, contingent, secured, matured or unmatured, the undersigned grants to
the Bank a right of setoff against, a continuing security interest in, and an
assignment and pledge of, all moneys, deposits (general or special), securities
and other property of the undersigned and the proceeds thereof, now or hereafter
held by the Bank on deposit, in safekeeping, in transit or otherwise, at any
time credited by or due from the Bank to the undersigned, or in which the
undersigned shall have any interest.
Upon the occurrence and during the continuance of an Event of Default, the
Bank shall be entitled to setoff against and apply to the payment hereof the
balance of any account or account's maintained with the Bank by the undersigned
and to exercise any other right or remedy granted hereunder, or under any
agreement between the undersigned and the Bank or available at law or in equity,
including, but not limited to, the rights and remedies of a secured party under
the New York Uniform Commercial Code. The failure by the Bank at any time to
exercise any such right shall not be deemed a waiver thereof, nor shall it bar
the exercise of any such right at a later date. Each and every right and remedy
granted to the Bank hereunder or under any agreement between the undersigned and
the Bank or available at law or in equity shall be cumulative and not exclusive
of any other rights, powers, privileges or remedies, and may be exercised by the
Bank
from time to time and as often as may be necessary in the sole and absolute
discretion of the Bank.
In the event that the Bank for any reason shall refer this Note to an
attorney for the enforcement thereof, the undersigned agrees to pay in addition
to the unpaid principal, interest and late charges due hereunder, the Bank's
reasonable attorneys' fees (whether in-house or outside counsel), together with
all costs and expenses of any such action.
The Bank shall not, by any act, delay, omission or otherwise, be deemed to
have waived any of its rights and/or remedies hereunder. No change, amendment,
modification, termination, waiver, or discharge, in whole or in part, of any
provision of this Note shall be effective unless in writing and signed by the
Bank, and if so given by the Bank, shall be effective only in the specific
insurance in which given. The undersigned acknowledges that this Note and the
undersigned's obligations under this Note are, and shall at all times continue
to be, absolute and unconditional in all respects, and shall at all times be
valid and enforceable irrespective of any other agreements or circumstances of
any nature whatsoever which might otherwise constitute a defense to this Note
and the obligations of the undersigned under this Note. The undersigned
absolutely, unconditionally and irrevocably waives any and all right to assert
any set-off, counterclaim or crossclaim of any nature whatsoever with respect to
this Note or the undersigned's obligations hereunder.
This Note shall be governed by and construed in accordance with the laws of
the State of New York without giving effect to principles of conflict or choice
of laws.
THE UNDERSIGNED HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY
FEDERAL OR STATE COURT IN THE STATE OF NEW YORK IN ANY ACTION, SUIT OR
PROCEEDING BROUGHT AGAINST IT AND RELATED TO OR IN CONNECTION WITH THIS NOTE OR
ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY AND CONSENTS TO THE PLACING OF
VENUE IN THE COUNTY OF NASSAU OR OTHER COUNTY PERMITTED BY LAW. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE UNDERSIGNED HEREBY WAIVES AND AGREES NOT TO
ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR
PROCEEDING ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF
SUCH COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT
THIS NOTE OR ANY OTHER DOCUMENT OR INSTRUMENT REFERRED TO HEREIN MAY NOT BE
LITIGATED IN OR BY SUCH COURTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THE UNDERSIGNED AGREES NOT TO SEEK AND HEREBY WAIVES THE RIGHT TO ANY REVIEW OF
THE JUDGMENT OF ANY SUCH COURT BY ANY COURT OF ANY OTHER NATION OR
JURISDICTION WHICH MAY BE CALLED UPON TO GRANT AN ENFORCEMENT OF SUCH
JUDGMENT. THE UNDERSIGNED AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY
CERTIFIED OR REGISTERED MAIL TO ITS ADDRESS SET FORTH BELOW OR SUCH OTHER
ADDRESS THAT THE UNDERSIGNED SHALL HAVE NOTIFIED THE BANK IN WRITING OR ANY
METHOD AUTHORIZED BY THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS PROHIBITED
BY LAW, THE UNDERSIGNED HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS NOTE.
The undersigned or any affiliate of the undersigned, shall not use any
portion of the proceeds of this Note nor have any letter of credit issued,
either directly or indirectly, for the purpose of (i) purchasing any securities
underwritten or privately placed by ABN AMRO Securities (USA) Inc. ("AASI"), an
affiliate of the Bank, or (ii) refinancing or making payments of principal,
interest or dividends on any securities issued by the undersigned or any
affiliate of the undersigned, and underwritten, privately placed or dealt in by
AASI.
The undersigned and the Bank hereby agree and acknowledge that any and all
information relating to the undersigned which is furnished by the undersigned to
the Bank (or to any affiliate of the Bank), and which is non-public,
confidential or proprietary in nature, shall be kept confidential by the Bank or
such affiliate in accordance with applicable law; provided, however, that such
information and other credit information relating to the undersigned may be
distributed by the Bank or such affiliate (a) to the Bank's or such affiliate's
directors, officers, employees, attorneys, affiliates, attorneys, auditors and
regulators, and (b) upon the order of a court or other governmental agency
having jurisdiction over the Bank or such affiliate, to any other party. The
undersigned and the Bank further agree that this provision shall survive the
termination of this Note.
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At no time shall the rate of interest charged under this Note exceed the
maximum rate of interest permitted under applicable law. If at any time the
Prescribed Rate shall exceed such maximum rate, and thereafter the Prescribed
Rate is below such maximum rate, then the Prescribed Rate shall be increased to
the maximum rate for such period of time as is required so that the total amount
of interest received by the Bank is that which would have been received by the
Bank but for the first sentence of this paragraph.
The undersigned hereby waives presentment, demand for payment, protest,
notice of dishonor, and any and all other notices or demands in connection with
the delivery, acceptance, performance, default, or enforcement of this Note.
In the event any one or more provisions contained in this Note should be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
The term the "Bank" as used herein shall be deemed to include the Bank and
its successors and assigns and any bolder hereof.
The term "undersigned" as used herein shall, if this Note is signed by more
than one party, unless otherwise stated herein, mean the "undersigned and each
of them" and each undertaking herein contained shall be their joint and several
undertaking. The Bank may proceed against one or more of the undersigned at one
time or from time to time as it sees fit in its sole and absolute discretion.
This Note shall bind the respective successors, assigns, heirs and
representatives of the undersigned. This Note shall not be assigned by the
undersigned without the Bank's prior written consent.
Any consents, agreements, instructions or requests pertaining to any matter
in connection with this Note, signed by any one of the undersigned, shall be
binding upon all of the undersigned.
IN WITNESS WHEREOF, the undersigned has duly executed this Note the day and
year first above written.
Witness: Puro Water Group, Inc.
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EAB Officer
By: /s/ Xxxxx Xxxx
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Name:
Title: President
Xxxxxxxx's Address:
00-00 00xx Xxxxxx
Xxxxxxx, XX 00000
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