ACQUISITION TERM LOAN NOTE
EXHIBIT 10.4
|
$1,500,000.00
|
February
12, 2010
|
FOR VALUE
RECEIVED, the undersigned, PREMIER PACKAGING CORPORATION, a New York
corporation, having a mailing address of 0 Xxxxxxx Xxxxx, Xxxxxx, Xxx Xxxx 00000
(“Borrower”),
hereby promises to pay to the order of RBS CITIZENS, N. A., a
national banking association (“Bank”), at its
principal office at 000 Xxxxxxxx, Xxxxxx, Xxx Xxxx 00000, or at such other place
as the holder hereof may from time to time designate in writing, the principal
sum of ONE MILLION FIVE HUNDRED THOUSAND AND 00/100 DOLLARS U.S.
($1,500,000.00).
1. Certain
Definitions. Unless otherwise expressly provided herein, all
capitalized terms in this Note shall have the meanings given to them in the
Credit Facility Agreement, dated on even date herewith, by and between Borrower
and Bank, as the same may be amended, extended, replaced, or modified from time
to time (the “Credit Agreement”). The following terms shall have the
following meanings in this Note:
(a) “Account” means
account #_____________ maintained by the Bank in the name of the
Borrower.
(b) “Applicable Margin”
means three and three fourths percent (3.75%) per annum.
(c) “Business Day”
means:
(i) any
day which is neither a Saturday or Sunday nor a legal holiday on which
commercial banks are authorized or required to be closed in New York
State;
(ii) when
such term is used to describe a day on which a payment or prepayment is to be
made in respect of a LIBOR Rate Loan, any day which is: (i) neither a Saturday
or Sunday nor a legal holiday on which commercial banks are authorized or
required to be closed in New York City; and (ii) a London Banking Day;
and
(iii) when
such term is used to describe a day on which an interest rate determination is
to be made in respect of a LIBOR Rate Loan, any day which is a London Banking
Day.
(d) “Event of Default”
means an Event Default under the Credit Agreement.
(e) “Funding Date” means
the 12th day of February, 2010.
(f) “Hedging Contracts”
means, interest rate swap agreements, interest rate cap agreements and interest
rate collar agreements, or any other agreements or arrangements entered into
between the Borrower and the Bank and designed to protect the Borrower against
fluctuations in interest rates or currency exchange rates.
- 1
-
(g) “Hedging Obligations”
means, with respect to the Borrower, all liabilities of the Borrower to the Bank
under Hedging Contracts.
(h) “Interest Period”
means:
(i) initially,
the period beginning on (and including) the Funding Date and ending on (but
excluding) March 1, 2010 (the “Stub Period”);
and
(ii) then,
each period commencing on the last day of the next preceding Interest Period and
ending on the day which numerically corresponds to last day of the Stub Period
one month thereafter (or, if such month has no numerically corresponding day, on
the last Business Day of such month); and
(iii) thereafter,
each period commencing on the last day of the next preceding Interest Period and
ending one month thereafter;
provided, however,
that
(iv) if
the Borrower has or may incur Hedging Obligations with the Bank in connection
with the Loan, the Interest Period shall be of the same duration as the relevant
period set under the applicable Hedging Contract;
(v) if
such Interest Period would otherwise end on a day which is not a Business Day,
such Interest Period shall end on the next following Business Day unless such
day falls in the next calendar month, in which case such Interest Period shall
end on the first preceding Business Day; and
(vi) no
Interest Period may end later than the Maturity Date.
(i) “Interest Payment
Date” means the last Business Day of each Interest Period.
(j) “LIBOR Rate” means
relative to any Interest Period for a LIBOR Rate Loan, the offered rate for
deposits of U.S. Dollars in an amount approximately equal to the amount of the
LIBOR Rate Loan for a term coextensive with the Interest Period which the
British Bankers’ Association fixes as its LIBOR rate as of 11:00 a.m. London
time on the day which is two London Banking Days prior to the beginning of such
Interest Period.
(k) “LIBOR Rate Loan”
means the Loan for the period(s) when the rate of interest applicable to the
Loan is calculated by reference to the LIBOR Rate
- 2
-
(l) “LIBOR Lending Rate”
means, relative to a LIBOR Rate Loan for any Interest Period, a rate per annum
determined pursuant to the following formula:
|
LIBOR
Lending Rate
|
=
|
LIBOR
Rate
|
|
(1.00
- LIBOR Reserve Percentage)
|
(m) “LIBOR-Reference Banks
Loan” means the Loan for any period(s) when the rate of interest
applicable to the Loan is calculated by reference to the LIBOR-Reference Banks
Rate.
(n) “LIBOR-Reference Banks
Lending Rate” means, relative to a LIBOR-Reference Banks Rate Loan for
any Interest Period, a rate per annum determined pursuant to the following
formula:
|
LIBOR-Reference
Banks Lending Rate
|
=
|
LIBOR-Reference Banks
Rate
|
|
(1.00
- LIBOR Reserve Percentage)
|
(o) “LIBOR-Reference Banks
Rate” means relative to any Interest Period for LIBOR-Reference Banks
Loans, the rate for which deposits in U.S. Dollars are offered by the Reference
Banks to prime banks in the London interbank market in an amount approximately
equal to the amount requested LIBOR-Reference Banks Loan at approximately 11:00
a.m., London time on the day that is two London Banking Days prior to the
beginning of such Interest Period. The Bank will request the
principal London office of each of the Reference Banks to provide a quotation of
its rate. If at least two such quotations are provided, the rate for
such date will be the arithmetic mean of the quotations. If fewer
than two quotations are provided as requested, the rate for such date will be
the arithmetic mean of the rates quoted by major banks in New York City selected
by the Bank, at approximately 11:00 a.m. New York City time for loans in U.S.
Dollars to leading European banks for such Interest Period and in an amount
approximately equal to the amount requested LIBOR-Reference Banks
Loan.
(p) “LIBOR Reserve
Percentage” means, relative to any day of any Interest Period for the
LIBOR Rate Loan, the maximum aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements (including all basic,
emergency, supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
under any regulations of the Board of Governors of the Federal Reserve System
(the “Board”)
or other governmental authority having jurisdiction with respect thereto as
issued from time to time and then applicable to assets or liabilities consisting
of “Eurocurrency Liabilities”, as currently defined in Regulation D of the
Board, having a term approximately equal or comparable to such Interest
Period.
(q) “Loan” means all
amounts outstanding under the Note and/or advanced pursuant to this
agreement.
(r) “Loan Documents”
means this Note and all related documents and agreements evidencing and/or
securing the Loan including the Credit Agreement.
- 3
-
(s) “London Banking Day”
means a day on which dealings in US dollar deposits are transacted in the London
interbank market.
(t) “Maturity Date” means
the 1st day of March, 2013.
(u) “Note” means that
certain promissory note dated as of the 12th day of February, 2010 in the
principal amount of One Million Five Hundred Thousand and 00/100 Dollars
($1,500,000.00) made payable by the Borrower to the order, and for the benefit,
of the Bank.
(v) “Prime Rate” means
the rate of interest announced by Bank in New York State from time to time as
its “Prime Rate.” The Borrower acknowledges that the Bank may make
loans to its customers above, at or below the Prime Rate. Interest
accruing by reference to the Prime Rate shall be calculated on the basis of
actual days elapsed and a 360-day year.
(w) “Prime Rate Loan”
means the Loan for the period(s) when the rate of interest applicable to the
Loan is calculated by reference to the Prime Rate
(x) “Principal Repayment
Amount” means the regularly scheduled reductions in the outstanding
principal of the Loan, to be made at the end of each Interest Period in an
amount corresponding to such Interest Period and as set out in the attached
Schedule A
entitled “Principal Repayment Schedule”.
(y) “Reference Banks”
means four major banks in the London interbank market.
2. Loan Funding. On the
Funding Date and on terms and subject to the conditions of this agreement, the
Loan shall be made available to the Borrower no later than 11:00 a.m. New York
City time by a deposit to the Account (or as otherwise instructed by the
Borrower in writing) in the full principal amount of the Loan. Unless
otherwise prohibited by this agreement, the Loan shall initially be classified
as a LIBOR Rate Loan and interest shall accrue by reference to the LIBOR
Rate.
3. Repayments, Prepayments, and
Interest.
(a) Repayment of Loan; Automatic
Rollover of LIBOR Rate Loan. During the period(s) the Loan is
classified as a LIBOR Rate Loan, it shall mature and become payable in full on
the last day of each Interest Period. Upon maturity the Loan shall
automatically be continued as a LIBOR Rate Loan with an equal Interest Period in
an amount equal to the expiring LIBOR Rate Loan LESS the applicable
Principal Repayment Amount, provided, however, that no
portion of the outstanding principal amount of a LIBOR Rate Loan may be
continued as a LIBOR Rate Loan when any default or Event of Default has occurred
and is continuing. If any default or Event of Default has occurred
and is continuing (if the Bank does not otherwise elect to exercise any right to
accelerate the Loan it is granted hereunder), the maturing LIBOR Rate Loan shall
automatically be continued as a Prime Rate Loan. During the period(s)
that the Loan is classified as a Prime Rate Loan, the Borrower shall make
regular payments of principal in amounts equal to the applicable Principal
Repayment Amount on the last day of each Interest
Period. Notwithstanding the foregoing, the Loan shall mature and
become payable in full upon the Maturity Date.
- 4
-
(b) Voluntary Prepayment of the
LIBOR Rate Loan. When classified as a LIBOR Rate Loan, the
Loan may be prepaid upon the terms and conditions set forth
herein. The Borrower acknowledges that additional obligations may be
associated with prepayment, in accordance with the terms and conditions of any
applicable Hedging Contracts. The Borrower shall give the Bank, no
later than 10:00 a.m., New York City time, at least four (4) Business Days
notice of any proposed prepayment of the LIBOR Rate Loan, specifying the
proposed date of payment and the principal amount to be paid. Each
partial prepayment shall be accompanied by the payment of all charges
outstanding on the LIBOR Rate Loan and of all accrued interest on the principal
repaid to the date of payment. Borrower acknowledges that prepayment
or acceleration of the LIBOR Rate Loan during an Interest Period shall result in
the Bank incurring additional costs, expenses and/or liabilities and that it is
extremely difficult and impractical to ascertain the extent of such costs,
expenses and/or liabilities. Therefore, all full or partial
prepayments of the LIBOR Rate Loan shall be accompanied by, and the Borrower
hereby promises to pay, on each date the LIBOR Rate Loan is prepaid or the date
all sums payable hereunder become due and payable, by acceleration or otherwise,
in addition to all other sums then owing, an amount (“LIBOR Rate Loan Prepayment
Fee”) determined by the Bank pursuant to the following formula:
(i) the
then current rate for United States Treasury securities (bills on a discounted
basis shall be converted to a bond equivalent) with a maturity date closest to
the end of the Interest Period as to which prepayment is made, subtracted from the
LIBOR Lending Rate plus the Applicable Margin then applicable to the LIBOR Rate
Loan.
(ii) If
the result of the calculation in subsection (i) is zero or a negative number,
then there shall be no LIBOR Rate Loan Prepayment Fee. If the result
of this calculation is a positive number, then the resulting percentage shall be
multiplied by the amount of the LIBOR Rate Loan being prepaid. The resulting
amount shall be divided by 360 and multiplied by the number of days
remaining in the Interest Period as to which the prepayment is being
made. Said amount shall be reduced to present value calculated by
using the referenced United States Treasury securities rate and the number of
days remaining on the Interest Period for the LIBOR Rate Loan. The
resulting amount of these calculations shall be the LIBOR Rate Loan Prepayment
Fee.
(c) Interest
Provisions.
(i) Interest
on the outstanding principal amount of the Loan when classified as a: (i) LIBOR
Rate Loan shall accrue during each Interest Period at a rate equal to the sum of
the LIBOR Lending Rate for such Interest Period plus the Applicable Margin
thereto and be payable on each Interest Payment Date, (ii) LIBOR-Reference Banks
Rate Loan shall accrue during each Interest Period at a rate equal to the sum of
the LIBOR-Reference Banks Lending Rate for such Interest Period plus the
Applicable Margin thereto and be payable on each Interest Payment Date, and
(iii) Prime Rate Loan shall accrue during each Interest Period at a rate equal
to the Prime Rate and be payable on each Interest Payment
Date. Interest shall continue to accrue after maturity, acceleration,
and judgment at the rate required by Section 4.3 of the Credit Agreement until
this Note is paid in full.
- 5
-
(d) LIBOR Rate Lending
Unlawful. If the Bank shall determine (which determination
shall, upon notice thereof to the Borrower be conclusive and binding on the
Borrower) that the introduction of or any change in or in the interpretation of
any law, rule, regulation or guideline, (whether or not having the force of law)
makes it unlawful, or any central bank or other governmental authority asserts
that it is unlawful, for the Bank to make, continue or maintain the Loan as, or
to convert the Loan into, a LIBOR Rate Loan, and if the Loan is then presently a
LIBOR Rate Loan, it shall automatically convert into a LIBOR-Reference Banks
Loan at the end of the then current Interest Period or sooner, if required by
such law or assertion. For purposes of this agreement, in the event
of such a conversion, all LIBOR-Reference Banks Rate Loans shall be treated
(except as to interest rate) as equivalent to a LIBOR Rate Loan of similar
amount and Interest Period. For greater certainty, all provisions of
this agreement relating to LIBOR Rate Loans shall apply equally to
LIBOR-Reference Banks Loans, including, but not limited to the manner in which
LIBOR-Reference Banks Loans are requested, continued, converted, the manner in
which interest accrues, is payable, principal payments are made, whether
voluntary or involuntary, as well as any penalties, increased costs or taxes
associated with any of the foregoing.
(e) Substitute
Rate. If the Bank shall have determined that (i) US
dollar deposits in the relevant amount and for the relevant Interest Period are
not available to the Bank in the London interbank market; (ii) by reason of
circumstances affecting the Bank in the London interbank market, adequate means
do not exist for ascertaining the LIBOR Rate applicable hereunder to the LIBOR
Rate Loan, or (iii) the LIBOR Rate no longer adequately reflects the Bank’s cost
of funding the Loan, then, upon notice from the Bank to the Borrower, the LIBOR
Rate Loan shall automatically convert to a LIBOR-Reference Banks
Loan. During any such suspension, the Loan shall be classified as a
LIBOR-Reference Banks Loan.
(f) Indemnities.
(i) In
addition to the LIBOR Rate Loan Prepayment Fee, the Borrower agrees to reimburse
the Bank (without duplication) for any increase in the cost to the Bank, or
reduction in the amount of any sum receivable by the Bank, in respect, or as a
result of:
1) any
conversion or repayment or prepayment of the principal amount of the LIBOR Rate
Loan on a date other than the scheduled last day of the Interest Period
applicable thereto, whether pursuant to Section 3(b) above or
otherwise;
- 6
-
2) any
costs associated with marking to market any Hedging Obligations that (in the
reasonable determination of the Bank) are required to be terminated as a result
of any conversion, repayment or prepayment of the principal amount of the LIBOR
Rate Loan on a date other than the scheduled last day of the Interest Period
applicable thereto, whether pursuant to Section 3(b) above or
otherwise;
(ii) The
Bank shall promptly notify the Borrower in writing of the occurrence of any such
event, such notice to state, in reasonable detail, the reasons therefor and the
additional amount required fully to compensate the Bank for such increased cost
or reduced amount. Such additional amounts shall be payable by the
Borrower to the Bank within five days of its receipt of such notice, and such
notice shall, in the absence of manifest error, be conclusive and binding on the
Borrower. The Borrower understands, agrees and acknowledges the
following: (i) the Bank does not have any obligation to purchase, sell and/or
match funds in connection with the use of the LIBOR Rate as a basis for
calculating the rate of interest on the LIBOR Rate Loan, (ii) the LIBOR Rate may
be used merely as a reference in determining such rate, and (iii) the Borrower
has accepted the LIBOR Rate as a reasonable and fair basis for calculating such
rate, the LIBOR Rate Prepayment Fee, and other funding losses incurred by the
Bank. Xxxxxxxx further agrees to pay the LIBOR Rate Prepayment Fee
and other funding losses, if any, whether or not the Bank elects to purchase,
sell and/or match funds.
(g) Increased
Costs. If on or after the date hereof the adoption of any
applicable law, rule or regulation or guideline (whether or not having the force
of law), or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by the Bank with any request or directive (whether or not having the force of
law) of any such authority, central bank or comparable agency: (i)
shall subject the Bank to any tax, duty or other charge with respect to the
LIBOR Rate Loan or its obligation to make the LIBOR Rate Loan, or shall change
the basis of taxation of payments to the Bank of the principal of or interest on
the LIBOR Rate Loan or any other amounts due under this agreement in respect of
the LIBOR Rate Loan or its obligation to make the LIBOR Rate Loan (except for
the introduction of, or change in the rate of, tax on the overall net income of
the Bank or franchise taxes, imposed by the jurisdiction (or any political
subdivision or taxing authority thereof) under the laws of which the Bank is
organized or in which the Bank’s principal executive office is located); or (ii)
shall impose, modify or deem applicable any reserve, special deposit or similar
requirement (including, without limitation, any such requirement imposed by the
Board of Governors of the Federal Reserve System of the United States) against
assets of, deposits with or for the account of, or credit extended by, the Bank
or shall impose on the Bank or on the London interbank market any other
condition affecting the LIBOR Rate Loan or its obligation to make the LIBOR Rate
Loan; and the result of any of the foregoing is to increase the cost
to the Bank of making or maintaining the Loan as a LIBOR Rate Loan, or to reduce
the amount of any sum received or receivable by the Bank under this agreement
with respect thereto, by an amount deemed by the Bank to be material, then,
within 15 days after demand by the Bank, the Borrower shall pay to the Bank such
additional amount or amounts as will compensate the Bank for such increased cost
or reduction.
- 7
-
(h) Increased Capital
Costs. If any change in, or the introduction, adoption,
effectiveness, interpretation, reinterpretation or phase-in of, any law or
regulation, directive, guideline, decision or request (whether or not having the
force of law) of any court, central bank, regulator or other governmental
authority affects or would affect the amount of capital required or expected to
be maintained by the Bank, or person controlling the Bank, and the Bank
determines (in its sole and absolute discretion) that the rate of return on its
or such controlling person’s capital as a consequence of its commitments or the
Loan made by the Bank is reduced to a level below that which the Bank or such
controlling person could have achieved but for the occurrence of any such
circumstance, then, in any such case upon notice from time to time by the Bank
to the Borrower, the Borrower shall immediately pay directly to the Bank
additional amounts sufficient to compensate the Bank or such controlling person
for such reduction in rate of return. A statement of the Bank as to
any such additional amount or amounts (including calculations thereof in
reasonable detail) shall, in the absence of manifest error, be conclusive and
binding on the Borrower. In determining such amount, the Bank may use
any method of averaging and attribution that it (in its sole and absolute
discretion) shall deem applicable.
(i) Taxes.
(i) All
payments by the Borrower of principal of, and interest on, the LIBOR Rate Loan
and all other amounts payable hereunder shall be made free and clear of and
without deduction for any present or future income, excise, stamp or franchise
taxes and other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding franchise taxes and
taxes imposed on or measured by the Bank’s net income or receipts (such
non-excluded items being called “Taxes”). In the event that any
withholding or deduction from any payment to be made by the Borrower hereunder
is required in respect of any Taxes pursuant to any applicable law, rule or
regulation, then the Borrower will
1) pay
directly to the relevant authority the full amount required to be so withheld or
deducted;
2) promptly
forward to the Bank an official receipt or other documentation satisfactory to
the Bank evidencing such payment to such authority; and
3) pay
to the Bank such additional amount or amounts as is necessary to ensure that the
net amount actually received by the Bank will equal the full amount the Bank
would have received had no such withholding or deduction been
required.
(ii) Moreover,
if any Taxes are directly asserted against the Bank with respect to any payment
received by the Bank hereunder, the Bank may pay such Taxes and the Borrower
will promptly pay such additional amount (including any penalties, interest or
expenses) as is necessary in order that the net amount received by the Bank
after the payment of such Taxes (including any Taxes on such additional amount)
shall equal the amount the Bank would have received had not such Taxes been
asserted.
- 8
-
(iii) If
the Borrower fails to pay any Taxes when due to the appropriate taxing authority
or fails to remit to the Bank the required receipts or other required
documentary evidence, the Borrower shall indemnify the Bank for any incremental
Taxes, interest or penalties that may become payable by the Bank as a result of
any such failure.
4. Events of Default.
This Note shall become immediately due and payable in full, without further
presentment, protest, notice, or demand, upon the happening of any Event of
Default.
5. Late
Charge. This Note is subject to the late charges provided for
in Section 4.4 of the Credit Agreement.
6. Maximum
Rate. All agreements between Borrower and Bank are hereby
expressly limited so that in no contingency or event whatsoever, whether by
reason of acceleration or maturity of the indebtedness evidenced hereby or
otherwise, shall the amount paid or agreed to be paid to Bank for the use or the
forbearance of the indebtedness evidenced hereby exceed the maximum permissible
under Applicable Law (the “Maximum Interest
Rate”). As used herein, the term “Applicable Law”
shall mean the law in effect as of the date hereof, provided, however that in
the event there is a change in the law which results in a higher permissible
rate of interest, then this Note and the Loan Documents shall be governed by
such new law as of its effective date. In this regard, it is
expressly agreed that it is the intent of Borrower and Bank in the execution,
delivery and acceptance of this Note to contract in strict compliance with the
laws of the State of New York from time to time in effect. If, under
or from any circumstances whatsoever, fulfillment of any provision hereof or of
any of the Loan Documents at the time performance of such provision shall be
due, shall involve transcending the limit of such validity prescribed by
applicable law, then the obligation to be fulfilled shall automatically be
reduced to the limits of such validity, and if under or from any circumstances
whatsoever Bank should ever receive as interest an amount which would exceed the
highest lawful rate, such amount which would be excessive interest shall be
applied to the reduction of the principal balance evidenced hereby and not to
the payment of interest. This provision shall control every other
provision of all agreements between Borrower and Bank.
7. Business
Days. If this Note or any payment hereunder becomes due on a
day which is not a Business Day, the due date of this Note or payment shall be
extended to the next succeeding Business Day, and such extension of time shall
be included in computing interest and fees in connection with such
payment.
8. Entire
Agreement/Modification of Terms. This Note and the Loan
Documents are intended by the parties as the final, complete, and exclusive
statement of the transactions evidenced by this Note and the Loan
Documents. All prior or contemporaneous promises, agreements, and
understandings, whether oral or written, are deemed to be superseded by this
Note and the Loan Documents, and no party is relying on any promise, agreement,
or understanding not set forth in this Note and the Loan
Documents. This Note and the Loan Documents may not be amended or
modified except by a written instrument describing such amendment or
modification executed by the Borrower and the Bank. The terms of this
Note cannot be changed, nor may this Note be discharged in whole or in part,
except by a writing executed by Bank. In the event that Bank demands
or accepts partial payments of this Note, such demand or acceptance shall not be
deemed to constitute a waiver of the right to demand the entire unpaid balance
of this Note at any time in accordance with the terms hereof. Any
delay or omission by Bank in exercising any rights hereunder shall not operate
as a waiver of such rights.
- 9
-
9. Additional Security/Set
Off. The Borrower hereby grants to Bank a continuing lien,
security interest, and right of set off as security for all liabilities and
obligations to the Bank, whether now existing or hereafter arising, upon and
against all deposits, credits, collateral and property, now or hereafter in the
possession, custody, safekeeping or control of Bank or any entity under the
control of Citizens Financial Group and its successors and assigns or in transit
to any of them. At any time without demand or notice (any such notice
being expressly waived by Borrower), Bank may set off the same or any part
thereof and apply the same to any liability or obligation of Borrower even
though unmatured and regardless of the adequacy of any other collateral securing
the obligation. ANY AND ALL RIGHTS TO REQUIRE BANK TO EXERCISE ITS
RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE
OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SET OFF WITH RESPECT TO SUCH
DEPOSITS, CREDITS, OR OTHER PROPERTY OF BORROWER ARE HEREBY KNOWINGLY,
VOLUNTARILY, AND IRREVOCABLY WAIVED.
10. Assignment/Participation.
(a) All
the terms and provisions of this Note shall inure to the benefit of and be
binding upon and be enforceable by the parties and their respective successors
and assigns and shall inure to the benefit of and be enforceable by any holder
hereof.
(b) Bank
may at any time pledge or assign all or any portion of its rights under this
Note to any of the twelve (12) Federal Reserve Banks organized under Section 4
of the Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or
assignment or enforcement thereof shall release Bank from its obligations under
any of the Loan Documents.
(c) Bank
shall have the unrestricted right at any time or from time to time, and without
Xxxxxxxx’s consent, to assign all or any portion of its rights and obligations
hereunder to one or more banks or other financial institutions (each an “Assignee”), and
Borrower agrees that it shall execute, or cause to be executed, such documents,
including without limitation, amendments to this Note and to any other Loan
Documents, as Bank shall deem necessary to effect the foregoing. In
addition, at the request of Bank and any such Assignee, Borrower shall issue one
or more new promissory notes, as applicable, to any such Assignee and, if Bank
has retained any of its rights and obligations hereunder following such
assignment, to Bank, which new promissory notes shall be issued in replacement
of, but not in discharge of, the liability evidenced by the promissory note held
by Bank prior to such assignment and shall reflect the amount of the respective
commitments and loans held by such Assignee and Bank after giving effect to such
assignment. Upon the execution and delivery of appropriate assignment
documentation, amendments, and any other documentation required by Bank in
connection with such assignment, and the payment by Assignee of the purchase
price agreed to by Bank and such Assignee, such Assignee shall be a party to
this agreement and shall have all of the rights and obligations of Bank
hereunder (and under any and all other Loan Documents) to the extent that such
rights and obligations have been assigned by Bank pursuant to the assignment
documentation between Bank and such Assignee, and Bank shall be released from
its obligations hereunder and thereunder to a corresponding extent.
- 10
-
(d) Bank
shall have the unrestricted right at any time and from time to time, and without
the consent of or notice to Borrower, to grant to one or more banks or other
financial institutions (each a “Participant”)
participating interests in Bank’s obligation to lend hereunder and/or any or all
of the loans held by Bank hereunder. In the event of any such grant
by Bank of a participating interest to Participant, whether or not upon notice
to Borrower, Bank shall remain responsible for the performance of its
obligations hereunder and Xxxxxxxx shall continue to deal solely and directly
with Bank in connection with Bank’s rights and obligations
hereunder.
(e) Bank
may furnish any information concerning Borrower in its possession from time to
time to prospective Assignees and Participants, provided that Bank shall require
any such prospective Assignee or Participant to agree in writing to maintain the
confidentiality of such information.
11. Loss or
Mutilation. Upon receipt of an affidavit of an officer of Bank
as to the loss, theft, destruction, or mutilation of this Note or any other Loan
Document which is not of public record, and, in the case of any such loss,
theft, destruction or mutilation, upon cancellation of this Note or other Loan
Document, Borrower will issue, in lieu thereof, a replacement note or other Loan
Document in the same principal amount thereof and otherwise of like
tenor.
12. Enforcement/Waiver of Jury
Trial.
(a) XXXXXXXX
AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE OR ANY OF THE OTHER LOAN
DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL
COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH
COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON BORROWER BY MAIL
AT THE ADDRESS FIRST SET FORTH ABOVE IN THIS NOTE. BORROWER HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
FORUM.
- 11
-
(b) XXXXXXXX
AND BANK (BY ACCEPTANCE OF THIS NOTE) MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED
HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE OR ANY OTHER LOAN
DOCUMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING WITHOUT LIMITATION, ANY
COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF BANK RELATING TO
THE ADMINISTRATION OF THE LOAN OR ENFORCEMENT OF THE LOAN DOCUMENTS, AND AGREE
THAT NEITHER PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER
ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT
AS PROHIBITED BY LAW, BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. BORROWER CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR
ATTORNEY OF BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT BANK WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR BANK TO
ACCEPT THIS AGREEMENT AND MAKE THE LOANS CONTEMPLATED HEREUNDER.
13. Miscellaneous.
(a) To
the fullest extent permissible by law, Borrower waives presentment, demand for
payment, protest, notice of nonpayment, and all other demands or notices
otherwise required by law in connection with the delivery, acceptance,
performance, default, or enforcement of this Note. Borrower consents
to extensions, postponements, indulgences, amendments to notes and agreements,
substitutions or releases of collateral, and substitutions or releases of other
parties primarily or secondarily liable herefor, and agrees that none of the
same shall affect Borrower’s obligations under this Note which shall be
unconditional.
(b) This
Note and the Loan Documents are intended by the parties as the final, complete
and exclusive statement of the transactions evidenced by this Note and the Loan
Documents. All prior or contemporaneous promises, agreements, and
understandings, whether oral or written, are deemed to be superseded by this
Note and the Loan Documents, and no party is relying on any promise, agreement,
or understanding not set forth in this Note and the Loan
Documents. This Note may not be amended or modified except by a
written instrument describing such amendment or modification executed by the
Borrower and the Bank.
(c) No
portion of the proceeds of this Note shall be used, in whole or in part, for the
purpose of purchasing or carrying any “margin stock” as such term is defined in
Regulation U of the Board of Governors of the Federal Reserve
System.
- 12
-
(d) This
Note and the Loan Documents, and the rights and obligations of the parties
hereunder, shall be construed, interpreted, governed and enforced in accordance
with the internal laws of the State of New York (excluding the laws applicable
to conflicts or choice of law).
PREMIER
PACKAGING CORPORATION
By:
Name:
Title:
| STATE OF NEW YORK | ) | |
| COUNTY OF MONROE | ) | ss.: |
On the
12th day of February , in the year 2010, before me, the undersigned, a Notary
Public in and for said State, personally appeared 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/she
executed the same in his/her capacity, and that by his/her signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument.
Notary
Public
- 13
-
SCHEDULE
A
[Principal
Repayment Schedule]
|
Payment
No.
|
Principal
Payment
Date
|
Principal
Payment
Amount
|
|
1
|
4/1/2010
|
$25,000.00
|
|
2
|
5/1/2010
|
$25,000.00
|
|
3
|
6/1/2010
|
$25,000.00
|
|
4
|
7/1/2010
|
$25,000.00
|
|
5
|
8/1/2010
|
$25,000.00
|
|
6
|
9/1/2010
|
$25,000.00
|
|
7
|
10/1/2010
|
$25,000.00
|
|
8
|
11/1/2010
|
$25,000.00
|
|
9
|
12/1/2010
|
$25,000.00
|
|
10
|
1/1/2010
|
$25,000.00
|
|
11
|
2/1/2011
|
$25,000.00
|
|
12
|
3/1/2011
|
$25,000.00
|
|
13
|
4/1/2011
|
$25,000.00
|
|
14
|
5/1/2011
|
$25,000.00
|
|
15
|
6/1/2011
|
$25,000.00
|
|
16
|
7/1/2011
|
$25,000.00
|
|
17
|
8/1/2011
|
$25,000.00
|
|
18
|
9/1/2011
|
$25,000.00
|
|
19
|
10/1/2011
|
$25,000.00
|
|
20
|
11/1/2011
|
$25,000.00
|
|
21
|
12/1/2011
|
$25,000.00
|
|
22
|
1/1/2011
|
$25,000.00
|
|
23
|
2/1/2012
|
$25,000.00
|
|
24
|
3/11/2012
|
$25,000.00
|
|
25
|
4/1/2012
|
$25,000.00
|
|
26
|
5/1/2012
|
$25,000.00
|
|
27
|
6/1/2012
|
$25,000.00
|
|
28
|
7/1/2012
|
$25,000.00
|
|
29
|
8/1/2012
|
$25,000.00
|
|
30
|
9/1/2012
|
$25,000.00
|
|
31
|
10/1/2012
|
$25,000.00
|
|
32
|
11/1/2012
|
$25,000.00
|
|
33
|
12/1/2012
|
$25,000.00
|
|
34
|
1/1/2012
|
$25,000.00
|
|
35
|
2/1/2013
|
$25,000.00
|
|
36
|
3/1/2013
|
$625,000.00
|
