Exhibit 10.4
PROMISSORY NOTE
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Borrower: Discas, Inc. and Discas Recycled Products Corporation
000-0 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Lender: BANK OF BOSTON CONNECTICUT
000 XXXXX XXXXXX
XXXXXXXX, XX 00000
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Principal Amount: $300,000.00 Initial Rate: 10.750% Date of Note: February 23, 1995
PROMISE TO PAY. Discas, Inc. and Discas Recycled Products Corporation
("Borrower") promises to pay to BANK OF BOSTON CONNECTICUT ("Lender"), or
order, in lawful money of the United States of America, the principal amount of
Three Hundred Thousand & 00/100 Dollars ($300,000.00) or so much as may be
outstanding, together with interest on the unpaid outstanding principal balance
of each advance. Interest shall be calculated from the date of each advance
until repayment of each advance.
PAYMENT. Borrower will pay this loan in one payment of all outstanding
principal plus all accrued unpaid interest on September 30, 1995. In addition,
Borrower will pay regular monthly payments of accrued unpaid interest beginning
April 1, 1995, and all subsequent interest payments are due on the same day of
each month after that. Interest on this Note is computed on a 365/360 simple
interest basis; that is, by applying the ratio of the annual interest rate over
a year of 360 days, multiplied by the outstanding principal balance, multiplied
by the actual number of days the principal balance is outstanding. Borrower
will pay Lender at lender's address shown above or at such other place as
Lender may designate in writing. Unless otherwise agreed or required by
applicable law, payments will be applied first to any unpaid collection costs
and any late charges, then to any unpaid interest, and any remaining amount to
principal.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change
from time to time based on changes in an index which is the rate of interest
announced from time to time by Bank of Boston Connecticut at its Head Office as
its Base Rate (the "Index"). The Index is not necessarily the lowest rate
charged by Lender on its loans and is set by Lender in its sole discretion. If
the Index becomes unavailable during the term of this loan, Lender may
designate a substitute index after notifying Borrower. Lender will tell
Borrower the current index rate upon Borrower's request. Borrower understands
that Lender may make loans based on other rates as well. The interest rate
change will not occur more often than each time the Base Rate changes. The
index currently is 9.000% per annum. The interest rate to be applied to the
unpaid principal balance of this Note will be at a rate of 1.750 percentage
points over the index, resulting in an initial rate of 10.750% per annum.
NOTICE: Under no circumstances will the interest rate on this Note be more than
the maximum rate allowed by applicable law.
PREPAYMENT. Borrower may pay all or a portion of the amount owed earlier than
it is due. Early payments will not, unless agreed to by Lender in writing,
relieve borrower of Borrower's obligation to continue to make payments of
accrued unpaid interest. Rather, they will reduce the principal balance due.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged
5.000% of the regularly scheduled payment.
DEFAULT. Borrower will be in default if any of the following happens: (a)
Borrower fails to make any payment when due. (b) Borrower breaks any promise
Borrower has made to Lender, or Borrower fails to perform promptly at the time
and strictly in the manner provided in this Note or any agreement related to
this Note, or in any other agreement or loan Borrower has with Lender. (c)
Borrower defaults under any loan, extension of credit, security agreement,
purchase or sales agreement, or any other agreement, in favor of any other
creditor or person that may
materially affect any of Borrower's property or Borrower's ability to repay
this Note or perform Borrower's obligations under this Note or any of the
Related Documents. (d) Any representation or statement made or furnished to
Lender by Borrower or on Borrower's behalf is false or misleading in any
material respect. (e) Borrower becomes insolvent, a receiver is appointed for
any part of Borrower's property, Borrower makes an assignment for the benefit
of creditors, or any proceeding is commenced either by Borrower or against
Borrower under any bankruptcy or insolvency laws. (f) Any creditor tries to
take any of Borrower's property on or in which Lender has a lien or security
interest. This includes a garnishment of any of Borrower's accounts with
Lender. (g) Any of the events described in this default section occurs with
respect to any guarantor of this Note. (h) Lender in good xxxxx xxxxx itself
insecure.
If any default, other than a default in payment, is curable and if Borrower has
not been given a notice of a breach of the same provision of this note within
the preceding twelve (12) months, it may be cured (and not event of default
will have occurred) if Borrower, after receiving written notice from Lender
demanding cure of such default: (a) cures the default within fifteen (15) days;
or (b) if the cure requires more than fifteen (15) days, immediately initiates
steps which Lender deems in Lender's sole discretion to be sufficient to cure
the default and thereafter continues and completes all reasonable and necessary
steps sufficient to produce compliance as soon as reasonably practicable.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest immediately due, without
notice, and then Borrower will pay that amount. Upon default, including failure
to pay upon final maturity, Lender, at its option, may also, if permitted under
applicable law, do one or both of the following: (a) increase the variable
interest rate on this Note to 18.000% per annum, and (b) add any unpaid accrued
interest to principal and such sum will bear interest therefrom until paid at
the rate provided in this Note (including any increased rate). The interest
rate will not exceed the maximum rate permitted by applicable law. Lender may
hire or pay someone else to help collect this Note if Borrower does not pay.
Borrower also will pay Lender that amount. This includes, subject to any limits
under applicable law, Lender's attorneys' fees and Lender's legal expenses
whether or not there is a lawsuit, including attorneys' fees and legal expenses
for bankruptcy proceedings (including efforts to modify or vacate any automatic
stay or injunction), appeals, and any anticipated post-judgment collection
services. If not prohibited by applicable law, Borrower also will pay any court
costs, in addition to all other sums provided by law. This Note has been
delivered to Lender and accepted by Lender in the State of Connecticut. Lender
and Borrower hereby waive the right to any jury trial in any action,
proceeding, or counterclaim brought by Lender or Borrower against the other.
This Note shall be governed by and construed In accordance with the laws of the
State of Connecticut.
RIGHT OF SETOFF. Borrower grants to Lender a contractual possessory security
interest in, and hereby assigns, conveys, delivers, pledges, and transfers to
Lender all Borrower's right, title and interest in and to, Borrower's accounts
with Lender (whether checking, savings, or some other account), including
without limitation all accounts held jointly with someone else and all accounts
Borrower may open in the future, excluding however all XXX, Xxxxx, and trust
accounts. Borrower authorizes Lender, to the extent permitted by applicable
law, to charge or setoff all sums owing on this Note against any and all such
accounts.
LINE OF CREDIT. This Note evidences a revolving line of credit. Advances under
this Note, as well as directions for payment from Borrower's accounts, may be
requested orally or in writing by Borrower or by an authorized person. Lender
may, but need not, require that all oral requests be confirmed in writing. The
following party or parties are authorized to request advances under the line of
credit until Lender receives from Borrower at Lender's address shown above
written notice or revocation of their authority: Xxxxxxx X. XxXxxxx, Xx.,
President/Treasurer; Xxxxxxx X. XxXxxxx, Vice President; and Xxxxxxx X.
XxXxxxx, Secretary. Borrower agrees to be liable for all sums either (a)
advanced in accordance with the instructions of an authorized person or (b)
credited to any of Borrower's accounts with Lender. The unpaid principal
balance owing on this Note at any time may be evidenced by endorsements on this
Note or by Lender's internal records, including daily computer printouts.
Lender will have no obligation to advance funds under this Note if: (a)
Borrower or any guarantor is in default under the terms of this Note or any
agreement that Borrower or any guarantor has with Lender, including any
agreement made in connection with the signing of this Note; (b) Borrower or any
guarantor ceases doing business or is insolvent; (c) any guarantor seeks,
claims or otherwise attempts to limit, modify or revoke such guarantor's
guarantee of this Note or any other loan with Lender; (d) Borrower has applied
funds provided pursuant to this Note for purposes other than those
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authorized by Lender; or (e) Lender in good xxxxx xxxxx itself insecure under
this Note or any other agreement between Lender and Borrower.
ADDITIONAL TERMS. Borrower agrees that: (i) if any of the default(s) as
described above occurs with respect to a Grantor of collateral pledged as
security for this Note, the Borrower shall be in default under this Note; (ii)
any default in any obligation owed to an affiliate of Lender shall constitute a
default(s) under this Note, for purposes of this Note, an affiliate shall mean
any legal entity under the control of the Lender or under common control with
Lender;, and (iii) the entries on the books and records of Lender, including
any appearing on this Note, shall be, absent manifest error, prima facie
evidence of the aggregate amount of principal and accrued interest from time to
time outstanding under this Note.
Upon any default in connection with a proceeding under any bankruptcy or
insolvency laws, the entire unpaid principal balance on this Note and all
accrued unpaid interest shall be immediately due and payable without notice and
without any declaration by Lender and shall thereafter bear interest until paid
as provided above.
Each of the undersigned agrees that it shall be jointly and severally liable
for the obligations under this Note and the Related Documents.
GENERAL PROVISIONS. Lender my delay or forego enforcing any of its rights or
remedies under this Note without losing them. Borrower and any other person who
signs, guarantees or endorses this Note, to the extent allowed by law, waive
presentment, demand for payment protest and notice of dishonor. Upon any change
in the term of this Note, and unless otherwise expressly stated in writing, no
Borrower, any guarantor, nor any grantor of any Collateral, shall be released
from liability. All such parties agree that Lender may renew or extend
(repeatedly and for any length of time) this loan, or release any party or
guarantor or collateral; or impair, fail to realize upon or perfect Lender's
security interest in the collateral; and take any other action deemed necessary
by Lender without the consent of or notice to anyone. All such parties also
agree that Lender may modify this loan without the consent of or notice to
anyone other than the party with whom the modification Is made.
WAIVER. BORROWER ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS NOTE IS A PART
IS A COMMERCIAL TRANSACTION, AND TO THE EXTENT ALLOWED UNDER CONNECTICUT
GENERAL STATUTES SECTIONS 52-278a TO 52-278n, INCLUSIVE, OR BY OTHER APPLICABLE
LAW, BORROWER WAIVES ANY RIGHTS THAT BORROWER HAS TO NOTICE AND HEARING WITH
RESPECT TO ANY PREJUDGMENT REMEDY WHICH LENDER, OR ITS SUCCESSORS OR ASSIGNS,
MAY DESIRE TO USE.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO
THE TERMS OF THE NOTE. BORROWER ACKNOWLEDGES THE RECEIPT OF A COMPLETED COPY OF
THIS NOTE.
BORROWER:
Discas, Inc. and Discas Recycled Products Corporation
By: /s/ Xxxxxxx X. XxXxxxx, Xx.
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Xxxxxxx X. XxXxxxx, Xx., President/Treasurer of Discas, Inc.
By: /s/ Xxxxxxx X. XxXxxxx, Xx.
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Xxxxxxx X. XxXxxxx, Xx., President/Treasurer of Discas Recycled Products
Corporation
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