MASTER NOTE (Eurodollar/Prime Rate)
$ 6,000,000 Date: November 1, 2000
FOR VALUE RECEIVED, the undersigned, promises to pay to the order of
EUROPEAN AMERICAN BANK (the "Bank"), on or before (the "Maturity Date"), the sum
of Dollars ($), or, if less, the aggregate unpaid principal amount of all
advances made by the Bank pursuant to the line of credit (each an "Advance" and
collectively, the "Advances"), not to exceed an aggregate amount at any one time
outstanding of Dollars ($), available to the undersigned hereunder (the "Line")
together with interest thereon as set forth herein.
Each Advance hereunder which is a Eurodollar Advance (as defined below)
shall bear interest on the unpaid principal amount thereof for the Interest
Period applicable thereto at a rate per annum equal to the Reserve Adjusted
Libor determined for each Interest Period therefor in accordance with the terms
of this Note plus a margin of basis points. Each Advance which is a Prime Rate
Advance (as defined below) shall bear interest on the unpaid principal amount
thereof from the date thereof until payment of such Prime Rate Advance in full
at a fluctuating rate per annum equal to the Prime Rate plus a margin of % per
annum. The undersigned shall notify the Bank not later than 12 noon three
Business Days prior to each Advance hereunder which the undersigned requests to
maintain at a rate of interest based on Reserve Adjusted Libor (a "Eurodollar
Advance"), and not later than 12 noon on the date of each Advance which the
undersigned requests to maintain at a rate of interest based on the Prime Rate
(a "Prime Rate Advance"). All requests for Advances shall be irrevocable and
shall be in the minimum amount of $. Each request by the undersigned for an
Advance hereunder shall specify whether the requested Advance is a Eurodollar
Advance or a Prime Rate Advance, the proposed date to fund the Advance, and if a
Eurodollar Advance is requested, the Interest Period applicable thereto.
Any Eurodollar Advance may be continued as a Eurodollar Advance upon
expiration of an Interest Period with respect thereto by complying with the
notice provisions contained in the definition of Interest Period; provided,
however, that no Eurodollar Advance may be continued as such when any Event of
Default or event which upon notice, passage of time or both would constitute an
Event of Default has occurred and is continuing but shall be automatically
converted to a Prime Rate Advance on the last date of the Interest Period in
effect when the Bank is notified of such default or Event of Default.
The undersigned may elect from time to time to convert outstanding
Eurodollar Advances to Prime Rate Advances by giving the Bank at least three
Business Days prior irrevocable notice of such election; provided that any
conversion of a Eurodollar Advance may be made only on the last day of an
Interest Period with respect thereto. The undersigned may elect from time to
time to convert an outstanding Prime Rate Advance to a Eurodollar Advance by
giving the Bank irrevocable written notice of such election not later than 12
noon, three Business Days prior to the date of the proposed conversion and
further provided that (i) the conversion shall be in the minimum principal
amount of $ and (ii) no Event of Default or event upon notice, passage of time
or both would constitute an Event of Default shall have occurred and be
continuing. Notwithstanding the foregoing, no Advance may be converted to or
continued as a Eurodollar Advance if the Interest Period would extend beyond the
Maturity Date.
Interest shall be calculated on the basis of a 360-day year for the
actual number of days elapsed and shall be payable on the first day of each
month commencing on the first such date to occur after the date the Advance is
made, and on the Maturity Date. 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. Any payment of principal of or interest
payable hereunder which is not paid when due, whether at maturity, by
acceleration, or otherwise, shall bear interest from the date due until paid in
full at a rate per annum equal to three percent (3%) above the interest rate in
effect with respect thereto.
________________________________
This note provides that interest be paid monthly regardless if a
Eurodollar Advance or Prime Rate Advance.
All requests for advances shall be irrevocable and shall be for a
minimum of $ and must be received by the Bank no later than 12:00 noon on the
date of the proposed advance. The Bank may act without liability upon the basis
of telephonic notice believed by the Bank in good faith to be from the
undersigned. In each such case, the undersigned hereby waives the right to
dispute the Bank's record of the terms of such telephonic notice. The
undersigned shall immediately confirm to the Bank in writing each telephonic
notice. All advances under the Line are at the Bank's sole and absolute
discretion and the Bank, at its option and in its sole and absolute discretion
and without notice to the undersigned, may decline to make any advance requested
by the undersigned.
Subject to the terms and conditions hereof and the terms and conditions
set forth in any agreement in writing between the Bank and the undersigned, the
undersigned may borrow, repay in whole or in part, and reborrow on a revolving
basis, up to the maximum amount of the Line. Prime Rate Advances may be prepaid
without premium or penalty together with accrued interest thereon to and
including the date of prepayment. Eurodollar Advances may be prepaid without
premium or penalty (except as provided in the next succeeding paragraph)
together with accrued interest thereon to and including the date of prepayment,
provided such prepayment date must be the last day of the then current Interest
Period of such Advance. The Bank shall maintain its records to reflect the
amount and date of each advance and of each payment of principal and interest
thereon. All such records shall, absent manifest error, be conclusive as to the
outstanding principal amount hereof; provided, however, that the failure to make
any notation to the Bank's records shall not limit or otherwise affect the
obligations of the undersigned to repay each advance made by the Bank, in
accordance with the terms hereof.
The undersigned agrees to indemnify the Bank and hold the Bank harmless
from any loss or expense which the Bank may sustain or incur, including without
limitation, interest or fees payable by the Bank to lenders of funds obtained by
it in order to maintain a Eurodollar Advance hereunder, as a consequence of (a)
default by the undersigned in payment of the principal amount of or interest on
a Eurodollar Advance, (b) default by the undersigned in making any prepayment of
a Eurodollar Advance after the undersigned gives notice in accordance with this
Note and/or (c) the making of any payment of a Eurodollar Advance on a day which
is not the last day of the then applicable Interest Period with respect thereto.
When claiming indemnification under this paragraph, the Bank shall provide to
the undersigned a statement explaining the amount of any such loss or expense
which statement shall in the absence of manifest error be conclusive with
respect to the undersigned. The indemnity obligations hereunder shall survive
payment in full of the Note.
As security for the payment of 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 an
interest.
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) making by the undersigned of 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 or personal
property, 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 is reasonably likely to
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 which 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 described in clause (b), clause
(c) or clause (d) above occurs, this Note shall automatically become due and
payable.
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 accounts 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.
The undersigned agrees to pay, on demand, all of the Bank's costs and
expenses, including reasonable counsel fees (whether in-house or outside
counsel), in connection with the collection of any amounts due to the Bank
hereunder or in connection with the enforcement of the Bank's rights under this
Note.
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.
Neither the undersigned nor any affiliate of the undersigned shall use
any portion of the proceeds of the Loans, nor have any Letter of Credit issued,
either directly or indirectly, for the purpose of purchasing any securities
underwritten by ABN AMRO Inc., an affiliate of the Bank.
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.
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
instance 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.
In the event any one or more of the 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 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.
As used herein the following terms shall have the following meanings:
"Bank" shall be deemed to include the Bank, its successors and assigns
and any holder hereof.
"Business Day" means (a) a day other than a Saturday, Sunday or other
day on which commercial banks in New York, New York are authorized or required
by law to close and (b) relative to the date of (i) continuing an Advance as, or
converting an Advance to, a Eurodollar Advance, (ii) making any payment or
prepayment of principal of or payment of interest on a Eurodollar Advance, or
(iii) the undersigned giving any notice (or the number of Business Days to
elapse prior to the effectiveness thereof) in connection with any matter
referred to in (b)(i) or (b)(ii), any day on which dealings in U.S. dollars are
carried on in the London interbank eurodollar market.
"Eurocurrency Reserve Requirement" means for any day as applied to a
Eurodollar Advance, the aggregate (without duplication) of the rates (expressed
as a decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board of Governors of the Federal Reserve System or other
governmental authority having jurisdiction with respect thereto), as from time
to time hereafter in effect, dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of such Board) maintained by a member bank of such system.
"Interest Period" with respect to any Eurodollar Advance means:
(a) Initially, the period commencing on the date such
Eurodollar Advance is made and ending one, two or three months thereafter; and
(b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Advance and ending
one, two or three months thereafter, as selected by the undersigned by
irrevocable written notice to the Bank not less than three (3) Business Days
prior to the last day of the then current Interest Period with respect to such
Eurodollar Advance; provided, however, that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar Advance
would otherwise end on a day which is not a Business Day, the Interest Period
shall be extended to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the immediately preceding Business
Day;
(ii) if the undersigned shall fail to give notice as provided
in clause (b) above, the undersigned shall be deemed to have requested
conversion of the affected Eurodollar Advance to a Prime Rate Advance on the
last day of the then current Interest Period with respect thereto;
(iii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the
last Business Day of a calendar month; and
(iv) no Interest Period may be selected which ends later than
the Maturity Date.
"Prime Rate" shall mean a fluctuating rate per annum equal to the rate
of interest publicly announced by the Bank at its principal office from time to
time as its Prime Rate. Any change in the Prime Rate shall be effective on the
date such change is announced by the Bank.
"Reserve Adjusted Libor" shall mean with respect to the Interest Period
pertaining to a Eurodollar Advance, the rate per annum equal to the quotient
(rounded upwards to the next higher 1/16 of one percent) of (a) the annual rate
of interest at which dollar deposits of an amount comparable to the amount of
such Loan and for a period equal to the Interest Period applicable thereto are
offered to the Bank in the London interbank market at approximately 11:00 a.m.
(London time) on the second Business Day prior to the beginning of such Interest
Period, divided by (b) a number equal to 1.00 minus the Eurocurrency Reserve
Requirement.
"Undersigned" shall mean, if this Note is signed by more than one
party, unless otherwise stated herein, shall 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 elects in its sole and absolute discretion.
In the event that the Bank shall have determined (which determination
shall be conclusive and binding upon the undersigned) that, by reason of
circumstances affecting the London interbank market, adequate and reasonable
means do not exist for ascertaining the Reserve Adjusted Libor for any requested
Interest Period or with respect to the continuation of a Eurodollar Advance
beyond the expiration of the then current Interest Period with respect thereto,
the Bank shall forthwith give notice of such determination, confirmed in
writing, to the undersigned. If such notice is given, any outstanding Eurodollar
Advance shall be converted, on the last day of the then current Interest Period
with respect thereto, to a Prime Rate Advance. Such notice shall be withdrawn by
the Bank when the Bank shall determine that adequate and reasonable means exist
for ascertaining Reserve Adjusted Libor.
Notwithstanding anything to the contrary contained elsewhere in this
Note, if any change after the date hereof in law, rule, regulation, guideline or
order or in the interpretation thereof by any governmental authority charged
with the administration thereof, shall make it unlawful for the Bank to make or
maintain any Advance as a Eurodollar Advance, then, by written notice to the
undersigned, the Bank may require that the Eurodollar Advance be converted to a
Prime Rate Advance, whereupon the Eurodollar Advance shall be automatically
converted to a Prime Rate Advance as of the date of such notice to the
undersigned.
In the event that any change in applicable law or regulation, or in the
interpretation thereof by any governmental authority charged with the
administration thereof, shall impose on or deem applicable to the Bank any
reserve requirements against this Note or the Line or impose upon the Bank any
other costs or assessments, the undersigned shall pay to the Bank on demand an
amount sufficient to compensate the Bank for the additional cost resulting from
the maintenance or imposition of such reserves, costs or assessments.
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. This Note shall bind the respective
successors, heirs or representatives of the undersigned. This Note and the Line
shall not be assigned by the undersigned without the Bank's prior written
consent.
IN WITNESS WHEREOF, the undersigned has duly executed this Note the day
and year first above written.
Witness: /s/ Richard Ohl
______________________________
Gilman & Ciocia, Inc.
By: /s/ David D. Puyear
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Name: David D. Puyear
Title: Chief Financial Officer
Borrower's Address:
1311 Mamaroneck Ave., Suite 130
White Plains, NY 10605