Committed Line of Credit Note PNC BANK
$2,000,000.00 February 26, 2002
FOR VALUE RECEIVED, Medi-Hut Co., Inc. (The "Borrower") with an address of
0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, X.X. 08701-4541, promises to pay to the
order of PNC Bank, National Association (the "Bank"), in lawful money of the
United States of America in immediately available funds at such location as
the Bank may designate from time to time, the principal sum of Two Million
Dollars ($2,000,000.00) (the "Facility") or such lesser amount as may be
advanced to or for the benefit of the Borrower hereunder, together with
interest accruing on the outstanding principal balance from the date hereof,
as provided below:
Rate of Interest. Amounts outstanding under this Note will bear interest at a
rate per annum of the Prime Rate. Interest will be calculated on the basis of
a year of 360 days for the actual number of days in each interest period. As
used herein, "Prime Rate" shall mean the rate publicly announced by the Bank
from time to time as its prime rate. The Prime Rate is not tied to any
external rate or index and does not necessarily reflect the lowest rate of
interest actually charged by the Bank to any particular class or category of
customers. If and when the Prime Rate changes, the rate of interest on this
Note will change automatically without notice to the Borrower, effective on
the date of any such change. In no event will the rate of interest hereunder
exceed the maximum rate allowed by law.
Advances. The Borrower may borrow, repay and reborrow hereunder until the
Expiration Date, subject to the terms and conditions of this Note and the Loan
Documents (as defined herein). The "Expiration Date" shall mean February __,
2003, or such later date as may be designated by the Bank by written notice
from the Bank to the Borrower. The Borrower acknowledges and agrees that in
no event will the Bank be under any obligation to extend or renew the Facility
or this Note beyond the Expiration Date. In no event shall the aggregate
unpaid principal amount of advances under this Note exceed the face amount of
this Note.
Advance Procedures. A request for advance made by telephone must be promptly
confirmed in writing by such method as the Bank may require. The Borrower
authorizes the Bank to accept telephonic requests for advances, and the Bank
shall be entitled to rely upon the authority of any person providing such
instructions. The Borrower hereby indemnifies and holds the Bank harmless
from and against any and all damages, losses, liabilities, costs and expenses
(including reasonable attorneys' fees and expenses) which may arise or be
created by the acceptance of such telephone requests or making such advances.
The Bank will enter on its books and records, which entry when made will be
presumed correct, the date and amount of each advance, as well as the date and
amount of each payment made by the Borrower.
Payment Terms. Accrued interest will be due and payable on the first day of
each month, beginning
with the payment due on March ___, 2002. The outstanding principal balance
and any accrued but unpaid interest shall be due and payable on the Expiration
Date.
If any payment under this Note shall become due on a Saturday, Sunday or
public holiday under the laws of the State where the Bank's office indicated
above is located, such payment shall be made on the next succeeding business
day and such extension of time shall be included in computing interest in
connection with such payment. The Borrower hereby authorizes the Bank to
charge the Borrower's deposit account at the Bank for any payment when due
hereunder. Payments received will be applied to charges, fees and expenses
(including attorneys' fees), accrued interest and principal in any order the
Bank may choose, in its sole discretion.
Late Payments; Default Rate. If the Borrower fails to make any payment of
principal, interest or other amount coming due pursuant to the provisions of
this Note within ten (10) calendar days of the date due and payable, the
Borrower also shall pay to the Bank a late charge equal to five percent (5.0%)
of the amount of such payment (the "Late Charge"). Such ten (10) day period
shall not be construed in any way to extend the due date of any such payment.
Upon maturity, whether by acceleration, demand or otherwise, and at the Bank's
option upon the occurrence of any Event of Default (as hereinafter defined)
and during the continuance thereof, this Note shall bear interest at a rate
per annum (based on a year of 360 days and actual days elapsed) which shall be
five (5) percentage points (5.0%) in excess of the interest rate in effect
from time to time under this Note but not more than the maximum rate allowed
by law (the "Default Rate"). The Default Rate shall continue to apply whether
or not judgment shall be entered on this Note. Both the Late Charge and the
Default Rate are imposed as liquidated damages for the purpose of defraying
the Bank's expenses incident to the handling of delinquent payments, but are
in addition to, and not in liur of, the Bank's exercise of any rights and
remedies hereunder, under the other Loan Documents or under applicable law,
and any fees and expenses of any agents or attorneys which the Bank may
employ. In addition, the Default Rate reflects the increased credit risk to
the Bank of carrying a loan that is in default. The Borrower agrees that the
Late Charge and Default Rate are reasonable forecasts of just compensation for
anticipated and actual harm incurred by the Bank, and that the actual harm
incurred by the Bank cannot be estimated with certainty and without
difficulty.
Prepayment. The indebtedness evidenced by this Note may be prepaid in whole
or in part at any time without penalty.
Other Loan Documents. This Note is issued in connection with a letter
agreement or loan agreement between the Borrower and the Bank dated on or
before the date hereof, and the other agreements and documents executed in
connection therewith or referred to therein, the terms of which are
incorporated herein by reference (as amended, modified or renewed from time to
time, collectively the "Loan Documents"), and is secured by the property
described in the Loan Documents (if any) and by such other collateral as
previously may have been or may in the future be granted to the Bank to secure
this Note.
Events of Default. The occurrence of any of the following events will be
deemed to be and "Event of Defaut" under this Note: (i) the nonpayment of any
principal, interest or other indebtedness under this Note when due; (ii) the
occurrence of any event of default or default and the lapse of any
notice or cure paid under any Loan Document or any other debt, liability or
obligation to the Bank of any Obligor; (iii) the filing by or against any
Obligor of any proceeding in bankruptcy, receivership, insolvency,
reorganization, liquidation, conservatorship or similar proceeding (and, in
the case of any such proceeding instituted against any Obligor, such
proceeding is not dismissed or stayed within 30 days of the commencement
thereof, provided that the Bank shall not be obligated to advance additional
funds during such period); (iv) any assignment by any Obligor for the benefit
of creditors, or any levy, garnishment, attachment or similar proceeding is
instituted against any property of any Obligor held by or deposited with the
Bank; (v) a default with respect to any other indebtedness of any Obligor for
borrowed money, if the effect of such default is to cause or permit the
acceleration of such debt; (vi) the commencement of any foreclosure or
forfeiture proceeding, execution or attachment against any collateral securing
the obligations of any Obligor to the Bank; (vii) the entry of a final
judgement against any Obligor and the failure of such Obligor to discharge the
judgment within ten days of the entry thereof; (viii) if this Note or any
guarantee executed by any Guarantor is secured, the failure of any Obligor to
provide the Bank with additional collateral if in the Bank's opinion at any
time or times, the market value of any of the collateral securing this Note or
any guarantee has depreciated below that required pursuant to the Loan
Documents (if any) or, if no specific value is so required, then in an amount
deemed material by the Bank; (ix) any material adverse change in any Obligor's
business, assets, operations, financial condition or results of operations ;
(x) any Obligor ceases doing business as a going concern; (xi) the revocation
or attempted revocation, in whole or in part , of any guarantee by any
Guarantor: (xii) the death, incarceration, indictment or legal incompetency of
any individual Obligor or, if any Obligor is a partnership or limited
liability company, the death, incarceration, indictment or legal incompetency
of any individual general partner or member; (xiii) any representation or
warranty made by any Obligor to the Bank in any Loan Document or any other
documents now or in the future evidencing or securing the obligations of any
Obligor to the Bank, is false, erroneous or misleading in any material
respect; or (xiv) any Obligor's failure to observe or perform any covenant or
other agreement with the Bank contained in any Loan Document or any other
documents nor or in the future evidencing or securing the obligations of any
Obligor to the Bank. As used herein, the term "Obligor" means any Borrower and
any Guarantor, and the term "Guarantor" means any guarantor of the Borrower's
obligations to the Bank existing on the date of this Note or arising in the
future.
Upon the occurrence of an Event of Default: (a) the Bank shall be under no
further obligation to make advances hereunder; (b) if an Event of Default
specified in clause (iii), or (iv) above shall occur, the outstanding
principal balance and accrued interest hereunder together with any additional
amounts payable hereunder shall be immediately due and payable without demand
or notice of any kind: (c) if any other Event of Default shall occur, the
outstanding principal balance and accrued interest hereunder together with any
additional amounts payable hereunder, at the Bank's option and without demand
or notice of any kind, may be accelerated and become immediately due and
payable; (d) at the Bank's option, this Note will bear interest at the Default
Rate from the date of the occurrence of the Event of Default; and (e) the Bank
may exercise from time to time any of the rights and remedies available under
the Loan Documents or under applicable law.
Right of Setoff. In addition to all liens upon and rights of setoff against
the borrower's money,
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securities or other property given to the Bank by law, the Bank shall have,
with respect to the Borrower's obligations to the Bank under this Note and to
the extent permitted by law, a contractual possessory security interest in and
a contractual right of setoff against, and the Borrower hereby assigns,
conveys, delivers, pledges and transfers to the Bank all of the Borrower's
right, title and interest in and to all, of the Borrower's deposits, moneys,
securities and other property now or hereafter in the possession of or on
deposit with, or in transit to, the Bank or any other direct or indirect
subsidiary of PNC Bank Corp., whether held in a general or special account or
deposit, whether held jointly with someone else, or whether held for
safekeeping or otherwise, excluding, however, all IRA, Xxxxx, and trust
accounts. Every such security interest and right of setoff may be exercised
without demand upon or notice to the Borrower. Every such right of setoff
shall be deemed to have been exercised immediately upon the occurrence of an
Event of Default hereunder without any action of the Bank, although the Bank
may enter such setoff on its books and records at a later time.
Miscellaneous. All notices, demands, requests, consents, approvals, and other
communications required or permitted hereunder must be in writing (except as
may be agreed otherwise above with respect to borrowing requests) and will be
effective upon receipt. Such notices and other communications may be hand
delivered, sent by facsimile transmission with confirmation of delivery and a
copy sent by first-class mail, or sent by nationally recognized overnight
courier service, to the addresses for the Bank and the Borrower set forth
above or to such other address as either may give to the other in writing for
such purpose. No delay or omission on the Bank's part to exercise any right
or power arising hereunder will impair any such right or power or be
considered a waiver of any such right or power, nor will the Bank's action or
inaction impair any such right or power. No modification, amendment or waiver
of any provision of this Note nor consent to any departure by the Borrower
therefrom will be effective unless made in an writing signed by the Bank. The
Borrower agrees to pay on demand, to the extent permitted by law, all costs
and expenses incurred by the Bank in the enforcement of its rights in this
Note and in any security therefore, including without limitation reasonable
fees and expenses of the Bank's counsel. If any provision of this Note is
found to be invalid by a court, all the other provisions of this Note will
remain in full force and effect. The Borrower and all other makers and
indorsers of this Note hereby forever waive presentment, protest, notice of
dishonor and notice of non-payment. The Borrower also waives all defenses
based on suretyship or impairment of collateral. If this Note is executed by
more than one Borrower, the obligations of such persons or entitles hereunder
will be joint and several. This Note shall bind the Borrower and its heirs,
executors, administrators, successors and assigns and the benefits hereof
shall inure to the benefit of the Bank and it's successors and assigns;
provided, however, that the Borrower may not assign this Note in whole or i
part without the Bank's written consent and the Bank at any time may assign
this Note in whole or in part.
This Note has been delivered to and accepted by the Bank and will be deemed to
be made in the State where the Bank's office indicated above is located. THIS
NOTE WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE BANK AND THE
BORROWER DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE WHERE THE BANK'S
OFFICE INDICATED ABOVE IS LOCATED, EXCLUDING ITS CONFLICT OF LAWS RULES. The
Borrower hereby irrevocably consents to the exclusive jurisdiction of any
state or federal court in the county or judicial district where the Bank's
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office indicated above is located; provided that nothing contained in this
Note will prevent the Bank from bringing any action, enforcing any award or
judgement or exercising any rights against the Borrower individually, against
any security or against any property of the Borrower within any other county,
state or other foreign or domestic jurisdiction. The Borrower acknowledges
and agrees that the venue provided above is the most convenient forum for both
the Bank and the Borrower. The Borrower waives any objection to venue and any
objection based on a more convenient forum in any action instituted under this
Note.
WAIVER OF JURY TRIAL. THE BORROWER IRREVOCABLY WAIVES ANY AND ALL RIGHTS THE
BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY
NATURE RELATING TO THIS NOTE, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS
NOTE OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE BORROWER
ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
The Borrower acknowledges that it has read and understood all the provisions
of this Note, including the waiver of jury trial, and has been advised by
counsel as necessary or appropriate.
WITNESS the due execution hereof as a document under seal, as of the date
first written above, with the intent to be legally bound hereby.
WITNESS/ATTEST: Medi-Hut Co., Inc.
/s/ Xxxxx X. Xxxxx, CFO /s/ Xxxxxx X. Xxxxxxxxx, Pres.
_____________________________ _________________________________
Xxxxxx Xxxxxxxxx, President
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