NOTE
Exhibit
10.2
NOTE
Cherry
Hill, New Jersey
Dated:
September 3, 2010
$5,500,000.00
FOR VALUE RECEIVED AND INTENDING TO
BE LEGALLY BOUND, the undersigned (“Borrower”) hereby promises to
pay to the order of SOVEREIGN
BANK (“Bank”),
the principal sum of Five Million Five Hundred Thousand and No/100 Dollars
($5,500,000), together with interest thereon upon the following
terms:
1. Note. This Note is the
“Note” as defined in
that certain Loan and Security Agreement of even date herewith among Borrower,
Guarantors and Bank (such Loan and Security Agreement, as the same may be
amended, supplemented or restated from time to time, being the “Loan Agreement”) and, as such,
shall be construed in accordance with all terms and conditions
thereof. Capitalized terms not defined herein shall have such meaning
as provided in the Loan Agreement. This Note is entitled to all the
rights and remedies provided in the Loan Agreement and the Loan Documents and is
secured by all Collateral as described therein.
2. Interest
Rate. Interest on the unpaid principal balance hereof will
accrue from the date of advance until final payment thereof at the rate of Six
and 81/100 percent (6.81%) per annum.
3. Default
Interest. Interest will accrue on the outstanding principal
amount hereof following the occurrence of an Event of Default or the
final maturity date hereof, until paid at a rate per annum which is three
percent (3.00%) in excess of the non-default rate otherwise payable under Paragraph
2 above (the “Default
Rate”).
4. Post
Judgment Interest. Any judgment obtained for sums due
hereunder or under the Loan Documents will accrue interest at the Default Rate
until paid.
5. Computation. Interest
will be computed on the basis of a year of three hundred sixty-five (365) days
and paid for the actual number of days elapsed.
6. Principal
and Interest Payments. Principal and accrued interest thereon
is due and payable in fifty-nine consecutive monthly installments of One Hundred
Eight Thousand, Four Hundred Eighteen and 78/100 Dollars ($108,418.78) each,
payable on the first day of each calendar month commencing on October 1, 2010,
and (ii) one final payment of the remaining principal balance hereof plus all
accrued and unpaid interest thereon on September 1, 2015.
7. Place of
Payment. Principal and interest hereunder shall be payable as
provided in the Loan Agreement, or at such other place as Bank, from time to
time, may designate in writing.
8. Default;
Remedies. Upon the occurrence of an Event of Default, Bank, at
its option and without notice to Borrower, may declare immediately due and
payable the entire unpaid balance of principal and all other sums due by
Borrower hereunder and under the other Loan Documents, together with interest
accrued thereon at the applicable rate specified above to the date of the Event
of Default and thereafter at the Default Rate. Payment thereof may be
enforced and recovered in whole or in part at any time and from time to time by
one or more of the remedies provided to Bank in this Note or in the Loan
Documents or as otherwise provided at law or in equity, all of which remedies
are cumulative and concurrent.
9. Waivers. Borrower
and all endorsers hereby, jointly and severally, waive presentment for payment,
demand, notice of demand, notice of nonpayment or dishonor, protest and notice
of protest of this Note, and all other notices in connection with the delivery,
acceptance, performance, default or enforcement of the payment of this
Note.
10. Miscellaneous. If
any provisions of this Note shall be held invalid or unenforceable, such
invalidity or unenforceability shall not affect any other provision
hereof. This Note has been delivered in and shall be governed by and
construed in accordance with the laws of the State of New Jersey without regard
to the law of conflicts. This Note shall be binding upon Borrower and
upon Borrower’s successors and assigns and shall benefit Bank and its successors
and assigns. The prompt and faithful performance of all of Borrower’s
obligations hereunder, including without limitation, time of payment, is of the
essence of this Note.
11. JURY TRIAL
WAIVER. BORROWER WAIVES ANY RIGHT TO TRIAL BY JURY ON ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER ANY OF THE LOAN
DOCUMENTS OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF BORROWER OR BANK WITH RESPECT TO ANY OF THE LOAN DOCUMENTS OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE. BORROWER AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY, AND THAT ANY PARTY TO THE LOAN AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF BORROWER TO THE WAIVER OF ITS RIGHT TO TRIAL BY
JURY. BORROWER ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO
CONSULT WITH COUNSEL REGARDING THIS PARAGRAPH, THAT IT FULLY UNDERSTANDS ITS
TERMS, CONTENT AND EFFECT, AND THAT IT VOLUNTARILY AND KNOWINGLY AGREES TO THE
TERMS OF THIS PARAGRAPH.
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IN WITNESS WHEREOF, Borrower,
intending to be legally bound hereby, has caused this Note to be duly executed
the day and year first above written.
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By:
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/s/ Xxxxxxx Xxxxx | ||
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Name/Title:
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Xxxxxxx Xxxxx,
CFO
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