Exhibit 10.9 Agreement with PNC BANK
PROMISSORY NOTE
Principal Loan Date Maturity Loan No Call/Coll Account Officer Initials
$250,000.00 01-08-2003 01-08-2005 L76 11501
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item. Any item above
containing "***" has been omitted due to text length limitations.
Borrower:BETTER SOLUTIONS, INC. (TIN: 00-0000000) Lender:PNC Bank, National Association
000 XXXX XXXXXX XXXXXXXXX, XXXXX 000 Xxxxxxxx Xxxxxxx
XXXXXXXXXX, XX 00000 Xxx XXX Xxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Principal Amount: $250,000.00 Initial Rate: 6.250% Date of Note: January 8, 2003
PROMISE TO PAY. BETTER SOLUTIONS, INC. ("Borrower") promises to pay to PNC Bank,
National Association ("Lender"), or order, in lawful money of the United States
of America, the principal amount of Two Hundred Fifty Thousand & 00/100 Dollars
($250,000.00) 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 accordance with the following payment
schedule:
Borrower will pay regular monthly payments of accrued interest beginning
FEBRUARY 8, 2003, and all subsequent interest payments are due on the same day
of each month after that. Borrower will pay this loan in one payment of all
outstanding principal plus all accrued unpaid interest on the Expiration Date.
Borrower may borrow, repay and reborrow hereunder until the Expiration Date,
subject to the terms and conditions of this Note. The "Expiration Date" shall
mean JANUARY 8, 2005, or such later date as may be designated by written notice
from Lender to Borrower. Borrower acknowledges and agrees that in no event will
Lender be under any obligation to extend or renew the loan or this Note beyond
the initial Expiration Date. In no event shall the aggregate unpaid principal
amount of advances under this Note exceed the face amount of this Note.
Unless otherwise agreed or required by applicable law, payments will be applied
first to accrued unpaid interest, then to principal, and any remaining amount to
any unpaid collection costs and late charges. The annual interest rate for this
Note is computed on a 365/360 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 Xxxxxx's address shown above or at
such other place as Lender may designate in writing.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from
time to time based on changes in an independent index which is the highest Prime
Rate as published in the "Money Rates" section of The Wall Street Journal (the
"Index"). The Index is not necessarily the lowest rate charged by Lender on its
loans. If the Index becomes unavailable during the term of this loan, Lender may
designate a substitute index after notice to Borrower. Lender will tell Borrower
the current Index rate upon Xxxxxxxx's request. The interest rate change will
not occur more often than each day. Borrower understands that Lender may make
loans based on other rates as well. The Index currently is 4.250% per annum. The
interest rate to be applied to the unpaid principal balance of this Note will be
at a rate of 2.000 percentage points over the Index, resulting in an initial
rate of 6.250% 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 without penalty all or a portion of the amount owed
earlier than it is due. Early payments will not, unless agreed to by Xxxxxx in
writing, relieve Xxxxxxxx of Xxxxxxxx's obligation to continue to make payments
of accrued unpaid interest. Rather, early payments will reduce the principal
balance due. Xxxxxxxx agrees not to send Lender payments marked "paid in full",
"without recourse", or similar language. If Borrower sends such a payment,
Xxxxxx may accept it without losing any of Xxxxxx's rights under this Note, and
Borrower will remain obligated to pay any further amount owed to Lender. All
written communications concerning disputed amounts, including any check or other
payment instrument that indicates that the payment constitutes "payment in full"
of the amount owed or that is tendered with other conditions or limitations or
as full satisfaction of a disputed amount must be mailed or delivered to: PNC
Bank, National Association, Attn: Doc Prep/Operations Department - BBCAC, 0000
Xxxxxxx Xxxxxxxxx 0xx Xxxxx Xxxxxxxxxxxx, XX 00000.
LATE CHARGE. If a payment is 15 days or more late, Borrower will be charged
5.000% of the regularly scheduled payment or $100.00, whichever is less.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final
maturity, Lender, at its option, may, if permitted under applicable law,
increase the variable interest rate on this Note to 7.000 percentage points over
the Index. The interest rate will not exceed the maximum rate permitted by
applicable law. If judgment is entered in connection with this Note, interest
will continue to accrue on this Note after judgment at the interest rate
applicable to this Note at the time judgment is entered.
DEFAULT. Each of the following shall constitute an event of default ("Event of
Default") under this Note: Payment Default. Borrower fails to make any payment
when due.
Other Defaults. Borrower or Grantor fails to comply with or to perform any other
term, obligation, covenant or condition contained in this Note or in any of the
related documents or to comply with or to perform any term, obligation, covenant
or condition contained in any other agreement between Lender and Borrower.
Default in Favor of Third Parties. Borrower or any Grantor 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.
False Statements. Any warranty, representation or statement made or furnished to
Lender by Borrower or on Borrower's behalf under this Note or the related
documents is false or misleading in any material respect, either now or at the
time made or furnished or becomes false or misleading at any time thereafter.
Insolvency. The dissolution or termination of Xxxxxxxx's existence as a going
business, the insolvency of Xxxxxxxx, the appointment of a receiver for any part
of Xxxxxxxx's property, any assignment for the benefit of creditors, any type of
creditor workout, or the commencement of any proceeding under any bankruptcy or
insolvency laws by or against Borrower.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help, repossession or any
other method, by any creditor of Borrower or by any governmental agency against
any collateral securing the loan. This includes a garnishment of any of
Xxxxxxxx's accounts, including deposit accounts, with Lender. However, this
Event of Default shall not apply if there is a good faith dispute by Xxxxxxxx as
to the validity or reasonableness of the claim which is the basis of the
creditor or forfeiture proceeding and if Borrower gives Xxxxxx written notice of
the creditor or forfeiture proceeding and deposits with Lender monies or
PROMISSORY NOTE
(Continued) Page 2
a surety bond for the creditor or forfeiture proceeding, in an amount determined
by Xxxxxx, in its sole discretion, as being an adequate reserve or bond for the
dispute.
Events Affecting Guarantor. Any of the preceding events occurs with respect to
any Guarantor of any of the indebtedness or any I Guarantor dies or becomes
incompetent, or revokes or disputes the validity of, or liability under, any
guaranty of the indebtedness evidenced by this Note.
Change In Ownership. Any change in ownership of twenty-five percent (25%) or
more of the common stock of Borrower.
Adverse Change. A material adverse change occurs in Borrower's financial
condition, or Xxxxxx believes the prospect of payment or performance of this
Note is impaired.
Insecurity. Lender in good faith believes itself insecure.
LENDER'S RIGHTS. Upon default, Lender may, after giving such notices as required
by applicable law, 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.
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect
this Note if Borrower does not pay. Borrower will pay Lender that amount. This
includes, subject to any limits under applicable law, Xxxxxx's attorneys' fees
and Xxxxxx's legal expenses, whether or not there is a lawsuit, including
attorneys' fees, expenses for bankruptcy proceedings (including efforts to
modify or vacate any automatic stay or injunction), appeals and any anticipated
post-judgement collection services. If not prohibited by applicable law,
Xxxxxxxx also will pay any court costs, in addition to all other sums provided
by law.
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.
GOVERNING LAW. This Note will be governed by, construed and enforced in
accordance with federal law and the laws of the Commonwealth of Pennsylvania.
This Note has been accepted by Xxxxxx in the Commonwealth of Pennsylvania.
CHOICE OF VENUE. If there is a lawsuit, Xxxxxxxx agrees upon Xxxxxx's request to
submit to the jurisdiction of the courts of Allegheny County, Commonwealth of
Pennsylvania.
RIGHT OF SETOFF. In addition to all liens upon and rights of setoff against
Xxxxxxxx's money, securities or other property given to Lender by law, Lender
shall have, with respect to Borrower's obligations to Lender under this Note and
to the extent permitted by law, a contractual possessory security interest in
and a contractual right of setoff against, and Borrower hereby assigns, conveys,
delivers, pledges and transfers to Lender all of Borrower's right, title and
interest in and to, all of Borrower's deposits, moneys, securities and other
property now or hereafter in the possession of or on deposit with, or in transit
to, Lender or any other direct or indirect subsidiary of The PNC Financial
Services Group, Inc., 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 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 Xxxxxx, although Xxxxxx may enter such setoff on its books
and records at a later time.
COLLATERAL. Borrower acknowledges this Note is secured by, in addition to any
other collateral, a Mortgage dated January 8, 2003, to Lender on real property
described as "Real Property located at 0000 XXXX XXXX XXXXX, XXXXXXXXXXX, XX
00000" and located in XXXXXXXXXXXX County, Commonwealth of Pennsylvania, all the
terms and conditions of which are hereby incorporated and made apart of this
Note; and a Mortgage dated January 8, 2003, to Lender on real property described
as "Real Property located at 0000 XXXXXXXXX XXXXX, XXXXXXXXXXX, XX 00000" and
located in XXXXXXXXXXXX County, Commonwealth of Pennsylvania, all the terms and
conditions of which are hereby incorporated and made a part of this Note.
LINE OF CREDIT. This Note evidences a revolving line of credit. Advances under
this Note may be requested either orally or in writing by Xxxxxxxx or as
provided in this paragraph. Lender may, but need not, require that all oral
requests be confirmed in writing. All communications, instructions, or
directions by telephone or otherwise to Lender are to be directed to Xxxxxx's
office shown above. Xxxxxxxx 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 Xxxxxxxx's accounts with Xxxxxx. The unpaid principal balance
owing on this Note at any time may be evidenced by endorsements on this Note or
by Xxxxxx's internal records, including daily computer print-outs. 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 authorized by Lender; or (E) Lender in
good faith believes itself insecure.
FINANCIAL INFORMATION PROVISION, Xxxxxxxx agrees to deliver any financial and
other business information concerning Borrower that Xxxxxx may request from time
to time, such as annual and interim financial statements (all of which shall be
prepared in accordance with generally accepted accounting principles) and
federal income tax returns.
DEPOSITORY. Borrower will establish and maintain, with Xxxxxx, Xxxxxxxx's
primary depository account(s). If Borrower fails to establish and/or maintain
its primary depository account(s) with Lender, Lender may. at its option, upon
thirty (30) days notice to Borrower, increase the interest rate payable by
Borrower under this Note by up to 1.00 percentage points (1.00%). lender's right
to increase the interest rate pursuant to this "paragraph shall be in addition
to any other rights or remedies Lender may have under this Note, all of which
are hereby reserved, and shall not constitute a waiver, release or limitation
upon Xxxxxx's exercise of any such rights or remedies.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Xxxxxxxx, and
upon Xxxxxxxx's heirs, personal representatives, successors and assigns, and
shall inure to the benefit of Lender and its successors and assigns.
GENERAL PROVISIONS. Lender may delay or forgo 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, and notice of dishonor. Upon any change in the
terms of this Note, and unless otherwise expressly stated in writing, no party
who signs this Note, whether as maker, guarantor, accommodation maker or
endorser, 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
Xxxxxx's security interest in the collateral; and take any other action deemed
necessary by Xxxxxx without the consent of or notice to anyone. All such parties
also agree that Xxxxxx may modify this loan without the consent of or notice to
anyone other than the party with whom the modification is made. The obligations
under this Note are joint and several. If any portion of this Note is for any
reason determined to be unenforceable, it will not affect the enforceability of
any other provisions of this Note.
CONFESSION OF JUDGEMENT. THE BORROWER HEREBY EMPOWERS ANY ATTORNEY OF ANY COURT
OF RECORD. AFTER THE
PROMISSORY NOTE
(Continued) Page 3
OCCURRENCE OF ANY EVENT OF DEFAULT HEREUNDER. TO APPEAR FOR THE BORROWER AND,
WITH OR WITHOUT COMPLAINT FILED, CONFESS JUDGMENT. OR A SERIES OF JUDGMENTS.
AGAINST THE BORROWER IN FAVOR OF XXXXXX OR ANY HOLDER HEREOF FOR THE ENTIRE
PRINCIPAL BALANCE OF THIS NOTE. ALL ACCRUED INTEREST AND ALL OTHER AMOUNTS DUE
HEREUNDER. TOGETHER WITH COSTS OF SUIT AND AN ATTORNEY'S COMMISSION OF THE
GREATER OF 10% OF SUCH PRINCIPAL AND INTEREST OR $1,000 ADDED AS A REASONABLE
ATTORNEY'S FEE, AND FOR DOING SO. THIS NOTE OR A COPY VERIFIED BY AFFIDAVIT
SHALL BE A SUFFICIENT ; WARRANT. THE BORROWER HEREBY FOREVER WAIVES AND RELEASES
ALL ERRORS IN SAID PROCEEDINGS AND ALL RIGHTS OF APPEAL AND ALL RELIEF FROM ANY
AND ALL APPRAISEMENT. STAY OR EXEMPTION LAWS OF ANY STATE NOW IN FORCE OR
HEREAFTER ENACTED. INTEREST ON ANY SUCH JUDGMENT SHALL ACCRUE AT THE DEFAULT
RATE.
NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS JUDGMENT, OR A SERIES OF
JUDGMENTS, SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH
EXERCISE SHALL BE HELD BY ANY COURT TO BE INVALID, VOIDABLE, OR VOID, BUT THE
POWER SHALL CONTINUE UNDIMINISHED AND IT MAYBE EXERCISED FROM TIME TO TIME AS
OFTEN AS LENDER SHALL ELECT UNTIL SUCH TIME AS LENDER SHALL HAVE RECEIVED
PAYMENT IN FULL OF THE DEBT, INTEREST AND COSTS. NOTWITHSTANDING THE ATTORNEY'S
COMMISSION PROVIDED FOR IN THE PRECEDING PARAGRAPH (WHICH IS INCLUDED IN THE
WARRANT FOR PURPOSES OF ESTABLISHING A SUM CERTAIN), THE AMOUNT OF ATTORNEYS'
FEES THAT XXXXXX MAY RECOVER FROM THE BORROWER SHALL NOT EXCEED THE ACTUAL
ATTORNEYS' FEES INCURRED BY XXXXXX.
PRIOR TO SIGNING THIS NOTE, XXXXXXXX READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. XXXXXXXX AGREES TO
THE TERMS OF THE NOTE.
THIS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND SHALL
CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.
BORROWER:
BETTER SOLUTIONS, INC.
By: ____________________________(Seal)
XXXX X XXXX, President of BETTER SOLUTIONS, INC.
By: _________________________(Seal)
XXXXXXX X XXXXXXXX, Vice President of BETTER SOLUTIONS, INC.
