AMENDMENT TO TERM LOAN NOTE AND ADDENDUM
The Term Loan Note dated November 1, 1995, (the "Term Note") by and between
CRW Financial, Inc. ("Borrower") and J. Xxxxx X'Xxxxx and Xxxxxx X. X'Xxxxx,
husband and wife (collectively, "Payee"), as amended and supplemented by the
Addendum to the Term Loan Note dated November l, 1995 between Borrower and Payee
(the "Addendum") (the Term Note and the Addendum collectively, the "Note"), is
hereby further amended and supplemented as follows:
BACKGROUND
Pursuant to the Addendum, Payee was granted certain conversion rights (the
"Conversion Right") to purchase shares (the "Shares") of the Borrower's common
stock (the "Common Stock"). The parties intended that the Addendum would include
an anti-dilution provision related to the Conversion Right, however, such
provision was inadvertently not incorporated in the Addendum. Capitalized terms
not otherwise defined herein shall have the meaning ascribed to them in the
Note.
NOW, THEREFORE, in consideration of the premises and agreements hereinafter
set forth, Borrower and Payee hereby agree to amend and supplement the Note as
follows:
Section l. Purchase Price and Adjustments.
1.1 Purchase Price. The Purchase Price shall be adjusted from time to time
as provided herein. In the event of any adjustment of the Purchase Price, the
result shall be expressed to the nearest $0.01, but any such lesser amount shall
be carried forward and shall be considered at the time of and together with the
next subsequent adjustment which, together with any adjustments to be carried
forward, shall amount to $0.01 per share or more.
1.2 Adjustment of Purchase Price and Number of Shares Subject to the
Conversion Right. The Purchase Price shall be subject to adjustment, from time
to time, as follows:
(a) In case of any capital reclassification or reorganization or of any
consolidation or merger of the Borrower with or into any other entity, or any
other corporate reorganization (other than a merger or consolidation in which
the Borrower shall be the continuing or surviving entity and which does not
result in any change in the Common Stock) or any sale of all or substantially
all of the assets of the Borrower (any such transaction being hereafter referred
to as a "Reorganization") then, in each case, Payee, upon exercise of the
Conversion Right at any time after the consummation or effective date of such
Reorganization (the "Effective Date"), shall receive, in lieu of the Shares
issuable on such exercise prior to the Effective Date, the stock and other
securities and property (including cash) to which Payee would have been entitled
upon the Effective Date if Payee had exercised the Conversion Right immediately
prior thereto.
(b) If Borrower at any time while the Conversion Right remains
outstanding shall split, subdivide or combine the Common Stock or shall issue a
dividend on the Common Stock payable in shares of the Common Stock, the Purchase
Price shall be proportionately decreased in the case of a split, subdivision or
stock dividend, and increased in the case of a combination.
(c) If Borrower shall make or issue, or shall fix a record date for the
determination of eligible holders entitled to receive, a dividend or other
distribution with respect to the Common Stock payable in (i) securities or
evidences of indebtedness of the Borrower or of other entities (other than
shares of the Common Stock in which case the provisions of subsection (b) of
this Section 1.2 shall apply) or (ii) assets or cash (excluding cash dividends
paid or payable solely out of retained earnings), then in each case, Payee, on
exercise of the Conversion Right at any time after the consummation, effective
date or record date of such event, shall receive, in addition to the Shares (or
such other stock or securities) issuable on such exercise prior to such dates
the securities or such other assets of the Borrower to which Payee would have
been entitled upon such date if Payee had exercised the Conversion Right
immediately prior thereto.
(d) Upon each adjustment in the Purchase Price, the number of the
Shares purchasable hereunder shall be adjusted, to the nearest whole share, to
the product obtained by multiplying the number of the Shares purchasable
immediately prior to such adjustment in the Purchase Price by a fraction (i) the
numerator of which shall be the Purchase Price immediately prior to such
adjustment, and (ii) the denominator of which shall be the Purchase Price
immediately after such adjustment.
(e) Whenever the Purchase Price shall be adjusted as provided in this
Section 1.2, Borrower shall prepare a statement showing the facts requiring such
adjustment and the Purchase Price that shall be in effect after such adjustment.
The Borrower shall cause a copy of such statement to be sent to Payee in
accordance with the notice provisions provided in the Note. Where appropriate,
such copy may be given in advance and may be included as part of the notice
required to be mailed under the provisions of subsection (g) of this Section
1.2.
(f) Adjustments made pursuant to subsections (b), (c) and (d) of this
Section 1.2 shall be made on the date such split, subdivision, dividend,
combination or distribution, as the case may be, is made, and shall become
effective at the opening of business on the business day next following the
record date for the determination of stockholders entitled to such split,
subdivision, dividend, combination or distribution.
(g) In the event Borrower shall propose to take any action of the types
described in subsection (a), (b) or (c) of this Section 1.2, Borrower shall give
notice to Payee in the manner set forth in subsection (e) of this Section 1.2,
which notice shall specify the record date, if any, with respect to any
such action and the date on which such action is to take place. Such notice
shall also set forth such facts with respect thereto as shall be reasonably
necessary to indicate the number, kind or class of shares or other securities or
property which shall be deliverable to Payee upon exercise hereof following the
occurrence of such action. In the case of any action which would require the
fixing of a record date, such notice shall, to the extent practicable, be given
at least 10 days prior to the date so fixed, and in the case of all other
action, such notice shall be given at least 10 days prior to the taking of such
proposed action. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of any such action.
(h) In case after the date hereof Borrower shall take any action
affecting the outstanding number of shares of capital stock, other than an
action described in any of the foregoing subsections (a) to (g) hereof,
inclusive, which in the opinion of Borrower's Board of Directors would have a
materially adverse effect upon Payee's Conversion Right, the Purchase Price
shall be adjusted in such manner and at such time as the Board of Directors on
the advice of Borrower's independent public accountants may in good faith
determine to be equitable in the circumstances which is consistent with the
intent and principles of the dilution provisions contained herein.
2. Entire Agreement
This Amendment together with the Term Note and Addendum
constitute the entire agreement of the parties as to the subject matter hereof;
provided, however, that if any provision of this Amendment is in conflict with
any provision of the Term Note or Addendum, this Amendment shall control.
IN WITNESS WHEREOF, each of the parties hereto, intending to be legally
bound, has evidenced its agreement to the foregoing by executing this Amendment
to Term Loan Note and Addendum as of the 1st day of September, 1996.
CRW FINANCIAL INC.
BY: /s/ Xxxxxxxx X. Xxxxxxxx
----------------------------
Xxxxxxxx X. Xxxxxxxx
Vice President, Treasurer and
Chief Financial Officer
WITNESS:
[Sig Cut]
----------------------------- --------------------------------
Xxxxx X. Xxxxx J.Xxxxx X'Xxxxx
----------------------------- --------------------------------
Xxxxx X. Xxxxx Xxxxxx X. X'Xxxxx
ADDENDUM TO TERM LOAN NOTE
The Term Loan Note dated November 1, 1995 (the "Note") by and between CRW
Financial, Inc. ("Borrower") and J. Xxxxx X'Xxxxx and Xxxxxx X. X'Xxxxx, husband
and wife (collectively, "Payee"), is hereby further amended and supplemented as
follows:
1. Note Conversion Right.
At any time Payee may provide Borrower with written notice that it
wishes to purchase shares of common stock of the Borrower (the "Stock")
with all then outstanding unpaid principal under the Note, at a price of
$4.875 per share (the "Purchase Price"), whereupon the parties shall
mutually agree upon a time, date and location for conducting a closing (but
in no event shall such closing occur later than thirty (30) days after
Payee provides Borrower notice of its intent to exercise its rights under
this Section 1 unless the parties mutually agree otherwise), at which
Borrower shall deliver the Stock, as well as an amount of cash equal to all
unpaid accrued interest on the Note, to Payee properly registered in its
name. Also at the closing, Payee shall produce the original Note marked
"canceled," which shall be delivered to Borrower. The parties may mutually
agree to conduct the closing by mail or any other reasonable means. Payee's
rights under this Section 1 shall terminate upon payment in full of all
outstanding principal under the Note bye Borrower to Payee.
2. Annual Payments Conversion Right.
(a) For a period of one (1) year following the end of each fiscal year of
Borrower (the "Exercise Period"), Payee shall also have the option to
purchase common stock of the Borrower with all, but not less than all, of
the principal payments made to it by Borrower under the Note during that
fiscal year (the "Annual Payments") at the Purchase Price. Payee must
provide written notice to Borrower of its intent to exercise its right
under this Section 2 within the Exercise Period, or the right to purchase
stock with the Annual Payments for that fiscal year shall terminate.
Payee's rights to purchase stock with Annual Payments shall not be
cumulative from year to year.
(b) Notwithstanding the foregoing, the Exercise Period during which Payee
may exercise its rights under this Section 2 for the fiscal year in which
all remaining unpaid principal under the Note is paid to Payee by Borrower
shall be the one (1) year period following the date the final payment on
the Note is made to Payee by Borrower.
(c) Following delivery to Borrower of Payee's notice of its intent to
exercise its rights under this Section 2, the parties shall conduct a
closing at which Borrower shall produce and deliver the appropriate number
of shares of its common stock properly registered in Payee's name to Payee,
and Payee shall deliver to Borrower an amount of cash (in either
immediately available funds via wire transfer or by certified check) equal
to the Annual Payments. The procedure for conducting the closing shall
otherwise be in accordance with Section 1 hereof.
3. No Registration Rights, Restrictive Legend.
Except as set forth in any registration rights agreement which may now or
hereafter be executed by Borrower and Payee, neither the Note nor this Addendum
thereto shall confer any registration rights on Payee with respect to any common
stock of Borrower obtained thereunder or hereunder, and Payee acknowledges that
it shall receive unregistered stock with an appropriate restrictive legend
imprinted thereon evidencing the resale restrictions pertaining to such stock.
4. Notices.
All notices hereunder shall be made either personally, via a nationally
recognized overnight courier service or via certified mail (return receipt
requested) and shall be deemed delivered upon hand delivery, on the day after
the date delivered to an overnight courier, and on the third day after being
deposited in the U.S. mail. Such notices shall be addressed to each party at the
address set forth for such party in the Note, or such other address as a party
may subsequently notify the other of in writing.
5. Incorporation by Reference.
All other terms and conditions of the Note are hereby made a part hereof
and incorporated herein by reference; provided, however, that if any provision
of this Addendum is in conflict with any provision of the Note, this Addendum
shall control.
IN WITNESS WHEREOF. each of the parties hereto, intending to be legally
bound, has evidenced its agreement to the foregoing by executing this Addendum
to Term Loan Note as of the 1st day of November, 1995.
ATTEST: CRW FINANCIAL, INC.
By:
----------------------------- -------------------------------------
Xxxxx X. Xxxxx Xxxxxxxx X. Xxxxxxxx
Vice President, Treasurer and
Chief Financial Officer
WITNESS:
----------------------------- --------------------------------------
Xxxxx X. Xxxxx J. Xxxxx X'Xxxxx
----------------------------- --------------------------------------
Xxxxxx X. X'Xxxxx
LOAN AGREEMENT
THIS LOAN AGREEMENT (the "Agreement") is made as of this 10th day of
October, 1995, by and among CRW FINANCIAL, INC., a Delaware corporation (the
"Borrower"), and J. XXXXX X'XXXXX and XXXXXX X. X'XXXXX, individuals residing at
000 Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxx (collectively, the "Lender").
B A C K G R O U N D
WHEREAS, The Borrower desires to borrow from the Lender up to One Million
Dollars ($1,000,000.00), and the Lender is willing to lend such amount to the
Borrower, subject to and upon the terms and conditions set forth in this
Agreement (the "Loan"); and
WHEREAS, the Loan from Lender to Borrower requires the consent of Mellon
Bank, N.A., a secured creditor of Borrower, as a condition to the making of the
Loan from Lender to Borrower.
NOW THEREFORE, in consideration of the foregoing background, and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged and agreed, the Borrower and the Lender, intending to be legally
bound, hereby covenant and agree as follows:
1. Applications of Proceeds. The proceeds of the Loan shall be applied
as follows:
(i) Up to Eight Hundred Thousand Dollars ($800,000.00) for
the acquisition of certain computer equipment described in Exhibit "A" attached
hereto and incorporated herein by reference (collectively, the "Computer
Equipment"); and
(ii) Up to Two Hundred Thousand Dollars ($200,000.00) for
general working capital of CRW.
2. Conditions Precedent to Extending the Loan. The Lender's obligation
to fund any proceeds under the Loan shall be conditioned upon:
(a) Loan Documents. The Borrower shall shall execute or cause to
be executed, cause to be acknowledged when required, and deliver to the Lender
in form and substance satisfactory to the Lender the following documents (the
"Loan Documents"):
(i) a Note in the original principal amount of up to
$1,000,000.00 (the "Note"), which Note shall provide, inter alia, that the
Lender may, upon written notice to Borrower,
purchase shares of common stock of the Borrower upon terms and conditions
mutually satisfactory to the Lender and the Borrower (the "Option Shares") at
the market share price on the NASDAQ exchange for the common stock of Borrower
in effect at the close of business on the date hereof;
(ii) a Security Agreement pursuant to which the Borrower
shall grant to the Lender a lien on and security interest in all of the Computer
Equipment, all cash and non-cash proceeds and products thereof, and all policies
of insurance in connection therewith, securing an amount equal to all amounts
due under the Note (the "Security Agreement"); and
(iii) a Registration Rights Agreement in form mutually
acceptable to Lender and Borrower applicable to all Option Shares purchased by
the Lender in accordance with the terms of the Note; and.
(iv) such other documents as the Lender shall require.
This Loan Agreement and all of the Loan Documents and all other documents
or instruments executed in connection with this Agreement are hereinafter
collectively referred to as the "Loan Documents".
(b) Corporate Certificate. Duly executed Certificate of the
Borrower in form satisfactory to the Lender.
(c) Good Standing Certificate. Certificate issued by the State of
Delaware as to the good standing of the Borrower as of a recent date
satisfactory to the Lender.
(d) Additional Documents. Such other documents, instruments,
opinions, approvals and assurances customary in this type of financing as the
Lender or its counsel may reasonably request.
(e) Commitment Fee. The Lender shall have received from the
Borrower a non-refundable commitment fee equal to one percent (1%) of that
portion of the Loan advanced at the Closing (as defined herein) in consideration
for making the Loan. As additional consideration, the Borrower shall pay to
Lender one percent (1%) of any and all subsequent advances made after the
Closing Date. In no event, however, shall the aggregate amount of all commitment
fees payable hereunder exceed one percent (1%) of the original principal amount
of the Note.
(f) The Lender shall have received written confirmation in form
and substance satisfactory to the Lender from Mellon Bank, N.A. indicating that
Mellon Bank, N.A. consents to the terms of this Agreement and the transactions
contemplated hereby.
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3. Closing. Subject to the terms and conditions of this Agreement, the
transactions contemplated hereby shall take place at a closing (the "Closing"),
which Closing shall take place no later than 10:00 A.M. local time, on
Wednesday, November 1, 1995, at the offices of Xxxxxxx Xxxxxx Gold and Xxxxx, a
Professional Corporation, 0000 Xxx Xxxx Xxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000, or at such other time or at such other place as the Lender and the
Borrower may mutually agree upon in writing (the day on which the Closing takes
place being the "Closing Date"). Nothing in this Section 3 shall be construed to
obligate the Lender to consummate the transactions contemplated by this
Agreement prior to satisfaction by the Borrower of the conditions to the
Lender's obligation to close the transactions contemplated hereby as set forth
in Section 2 of this Agreement, except as otherwise agreed to by the Lender in
its sole discretion.
4. Events of Default. An "Event of Default" shall occur under this
Agreement if the Borrower shall continue to be in Default under any of the
provisions of this Agreement for ten (10) days after written notice from the
Lender in the case of any Default which can be cured by the payment of a sum of
money, or for twenty (20) days after written notice from the Lender in the case
of any other Default, provided that if such Default cannot reasonably be cured
within such twenty (20) day period and the Borrower shall have commenced to cure
such Default within such twenty (20) day period and thereafter diligently and
continuously proceeds to cure the same, such twenty (20) day period shall be
extended for so long as it shall require the Borrower, in the exercise of due
diligence, to cure such Default, it being agreed however that no such extension
shall be for a period in excess of sixty (60) days. The term "Default" as used
in this Agreement shall mean the occurrence of any one of the following events:
(a) If an event of default occurs under any of the Loan Documents.
(b) If any representation or warranty made by the Borrower hereunder
shall be or become materially false.
(c) If an event of default occurs under any agreement by and between
the Borrower and Mellon Bank, N.A.
(d) Borrower makes an assignment for the benefit of its creditors or a
composition with its creditors, or is unable or admits in writing its inability
to pay its debts as they mature, or files a petition in bankruptcy, or commences
a federal bankruptcy proceeding in which an order for relief or such other court
order or statutory provision which authorizes the case to proceed is entered
against it, or is adjudicated insolvent or bankrupt, or petitions or applies to
any tribunal for the appointment of any custodian, receiver, liquidator or
trustee of or for it or any substantial part of its properties or assets, or
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commences any proceeding relating to it under any bankruptcy, reorganization,
arrangement, readjustment of debt, receivership, dissolution or liquidation law
or statute of any jurisdiction, whether now or hereafter in effect,; or there is
commenced against any of them any such proceeding which shall remain undismissed
for a period of sixty (60) days, or an order for relief, order, judgment or
decree approving the petition in any such proceeding is entered; or any of them
by any act or failure to act indicates its consent to, approval of or
acquiescence in any such proceeding or in the appointment of any custodian,
receiver, liquidator or trustee of or for it or any substantial part of its
properties or assets, or suffers any such appointment to continue undischarged
or unstayed for a period of sixty (60) days; or any of them takes any corporate
action for the purpose of effecting any of the foregoing.
(e) A judgment or judgments for the payment of money equal to or in
excess of Two Hundred Thousand Dollars ($200,000.00) shall be rendered against
the Borrower and such party shall not discharge the same or cause it or them to
be discharged or dismissed or cause the same to be bonded against with a court
of competent jurisdiction within thirty days (30) after the entry thereof.
Upon the occurrence of an Event of Default, the Lender may, at its
option and in its sole discretion, (i) declare the Note immediately due and
payable and/or (ii) pursue any and all remedies provided for in the Loan
Documents, or otherwise available.
5. Incorporation of Provisions. The Note and the Security Agreement
are subject to the conditions, stipulations, agreements and covenants contained
herein to the same extent and effect as if fully set forth therein until this
Agreement is terminated by the payment in full of the Note.
6. Further Assurances. The Borrower shall on demand of the Lender do
any act or execute any additional documents reasonably required or desirable by
the Lender to carry out the provisions hereof and the transactions contemplated
hereby or, at or after the Closing, secure the Borrower's obligations under any
of the Loan Documents, or to evidence the consummation of the transactions
consummated pursuant to this Agreement.
7. Representations and Warranties. As an inducement to the Lender to
enter into this Agreement, the Borrower represents and warrants to the Lender as
follows:
(a) Organization and Authority. The Borrower is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware and has all necessary power and authority to enter into this
Agreement and each of the Loan Documents, to carry out its obligations hereunder
and thereunder, and to consummate the transactions contemplated hereby and
thereby. The Board of Directors of the Borrower has approved
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and authorized this Agreement and the transactions contemplated hereby. This
Agreement has been and, as of the Closing Date, each of the Loan Documents will
be duly authorized, executed and delivered by the Borrower and this Agreement
constitutes, and each of the Loan Documents will constitute, a legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms.
(b) No Conflict. The execution, delivery and performance of this
Agreement and each of the Loan Documents by the Borrower does not and will not
(a) violate or conflict with the Certificate of Incorporation, Bylaws or other
corporate governance documents relating to the Borrower, (b) conflict with or
violate any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award applicable to the Borrower, (c) except as would not
materially affect the ability of the Borrower to consummate the transactions
contemplated by this Agreement, result in any breach of, or constitute a default
(or event which with the giving of notice or lapse of time, or both, would
become a default) under, or give to others any rights of termination, amendment,
acceleration or cancellation or, result in the creation of any lien or other
encumbrance on any of the assets or properties of the Borrower pursuant to any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument relating to such assets or properties to which the
Borrower is a party or by which any of its assets or properties is bound or
affected.
(c) Consents and Approvals. The execution and delivery of this
Agreement by the Borrower does not, and the execution and delivery of the other
Loan Documents by the Borrower and the performance of the Agreement and each of
the Loan Documents by the Borrower will not require any consent, approval,
authorization or other action by, or filing with or notification to, any
governmental or regulatory authority, except as has already been taken or
obtained.
(d) No Liens. There exist no liens, encumbrances or other charges
against the Computer Equipment, including statutory and other liens of
mechanics, workmen, contractors, subcontractors, suppliers, taxing authorities
and others, other than the security interest created hereby or pursuant hereto
and except for the security interest of Mellon Bank, N.A.
8. Costs and Expenses. The Borrower hereby agrees to pay all costs and
expenses, including, without limitation, fees and disbursements of counsel,
incurred in connection with the preparation, negotiation, and enforcement of
this Agreement and any of the other Loan Documents, whether or not the Closing
occurs. To the extent the Closing occurs, all such costs and expenses shall be
payable at the time of the Closing, and any such third party fees, costs,
disbursements and expenses incurred by the Lender until such
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time as the Loan is satisfied in full shall be payable upon demand. In addition,
the Borrower shall indemnify, defend and hold the Lender harmless from and
against any and all liabilities, losses, damages, costs and expenses of any kind
including, without limitation, fees and expenses of legal counsel in connection
with any investigative, administrative or judicial proceedings relating to this
Agreement or the transactions contemplated hereby, whether or not the Lender
shall be a named party thereto.
9. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date delivered if delivered personally or by telecopy or five
(5) days after being mailed by registered or certified mail (postage prepaid,
return receipt requested) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice, except that
notices of changes or address shall be effective upon receipt):
(a) if to the Borrower:
CRW Financial, Inc.
000 X. Xxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx
(b) if to the Lender:
J. Xxxxx X'Xxxxx
Xxxxxx X. X'Xxxxx
000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
10. Amendment. This Agreement may not be amended or modified except by
an instrument in writing signed by each of the parties hereto.
11. Waiver. No waiver of any of the provisions of this Agreement or of
the other Loan Documents shall be deemed, or shall constitute a waiver of any
other provision hereof or thereof (whether or not similar), nor shall any such
waiver constitute a continuing waiver unless otherwise expressly provided in
writing executed by the party against whom such continuing waiver is sought to
be enforced.
12. Headings; Exhibits. Title headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Any reference to Exhibits shall signify that
such Exhibits are incorporated herein by reference.
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13. Entire Aqreement. This Agreement constitutes the entire agreement
and supersedes all prior agreements and undertakings, both written and oral,
with respect to the subject matter hereof.
14. Governing Law and Consent to Jurisdiction and Venue. This
Agreement shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania. Each of the parties hereto agree that sole and
exclusive jurisdiction over and proper venue relating to any controversy or
claim arising out of or relating to this Agreement or the breach thereof shall
reside in the courts of the Commonwealth of Pennsylvania and the United States
District Court for the Eastern District of Pennsylvania. This Agreement shall be
construed without the aid of any canon, custom or rule of law requiring
construction against the draftsman.
15. Counterparts. This Agreement may be executed in one (1) or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one (1) and the same agreement.
16. Assignment. The Borrower may not assign or suffer an assignment of
this Agreement and/or its rights hereunder without the prior written consent of
the Lender.
17. Binding Effect. This Agreement shall be binding upon, be
enforceable against, and shall inure to the benefit of the parties hereto, and
their and each of their respective successors and permitted assigns, and no
other person or entity shall have or derive any right, benefit or obligation
hereunder.
18. Interpretation. The masculine (or neuter) pronoun and the singular
number shall include the masculine, feminine and neuter genders and the singular
and plural numbers. A reference to a person shall mean a natural person, a
trustee, a corporation, a partnership and any other form of legal entity. All
references in the singular or plural number shall be deemed to have been made,
respectively, in the plural or singular number as well, as the context may
require.
19. Time; Date for Performance. Time is of the essence of this
Agreement. If any date herein set forth for the performance of any obligations
by the Lender or the Borrower or for the delivery of any instrument or notice as
herein provided should be on a Saturday, Sunday or legal holiday, the compliance
with such obligations or delivery shall be deemed acceptable on the next
business day following such Saturday, Sunday or legal holiday. As used herein,
the term "legal holiday" means any state or federal holiday for which financial
institutions or post offices are generally closed in the Commonwealth of
Pennsylvania for observance thereof.
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IN WITNESS WHEREOF, the Lender and the Borrower have caused this
Agreement to be executed as of the date first written above.
LENDER:
[Sig Cut]
------------------------------
J. Xxxxx X'XXXXX
[Sig Cut]
------------------------------
XXXXXX X. X'XXXXX
BORROWER:
CRW FINANCIAL, INC.,
a Delaware corporation
By:
[Sig Cut]
-----------------------------
Name:
[Sig Cut]
---------------------------
Title:
---------------------------
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TERM LOAN NOTE
$1,000.000.00 November 1 ,1995
-------------------- ------------------------
AMOUNT DATE
Villanova, Pennsylvania
FOR VALUE RECEIVED, the undersigned, CRW Financial Inc. a corporation
having an office at 000 Xxxxx Xxxxx Xxxx, Xxxx xx Xxxxxxx, XX 00000 (herein
"Borrower"), promises to pay to the order of J. Xxxxx X'Xxxxx and Xxxxxx X.
X'Xxxxx, 0000 Xxx Xxxxx Xxxx, Xxxxxxxxx, XX 00000 (herein "Payee"), the
principal sum of One Million Dollars ($1,000,000.00) or so much as has been
advanced lawful money of the United States.
Payment of principal and interest shall be as follows:
(a) Thirty-five (35) consecutive, equal monthly principal a interest
installments*of payable on December 1. 1995 and the first day of each month
thereafter and
(b) a final 36th installment of the entire balance principal and
interest then outstanding shall be due and payable November 1, 1998 .
The indebtedness evidenced by this Note shall bear interest from the day
hereof and after maturity at the rate of twelve and one half Percent (12.50%)F
annum. Interest will be calculated on the basis of the actual number of days
elapsed and a three hundred and sixty (360) day year.
All payments hereunder shall be made in funds immediately available at
Payee offices, 000 Xxxxx Xxxxx Xxxx, Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000 or at
su other location as holder shall from time to time designate.
Borrower hereby waives presentment, demand for payment, notice of dishonor
acceleration, protest or notice of protest and any and all notices or demands
connection with the delivery, acceptance, performance, default or enforcement
this Note.
The proceeds of this Note are being utilized by Borrower to purchase certa
equipment in which Payee is obtaining a security interest pursuant to a Security
Agreement for Equipment between Borrower and Payee of even date hereof (here
"Security Agreement") and for other working capital purposes.
This Note shall inure to the benefit of and be binding upon the parti
hereto, and their respective successors and assigns. Borrower may not assign t
obligations hereunder. Borrower consents to the assignment of this Note and t
Security Agreement by Payee to Republic Bank.
*Based upon a three (3) year amortization.
Agreement is incorporated herein by reference. Notwithstanding any contrary
statement contained in the within instrument, no payment on account of the
principal or interest thereof shall become due or be paid except in accordance
with the terms of said Subordination Agreement.
In the event the due date of any payment hereunder is a Saturday, Sunday,
legal holiday in the Commonwealth of Pennsylvania, such payment shall be due on
the next succeeding day which is not a Saturday, Sunday, or such a legal
holiday, provided that any such payment bearing interest shall continue to
accrue interest until paid.
BORROWER IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT OF
RECORD TO APPEAR FOR BORROWER IN ANY AND ALL ACTIONS AND (1) TO ENTER JUDGMENT
AGAINST BORROWER FOR THE PRINCIPAL SUM THEREOF AND/OR (2) TO SIGN FOR BORROWER
AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN AMICABLE ACTION OR ACTIONS
TO CONFESS JUDGMENT AGAINST BORROWER FOR ALL OR ANY PART OF THE AMOUNT OWED
HEREUNDER; and in either case for interest and costs together with a collection
of fifteen percent (15%) or $100, whichever is greater. Borrower further
irrevocably authorizes and empowers any attorney of any court of record to
appeal for and enter judgment against Borrower and in favor of Payee in an
amicable action of replevin or any other action to recover possession of any
collateral. Such confession of judgment or amicable actions shall be with
release of errors, waiver of appeals, without stay of execution and Borrower
waives all relief from any and all appraisement or exemption of laws now in
force or hereafter enacted. If a copy of this agreement verified by affidavit of
an officer of Payee, shall be filed in any proceeding or action wherein judgment
is to be confessed, it shall not be necessary to file the original hereof and
such verified copy shall be sufficient warrant for any attorney of any court of
record to appear for and confess judgment against Borrower as provided herein.
Judgment may be confessed from time to time under the aforesaid powers which
shall not be exhausted by one exercise hereof.
This Note shall be governed as to its validity, interpretation and effect
on the laws of the Commonwealth of Pennsylvania for contracts made and to be
performed in Pennsylvania. Borrower agrees to the exclusive jurisdiction of the
courts of the Commonwealth of Pennsylvania and/or the United States District
Court for the Eastern District of Pennsylvania in any and all actions and
proceedings between Bank and Borrower.
This Note may not be changed orally but only by an agreement in writing
and signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
A Late Charge of five percent (5%) of the total payment will be assessed
on the sixteenth (16th) of each month if payment is not received by that date.
IN WITNESS WHEREOF, Borrower by its duly authorized officers has executed
this Note under seal the day and year first written above.
WITNESSED
As to Both
[Sig Cut]
-----------------------------------
Attest:
Endorsement:
Pay to the Order of Republic Bank
/s/ J. Xxxxx X'Xxxxx
-----------------------------------
J. Xxxxx X'Xxxxx
/s/ Xxxxxx X. X'Xxxxx
-----------------------------------
Xxxxxx X. X'Xxxxx
CRW Financial, Inc.
By: /s/
------------------------------------
J. Xxxxx X'Xxxxx, Chairman/CEO
By:
------------------------------------
Xxxxxxxx Xxxxxxxx, CFO/Secretary
(Seal)
**Borrower shall give to Payee no less than one hundred
twenty (120) days prior written notice of any prepayment
of any portion of the principal balance before maturity.
LOAN AGREEMENT
THIS LOAN AGREEMENT (the "Agreement") is made as of this 10th day of
October, 1995, by and among CRW FINANCIAL, INC., a Delaware corporation (the
"Borrower"), and J. XXXXX X'XXXXX and XXXXXX X. X'XXXXX, individuals residing at
000 Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxx (collectively, the "Lender").
B A C K G R O U N D:
WHEREAS, The Borrower desires to borrow from the Lender up to One Million
Dollars ($1,000,000.00), and the Lender is willing to lend such amount to the
Borrower, subject to and upon the terms and conditions set forth in this
Agreement (the "Loan"); and
WHEREAS, the Loan from Lender to Borrower requires the consent of Mellon
Bank, N.A., a secured creditor of Borrower, as a condition to the making of the
Loan from Lender to Borrower.
NOW THEREFORE, in consideration of the foregoing background, and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged and agreed, the Borrower and the Lender, intending to be legally
bound, hereby covenant and agree as follows:
1. Application of Proceeds. The proceeds of the Loan shall be applied
as follows:
(i) Up to Eight Hundred Thousand Dollars ($800,000.00) for
the acquisition or certain computer equipment described in Exhibit "A" attached
hereto and incorporated herein by reference (collectively, the "Computer
Equipment"); and
(ii) Up to Two Hundred Thousand Dollars ($200,000.00) for
general working capital of CRW.
2. Conditions Precedent to Extending the Loan. The Lender's obligation
to fund any proceeds under the Loan shall be conditioned upon:
(a) Loan Documents. The Borrower shall execute or cause to
be executed, cause to be acknowledged when required, and deliver to the Lender
in form and substance satisfactory to the Lender the following documents (the
"Loan Documents"):
(i) a Note in the original principal amount of up to
$1,000,000.00 (the "Note"), which Note shall provide, inter alia, that the
Lender may, upon written notice to Borrower,
purchase shares of common stock of the Borrower upon terms and conditions
mutually satisfactory to the Lender and the Borrower (the "Option Shares") at
the market share price on the NASDAQ exchange for the common stock of Borrower
in effect at the close of business on the date hereof;
(ii) a Security Agreement pursuant to which the Borrower
shall grant to the Lender a lien on and security interest in all of the Computer
Equipment, all cash and non-cash proceeds and products thereof, and all policies
of insurance in connection therewith, securing an amount equal to all amounts
due under the Note (the "Security Agreement"); and
(iii) a Registration Rights Agreement in form mutually
acceptable to Lender and Borrower applicable to all Option Shares purchased by
the Lender in accordance with the terms of the Note; and.
(iv) such other documents as the Lender shall require.
This Loan Agreement and all of the Loan Documents and
all other documents or instruments executed in connection with this Agreement
are hereinafter collectively referred to as the "Loan Documents".
(b) Corporate Certificate. Duly executed Certificate of the
Borrower in form satisfactory to the Lender.
(c) Good Standing Certificate. Certificate issued by the State of
Delaware as to the good standing of the Borrower as of a recent date
satisfactory to the Lender.
(d) Additional Documents. Such other documents, instruments,
opinions, approvals and assurances customary in this type of financing as the
Lender or its counsel may reasonably request.
(e) Commitment Fee. The Lender shall have received from the
Borrower a non-refundable commitment fee equal to one percent (1%) of that
portion of the Loan advanced at the Closing (as defined herein) in consideration
for making the loan. As additional consideration, the Borrower shall pay to
Lender one percent (1%) of any and all subsequent advances made after the
Closing Date. In no event, however, shall the aggregate amount of all commitment
fees payable hereunder exceed one percent (1%) of the original principal amount
of the Note.
(f) The Lender shall have received written confirmation in form
and substance satisfactory to the Lender from Mellon Bank, N.A. indicating that
Mellon Bank, N.A. consents to the terms of this Agreement and the transactions
contemplated hereby.
-2-
3. Closing. Subject to the terms and conditions of this Agreement, the
transactions contemplated hereby shall take place at a closing (the "Closing"),
which Closing shall take place no later than 10:00 A.M. local time, on
Wednesday, November 1, 1995, at the offices of Xxxxxxx Xxxxxx Gold and Xxxxx, a
Professional Corporation, 0000 Xxx Xxxx Xxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000, or at such other time or at such other place as the Lender and the
Borrower may mutually agree upon in writing (the day on which the Closing takes
place being the "Closing Date"). Nothing in this Section 3 shall be construed to
obligate the Lender to consummate the transactions contemplated by this
Agreement prior to satisfaction by the Borrower of the conditions to the
Lender's obligation to close the transactions contemplated hereby as set forth
in Section 2 of this Agreement, except as otherwise agreed to by the Lender in
its sole discretion.
4. Events of Default. An "Event of Default" shall occur under this
Agreement if the Borrower shall continue to be in Default under any of the
provisions of this Agreement for ten (10) days after written notice from the
Lender in the case of any Default which can be cured by the payment of a sum of
money, or for twenty (20) days after written notice from the Lender in the case
of any other Default, provided that if such Default cannot reasonably be cured
within such twenty (20) day period and the Borrower shall have commenced to cure
such Default within such twenty (20) day period and thereafter diligently and
continuously proceeds to cure the same, such twenty (20) day period shall be
extended for so long as it shall require the Borrower, in the exercise of due
diligence, to cure such Default, it being agreed however that no such extension
shall be for a period in excess of sixty (60) days. The term "Default" as used
in this Agreement shall mean the occurrence of any one of the following events:
(a) If an event of default occurs under any of the Loan
Documents.
(b) If any representation or warranty made by the Borrower
hereunder shall be or become materially false.
(c) If an event of default occurs under any agreement by and
between the Borrower and Mellon Bank, N.A.
(d) Borrower makes an assignment for the benefit of its creditors
or a composition with its creditors, or is unable or admits in writing its
inability to pay its debts as they mature, or files a petition in bankruptcy, or
commences a federal bankruptcy proceeding in which an order for relief or such
other court order or statutory provision which authorizes the case to proceed is
entered against it, or is adjudicated insolvent or bankrupt, or petitions or
applies to any tribunal for the appointment of any custodian, receiver,
liquidator or trustee of or for it or any substantial part of its properties or
assets, or
-3-
commences any proceeding relating to it under any bankruptcy, reorganization,
arrangement, readjustment of debt, receivership, dissolution or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect; or
there is commenced against any of them any such proceeding which shall remain
undismissed for a period of sixty (60) days, or an order for relief, order,
judgment or decree approving the petition in any such proceeding is entered; or
any of them by any act or failure to act indicates its consent to, approval of
or acquiesence in any such proceeding or in the appointment of any custodian,
receiver, liquidator or trustee of or for it or any substantial part of its
properties or assets, or suffers any such appointment to continue undischarged
or unstayed for a period of sixty (60) days; or any of them takes any corporate
action for the purpose of effecting any of the foregoing.
(e) A judgment or judgments for the payment of money equal to or
in excess of Two Hundred Thousand Dollars ($200,000.00) shall be rendered
against the Borrower and such party shall not discharge the same or cause it or
them to be discharged or dismissed or cause the same to be bonded against with a
court of competent jurisdiction within thirty (30) days after the entry thereof.
Upon the occurrence of an Event of Default, the Lender may, at its
option and in its sole discretion, (i) declare the Note immediately due and
payable and/or (ii) pursue any and all remedies provided for in the Loan
Documents, or otherwise available.
5. Incorporation of Provisions. The Note and the Security Agreement
are subject to the conditions, stipulations, agreements and covenants contained
herein to the same extent and effect as if fully set forth therein until this
Agreement is terminated by the payment in full of the Note.
6. Further Assurances. The Borrower shall on demand of the Lender do
any act or execute any additional documents reasonably required or desirable by
the Lender to carry out the provisions hereof and the transactions contemplated
hereby or, at or after the Closing, secure the Borrower's obligations under any
of the Loan Documents, or to evidence the consummation of the transactions
consummated pursuant to this Agreement.
7. Representations And Warranties. As an inducement to the Lender to
Enter into this Agreement, the Borrower represents and warrants to the Lender as
follows:
(a) Organization and Authority. The Borrower is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware and has all necessary power and authority to enter into this
Agreement and each of the Loan Documents, to carry out its obligations hereunder
and thereunder, and to consummate the transactions contemplated hereby and
thereby. The Board of Directors of the Borrower has approved
-4-
and authorized this Agreement and the transactions contemplated hereby. This
Agreement has been and, as of the Closing Date, each of the Loan Documents will
be duly authorized, executed and delivered by the Borrower and this Agreement
constitutes, and each of the Loan Documents will constitute, a legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms.
(b) No Conflict. The execution, delivery and performance of this
Agreement and each of the Loan Documents by the Borrower does not and will not
(a) violate or conflict with the Certificate of Incorporation, Bylaws or other
corporate governance documents relating to the Borrower, (b) conflict with or
violate any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award applicable to the Borrower, (c) except as would not
materially affect the ability of the Borrower to consummate the transactions
contemplated by this Agreement, result in any breach of, or constitute a default
(or event which with the giving of notice or lapse of time, or both, would
become a default) under, or give to others any rights of termination, amendment,
acceleration or cancellation or, result in the creation of any lien or other
encumbrance on any of the assets or properties of the Borrower pursuant to any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument relating to such assets or properties to which
the Borrower is a party or by which any of its assets or properties is bound or
affected.
(c) Consents and Approvals. The execution and delivery of this
Agreement by the Borrower does not, and the execution and delivery of the other
Loan Documents by the Borrower and the performance of the Agreement and each of
the Loan Documents by the Borrower will not require any consent, approval,
authorization or other action by, or filing with or notification to, any
governmental or regulatory authority, except as has already been taken or
obtained.
(d) No Liens. There exist no liens, encumbrances or other charges
against the Computer Equipment, including statutory and other liens of
mechanics, workmen, contractors, subcontractors, suppliers, taxing authorities
and others, other than the security interest created hereby or pursuant hereto
and except for the security interest of Mellon Bank, N.A.
8. costs and Expenses. The Borrower hereby agrees to pay all costs
and expenses, including, without limitation, fees and disbursements of counsel,
incurred in connection with the preparation, negotiation, and enforcement of
this Agreement and any of the other Loan Documents, whether or not the Closing
occurs. To the extent the Closing occurs, all such costs and expenses shall be
payable at the time of the Closing, and any such third party fees, costs,
disbursements and expenses incurred by the Lender until such
-5-
time as the Loan is satisfied in full shall be payable upon demand. In addition,
the Borrower shall indemnify, defend and hold the Lender harmless from and
against any and all liabilities, losses, damages, fees and expenses of any kind
including, without limitation, fees and expenses of legal counsel in connection
with any investigative, administrative or judicial proceedings relating to this
Agreement or the transactions contemplated hereby, whether or not the Lender
shall be a named party thereto.
9. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date delivered if delivered personally or by telecopy or five
(5) days after being mailed by registered or certified mail (postage prepaid,
return receipt requested) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice, except that
notices of changes or address shall be effective upon receipt):
(a) if to the borrower:
CRW Financial, Inc.
000 X. Xxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx
(b) if to the Lender:
J. Xxxxx X'Xxxxx
Xxxxxx X. X'Xxxxx
000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
10, Amendment. This Agreement may not be amended or modified except by
an instrument in writing signed by each of the parties hereto .
11. Waiver. No waiver of any of the provisions of this Agreement or of
the other Loan Documents shall be deemed, or shall constitute a waiver of any
other provision hereof or thereof (whether or not similar), nor shall any such
waiver constitute a continuing waiver unless otherwise expressly provided in
writing executed by the party against whom such continuing waiver is sought to
be enforced.
12. Headings; Exhibits. Title headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Any reference to Exhibits shall signify that
such Exhibits are incorporated herein by reference.
-6-
13. Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and undertakings, both written and
oral, with respect to the subject matter hereof.
14. Governing Law and Consent to Jurisdiction and Venue. This
Agreement shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania. Each of the parties hereto agree that sole and
exclusive jurisdiction over and proper venue relating to any controversy or
claim arising out of or relating to this Agreement or the breach thereof shall
reside in the courts of the Commonwealth of Pennsylvania and the United States
District Court for the Eastern District of Pennsylvania. This Agreement shall be
construed without the aid of any canon, custom or rule of law requiring
construction against the draftsman.
15. Counterparts. This Agreement may be executed in one (1) or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one (1) and the same agreement.
16. Assignment. The Borrower may not assign or suffer an assignment of
this Agreement and/or its rights hereunder without the prior written consent of
the Lender.
17. Binding Effect. This Agreement shall be binding upon, be
enforceable against, and shall inure to the benefit of the parties hereto, and
their and each of their respective successors and permitted assigns, and no
other person or entity shall have or derive any right, benefit or obligation
hereunder.
18. Interpretations. The masculine (or neuter) pronoun and the
singular number shall include the masculine, feminine and neuter genders and the
singular and plural numbers. A reference to a person shall mean a natural
person, a trustee, a corporation, a partnership and any other form of legal
entity. All references in the singular or plural number shall be deemed to have
been made, respectively, in the plural or singular number as well, as the
context may require.
19. Time; Date for Performance. Time is of the essence of this
Agreement. If any date herein set forth for the performance of any obligations
by the Lender or the Borrower or for the delivery of any instrument or notice as
herein provided should be on a Saturday, Sunday or legal holiday, the compliance
with such obligations or delivery shall be deemed acceptable on the next
business day following such Saturday, Sunday or legal holiday. As used herein,
the term "legal holiday" means any state or federal holiday for which financial
institutions or post offices are generally closed in the Commonwealth of
Pennsylvania for observance thereof,
-7-
IN WITNESS WHEREOF, the Lender and the Borrower have caused this Agreement
to be executed as of the date first written above .
LENDER:
[Sig Cut]
------------------------------
J. Xxxxx X'XXXXX
[Sig Cut]
------------------------------
XXXXXX X. X'XXXXX
BORROWER:
CRW FINANCIAL, INC.,
a Delaware corporation
By: /s/ Xxxxxxxx Xxxxxxxx
-----------------------------
Name:
Xxxxxxxx Xxxxxxxx
---------------------------
Title: CFO/Secretary
---------------------------
-8-
TERM LOAN NOTE
51,000.000.00 November 1, 1995
-------------------- ------------------------
AMOUNT DATE
Villanova, Pennsylvania
FOR VALUE RECEIVED, the undersigned, CRW Financial, Inc., a corporation
having an office at 000 Xxxxx Xxxxx Xxxx, Xxxx xx Xxxxxxx, XX 00000 (herein
"Borrower"), promises to pay to the order of J. Xxxxx X'Xxxxx and Xxxxxx X.
X'Xxxxx, 0000 Xxx Xxxxx Xxxx, Xxxxxxxxx, XX 00000 (herein "Payee"), the
principal sum of One Million Dollars ($1,000,000.00) or so much as has been
advanced lawful money of the United States.
Payment of principal and interest shall be as follows:
(b) Thirtv-five (35) consecutive, equal monthly principal and interest
installments(*) of _________________________ payable on December 1, 1995 and the
first day of each month thereafter and
(c) a final 36th installment of the entire balance of principal and
interest then outstanding shall be due and payable on November 1, 1998.
The indebtedness evidenced by this Note shall bear interest from the date
hereof and after maturity at the rate of twelve and one half percent (12.50%)
per annum. Interest will be calculated on the basis of the actual number of days
elapsed and a three hundred and sixty (360) day year.
All payments hereunder shall be made in funds immediately available at
Payees' offices, 000 Xxxxx Xxxxx Xxxx, Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000 or at
such other location as holder shall from time to time designate.
Borrower hereby waives presentment, demand for payment, notice of
dishonored acceleration, protest or notice of protest and any and all notices or
demands in connection with the delivery, acceptance, performance, default or
enforcement of this Note.
The proceeds of this Note are being utilized by Borrower to purchase
certain equipment in which Payee is obtaining a security interest pursuant to a
Security Agreement for Equipment between Borrower and Payee of even date hereof
(her "Security Agreement") and for other working capital purposes.
This Note shall inure to the benefit of and be binding upon the parties
hereto, and their respective successors and assigns. Borrower may not assign
obligations hereunder. Borrower consents to the assignment of this Note and
Security Agreement by Payee to Republic Bank.
--------------
(*) Based upon a three (3) year amortization.
Agreement is incorporated herein by reference. Notwithstanding any contrary
statement contained in the within instrument, no payment on account of the
principal or interest thereof shall become due or be paid except in accordance
with the terms of said Subordination Agreement.
In the event the due date of any payment hereunder is a Saturday, Sunday,
legal holiday in the Commonwealth of Pennsylvania, such payment shall be due on
the next succeeding day which is not a Saturday, Sunday, or such a legal holiday
provided that any such payment bearing interest shall continue to accrue
interest until paid.
BORROWER IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT OF
RECORD TO APPEAR FOR BORROWER IN ANY AND ALL ACTIONS AND (1) TO ENTER JUDGMENT
AGAINST BORROWER FOR THE PRINCIPAL SUM THEREOF AND/OR (2) TO SIGN FOR BORROWER
AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN AMICABLE ACTION OR ACTIONS
TO CONFESS JUDGMENT AGAINST BORROWER FOR ALL OR ANY PART OF THE AMOUNT OWED
HEREUNDER; and in either case for interest and costs together with a collection
of fifteen percent (15%) or $100, whichever is greater. Borrower further
irrevocably authorizes and empowers any attorney of any court of record to
appeal for and enter judgment against Borrower and in favor of Payee in an
amicable action of replevin or any other action to recover possession of any
collateral. Such confession of judgment or amicable actions shall be with
release of errors, waiver of appeals, without stay of execution and Borrower
waives all relief from any and all appraisement or exemption of laws now in
force or hereafter enacted. If a copy of this agreement verified by affidavit of
an officer of Payee, shall be filed any proceeding or action wherein judgment is
to be confessed, it shall not be necessary to file the original hereof and such
verified copy shall be sufficient warrant for any attorney of any court of
record to appear for and confess judgement against Borrower as provided herein.
Judgment may be confessed from time to time under the aforesaid powers which
shall not be exhausted by one exercise hereof.
This Note shall be governed as to its validity, interpretation and effect
on the laws of the Commonwealth of Pennsvlvania for contracts made and to be
performed in Pennsylvania. Borrower agrees to the exclusive jurisdiction of the
Courts of the Commonwealth of Pennsylvania and/or the United States District
Court for the Eastern District of Pennsylvania in any and all actions and
proceedincs between Bank and Borrower.
This Note may not be changed orally but only by an agreement in writing and
signed by the party against whom enforcement of any waiver, change, modification
or discharge is sought.
A Late Charge of five percent (5%) of the toral payment will be assessed
on the sixteenth (16th) of each month if payment is not received by that date.
IN WITNESS WHEREOF, Borrower by its duly authorized officers has
executed this Note under seal the day and year first written above.
WITNESSED
AS TO BOTH
[Sig Cut]
-----------------------------------
Attest:
Endorsement:
Pay to the Order of Republic Bank
/s/ J. Xxxxx X'Xxxxx
-----------------------------------
J. Xxxxx X'Xxxxx
/s/ Xxxxxx X. X'Xxxxx
-----------------------------------
Xxxxxx X. X'Xxxxx
CRW Financial, Inc.
By:
------------------------------------
J. Xxxxx X'Xxxxx, Chairman/CEO
By:
------------------------------------
Xxxxxxxx Xxxxxxxx, CFO/Secretary
(Seal)
**Borrower shall give to Payee no less than one hundred
twenty (120) days prior written notice of any prepayment
of any portion of the principal balance before maturity.
ADDENDUM TO TERM LOAN NOT:
The Term Loan Note dated __________, 1995 (the "Note") by and between CRW
Financial, Inc. ("Borrower") and J. Xxxxx X'XXXXX and Xxxxxx X. X'Xxxxx,
husband and wife (collectively, "Payee"), is hereby further amended and
supplemented as follows:
1. Note Conversion Right.
At any time, Payee may provide Borrower with written notice that it
wishes to purchase shares of common stock of the Borrower (the "Stock")
with all then outstanding unpaid principal under the Note, at a price of
$4.975 per share (the "Purchase Price"), whereupon the parties shall
mutually agree upon a time, date and location for conducting a closing (but
in no event shall such closing occur later than thirty (30) days after
Payee provides Borrower notice of its intent to exercise its rights under
this Section 1 unless the parties mutually agree otherwise), at which
Borrower shall deliver the Stock, as well as an amount of cash equal to all
unpaid accrued interest on the Note, to Payee properly registered in its
name. Also at the closing, Payee shall produce the original Note marked
"canceled," which shall be delivered to Borrower, The parties may mutually
agree to conduct the closing by mail or any other reasonable means. Payee's
rights under this section 1 shall terminate upon payment in full of all
outstanding principal under the Note by Borrower to Payee.
2. Annual Payments Conversion Right.
(a) For a period of one (1) year following the end of each fiscal year of
Borrower (the "Exercise Period"), Payee shall also have the option to
purchase common stock of the Borrower with all, but not less than all, of
the principal payments made to it by Borrower under the Note during that
fiscal year (the "Annual Payments") at the Purchase Price. Payee must
provide written notice to borrower of its intent to exercise its right
under this section 2 within the Exercise Period, or the right to purchase
stock with the Annual Payments for that fiscal year shall terminate.
Payee's rights to purchase stock with Annual Payments shall not be
cumulative from year to year.
(b) Notwithstanding the foregoing, the Exercise Period during which Payee
may exercise its rights under this Section 2 for the fiscal year in which
all remaining unpaid principal under the Note is paid to Payee by Borrower
shall be the one (1) year period following the date the final payment on
the Note is made to Payee by Borrower.
(c) Following delivery to Borrower of Payee's notice of its intent to
exercise its rights under this Section 2, the parties shall conduct a
closing at which Borrower shall produce and deliver the appropriate number
of shares of its common stock properly registered in Payee's name to Payee,
and Payee shall deliver to Borrower an amount of cash (in either
immediately available funds via wire transfer or by certified check) equal
to the Annual Payments. The procedure for conducting the closing shall
otherwise be in accordance with Section I hereof.
3. No Registration Rights; Restrictive Legend.
Except as set forth in any registration rights agreement which may now or
hereafter be executed by Borrower and Payee, neither the Note nor this Addendum
thereto shall confer any registration rights on Payee with respect to any common
stock of Borrower obtained thereunder or hereunder, and Payee acknowledges that
it shall receive unregistered stock with an appropriate restrictive legend
imprinted thereon evidencing the resale restrictions pertaining to such stock.
4. Notices.
All notices hereunder shall be made either personally, via a nationally
recognized overnight courier service or via certified mail (return receipt
requested) and shall be deemed delivered upon hand delivery, on the day after
the date delivered to an overnight courier, and on the third day after being
deposited in the U.S. mail. Such notices shall be addressed to each party at the
address set forth for such party in the Note, or such other address as a party
may subsequently notify the other of in writing,
5 Incorporation by Reference.
All other terms and conditions of the Note are hereby made a part hereof
and incorporated herein by reference; provided, however, that if any provision
of this Addendum is in conflict with any provision of the Note, this Addendum
shall control.
IN WITNESS WHEREOF, each of the parties hereto, intending to be legally
bound, has evidenced its agreement to the foregoing by executing this Addendum
to Term Loan Note as of the 1st day of November, 1995.
ATTEST: CRW FINANCIAL INC.
BY: [Sig Cut]
----------------------------- ----------------------------
Xxxxxxxx X. Xxxxxxxx
Vice President, Treasurer and
Chief Financial Officer
WITNESS:
[Sig Cut]
----------------------------- --------------------------------
J.Xxxxx X'Xxxxx
----------------------------- --------------------------------
Xxxxxx X.X'Xxxxx
