Exhibit 10.15
LETTER OF CREDIT NOTE
$1,800,000.00 New Castle, PA
May 21, 2004
FOR VALUE RECEIVED, the undersigned, INTERNATIONAL PLASTICS AND EQUIPMENT
CORP., a Pennsylvania corporation with an address of XX#0 Xxx 0-X, Xxx Xxxxxx,
XX 00000 ("Borrower") hereby promises to pay to the order of SKY BANK, an Ohio
banking institution, with an address of 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxx Xxxxxx,
Xxxxxxxxxxxx 00000 ("Bank"), pursuant to the terms of that certain Letter of
Credit and Reimbursement Agreement dated of even date herewith among Borrower
and Bank (the "Reimbursement Agreement") the lesser of (i) ONE MILLION EIGHT
HUNDRED THOUSAND AND 00/100 DOLLARS ($1,800,000.00), and (ii) the aggregate
unpaid principal amount of all Loans (as defined in the Reimbursement Agreement)
made by or on behalf of Bank under the Reimbursement Agreement and the Letter of
Credit (as defined in the Reimbursement Agreement). Borrower hereby further
promises to pay to the order of Bank interest on any unpaid principal amount of
this Note from time to time outstanding at the rate or rates per annum
determined pursuant to Article II of, or as otherwise provided in, the
Reimbursement Agreement, and with such amount being payable on the dates set
forth in Article II of, or as otherwise provided in, the Reimbursement
Agreement.
All payments to be made in respect of principal, interest, or other
amounts due from Borrower under this Letter of Credit Note shall be payable at
12:00 noon, New Castle, PA time, on the day when due, without presentment,
demand, protest or notice of any kind, all of which are expressly waived, and an
action therefor shall immediately accrue. All such payments shall be made to
Bank at its designated office located at 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxx Xxxxxx,
Xxxxxxxxxxxx 00000, xx xxxxxx xxxxx xx xxx Xxxxxx Xxxxxx of America in
immediately available funds without setoff, counterclaim or other deduction of
any nature.
Except as otherwise provided in the Reimbursement Agreement, if any
payment of principal or interest under this Letter of Credit Note shall become
due on a day which is not a Business Day, such payment shall be made on the next
following Business Day and such extension of time shall be included in computing
interest in connection with such payment.
In the event of a conflict between the terms of this Letter of Credit Note
and the Reimbursement Agreement, the Reimbursement Agreement shall control.
This Letter of Credit Note shall be governed by, and shall be construed
and enforced in accordance with, the laws of the Commonwealth of Pennsylvania
without regard to the principles of the conflicts of laws thereof. Borrower
hereby irrevocably consents to the exclusive jurisdiction of any state or
federal court in the county or judicial district where Bank's offices are
located; provided that nothing contained in this Letter of Credit Note will
prevent Bank from bringing any action, enforcing any award or judgment or
exercising any rights against Borrower, against any security or against any
property of Borrower within any other county, state or other
foreign or domestic jurisdiction. Borrower acknowledges and agrees that the
venue provided above is the most convenient forum for both Bank and Borrower.
Borrower waives any objection to venue and any objection based on a more
convenient forum in any action instituted under this Letter of Credit Note.
This Letter of Credit Note will be binding upon and inure to the benefit
of Borrower and Bank and their respective successors and assigns; provided,
however, that Borrower may not assign this Letter of Credit Note in whole or in
part without Bank's prior written consent and Bank at any time may assign this
Letter of Credit Note in whole or in part.
BORROWER HEREBY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY COURT AND IN
ANY ACTION OR PROCEEDING OF ANY TYPE IN WHICH BORROWER OR ITS SUCCESSORS OR
ASSIGNS IS A PARTY AS TO ALL MATTERS AND THINGS ARISING OUT OF OR RELATING TO
THIS LETTER OF CREDIT NOTE.
WARRANT OF ATTORNEY TO CONFESS JUDGMENT. XXXXXXXX XXXXXX IRREVOCABLY
AUTHORIZES AND EMPOWERS ANY ATTORNEY OR ANY CLERK OF ANY COURT OF RECORD, UPON
AN EVENT OF DEFAULT, TO APPEAR FOR AND CONFESS JUDGMENT AGAINST SUCH BORROWER
FOR SUCH SUMS AS ARE DUE AND/OR MAY BECOME DUE UNDER THIS LETTER OF CREDIT NOTE,
WITH OR WITHOUT DECLARATION, WITH COSTS OF SUIT, WITHOUT STAY OF EXECUTION AND
WITH AN AMOUNT EQUAL TO FIFTEEN PERCENT (15%) OF THE AMOUNT OF SUCH JUDGMENT,
BUT NOT LESS THAN ONE THOUSAND DOLLARS ($1,000), ADDED FOR ATTORNEYS' COLLECTION
FEES. NOTWITHSTANDING THE ATTORNEY'S COMMISSION PROVIDED FOR IN THE PRECEDING
SENTENCE (WHICH IS INCLUDED IN THE WARRANT FOR PURPOSES OF ESTABLISHING A SUM
CERTAIN), THE AMOUNT OF ATTORNEYS' FEES THAT THE BANK MAY RECOVER FROM BORROWER
SHALL NOT EXCEED THE ACTUAL ATTORNEYS' FEES INCURRED BY THE BANK. TO THE EXTENT
PERMITTED BY LAW, XXXXXXXX RELEASES ALL ERRORS IN SUCH PROCEEDINGS. IF A COPY OF
THIS LETTER OF CREDIT NOTE, VERIFIED BY AFFIDAVIT BY OR ON BEHALF OF THE HOLDER
OF THIS LETTER OF CREDIT NOTE SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT
BE NECESSARY TO FILE THE ORIGINAL LETTER OF CREDIT NOTE AS A WARRANT OF
ATTORNEY. THE AUTHORITY AND POWER TO APPEAR FOR AND CONFESS JUDGMENT AGAINST
BORROWER SHALL NOT BE EXHAUSTED BY THE INITIAL EXERCISE THEREOF AND MAY BE
EXERCISED AS OFTEN AS THE HOLDER SHALL FIND IT NECESSARY AND DESIRABLE AND THIS
LETTER OF CREDIT NOTE SHALL BE A SUFFICIENT WARRANT THEREFOR. THE HOLDER HEREOF
MAY CONFESS ONE OR MORE JUDGMENTS IN THE SAME OR DIFFERENT JURISDICTIONS FOR ALL
OR ANY PART OF THE AMOUNT OWING HEREUNDER, WITHOUT REGARD TO WHETHER JUDGMENT
HAS THERETOFORE BEEN CONFESSED ON MORE THAN ONE OCCASION FOR THE SAME AMOUNT. IN
THE EVENT ANY JUDGMENT CONFESSED AGAINST BORROWER HEREUNDER IS STRICKEN OR
OPENED UPON APPLICATION BY OR ON XXXXXXXX'S BEHALF FOR ANY REASON, XXXXXX IS
HEREBY AUTHORIZED AND EMPOWERED TO AGAIN APPEAR FOR AND CONFESS JUDGMENT AGAINST
BORROWER FOR ANY PART OR
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ALL OF THE AMOUNTS OWING HEREUNDER, AS PROVIDED FOR HEREIN, IF DOING SO WILL
CURE ANY ERRORS OR DEFECTS IN SUCH PRIOR PROCEEDINGS.
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BORROWER EXPRESSLY ACKNOWLEDGES THAT THIS IS A COMMERCIAL TRANSACTION,
THAT THE FOREGOING PROVISIONS FOR WAIVER OF JURY TRIAL AND CONFESSION OF
JUDGMENT HAVE BEEN READ, UNDERSTOOD AND VOLUNTARILY AGREED TO BY XXXXXXXX AND
THAT BY AGREEING TO SUCH PROVISIONS BORROWER IS WAIVING IMPORTANT LEGAL RIGHTS,
INCLUDING ANY RIGHT TO NOTICE OR A HEARING WHICH MIGHT OTHERWISE BE REQUIRED
BEFORE ENTRY OF JUDGMENT HEREUNDER, THE EXECUTION ON ANY SUCH JUDGMENT OR THE
SEIZING OF XXXXXXXX'S PROPERTY IN CONNECTION WITH ANY SUCH EXECUTION.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, Borrower, by
its duly authorized officer(s), has executed, issued and delivered this Letter
of Credit Note in New Castle, PA on the day and year written above.
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WARNING: BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL.
IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT
YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU
REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED
GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY
OTHER CAUSE.
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WITNESS: INTERNATIONAL PLASTICS & EQUIPMENT CORP.
______________________________ By: Xxxxxx Xxxxxxxx, Xx
Name: Xxxxxx Xxxxxxxx, Xx
Title: President
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