Exhibit 10.2
TERM NOTE [GRAPHIC OMITTED]
$3,000,000 October 1, 2004
FOR VALUE RECEIVED, THE XXXXXXX CORPORATION (the "BORROWER"), with an address at
000 X. Xxxxx Xxxxxxx Xxxx, Xxxxxxxxxx, XX 00000, promises to pay to the order of
PNC BANK, NATIONAL ASSOCIATION (the "BANK"), in lawful money of the United
States of America in immediately available funds at its offices located at 0000
Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000, or at such other location as the Bank may
designate from time to time, the principal sum of THREE MILLION DOLLARS
($3,000,000), together with interest accruing on the outstanding principal
balance from the date hereof, all as provided below.
1. RATE OF INTEREST. Amounts outstanding under this Note will bear interest at a
rate or rates per annum as may be selected by the Borrower from the interest
rate options set forth below (each, an "OPTION"):
(i) BASE RATE OPTION. A rate of interest per annum which is at all times
equal to the Prime Rate ("BASE RATE"). For purposes hereof, the term "PRIME
RATE" shall mean the rate publicly announced by the Bank from time to time as
its prime rate. The Prime Rate is determined from time to time by the Bank as a
means of pricing some loans to its borrowers. The Prime Rate is not tied to any
external rate of interest or index, and does not necessarily reflect the lowest
rate of interest actually charged by the Bank to any particular class or
category of customers. If and when the Prime Rate changes, the rate of interest
with respect to any amounts to which the Base Rate Option applies will change
automatically without notice to the Borrower, effective on the date of any such
change. There are no required minimum interest periods for amounts bearing
interest under the Base Rate Option.
(ii) LIBOR OPTION. A rate per annum equal to (A) LIBOR PLUS (B) two hundred
(200) basis points (2%), for the applicable LIBOR Interest Period.
For purposes hereof, the following terms shall have the following meanings:
"BUSINESS DAY" shall mean any day other than a Saturday or Sunday or a
legal holiday on which commercial banks are authorized or required by law
to be closed for business in Philadelphia, Pennsylvania.
"LIBOR" shall mean, with respect to any amount to which the LIBOR Option
applies for the applicable LIBOR Interest Period, the interest rate per
annum determined by the Bank by dividing (the resulting quotient rounded
upwards, if necessary, to the nearest 1/16th of 1%) (i) the rate of
interest determined by the Bank in accordance with its usual procedures
(which determination shall be conclusive absent manifest error) to be the
eurodollar rate two (2) Business Days prior to the first day of such LIBOR
Interest Period for such amount and having a borrowing date and a maturity
comparable to such LIBOR Interest Period by (ii) a number equal to 1.00
minus the LIBOR Reserve Percentage.
"LIBOR INTEREST PERIOD" shall mean, with respect to any amount to which the
LIBOR Option applies, the period of one (1), two (2), three (3) or six (6)
months as selected by the Borrower on the date of disbursement of such
amount (or the date of conversion of any amount to the LIBOR Option, as the
case may be) and each successive period selected by the Borrower
thereafter; PROVIDED THAT, (i) if a LIBOR Interest Period would end on a
day which is not a Business Day, it shall end on the next succeeding
Business Day unless such day falls in the next succeeding calendar month in
which case the LIBOR Interest Period shall end on the next preceding
Business Day, (ii) the Borrower may not select a LIBOR Interest Period that
would end on a day after the Maturity Date (as hereinafter defined), and
(iii) any LIBOR Interest Period that begins on the last Business Day of a
calendar month (or a day for which there is no numerically corresponding
day in the last calendar month of such LIBOR Interest Period) shall end on
the last Business Day of the last calendar month of such LIBOR Interest
Period.
"LIBOR RESERVE PERCENTAGE" shall mean the maximum effective percentage in
effect on such day as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the reserve requirements
(including, without limitation, supplemental, marginal and emergency
reserve requirements) with respect to eurocurrency funding (currently
referred to as "Eurocurrency liabilities").
LIBOR shall be adjusted with respect to any amounts to which the LIBOR Option
applies on and as of the effective date of any change in the LIBOR Reserve
Percentage. The Bank shall give prompt notice to the Borrower of LIBOR as
determined or adjusted in accordance herewith, which determination shall be
conclusive absent manifest error.
If the Bank determines (which determination shall be final and conclusive) that,
by reason of circumstances affecting the eurodollar market generally, deposits
in dollars (in the applicable amounts) are not being offered to banks in the
eurodollar market for the selected term, or adequate means do not exist for
ascertaining LIBOR, then the Bank shall give notice thereof to the Borrower.
Thereafter, until the Bank notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, (a) the availability of the LIBOR
Option shall be suspended, and (b) the interest rate for all amounts then
bearing interest under the LIBOR Option shall be converted at the expiration of
the then current LIBOR Interest Period(s) to the Base Rate.
In addition, if, after the date of this Note, the Bank shall determine (which
determination shall be final and conclusive) that any enactment, promulgation or
adoption of or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by a governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Bank with any guideline, request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency shall make it unlawful or impossible for the
Bank to make or maintain or fund loans based on LIBOR, the Bank shall notify the
Borrower. Upon receipt of such notice, until the Bank notifies the Borrower that
the circumstances giving rise to such determination no longer apply, (a) the
availability of the LIBOR Option shall be suspended, and (b) the interest rate
on all amounts then bearing interest under the LIBOR Option shall be converted
to the Base Rate either (i) on the last day of the then current LIBOR Interest
Period(s) if the Bank may lawfully continue to maintain or fund loans based on
LIBOR to such day, or (ii) immediately if the Bank may not lawfully continue to
maintain or fund loans based on LIBOR.
The foregoing notwithstanding, it is understood that the Borrower may select
different Options to apply simultaneously to different portions of this Note and
may select up to three (3) different interest periods to apply simultaneously to
different portions of this Note bearing interest under the LIBOR Option.
Interest hereunder will be calculated based on the actual number of days that
principal is outstanding over a year of 360 days. In no event will the rate of
interest hereunder exceed the maximum rate allowed by law.
2. INTEREST RATE ELECTION. Subject to the terms and conditions of this Note, at
the end of each interest period applicable to any amounts hereunder, the
Borrower may renew the Option applicable to such amounts or convert such amounts
to a different Option; PROVIDED THAT, during any period in which any Event of
Default (as hereinafter defined) has occurred and is continuing, any amounts
bearing interest under the LIBOR Option shall, at the Bank's sole discretion, be
2
converted at the end of the applicable LIBOR Interest Period to the Base Rate
and the LIBOR Option will not be available to Borrower with respect to the
conversion or renewal of any other amounts until such Event of Default has been
cured by the Borrower or waived by the Bank. The Borrower shall notify the Bank
of each election of an Option, each conversion from one Option to another, the
amount of the portions hereunder to be allocated to each Option and where
relevant the interest periods therefor. In the case of converting to the LIBOR
Option, such notice shall be given at least three (3) Business Days prior to the
commencement of any LIBOR Interest Period. If no interest period is specified in
any such notice for an amount that is to bear interest under the LIBOR Option,
the Borrower shall be deemed to have selected a LIBOR Interest Period of one
month's duration. If no notice of election, conversion or renewal is timely
received by the Bank with respect to any amount hereunder, the Borrower shall be
deemed to have elected the Base Rate Option therefor. Any such election shall be
promptly confirmed in writing by such method as the Bank may require.
3. PAYMENT OF INTEREST. The Borrower shall pay accrued interest on the unpaid
principal balance of this Note in arrears: (a) for amounts hereunder bearing
interest under the Base Rate Option, on the first day of each month during the
term hereof, (b) for amounts hereunder bearing interest under the LIBOR Option,
on the last day of the respective LIBOR Interest Period for such amounts, (c) if
any LIBOR Interest Period is longer than three (3) months, then also on the
three (3) month anniversary of such interest period and every three (3) months
thereafter, and (d) for all outstanding amounts, at maturity, whether by
acceleration of this Note or otherwise, and after maturity, on demand until paid
in full.
4. PAYMENT OF PRINCIPAL. Principal shall be due and payable in eighty-three (83)
equal consecutive monthly installments in the amount of $35,714.29 each,
commencing on November 1, 2004 and continuing on the first day of each month
thereafter, and a final installment of $35,713.93 on October 1, 2011. Any
outstanding principal and accrued interest shall be due and payable in full on
October 1, 2011 (the "MATURITY DATE").
If any payment under this Note shall become due on a Saturday, Sunday or public
holiday under the laws of the State where the Bank's office indicated above is
located, such payment shall be made on the next succeeding Business Day and such
extension of time shall be included in computing interest in connection with
such payment. The Borrower hereby authorizes the Bank to charge the Borrower's
deposit account at the Bank for any payment when due hereunder. Payments
received will be applied to charges, fees and expenses (including attorneys'
fees), accrued interest and principal in any order the Bank may choose, in its
sole discretion.
5. LATE PAYMENTS; DEFAULT RATE. If the Borrower fails to make any payment of
principal, interest or other amount coming due pursuant to the provisions of
this Note within fifteen (15) calendar days of the date due and payable, the
Borrower also shall pay to the Bank a late charge equal to the lesser of five
percent (5%) of the amount of such payment or $100.00 (the "LATE CHARGE"). Such
fifteen (15) day period shall not be construed in any way to extend the due date
of any such payment. Upon maturity, whether by acceleration, demand or
otherwise, and at the Bank's option upon the occurrence of any Event of Default
(as hereinafter defined) and during the continuance thereof, amounts outstanding
under this Note shall bear interest at a rate per annum (based on the actual
number of days that principal is outstanding over a year of 360 days) which
shall be three percentage points (3%) in excess of the interest rate in effect
from time to time under this Note but not more than the maximum rate allowed by
law (the "DEFAULT RATE"). The Default Rate shall continue to apply whether or
not judgment shall be entered on this Note. Both the Late Charge and the Default
Rate are imposed as liquidated damages for the purpose of defraying the Bank's
expenses incident to the handling of delinquent payments, but are in addition
to, and not in lieu of, the Bank's exercise of any rights and remedies
hereunder, under the other Loan Documents or under applicable law, and any fees
and expenses of any agents or attorneys which the Bank may employ. In addition,
3
the Default Rate reflects the increased credit risk to the Bank of carrying a
loan that is in default. The Borrower agrees that the Late Charge and Default
Rate are reasonable forecasts of just compensation for anticipated and actual
harm incurred by the Bank, and that the actual harm incurred by the Bank cannot
be estimated with certainty and without difficulty.
6. PREPAYMENT. The Borrower shall have the right to prepay any amount hereunder
at any time and from time to time, in whole or in part; subject, however, to
payment of any break funding indemnification amounts owing pursuant to paragraph
7 below.
7. YIELD PROTECTION; BREAK FUNDING INDEMNIFICATION. The Borrower shall pay to
the Bank on written demand therefor, together with the written evidence of the
justification therefor, all direct costs incurred, losses suffered or payments
made by Bank by reason of any change in law or regulation or its interpretation
imposing any reserve, deposit, allocation of capital, or similar requirement
(including without limitation, Regulation D of the Board of Governors of the
Federal Reserve System) on the Bank, its holding company or any of their
respective assets. In addition, the Borrower agrees to indemnify the Bank
against any liabilities, losses or expenses (including, without limitation, loss
of margin, any loss or expense sustained or incurred in liquidating or employing
deposits from third parties, and any loss or expense incurred in connection with
funds acquired to effect, fund or maintain any amounts hereunder (or any part
thereof) bearing interest under the LIBOR Option which the Bank sustains or
incurs as a consequence of either (i) the Borrower's failure to make a payment
on the due date thereof, (ii) the Borrower's revocation (expressly, by later
inconsistent notices or otherwise) in whole or in part of any notice given to
Bank to request, convert, renew or prepay any amounts bearing interest under the
LIBOR Option, or (iii) the Borrower's payment or prepayment (whether voluntary,
after acceleration of the maturity of this Note or otherwise) or conversion of
any amounts bearing interest under the LIBOR Option on a day other than the
regularly scheduled due date therefor. A notice as to any amounts payable
pursuant to this paragraph given to the Borrower by the Bank shall, in the
absence of manifest error, be conclusive and shall be payable upon demand. The
Borrower's indemnification obligations hereunder shall survive the payment in
full of all amounts payable hereunder.
8. OTHER LOAN DOCUMENTS. This Note is issued in connection with a letter
agreement or loan agreement between the Borrower and the Bank, dated on or
before the date hereof, and the other agreements and documents executed and/or
delivered in connection therewith or referred to therein, the terms of which are
incorporated herein by reference (as amended, modified or renewed from time to
time, collectively the "LOAN DOCUMENTS"), and is secured by the property (if
any) described in the Loan Documents and by such other collateral as previously
may have been or may in the future be granted to the Bank to secure this Note.
9. EVENTS OF DEFAULT. The occurrence of any of the following events will be
deemed to be an "EVENT OF DEFAULT" under this Note: (i) the nonpayment of any
principal under this Note when due or of any interest or other indebtedness
under this Note within three (3) days following the date when due; (ii)the
Borrower's failure to perform any of its other obligations hereunder and such
failure continues for twenty (20) days following notice thereof from the Bank to
the Borrower; (iii) any Event of Default (as defined in any of the other Loan
Documents) or any default under any of the other Loan Documents that does not
have a defined set of "Events of Default" and the lapse of any notice or cure
period provided therein, or any Obligor's failure to observe or perform any
covenant or other agreement, under or contained in any other document now or in
the future evidencing or securing any debt, liability or obligation of any
Obligor to the Bank and the lapse of any notice or cure period provided therein;
(iv) the filing by or against any Obligor of any proceeding in bankruptcy,
receivership, insolvency, reorganization, liquidation, conservatorship or
similar proceeding (and, in the case of any such proceeding instituted against
any Obligor, such proceeding is not dismissed or stayed within 30 days of the
commencement thereof, provided that the Bank shall not be obligated to advance
additional funds hereunder during such period); (v) any assignment by any
4
Obligor for the benefit of creditors, or any levy, garnishment, attachment or
similar proceeding is instituted against any property of any Obligor held by or
deposited with the Bank; (vi) a default with respect to any other indebtedness
of any Obligor for borrowed money, if the effect of such default is to cause or
permit the acceleration of such debt; (vii) the commencement of any foreclosure
or forfeiture proceeding, execution or attachment against any collateral
securing the obligations of any Obligor to the Bank; (viii) the entry of a final
judgment against any Obligor and the failure of such Obligor to discharge the
judgment within ten (10) days of the entry thereof; (ix) any material adverse
change in any Obligor's business, assets, operations, financial condition or
results of operations; (x) any Obligor ceases doing business as a going concern;
or (xi) any representation or warranty made by any Obligor to the Bank in any
Loan Document or any other documents now or in the future evidencing or securing
the obligations of any Obligor to the Bank, is false, erroneous or misleading in
any material respect. As used herein, the term "OBLIGOR" means any Borrower and
any guarantor of, or any pledgor, mortgagor or other person or entity providing
collateral support for, the Borrower's obligations to the Bank existing on the
date of this Note or arising in the future.
Upon the occurrence of an Event of Default: (a) the Bank shall be under no
further obligation to make advances hereunder; (b) if an Event of Default
specified in clause (iii) or (iv) above shall occur, the outstanding principal
balance and accrued interest hereunder together with any additional amounts
payable hereunder shall be immediately due and payable without demand or notice
of any kind; (c) if any other Event of Default shall occur, the outstanding
principal balance and accrued interest hereunder together with any additional
amounts payable hereunder, at the Bank's option and without demand or notice of
any kind, may be accelerated and become immediately due and payable; (d) at the
Bank's option, this Note will bear interest at the Default Rate from the date of
the occurrence of the Event of Default; and (e) the Bank may exercise from time
to time any of the rights and remedies available under the Loan Documents or
under applicable law.
10. RIGHT OF SETOFF. In addition to all liens upon and rights of setoff against
the Borrower's money, securities or other property given to the Bank by law, the
Bank shall have, with respect to the Borrower's obligations to the Bank under
this Note and to the extent permitted by law, a contractual possessory security
interest in and a contractual right of setoff against, and the Borrower hereby
grants the Bank a security interest in, and hereby assigns, conveys, delivers,
pledges and transfers to the Bank, all of the Borrower's right, title and
interest in and to, all of the Borrower's deposits, moneys, securities and other
property now or hereafter in the possession of or on deposit with, or in transit
to, the Bank or any other direct or indirect subsidiary of 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 the Borrower. Every such right of setoff shall be deemed to have been
exercised immediately upon the occurrence of an Event of Default hereunder
without any action of the Bank, although the Bank may enter such setoff on its
books and records at a later time.
11. INDEMNITY. The Borrower agrees to indemnify each of the Bank, each legal
entity, if any, who controls, is controlled by or is under common control with
the Bank, and each of their respective directors, officers and employees (the
"INDEMNIFIED PARTIES"), and to hold each Indemnified Party harmless from and
against any and all claims, damages, losses, liabilities and expenses (including
all fees and charges of internal or external counsel with whom any Indemnified
Party may consult and all expenses of litigation and preparation therefor) which
any Indemnified Party may incur or which may be asserted against any Indemnified
Party by any person, entity or governmental authority (including any person or
entity claiming derivatively on behalf of the Borrower), in connection with or
arising out of or relating to the matters referred to in this Note or in the
other Loan Documents or the use of any advance hereunder, whether (a) arising
5
from or incurred in connection with any breach of a representation, warranty or
covenant by the Borrower, or (b) arising out of or resulting from any suit,
action, claim, proceeding or governmental investigation, pending or threatened,
whether based on statute, regulation or order, or tort, or contract or
otherwise, before any court or governmental authority; PROVIDED, HOWEVER, that
the foregoing indemnity agreement shall not apply to any claims, damages,
losses, liabilities and expenses solely attributable to an Indemnified Party's
gross negligence or willful misconduct. The indemnity agreement contained in
this Section shall survive the termination of this Note, payment of any amounts
hereunder and the assignment of any rights hereunder. The Borrower may
participate at its expense in the defense of any such action or claim.
12. MISCELLANEOUS. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder ("NOTICES") must be in writing
(except as may be agreed otherwise above with respect to borrowing requests) and
will be effective upon receipt. Notices may be given in any manner to which the
parties may separately agree, including electronic mail. Without limiting the
foregoing, first-class mail, facsimile transmission and commercial courier
service are hereby agreed to as acceptable methods for giving Notices.
Regardless of the manner in which provided, Notices may be sent to a party's
address as set forth above or to such other address as any party may give to the
other for such purpose in accordance with this paragraph. No delay or omission
on the Bank's part to exercise any right or power arising hereunder will impair
any such right or power or be considered a waiver of any such right or power,
nor will the Bank's action or inaction impair any such right or power. The
Bank's rights and remedies hereunder are cumulative and not exclusive of any
other rights or remedies which the Bank may have under other agreements, at law
or in equity. No modification, amendment or waiver of, or consent to any
departure by the Borrower from, any provision of this Note will be effective
unless made in a writing signed by the Bank, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. The Borrower agrees to pay on demand, to the extent permitted by law, all
costs and expenses incurred by the Bank in the enforcement of its rights in this
Note and in any security therefor, including without limitation reasonable fees
and expenses of the Bank's counsel. If any provision of this Note is found to be
invalid, illegal or unenforceable in any respect by a court, all the other
provisions of this Note will remain in full force and effect. The Borrower and
all other makers and indorsers of this Note hereby forever waive presentment,
protest, notice of dishonor and notice of non-payment. The Borrower also waives
all defenses based on suretyship or impairment of collateral. If this Note is
executed by more than one Borrower, the obligations of such persons or entities
hereunder will be joint and several. This Note shall bind the Borrower and its
heirs, executors, administrators, successors and assigns, and the benefits
hereof shall inure to the benefit of the Bank and its successors and assigns;
PROVIDED, HOWEVER, that the Borrower may not assign this Note in whole or in
part without the Bank's written consent and the Bank at any time may assign this
Note in whole or in part.
This Note has been delivered to and accepted by the Bank and will be deemed to
be made in the State where the Bank's office indicated above is located. THIS
NOTE WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE BANK AND THE
BORROWER DETERMINED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA, EXCLUDING ITS CONFLICT OF LAWS RULES. The Borrower hereby
irrevocably consents to the exclusive jurisdiction of any state or federal court
in Philadelphia County, Pennsylvania; provided that nothing contained in this
Note will prevent the Bank from bringing any action, enforcing any award or
judgment or exercising any rights against the Borrower individually, against any
security or against any property of the Borrower within any other county, state
or other foreign or domestic jurisdiction. The Borrower acknowledges and agrees
that the venue provided above is the most convenient forum for both the Bank and
the Borrower. The Borrower waives any objection to venue and any objection based
on a more convenient forum in any action instituted under this Note.
6
13. AUTHORIZATION TO OBTAIN CREDIT REPORTS. By signing below, each Borrower who
is an individual provides written authorization to the Bank or its designee (and
any assignee or potential assignee hereof) to obtain the Borrower's personal
credit profile from one or more national credit bureaus. Such authorization
shall extend to obtaining a credit profile in considering this Note and
subsequently for the purposes of update, renewal or extension of such credit or
additional credit and for reviewing or collecting the resulting account.
14. WAIVER OF JURY TRIAL. THE BORROWER IRREVOCABLY WAIVES ANY AND ALL RIGHTS THE
BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY
NATURE RELATING TO THIS NOTE, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS
NOTE OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE BORROWER
ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
THE BORROWER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE WAIVER OF JURY TRIAL, AND HAS BEEN ADVISED BY COUNSEL
AS NECESSARY OR APPROPRIATE.
WITNESS the due execution hereof as a document under seal, as of the date first
written above, with the intent to be legally bound hereby.
THE XXXXXXX CORPORATION
By: /s/ Xxx X. Xxxxxxx
-----------------------------
(SEAL)
Print Name: Xxx X. Xxxxxxx
---------------------
Title: President/CEO
--------------------------
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx X. Xxxxx
V.P. - CFO
7
