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EXHIBIT 10.9(i)
REVOLVING CREDIT NOTE
NOT TO EXCEED $5,000,000 Dated as of November 5, 1998
FOR VALUE RECEIVED, the undersigned, MOLECULAR CIRCUITRY, INC., a
Delaware corporation ("Maker"), promises to pay to the order of KEYSTONE FOODS
CORPORATION, a Delaware corporation ("Keystone"), the principal sum of Five
Million Dollars ($5,000,000) (or such lesser amount as shall be necessary to pay
the principal balance hereof in full), together with interest in accordance with
the following additional terms:
1. Interest Rate. Interest shall accrue on the unpaid principal balance
hereof from time to time outstanding at a rate per annum equal to ten percent
(10%). Interest shall be computed and paid for actual number of days elapsed.
2. Monthly Installments. Interest accrued prior to the Due Date, as
hereafter defined, shall be paid in arrears in monthly installments beginning on
January 1, 1999, and on the first day of every consecutive month thereafter
except that the entire unpaid principal balance hereunder, together with accrued
interest, shall be due and payable on the earlier of any one of the following
events: (i) May 15, 2000; (ii) the closing of an Initial Public Offering in
excess of Five Million Dollars ($5,000,000); or (iii) any other financing
obtained by Maker in excess of Five Million Dollars ($5,000,000) ("Due Date").
The undersigned may prepay part or all of the principal balance hereof prior to
the Due Date (together with interest on the prepaid principal amount to date of
prepayment) at any time and from time to time without premium or penalty.
3. Place of Payment. Payments of both principal and interest hereunder
are to be made in lawful money of the United States at the offices of Keystone
at 401 City Avenue, Suite 800, Bala Cynwyd, Pennsylvania 19004, or at such other
place as the holder hereof may from time to time designate in writing. All
payments hereunder shall be first applied to accrued and unpaid interest and
then to principal.
4. Late Payment Charge. Any amounts due and payable by the Maker to the
holder hereof under this Note, which are not paid in full when and as they
become due and payable, shall thereafter bear interest until paid at the rate of
eighteen percent (18%) per annum, and the Maker agrees to pay such interest
which has accrued to the holder hereof on demand. Notwithstanding any provision
contained herein, the total liability of Maker for payment of interest pursuant
hereto, including late charges, shall not exceed the maximum amount of such
interest permitted by law to be charged, collected, or received from Maker, and
if any payments by Maker include interest in excess of such a maximum amount,
the holder hereof shall apply such excess to the reduction of the unpaid
principal amount due pursuant hereto, or if none is due, such excess shall be
refunded to Maker.
5. Default. The occurrence of any one or more of the following events
shall constitute an event of default ("Event of Default") hereunder:
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(a) Any failure by the undersigned to pay in full any
installment of interest under this Note within five (5) days after the date when
due;
(b) The failure to pay any amount of principal or interest due
and payable on the Due Date;
(c) The breach of any covenant, warranty or other agreement by
Maker contained herein; or
(d) Any default or event of default under the Revolving Credit
Agreement, as the term "default" or "event of default" is defined or used
therein. For purposes of this paragraph such Revolving Credit Agreement shall
include, without limitation, any and all extensions, renewals and modifications
thereof.
Upon an Event of Default hereunder, all principal amounts
outstanding hereunder, and all interest accrued thereon shall, at the election
of the holder hereof, become immediately due and payable without presentment,
demand, protest or notice of any kind, all of which the Maker hereby expressly
waives.
Failure or forbearance by the holder of this Note upon the
occurrence of any Event of Default hereunder to avail itself fully or partially
of any remedy provided for herein or in the Revolving Credit Agreement shall not
constitute a waiver thereof, but such remedy shall be available continuously
thereafter unless waived in writing by the holder of this Note. The Due Date may
be extended from time to time at the option of the holder hereof without in any
way affecting the liability of the Maker or endorsers or guarantors hereof, if
any. The Maker waives any right to the benefit of or to the direct application
of any specific security pledged, hypothecated, transferred or mortgaged to the
holder hereof or to require the holder hereof to pursue any specific remedy in
such holder's power.
Should it become necessary to collect this Note through an
attorney or otherwise, the Maker hereby agrees to pay all costs of collection of
this Note, including reasonable attorneys' fees and any attorneys' fees incurred
in appellate, bankruptcy or post judgment proceedings.
6. Advances. Providing no Event of Default then exists and subject to
the terms of the Revolving Credit Agreement, advances under this Note may be
made by Keystone upon two (2) day advance written request of the President of
the undersigned, unless a shorter period is approved by Keystone. Any such
advance shall be conclusively presumed to have been made by Keystone to or for
the benefit of the undersigned. The Maker does hereby irrevocably confirm,
ratify and approve all such advances by Keystone.
7. Notice. Any notice or consent required or permitted hereunder shall
be delivered personally or sent by facsimile transmission, national courier
service guaranteeing overnight delivery or registered or certified mail, with
all postage or other delivery charges prepaid, to the respective parties hereto
at the addresses set forth below, or to such other address, or in care of such
other
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person, as any party shall from time to time designate by due notice hereunder.
Any notice hereunder shall be deemed given when received by the person to whom
or which addressed:
If to Maker: Crystal Medical Products, Inc.
c/o George Ginader, Treasurer
Crystal Medical Products, Inc.
321 Spruce Street
525-536 Bank Towers
Scranton, PA 18503
If to Keystone: Keystone Foods Corporation
401 City Avenue, Suite 800
Bala Cynwyd, Pennsylvania 19004
With a copy to: Pelino & Lentz, P.C.
One Liberty Place
1650 Market Street
32nd Floor
Philadelphia, PA 19103
Attn: John W. Pelino, Esquire
8. Jurisdiction. This Note has been negotiated and delivered in the
Commonwealth of Pennsylvania and the validity, construction and enforcement
hereof shall be governed in all respects by the laws of the Commonwealth of
Pennsylvania.
9. CONFESSION OF JUDGMENT. MAKER HEREBY IRREVOCABLY AUTHORIZES AND
EMPOWERS THE HOLDER OF THIS NOTE, BY ANY AUTHORIZED OFFICER, EMPLOYEE OR AGENT,
OR BY ITS ATTORNEY, OR BY THE PROTHONOTARY OR CLERK OF ANY COURT OF RECORD IN
THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE WHERE PERMITTED BY LAW, UPON THE
OCCURRENCE OF A DEFAULT UNDER THIS NOTE, TO APPEAR FOR AND CONFESS JUDGMENT
AGAINST MAKER IN FAVOR OF THE HOLDER OF THIS NOTE IN ANY JURISDICTION IN WHICH
MAKER OR ANY OF ITS PROPERTY IS LOCATED FOR ENTIRE PRINCIPAL BALANCE OF THIS
NOTE, ALL ACCRUED INTEREST AND LATE CHARGES, TOGETHER WITH THE COSTS OF SUIT AND
WITH ACTUAL COLLECTION COSTS, INCLUDING REASONABLE ATTORNEYS' FEES, WITH OR
WITHOUT DECLARATION, WITH RELEASE OF ALL ERRORS, WITHOUT STAY OF EXECUTION AND
THE RIGHT TO ISSUE EXECUTION FORTHWITH, AND FOR DOING SO THIS NOTE OR A COPY
VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. MAKER HEREBY WAIVES AND
RELEASES ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY OR EXEMPTION LAW OF ANY
STATE NOW IN FORCE OR HEREINAFTER ENACTED.
MAKER ACKNOWLEDGES THAT BY AGREEING THAT THE HOLDER OF THIS
NOTE MAY CONFESS JUDGMENT HEREUNDER, IT WAIVES THE RIGHT TO NOTICE IN A PRIOR
JUDICIAL PROCEEDING TO DETERMINE ITS RIGHTS AND
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LIABILITIES, AND MAKER FURTHER ACKNOWLEDGES THAT THE HOLDER OF THIS NOTE MAY
OBTAIN A JUDGMENT AGAINST MAKER WITHOUT MAKER'S PRIOR KNOWLEDGE OR CONSENT AND
WITHOUT THE OPPORTUNITY TO RAISE ANY DEFENSE, SET OFF, COUNTERCLAIM OR OTHER
CLAIM MAKER MAY HAVE, AND MAKER EXPRESSLY WAIVES SUCH RIGHTS AS AN EXPLICIT AND
MATERIAL PART OF THE CONSIDERATION. THE FOREGOING POWER TO CONFESS JUDGMENT MAY
BE EXERCISED AGAINST MAKER AT ONE TIME OR AT DIFFERENT TIMES AS THE HOLDER OF
THIS NOTE ELECTS UNTIL THE THIS NOTE IS FULLY DISCHARGED.
IN WITNESS WHEREOF, Maker has duly executed this Note as of the day and
year first above written.
MOLECULAR CIRCUITRY, INC.
BY: /S/ HERBERT LOTMAN
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HERBERT LOTMAN, PRESIDENT
ATTEST:
BY: /S/ GEORGE W. GINADER
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GEORGE W. GINADER, SECRETARY
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