EXHIBIT 10.21
Meridian Bank Meridian Bank has merged Promissory Note (Business)
with CoreStates Bank, N.A.
$ 560,000.00 March 26, 1998
- ------------------ ------------------------
FOR VALUE RECEIVED, Undersigned, intending to be legally bound, promises to pay
to the order of Meridian Bank ("Bank"), a Pennsylvania banking corporation
having an office at 35 North Sixth Street, Reading, Pennsylvania, the principal
sum of Five Hundred Sixty Thousand and 00/100 Dollars payable as provided below,
with interest accruing at the rate of the Bank's National Commercial Rate +
.50% per annum until paid. Interest shall be computed on the basis of the
actual number of day in the calendar year divided by 360.
If the interest rate set forth above is referenced to either Bank's
National Commercial Rate, Local Commercial Rate or Agricultural Commercial Rate,
Undersigned acknowledges and agrees that (i) such referenced rate is a floating
annual rate of interest that is designated from time to time by Bank as the
"National Commercial Rate," "Local Commercial Rate" or "Agricultural Commercial
Rate," as the case may be, and is used by Bank as a reference rate with respect
to different interest rates charged to borrower; (ii) the rate of interest
payable hereunder shall change simultaneously and automatically upon any change
in such referenced rate; and (iii) such referenced rate may not be the lowest
rate at which Bank makes loans to other borrowers.
REPAYMENT TERMS
1. (Single Principal Payment Loan) Interest on the unpaid principal is due
and payable monthly beginning April 30, 1998 . The full sum of the
unpaid principal and interest is due and payable on September 3, 1998 .
2. (Discounted Time Note) The full sum is due and payable in days on
_______________.
3. (Demand Loan) Interest on the unpaid principal is due and payable
_______________ beginning __________. The full sum of the unpaid
principal and interest is due and payable on demand.
4. (Credit Availability) Interest on the unpaid principal is due and
payable _______________ beginning _______________. The full sum of the
unpaid principal and interest is due and payable on _______________.
Bank may make advances and readvances to Undersigned as Undersigned may
request in accordance with, and subject to, the provisions of this Note
and any other agreements, documents or instruments executed in
connection herewith and related thereto, and any extensions,
modifications or renewals thereof and substitutions therefor, provided
however, that the credit so extended shall not exceed the principal sum
stated above and such commitment may terminate at Bank's option.
5. (Installment Loan) Principal and interest are due and payable in
__________ consecutive _______________ installments of $_______________
each, beginning _______________. One final payment of any remaining
unpaid principal and interest is due and payable on _______________.
6. (Principal Plus Interest Loan) Principal is due and payable in
__________ consecutive _______________ installments of $_______________
each, beginning _______________. Interest on the unpaid principal is
due and payable _______________ beginning _______________. One final
payment of $_______________ together with any remaining principal and
accrued interest is due and payable on _______________.
Undersigned authorizes Bank to charge its deposit account
#_______________ for the payment of principal and/or interest hereunder.
Undersigned shall owe a late payment charge equal to the greater of 5% of the
unpaid amount of any scheduled payment or $15.00, whenever payment of the entire
amount due on any date is not received by Bank on such date.
LIABILITIES
The term "Liabilities" means the principal and interest evidenced by this
note and all other liabilities of Undersigned to Bank, whether hereunder or
otherwise, whether now existing or hereafter incurred, matured or unmatured,
direct or contingent, joint or several, whether created directly or acquired by
assignment or otherwise, including all past and future advances or readvances,
and any extensions, modifications or renewals thereof and substitutions
therefor; all amounts advanced by Bank hereunder on behalf of Undersigned; all
late charges, penalties, fees and other such sums due under this Note or
otherwise; all liabilities (including Professional Fees and Costs, as
hereinafter defined) incurred by Bank arising from or related to any hazardous
materials or dangerous environmental conditions at any real property owned or
occupied by Undersigned; and all of Bank's costs and expenses incurred in
connection with the enforcement and collection of the foregoing liabilities,
whether or not suit is instituted, and whether or not bankruptcy or insolvency
proceedings have been instituted by or against Undersigned, including, without
limitation, reasonable fees and costs of attorneys, appraisers, accountants,
consultants and other professionals ("Professional Fees and Costs"). All amounts
advanced by Bank hereunder on behalf of Undersigned and all other fees, costs,
and expenses incurred by Bank and included in the Liabilities shall be due and
payable upon demand, with interest at an annual rate which shall be two percent
(2%) above the rate of interest otherwise payable hereunder, from the date of
payment by Bank until paid in full.
COLLATERAL
All Collateral (as defined) is security for the Liabilities. The term
"Collateral" includes all tangible and intangible property (i) described in any
mortgage or other security document separately executed by Undersigned in
connection with the Liabilities in favor of Bank ("Security Documents") , and
(ii) in which Undersigned has granted a security interest to Bank pursuant to
this Note. Undersigned grants Bank a security interest in all monies, securities
and other property of Undersigned and the proceeds thereof, now or hereafter in
the possession or custody of, or in transit to, Bank, or any of its affiliates
or subsidiaries, for safekeeping, collection, pledge or any other purpose
including, without limitation, all deposits (whether general or special) and
credits now or hereafter maintained by Undersigned with Bank, or any of its
affiliates or subsidiaries, and in any claims of Undersigned against Bank, or
any of its affiliates or subsidiaries, and Bank may, at its option and without
notice, set off toward the payment of any Liabilities, in such order as Bank may
determine, the balance of each such account with, and each claim against Bank,
or any of its affiliates or subsidiaries. Bank is deemed to have exercised such
right of set off and to have made a charge against any such account immediately
upon the occurrence of a Default (as hereinafter defined) even though such
charge is made or entered on the books subsequently by Bank. Bank has, but is
not limited to, the right at any time and from time to time, without notice to:
(a) pledge, assign or transfer this Note or the Collateral or any portion
thereof; (b) transfer into its own name or that of its nominee all or any part
of the Collateral; (c) exercise voting rights on any Collateral; (d) take
control of the proceeds of any Collateral.
DEFAULT
The occurrence of any one or more of the following shall constitute a
Default by the Undersigned: (a) non-payment of any of the Liabilities, or any
portion thereof, when and in the manner due, whether by acceleration or
otherwise; (b) failure by Undersigned to observe or perform any covenant,
agreement, condition or term of any agreement, document or Security Document
executed and delivered by Undersigned in connection with any of the Liabilities;
(c) breach by any of Undersigned of any obligation or duty to Bank; (d) any
representation or warranty in any financial or other statement, schedule,
certificate or other document delivered to Bank by or on behalf of Undersigned
shall prove to be false, misleading or incomplete in any material respect; (e) a
material adverse change occurs in the financial condition of Undersigned which
is unacceptable to Bank in its sole discretion from the condition most recently
disclosed to Bank in any manner; (f) Undersigned dies, dissolves, liquidates,
merges, reorganizes, changes its name, sells or otherwise disposes of
substantially all of its assets or ceases to conduct operations, or prepares or
attempts to do any of the foregoing; (g) a trustee or receiver is appointed for
Undersigned or for a substantial part of its property, or Undersigned commences
any bankruptcy or other similar proceedings under any insolvency law, state or
federal, or any such proceeding is commenced against Undersigned or Undersigned
becomes insolvent, or generally fails to pay or is generally unable to pay its
debts, or makes an assignment for the benefit of creditors or admits in writing
its insolvency or inability or failure to pay its debts generally as they become
due, or fails within 30 days to pay or bond or otherwise discharge any judgment
which is unstayed pending appeal; (h) Undersigned expresses an intent to
terminate, revoke, or challenge responsibility for any Liabilities or any
material term of any document executed in connection with the Liabilities is
found or declared to be invalid by a court of competent jurisdiction; (i) any
property of Undersigned becomes the subject of any attachment, garnishment, levy
or lien (unless expressly permitted in writing signed by Bank); (j) any
substantial part of the property of Undersigned is taken or condemned by any
governmental authority; (k) Undersigned assigns or otherwise transfers, or
attempts to assign or transfer, any of its right, title and interest in any of
the Collateral without the prior written consent of Bank; (l) Undersigned fails
to furnish financial or other information as Bank may reasonably request; (m) if
there is any change in Undersigned's officers, principal owners or partners, as
the case may be, which is unacceptable to Bank in its sole discretion; (n) Bank,
in the reasonable and good faith exercise of its sole discretion, deems itself
insecure for any reason whatsoever; or (o) Undersigned defaults under any other
agreement or instrument applicable to it representing a material obligation and
such default is not remedied within the grace period provided in such agreement
or instrument or waived.
REMEDIES
Upon the occurrence of a Default (a) Bank shall have no further obligations
to advance funds to Undersigned hereunder; (b) all Liabilities shall, at the
option of Bank, be immediately due and payable; and (c) Bank may exercise its
right of set-off as set forth herein, any and all remedies available to Bank
under this Note and the Security Documents, and all rights and remedies
available to it under any applicable law, including, without limitation, the
rights and remedies of a secured party under the Uniform Commercial Code.
Undersigned hereby waives notice of presentment for payment, demand, nonpayment
or dishonor, protest, acceleration and all further notice of any kind in
connection with the delivery, acceptance, default or enforcement of this Note,
and hereby waives all notice or right of approval of extensions, renewals,
modifications or forebearances which may be allowed.
Upon the occurrence of any Default and the continuance thereof, and
upon prior written notice to Undersigned by Bank, interest shall accrue at an
annual rate which shall be two percent (2%) above the rate of interest otherwise
payable hereunder. At the option of Bank, interest which is not paid when due
shall be added to principal. If any of the Liabilities or any portion thereof
owing to Bank is not paid in full when due, Bank may, at its option and without
notice, withdraw from any account of Undersigned with Bank an amount equal to
such overdue amount and to apply such amount to the payment of the overdue
Liabilities.
All rights or remedies of Bank set forth or otherwise existing are
cumulative. Neither any delay or failure by Bank, in exercising any of its
options, powers or rights herein, nor any partial or single exercise thereof
shall constitute a waiver of the right to exercise the same or any other right
at any other time or from time to time thereafter. Bank is not required to
resort to any particular security or persons to enforce payment, and Bank is not
subject to any marshalling requirements of equities among Undersigned, if more
than one, and among it or them.
CONFESSION OF JUDGMENT
UNDERSIGNED HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS BANK, 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, TO APPEAR
FOR AND CONFESS JUDGMENT AGAINST UNDERSIGNED IN FAVOR OF BANK IN ANY
JURISDICTION IN WHICH UNDERSIGNED OR ANY OF ITS PROPERTY IS LOCATED FOR THE
AMOUNT OF ANY OR ALL OF THE LIABILITIES, 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. UNDERSIGNED HEREBY WAIVES
AND RELEASES ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY OR EXEMPTION LAW OF
ANY STATE NOW IN FORCE OR HEREINAFTER ENACTED.
UNDERSIGNED ACKNOWLEDGES THAT BY AGREEING THAT BANK MAY CONFESS
JUDGMENT HEREUNDER, IT WAIVES THE RIGHT TO NOTICE IN A PRIOR JUDICIAL PROCEEDING
TO DETERMINE ITS RIGHTS AND LIABILITIES, AND UNDERSIGNED FURTHER ACKNOWLEDGES
THAT BANK MAY OBTAIN A JUDGMENT AGAINST UNDERSIGNED WITHOUT UNDERSIGNED'S PRIOR
KNOWLEDGE OR CONSENT AND WITHOUT THE OPPORTUNITY TO RAISE ANY DEFENSE, SET OFF,
COUNTERCLAIM OR OTHER CLAIM UNDERSIGNED MAY HAVE, AND UNDERSIGNED EXPRESSLY
WAIVES SUCH RIGHTS AS AN EXPLICIT AND MATERIAL PART OF THE CONSIDERATION. THE
FOREGOING POWER TO CONFESS JUDGMENT MAY BE EXERCISED AGAINST UNDERSIGNED AT ONE
TIME OR AT DIFFERENT TIMES AS BANK ELECTS UNTIL THE LIABILITIES ARE FULLY
DISCHARGED.
MISCELLANEOUS
The invalidity of any portion of this Note shall not affect the
remaining portions, or any portion thereof, and in the case of any such
invalidity, this Note shall be construed as if such portion had not been
inserted. Undersigned, if more than one, are jointly and severally liable, and
the term "Undersigned" whenever used means each of the parties executing this
Note. All of the terms and provisions of this Note inure to and are binding upon
the heirs, executors, administrators, successors, representatives, receivers,
trustees and assigns of Bank and Undersigned.
Undersigned irrevocably waives the right to interpose any defense
(other than payment), set-off or counterclaim of any nature or description in
any and all disputes between Undersigned and Bank, whether under this Note or
under any other agreement heretofore or hereafter executed.
Undersigned irrevocably agrees and consents to the exclusive
jurisdiction of the Courts of Common Pleas for any county in Pennsylvania where
Bank has an office and/or the United States District Court for the Eastern
District of Pennsylvania in any and all disputes, actions or proceedings between
Undersigned and Bank, whether arising hereunder or under any other agreement or
undertaking and irrevocably agrees to service of process by certified mail,
return receipt requested, to Undersigned at the address listed on the records of
Bank and, if more than one Undersigned, that service upon any of them shall
constitute service upon all of them, each, hereby appointing the other(s) their
attorney-in-fact for the purpose of service. However, Bank is not precluded from
bringing an action against any of Undersigned in any jurisdiction in the United
States or elsewhere in which Undersigned, or any of their property is located.
Undersigned further agrees not to make any objection in any such action or
proceeding that the venue is improper or the forum is inconvenient.
All terms, obligations and provisions hereof are governed by and
construed in accordance with the internal laws of the Commonwealth of
Pennsylvania, without reference to conflict of laws principles.
All notices, comments and other communications required by or given
under this Note shall be in writing and shall be given by either (i) hand
delivery, (ii) first class mail (postage prepaid), (iii) reliable overnight
commercial courier (charges prepaid), or (iv) telecopy or other means of
electronic transmission, if confirmed promptly by any of methods specified in
clauses (i), (ii), and (iii) of this sentence and shall be sufficient, in the
case of Undersigned, if sent to the attention of its proprietor, general partner
or any executive officer at the address on the records of Bank, and, in the case
of Bank, if sent to the address and attention of the loan officer servicing the
account of Undersigned.
IN WITNESS WHEREOF, Undersigned has executed this Note the day and year
first above written.
Meridian Bank has merged
with CoreStates Bank, N.A.
BORROWER (if individuals, partnership, etc.) BORROWER (if corporation)
Rhetech, Inc.
- ---------------------------------- ----------------------------------
Business Name, if any Corporate Name
By: /s/Charles D. Brown
- ---------------------------------- ----------------------------------
Title: Charles D. Brown,
President/CEO
By: /s/Joseph A. Yurgosky
- ---------------------------------- ----------------------------------
Title: Joseph A. Yurgosky,
Secretary
Attest:
- ---------------------------------- ----------------------------------
Title:
(Corporate Seal)
- ----------------------------------
Witness: /s/Cheryl Davis
- ---------------------------------- ----------------------------------
CORPORATE ACKNOWLEDGMENT
STATE OF PENNSYLVANIA :
: ss.
COUNTY OF LEHIGH :
On this the 26th day of MARCH, 1998 before me, a Notary Public in and for
said County and State, personally appeared CHARLES D. BROWN, known to me (or
satisfactorily proven) to be the PRESIDENT and CHIEF EXECUTIVE OFFICER (C.E.O)
of RHETECH, INC., a Delaware Corporation, and that he as such officer, being
authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing the name of the Corporation by himself as such officer.
WITNESS my hand and notarial seal the day and year aforesaid.
/s/Robin L. Cunconan-Lahr My Commission Expires: March 12, 2001
- ------------------------------------
Notary Public
NOTARIAL SEAL
CORPORATE ACKNOWLEDGMENT
STATE OF PENNSYLVANIA :
: ss.
COUNTY OF LEHIGH :
On this the 26th day of MARCH, 1998 before me, a Notary Public in and for
said County and State, personally appeared JOSEPH A. YURGOSKY, known to me (or
satisfactorily proven) to be the Secretary of RHETECH, INC., a Delaware
Corporation, and that he as such officer, being authorized to do so, executed
the foregoing instrument for the purposes therein contained by signing the name
of the Corporation by himself as such officer.
WITNESS my hand and notarial seal the day and year aforesaid.
/s/Robin L. Cunconan-Lahr My Commission Expires: March 12, 2001
- ------------------------------------
Notary Public
NOTARIAL SEAL