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EXHIBIT 10.2
PROMISSORY NOTE
Note No.: 1385-00159 Date: June 7, 2000
Client: Penn-Akron Corporation Lawrenceville, New Jersey
Page: 1
FOR VALUE RECEIVED, the undersigned, (the "Maker"), hereby promises to pay to
PrinVest Financial Corp (the "Payee"), at the times set forth below, the sum of
$3,500,000.00 or as much thereof as may be outstanding from time to time in
lawful money of the United States, in immediately available funds, representing
the principal amount (the "Principal Amount") of all amounts loaned to the
Maker ("Draws") pursuant to this Promissory Note (this "Note") or under that
certain Financing and Security Agreement between Maker and Payee in effect as
of the date first set forth above, as amended, restated, substituted or
replaced hereafter (the "Financing Agreement") together with all accrued and
unpaid interest thereon in accordance with the rates stated in the Financing
Agreement and Draw Certificates thereunder and any other sums owing in
connection herewith by wire via Fleet Bank, ABA No. 011-400-495 to the further
credit of Account No. 939-914-9413 or such other address as the Payee or any
party to whom this Note is assigned in accordance with the terms herein, shall
designate in writing delivered to the Maker.
Maker shall pay interest on the Principal Amount in accordance with the rates
stated in the Financing Agreement and Draw Certificates thereunder, commencing
the date of such Draw, and continuing until the principal balance of such Draw
is repaid in full, inclusive.
The Maker shall repay the Principal Amount of each Draw in accordance with the
terms of the Financing Agreement and the Draw Certificate submitted by the
Maker in connection with such Draw and on or before the stated Maturity Date of
each Draw. In furtherance thereof, the Maker shall cause to be remitted to the
Payee, and the Payee shall apply toward the Maker's obligations hereunder,
payments received under Assigned Contracts (as hereinafter defined) and/or
other collateral, including without limitation the specific collateral detailed
each Draw Certificate, if any, as submitted by the Maker for each Draw, as set
forth in the Financing Agreement, if and as appropriate.
In any event, the Maker shall repay all outstanding Principal Amounts under
this Note, together with accrued and unpaid interest thereon, if not sooner
paid, at the earlier of (a) three years from the date first set forth above
(the "Maturity Date") or (b) or Payee's demand for payment pursuant to an
acceleration resulting from an Event of Default under the Financing Agreement
or any loan document between the Maker and the Payee.
Each of the following events shall constitute an event of default hereunder
(each an "Event of Default"): (a) if the Maker fails to pay any amount owing
hereunder by 5:00 p.m. (New York time) on the date such payment is due or if
such day is a day when banks are closed, the following banking day or (b) if
there occurs any Event of Default under the Financing Agreement whether such
Event of Default relates to this Note, any other note of the Maker to the Payee
now or hereafter issued, or otherwise. Upon the happening, or at any time after
the happening, of any such Event of Default, the entire unpaid Principal Amount
of this Note, together with all accrued and unpaid interest thereon and all
other sums owing hereunder and/or under or in connection with the Financing
Agreement shall become immediately due and payable, at the option of the Payee,
without presentation, demand or further action of any kind, and the Payee may
seek any and all remedies available for the enforcement of this Note, under the
Financing Agreement or any other agreement between the Payee and the Maker, or
at law or in equity and whether against any Obligor, against any collateral
pledged to secure the Maker's obligations to the Payee, or in any combination
thereof.
Upon the occurrence of an Event of Default hereunder or under the Financing
Agreement or any other loan documents, the Borrower shall pay a Surcharge, as
defined in the Financing Agreement, on all amounts owing under this Promissory
Note and Draws hereunder.
With respect to the Principal Amount of each Draw, the Maker agrees that it
shall have no right to prepay any such amount in whole or in part prior to the
OID Period, as defined in the Financing Agreement which is in effect on the
date of any Draw. Thereafter, the Maker may prepay any amounts under such
Draws, at any time in whole or in part without the prior written consent of the
Payee. In the event that the Payee receives any payment on any collateral from
any Draw pursuant to this Note, at a time when prepayment hereunder is not
permitted, the Payee shall apply such funds to the Principal Amount of the
Draw(s) to which such collateral relates (as indicated on the Draw Certificate
submitted for such Draw or as permitted in the Financing Agreement) as if
received on the first day on which a prepayment is permitted.
This Note is a full recourse Promissory Note. The collateral pledged to secure
the Maker's obligations is not the sole source of funds for the repayment of
this Note and the Payee or its agent may look to the Maker and any other
Obligor for payment of all amounts due under this Note. In addition,
notwithstanding anything to the contrary contained herein, in any Draw
Certificate, in the Financing Agreement or in any other document, certificate
or instrument, all invoices under any Assigned Contracts whether or not
financed and any other collateral is intended by the Maker as collateral
pledged to the Payee for all of the Maker's obligations to the Payee, whether
now existing or hereinafter incurred and whether or not incurred hereunder.
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Note No.: 1385-00159 Date: June 7, 2000
Client: Penn-Akron Corporation Lawrenceville, New Jersey
Page 2
If the Payee provides Draws to the Maker which, in aggregate at any time exceed
the face amount of this Promissory Note, the Payee agrees that it will be
obligated for repaying all sums in excess of the value of this Note
("Over-Advance"), together with interest and fees on such Over-Advance.
Further, Maker agrees that should such any Over-Advance be made at any time, it
is not implicitly or explicitly deemed an extension or increase in the Maker's
Credit Limit as defined in the Financing Agreement.
Maker acknowledges that the Payee is under no obligation to make any loans or
advances and that the decision to make any loans or advances pursuant to this
Note are governed by the Financing Agreement.
Payments received by the Payee or its authorized agent under any Assignment of
Claim or from any other source shall be applied in accordance with the
Financing Agreement except to the extent hereafter modified in writing and
executed by both the Maker and the Payee.
Presentment, demand, protest and notice of dishonor are hereby waived by the
Maker and each co-maker, surety, guarantor, endorser, or other person assuming
obligations hereunder (each, including the Maker, individually an "Obligor").
Each Obligor also hereby waives all other notices and all defenses and pleas on
the grounds of any extension or extensions of the maturity or the time(s) of
payment of this Note, before or after maturity, and with or without notice. No
renewal or extension of this Note, no release or surrender of any collateral
given as security for this Note, no release of any Obligor, and no delay or
omission by the Payee in exercising its rights under this Note shall operate as
a waiver of such rights, nor shall the exercise of any right with respect to
this Note waive or preclude the later exercise of such right or any other
right.
This Note is transferable by the Payee in person or by duly authorized
attorney, upon endorsement of this Note by the Payee on the reverse of this
Note whereupon the assignee shall become the Payee for all purposes hereunder.
All payments on the Note by or on behalf of the Maker shall be made to the
Payee. The Maker shall be entitled to treat the Payee as the owner of this Note
for all purposes and shall not be affected by any notice to the contrary.
Notwithstanding the foregoing, the Payee may sell, assign or otherwise transfer
ownership and/or rights under this Note to its parent or any of its Parent's
subsidiaries with ten (10) days advance written notice to the Maker.
The Maker promises to pay all costs and out-of-pocket expenses of obtaining
performance under, of collection under, and of transferring this Note, in any
restructuring of the Liabilities or in any bankruptcy proceeding, including
reasonable fees and expenses of counsel, whether incurred by the Payee or by
any agent, or other party acting on behalf of the Payee. The Maker agrees to
pay any amount due under this Note, or Draws thereunder, without set off,
counterclaim or any deduction whatsoever. In the event that this Note is
assigned pursuant to the terms herein, the Maker hereby waives and releases, as
against any assignee, and covenants and agrees that it will not in any manner
assert against any assignee, any and all claims and defenses to payment which
the Maker might have asserted against the Payee or any of its agents or
assignees, excepting, however, the defense of payment or satisfaction of this
Note and defenses assertable against a holder in due course of a negotiable
instrument under Section 3-305 of the Uniform Commercial Code.
This Note is secured as provided in the Financing Agreement.
This Note and any related agreement between any Obligor and the Payee are
expressly limited so that in no event whatsoever, whether by reason of
acceleration or otherwise, shall the amount paid or agreed to be paid to the
Payee for the use, forbearance or detention of money hereunder exceed the
maximum amount permissible under applicable law. If, from any circumstances
whatsoever, fulfillment of any provision hereof, at the time performance of
such provision shall be due, shall involve transcending the limit validly
prescribed by law, then, ipso facto the obligation to be fulfilled shall be
reduced to the limit of such validity, and if from any such circumstance the
Payee shall ever receive interest, or anything that might be deemed interest
under applicable law that would exceed the highest lawful rate, such amount
that would be excessive interest shall be applied at the sole option of the
Payee to the reduction of the outstanding principal balance of this Note, or
such excess shall be refunded to the Maker. All sums paid or agreed to be paid
to the Payee for the use, forbearance or detention of the indebtedness of the
Maker to the Payee shall, to the extent permitted by applicable law, be deemed
to be amortized, prorated, allocated and spread throughout the full term of
such indebtedness until payment in full, so that the actual rate of interest on
account of such indebtedness is uniform throughout the term thereof. The
provisions of this paragraph shall control and supersede every other provision
of this Note and all other agreements between any Obligor and the Payee.
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Note No.: 1385-00159 Date: June 7, 2000
Client: Penn-Akron Corporation Lawrenceville, New Jersey
Page 3
No right or remedy conferred upon or reserved to the Payee hereunder or under
the Financing Agreement, or with respect to any guaranty or any collateral
securing this Note, or now or hereafter existing at law or in equity or by
statute, is intended to be exclusive of any right or remedy, and each and every
such right and remedy shall be cumulative and concurrent, and shall be in
addition to every other right and remedy and may be pursued singly,
concurrently, successively or otherwise, at the sole discretion of the Payee
and shall not be exhausted by any one exercise thereof. No act of the Payee
shall be deemed or construed as an election to proceed under any one such right
or remedy to the exclusion of any other right or remedy. The failure to
exercise or delay in exercising any such right or remedy, or the failure to
insist upon strict performance of any term of this Note or the Financing
Agreement, shall not be construed as a waiver or release of the same, or of any
Event of Default, or of any obligation or liability of the Maker thereunder or
hereunder, nor shall the Payee be deemed, by any act of omission or commission,
to have waived any of its rights or remedies hereunder unless such waiver is in
writing and signed by the Payee, and then only to the extent specifically set
forth in the writing. A waiver as to one event shall not be construed as
continuing or a bar to or waiver of any right or remedy as to a subsequent
event.
Whenever used herein, the terms "Payee," Maker," and "Obligor" shall be deemed
to include their respective successors and assigns.
This Note shall be governed by and construed in accordance with the laws of the
State of New Jersey.
Maker: PENN-AKRON CORPORATION
Signed: /s/ Christopher J.S. Baker
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Name: Christopher J.S. Baker
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(corporate seal) Title: Chief Financial Officer
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