EXHIBIT 10.1
Term Note PNCBANK
$500,000.00 March 28, 2005
FOR VALUE RECEIVED, Media Sciences, Inc., a New Jersey corporation, and Cadapult
Graphic Systems, Inc., a New Jersey corporation (collectively, the "Borrower"),
with an address at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, 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 Two Tower Center Boulevard, East Brunswick, New Jersey 08816 or at such other
location as the Bank may designate from time to time, the principal sum of FIVE
HUNDRED THOUSAND AND 00/100 DOLLARS ($500,000.00), together with interest
accruing on the outstanding principal balance from the date hereof, as provided
below.
1. Rate of Interest. Amounts outstanding under this Note will bear interest
as follows (check one):
__ A. A rate per annum ("Floating Rate") which is at all times equal to the
Prime Rate [plus][minus] [choose one and delete the other] ___________
(_____) basis points (_____%).
XX B. A rate per annum ("Fixed Rate") which is at all times equal to
-- ___________ percent (6.5%).
__ C. A rate per annum ("Floating Rate") which is at all times equal to the
Prime Rate [plus][minus] [choose one and delete the other] ___________
(_____) basis points (_____%); provided, that the Borrower shall have the
option, from time to time, to convert from the Floating Rate and fix the
interest at a rate per annum offered by the Bank in its sole discretion
("Fixed Rate") for a term of not less than ______________________ ("Fixed
Rate Period"), each as agreed upon in writing between the Borrower and the
Bank. At the end of any Fixed Rate Period, interest shall revert to the
Floating Rate, unless and until the Borrower and the Bank agree to another
Fixed Rate and Fixed Rate Period.
Interest will be calculated based on the actual number of days that principal is
outstanding over a year of 360 days. As used herein, "Prime Rate" shall mean the
rate publicly announced by the Bank from time to time as its prime rate. 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 Floating Rate will change automatically without notice to the
Borrower, effective on the date of any such change. In no event will the rate of
interest hereunder exceed the maximum rate allowed by law.
2. Payment Terms. Principal and interest will be payable as provided below
(check one):
__A. Level Payments: Principal and interest shall be due and payable in
____________ (____) equal consecutive _____________ installments in
the amount of $_________________ each, commencing on
_________________, _____, and continuing on the ______ day of each
_________________ thereafter. Any outstanding principal and accrued
interest shall be due and payable in full on _________________, _____.
The level payment amount is calculated on the assumption that each
periodic payment will be made on the date when due, and if there is
any variation in the actual payment dates, there may be an additional
amount due upon maturity of this Note. Any amortization schedule
provided to Borrower is only an estimate, and is superseded by the
terms of this Note regarding the accrual and payment of interest.
XX B. Fixed Principal Payments Plus Interest: Principal shall be due and
-- payable in 60 equal consecutive monthly installments in the amount of
$8,333.33 each, commencing on April 28, 2005 and continuing on the
28th day of each month thereafter to and including March 28, 2010.
Interest shall be payable at the same times as the principal payments.
Any outstanding principal and accrued interest shall be due and
payable in full on March 28, 2010.
__ C. Interest Only With Principal At Maturity: Interest shall be due and
payable monthly, commencing on _______________, ______, and continuing on
the _______ day of each month thereafter until _________________, _____,
on which date all outstanding principal and accrued interest shall be due
and payable in full.
__ D. For Floating Rate Loans with Option to Convert to Fixed Rate (if you
want level payments during a Fixed Rate Period): Commencing on
________________, _______, principal and interest shall be paid as
follows:
(1) While the Floating Rate is in effect, principal shall be payable in
consecutive equal monthly installments of $____________ each. Interest
shall be payable at the same times as the principal payments.
(2) During any Fixed Rate Period, principal and interest shall be payable
in equal monthly installments in an amount sufficient to amortize the
face amount of this Note over a ___________ year term.
(3) The balance of principal and interest shall be due and payable in full
on ______________ _____, _____.
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. 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.
3. 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, each advance
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,
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.
4. Prepayment. The Borrower shall have the right to prepay any advance 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
5 below.
5. Break Funding Indemnification. 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
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effect, fund or maintain any advance (or any part thereof) bearing interest at a
Fixed Rate) 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 advance bearing interest at a Fixed Rate, or (iii) the Borrower's
payment or prepayment (whether voluntary, after acceleration of the maturity of
this Note or otherwise) or conversion of any advance bearing interest at a Fixed
Rate 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 the advances and all other amounts payable hereunder.
6. 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.
7. 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, interest or other indebtedness under this Note when due; (ii) the
occurrence of any event of default or any default and the lapse of any notice or
cure period, or any Obligor's failure to observe or perform any covenant or
other agreement, under or contained in any Loan Document or any other document
now or in the future evidencing or securing any debt, liability or obligation of
any Obligor to the Bank; (iii) 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); (iv) any
assignment by any 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; (v) 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; (vi) the
commencement of any foreclosure or forfeiture proceeding, execution or
attachment against any collateral securing the obligations of any Obligor to the
Bank; (vii) 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; (viii) any material adverse change in any Obligor's business, assets,
operations, financial condition or results of operations; (ix) any Obligor
ceases doing business as a going concern; (x) 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; (xi) if this
Note or any guarantee executed by any Obligor is secured, the failure of any
Obligor to provide the Bank with additional collateral if in the Bank's opinion
at any time or times, the market value of any of the collateral securing this
Note or any guarantee has depreciated below that required pursuant to the Loan
Documents or, if no specific value is so required, then in an amount deemed
material by the Bank; (xii) the revocation or attempted revocation, in whole or
in part, of any guarantee by any Obligor; or (xiii) the death, incarceration,
indictment or legal incompetency of any individual Obligor or, if any Obligor is
a partnership or limited liability company, the death, incarceration, indictment
or legal incompetency of any individual general partner or member. 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
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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.
8. 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, ▇▇▇▇▇, 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.
9. 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
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 advance
hereunder and the assignment of any rights hereunder. The Borrower may
participate at its expense in the defense of any such action or claim.
10. 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
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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 STATE WHERE THE BANK'S
OFFICE INDICATED ABOVE IS LOCATED, EXCLUDING ITS CONFLICT OF LAWS RULES. The
Borrower hereby irrevocably consents to the exclusive jurisdiction of any state
or federal court in the county or judicial district where the Bank's office
indicated above is located; 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.
11. 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.
12. 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.
WITNESS / ATTEST: Media Sciences, Inc.
/s/ By: /s/
------------------------------------ ------------------------------------
(SEAL)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Secretary
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WITNESS / ATTEST: Cadapult Graphic Systems, Inc.
/s/ By: /s/
------------------------------------ ------------------------------------
(SEAL)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Secretary
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