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HomeMy WebLinkAbout10-23054 Mo. ) 0 - -2305' cvlv'. , f ,nrA, THIS NOTE IS DELIVERED AND PAYABLE WIrEON PENNSYLVANIA JUDGMENT NOTE $30,953.92 Date: as of February 1, 2009 Pittsburgh, Pennsylvania FOR VALUE RECEIVED, Kairos Design Group, LLC a Pennsylvania company ("Maker") having an address at 4 Lemoyne Drive, Suite 201, Lemoyne, Pennsylvania 17043, hereby unconditionally promises to pay to the order of Trans Associates Engineering Consultants, Inc., a Pennsylvania corporation ("Payee") having an address at 4955 Steubenville Pike, Suite 400 Pittsburgh, Pennsylvania 15205, the principal amount of $30,953.92 plus other amounts as stated herein. 1. Interest Rate. In the absence of any Event of Default hereunder no interest on the principal shall accrue. Upon any Event of Default, and whether before or after entry of judgment, interest shall accrue at the rate of twelve percent (12.0%) per annum (the "Default Rate"), commencing thirty (30) days after the date of the respective Invoices that comprise the principal herein. Accrued but unpaid interest that is due and owing shall be added to principal. 2. Installments. Maker shall pay Payee in installments as follows: 1. $ 500.00 no later than February 8, 2009; and 2. $ 500.00 no later than March 8, 2009; and n 3. $ 500.00 no later than April 8, 2009; and a 4. $ 500.00 no later than May 8, 2009; and 5. $ 500.00 no later than June 8, 2009; and 6. $ 500.00 no later than July 8, 2009; and G? 7. $ 500.00 no later than August 8, 2009; and 1- 8. $ 500.00 no later than September 8, 2009; and -=' 9. $ 700.00 no later than October 8, 2009; and w `< 10. $ 700.00 no later than November 8, 2009; and 11. $ 700.00 no later than December 8, 2009; and 12. $ 700.00 no later than January 8, 2010; and q 017 SrD P 'l s 13. $ 700.00 no later than February 8, 2010; and F- 14. $ 700.00 no later than March 8, 2010; and J R 15. $ 700.00 no later than April 8, 2010; and r BYO 013 16. $ 700.00 no later than May 8, 2010; and l h J d 8 0 f Ill 40 17. $ ater t an une 900.00 no , 2 10; an ?C? r?o s 75?y+ GsaP 18. $ 900.00 no later than July 8, 2010; and kk(- 19. $ 900.00 no later than August 8, 2010; and 20. $ 900.00 no later than September 8, 2010; and 0 0 21. $ 900.00 no later than October 8, 2010; and 22. $ 900.00 no later than November 8, 2010; and 23. $ 900.00 no later than December, 8 2010; and 24. $ 900.00 no later than January, 8 2011; and 25. $1,100.00 no later than February 8, 2011; and 26. $1,100.00 no later than March 8, 2011; and 27. $1,100.00 no later than April 8, 2011; and 28. $1,100.00 no later than May, 8 2011; and 29. $1,100.00 no later than June, 8 2011; and 30. $1,100.00 no later than July 8, 2011; and 31. $1,100.00 no later than August 8, 2011; and 32. $1,300.00 no later than September, 8 2011; and 33. $1,300.00 no later than October, 8 2011; and 34. $1,300.00 no later than November, 8 2011; and 35. $1,300.00 no later than December, 8 2011; and 36. $1,253.92 no later than January 8, 2012. All amounts due and owing under this Note shall come due on January 8, 2012 ("Maturity Date"), unless earlier demand is made by Payee, as herein authorized. Maker shall enjoy a one-time five (5) calendar day grace period for delivery of any installment due and owing under this Note. Once such grace period has been utilized, whether announced by Maker or declared by Payee, then thereafter there shall not be any grace period applicable to any installment due and owing under this Note. Notwithstanding the foregoing, time for delivery of an installment payment to Payee automatically shall be extended in the instance of a nationally recognized "next day" courier service that, having received from Maker its check intended for delivery, experiences delivery setback. In the event that all installments herein identified are paid timely and in full, and in the absence of any Event of Default on the part of the Maker, the Payee shall credit $30,953.92 to this Note and will take the appropriate steps to return this Note to Maker. 3. Payments. All amounts payable by the Maker hereunder shall be delivered to Trans Associates Engineering Consultants, Inc., 4955 Steubenville Pike, Suite 400, Pittsburgh, Pennsylvania 15205. All payments shall be made without demand and shall be free of any reduction, deduction, credit, recoupment, set-off, claim, counterclaim, or any decrease of any nature whatsoever. All principal, interest and other sums due under this Note shall be paid by means of check and shall be paid in lawful money of the United States of America that, at that time of the payment, shall be legal tender for the payment of all debts, public and private. 2 HAproject file\06493.KAIR000\2009 CORRESPONDENCEWairos Judgment Note 1.20-09.doc Ll • If any payment on this Note becomes due and payable on a Saturday, Sunday, or other day on which commercial banks in Pennsylvania are authorized or required by law to close, the maturity thereof shall be extended to the next succeeding business day. Notwithstanding any provision contained herein, the total liability of Maker for payment of interest hereunder shall not exceed the maximum amount of such interest permitted by law to be charged, collected or received from Maker. If any payments by Maker include interest in excess of such maximum amount, then the Payee 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. Any such application or refund shall not cure or waive any Event of Default (as defined herein). In determining whether or not any interest payable under this Note exceeds the highest rate permitted by law, any non-principal payment (except payments specifically stated in this Note to be "interest"), including without limitation prepayment premiums and late charges, shall be deemed, to the extent permitted by applicable law, to be an expense, fee, premium, or penalty rather than interest. Installment payments timely made hereunder and that clear the banking system shall be applied to the then oldest and unpaid Invoice issued by Payee to Maker. 4. Events of Default. Any of the following events shall constitute a default or an "Event of Default" under this Note: a. The Failure by the Maker to pay timely and in full any installment due under, or accrued interest on, or any other sum due under, this Note on its due date (or as otherwise allowed under Section 2 above); or b. Commencement of a bankruptcy case, whether voluntary or involuntary, receivership proceedings, or other insolvency proceedings against or involving Maker. c. Entry of judgment against Maker and in favor of any person or persons whatsoever, exceeding $5,000.00 in any one instance or $15,000.00 in the aggregate. 5. Remedies. a. Except as concerns the one-time grace period expressly allowed under Section 2 above, there shall be no "cure period" as regards any default or Event of Default under this Note. b. At any time after occurrence of an Event of Default and Payee's written declaration thereof, Payee, at its option and without any further notice or demand, may do any one or more of the following: (1) without declaring the unpaid principal balance to be due, collect all installments of principal and/or interest and all other sums due under this Note from time to time, by any action provided in this Note, by statute, at law, or in equity; (2) declare the entire unpaid principal of this Note, together with interest accrued thereon (at the interest rate above stated) and all other sums due from Maker under this Note to be due and payable immediately; and/or 3 H:\project file\06493.KAIRO00\2009 CORRESPONDENCE\Kairos Judgment Note 1.20-09.doc (3) exercise any other right or remedy as may be. provided in this Note, by statue, at law or in equity. c. Payment of all or any part of the Indebtedness (as hereinafter defined) may be recovered at any time by any or more of the foregoing remedies. d. After an Event of Default hereunder the outstanding principal shall accrue interest at the Default Rate as aforesaid in Section 2 above, through and including the date on which the entire unpaid principal balance and all other sums due under this Note and/or any other agreement or arrangement between the Maker and the Payee (collectively, the "Indebtedness") are actually received and collected by Payee. Upon the entry of any judgment, interest shall accrue at the applicable statutory rate on the judgment amount from the date of judgment until Payee's actual receipt and collection of the entire Indebtedness. 6. Costs and Attornev's Commission. In any action under this Note, Payee may recover all costs of suit and other expenses paid or incurred by Payee in connection with collection efforts, including but not limited to attorney's fees and collection commission in amount of $5,000.00. 7. Remedies Cumulative. The rights and remedies provided to Payee in this Note and/or any other agreement, contract, or other instrument between the Maker and the Payee, including but not limited to all warrants of attorney: i. are not exclusive and are in addition to any other rights and remedies that Payee may have by agreement, under statute, at law, or in equity; ii. shall be cumulative and concurrent; iii. may be pursued singly, successively, or together against Maker at the sole discretion of Payee; and iv. may be exercised as often as occasion therefore shall arise. The failure to exercise or delay in exercising any right or remedy shall not be construed as a waiver or release thereof. 8. Maker's Waivers. Maker hereby waives and releases Payee and its successors, assigns, representatives, and attorneys from all errors, defects and imperfections in any proceeding instituted or maintained by Payee under this Note. Maker hereby waives all benefit of any and all present and future statutes of limitations and moratorium laws and any and all present and future laws that: a. exempt any real or personal property or any part of the proceeds of any sale of any such property from attachment, levy, foreclosure or sale under execution; or 4 H:\project file\06493.KAIRO00\2009 CORRESPONDENCE\Kairos Judgment Note 1.20-09.doc b. provide for any stay of execution, marshaling of assets, exemption from civil process, redemption, extension of time for payment, or valuation or appraisement of any real personal property. Maker hereby waives the requirements of demand, presentment, protest, notice of protest and dishonor and all other demands or notices of any kind in connection with the delivery, acceptance, performance, default, dishonor, or enforcement of this Note. 9. Miscellaneous. a. No Joint Venture. Payee shall not be construed for any purpose to be a partner, joint venturer, or associate or Maker or of any lessee, operator, concessionaire or licensee of Maker, or bailee of any collateral by reason of this Note or of any action by Payee pursuant hereto. b. Time of Essence. Time is of the essence of each and every provision of this Note. c. Successors and Assigns. The words "Payee" and "Maker" shall include the respective successors and assigns of Payee and Maker. The provisions of this Note shall bind and inure to the benefit of Payee and Maker and their respective successors and assigns. Nothing herein shall be construed or interpreted as authorizing Maker to assign any of its duties or obligations under this Note. d. Number and Gender. As to all pronouns and other terms in this Note, the singular shall include the plural and vice versa, and any gender shall include the other two genders, as the context may require. e. Amendment of Note. This Note may be modified, amended, discharged, or waived only by an agreement in writing signed by the party against whom enforcement of any such modification, amendment, discharge, or waiver is sought. f. Governing Law. This Note shall be governed by and construed according to the laws of the Commonwealth of Pennsylvania, disregarding any rules relating to the choice or conflict of laws. Because the Maker has had opportunity for advice from legal counsel of its choice in connection with the review, execution, and delivery of this Note, there shall not apply to this Note any rule or canon of construction that otherwise might support interpretation hereof against the draftsperson. g. Captions. Paragraph and section headings herein shall have absolutely no legal significance and are used solely for convenience of reference. h. Reinstatement of Debt. Notwithstanding anything herein to the contrary, in the event any payment fails to clear the banking system or is reversed, stopped or refused to be honored by the payor bank, voided, rescinded, or otherwise not fully and permanently achieved, then the full $30,953.92, less credits for payments not so adversely affected, plus interest accruing thirty (30) days after the date of any Invoice the face amount of which has not been paid in full, is and automatically shall be reinstated, due, and owing. 10. INTENTIONAL ACTS. MAKER HEREBY ACKNOWLEDGES AND REPRESENTS THAT IT HAS HAD OPPORTUNITY FOR ASSISTANCE OF LEGAL COUNSEL IN CONNECTION WITH ITS REVIEW, EXECUTION AND DELIVERY OF THIS NOTE; HAS READ AND FULLY UNDERSTANDS ALL OF THE PROVISIONS, TERMS AND CONDITIONS HEREOF; AND 5 HAproject file\06493.KAIR000\2009 CORRESPONDENCE Kairos Judgment Note 1.20-09.doc VOLUNTARILY, KNOWINGLY AND INTENTIONALLY GIVES THE AUTHORIZATIONS AND WAIVERS CONTAINED HEREIN, INCLUDING WITHOUT LIMITATION THE WARRANT FOR CONFESSION OF JUDGMENT. [Rest of page intentionally left blank.] 6 HAproject file\06493.KAIR000\2009 CORRESPONDENCE\Kairos Judgment Note 1.20-09.doc N Il. JURY TRIAL WAIVER. MAKER HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WANES ITS RIGHT TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, OR UNDER OR IN CONNECTION WITH, THIS NOTE OR ANY COURSE OF CONDUCT, DEALINGS, STATEMENTS, OR ACTIONS OF EITHER PARTY ARISING OUT OF OR RELATED IN ANY MANNER TO THIS NOTE (INCLUDING WITHOUT LIMITATION ANY ACTION TO RESCIND OR CANCEL THIS NOTE). 12. CONFESSION OF JUDGMENT. MAKER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS PAYEE, BY ITS ATTORNEY, OR THE PROTHONOTARY OR THE CLERK OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA, AND/OR IN ANY JURISDICTION WHERE PERMITTED BY LAW, UPON THE OCCURRENCE OF DEFAULT OR AN EVENT OF DEFAULT, OR AT ANY TIME THEREAFTER, AND UPON THE FILING OF AN AFFIDAVIT OR DECLARATION OF DEFAULT SETTING FORTH THE DEFAULT OR EVENT OF DEFAULT, TO APPEAR FOR THE MAKER AND CONFESS AND ENTER JUDGMENT AGAINST IT AND IN FAVOR OF PAYEE TOGETHER WITH COSTS OF SUIT AND WITH ACTUAL COLLECTION COSTS (INCLUDING REASONABLE ATTORNEYS' FEES) WITH OR WITHOUT DECLARATION, AND WITHOUT STAY OF EXECUTION FORTHWITH, AND FOR DOING SO THIS NOTE OR A COPY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE MAKER HEREBY WANES AND RELEASES ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY OR EXEMPTION LAW OF ANY STATE NOW IN FORCE OR HEREAFTER ENACTED. THIS AUTHORITY AND POWER SHALL NOT BE EXHAUSTED BY THE EXERCISE THEREOF AND SHALL CONTINUE UNTIL THE OBLIGATIONS ARE FULLY PAID, PERFORMED, DISCHARGED AND SATISFIED. IN WITNESS WHEREOF, and intending to be legally bound hereby, the Maker has executed this Note as of the date first written above. Attest/Witness 4?ff" M. k- Print Name: 7 HAproject file\06493.KAIR000\2009 CORRESPONDENCEWalros Judgment Note 1.20-09.doc KAIROS DESIGN GROUP, LLC