EXHIBIT 10.2
REVOLVING LOAN NOTE
$10,000,000.00 July 26, 2000
Hartford, Connecticut
For value received, the undersigned, ZIPLINK, INC. (the "Borrower"),
promises to pay to the order of FLEET NATIONAL BANK (the "Lender") at its office
at 777 Main Street, Hartford, Connecticut 06115, or at such other place as
Lender may designate, the principal amount of TEN MILLION AND 00/100 DOLLARS
($10,000,000.00), or such amount thereof as shall be outstanding pursuant to the
Loan Agreement (as hereafter defined) together with interest on the unpaid
balance of this Note, beginning as of the date hereof, at a rate per annum for
each Interest Period equal to the LIBOR Rate plus .30% for such Interest Period,
or such other rate as shall be provided in the Loan Agreement, together with all
taxes levied or assessed on this Note or the debt evidenced hereby against
Lender, and together with all costs, expenses and attorneys' fees incurred in
the collection of this Note, or to enforce or foreclose any security agreement,
pledge agreement or other document including, without limitation, the Loan
Agreement, the Pledge Agreement and the Control Agreement (each as hereinafter
defined), securing or relating to this Note, or in protecting or defending the
lien thereof, or in any litigation or matter arising from or connected therewith
or with this Note. Interest shall be computed monthly in arrears on the basis of
a 360-day year and actual days elapsed. The interest rate for each Revolving
Loan shall be determined in accordance with the terms of the Loan Agreement. The
terms "Interest Period", "LIBOR Rate" and "Revolving Loan" as used herein shall
have the definitions assigned in the Loan Agreement.
The principal amount of this Note shall be advanced, upon the request
of Borrower, pursuant to a certain Revolving Loan and Security Agreement between
Borrower and Lender of even date herewith (the "Loan Agreement"). This Note is
issued and secured pursuant to the Loan Agreement, the terms of which are deemed
incorporated by reference. This Note is guaranteed by a Guaranty of even date
herewith (the "Guaranty") from Henry M. Zachs (the "Guarantor"). The Guaranty is
secured by a Stock Pledge Agreement of even date herewith, between Guarantor and
Lender (the "Stock Pledge Agreement") pursuant to which the Guarantor has
pledged certain marketable securities to the Lender and an Account Control
Agreement of even date herewith to which such pledged securities have been
subjected (the "Account Control Agreement"). Lender shall maintain a Revolving
Loan Account (as defined in the Loan Agreement) on which it will keep record of
all outstanding amounts hereunder.
Interest shall be paid on each Interest Payment Date (as defined in the
Loan Agreement), until the principal balance with accrued interest thereon is
paid in full. If not sooner paid, the entire principal balance plus accrued
interest thereon shall be paid in full on July 26, 2002.
Borrower may repay this Note in whole or in part at any time, provided
that Borrower shall pay such fees and premiums in connection with a prepayment
as are set forth in the Loan Agreement.
Upon the occurrence of an Event of Default under and as defined in the
Loan Agreement, the entire indebtedness, with accrued interest thereon due under
this Note, shall, at the option of Lender, become immediately due and payable
without demand or notice of any kind. Borrower agrees that the interest rate
shall increase by three (3%) percentage points per annum over the otherwise
applicable rate upon the occurrence of such Event of Default.
If any interest installment due hereunder is not paid within ten (10)
days after the date it is due, a late charge equal to five percent (5%) of said
amount shall be assessed against Borrower, and shall be immediately due and
payable without demand or notice of any kind.
All payments received hereunder shall be applied first to late charges,
prepayment premiums and fees, and other costs and expenses, then to accrued
interest and then to principal, except as otherwise provided herein or in the
Loan Agreement, Pledge Agreement or Control Agreement.
Borrower hereby grants to Lender a lien, security interest and right of
setoff for all of Borrower's liabilities and obligations to Lender upon and
against all the deposits, credits, collateral and property of Borrower, now or
hereafter in the possession, custody, safekeeping or control of Lender or any
entity under the control of Fleet Bank Financial Corporation or in transit to
any of them. Lender may, at any time, apply or set off the same, or any part
thereof, to any liability or obligation of Borrower, or any guarantor of the
Obligations (as defined in the Loan Agreement), whether or not matured or
demanded and regardless of the adequacy of any other collateral now or hereafter
securing the Obligations. Any and all rights to require Lender to exercise its
right or remedies with respect to any other collateral which secures the
Obligations prior to exercising its right of set off with respect to such
deposits, credits or other property of Borrower and/or such guarantor are hereby
knowingly, voluntarily and irrevocably waived.
Notwithstanding any provisions of this Note to the contrary, the rate
of interest to be paid by Borrower to Lender under this Note shall not exceed
the highest or the maximum rate of interest permitted to be charged by Lender
under applicable laws. Any amounts paid by Borrower to Lender in excess of such
rate shall be deemed to be partial prepayments of principal hereunder.
No delay or omission by Lender in exercising any right hereunder, nor
failure by Lender to insist upon the strict performance of any terms herein,
shall operate as a waiver of such right, any other right hereunder, or any terms
herein. No waiver of any right shall be effective unless in writing and signed
by Lender, nor shall a waiver on one occasion be constituted as a bar to, or
waiver of, any such right on any future occasion.
Borrower and each and all endorsers, guarantors and sureties of this
Note waive diligence, demand, presentment for payment, notice of nonpayment,
protest and notice of protest, and notice of any renewals or extensions of this
Note, and all rights under any statute of limitations, and all endorsers,
guarantors and sureties agree that the time for payment of this Note may be
extended at Lender's sole discretion, without impairing their liability thereon,
and further consent to the release of all or any part of the security for the
payment hereof, at the discretion of Lender, or the release of any party liable
for this obligation without affecting the liability of the other parties hereto.
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THE BORROWER ACKNOWLEDGES THAT THE LOAN EVIDENCED BY THIS NOTE IS A
COMMERCIAL TRANSACTION, AND WAIVES ITS RIGHT TO NOTICE AND HEARING UNDER CHAPTER
903a OF THE CONNECTICUT GENERAL STATUTES, AS NOW CONSTITUTED OR HEREAFTER
AMENDED OR AS OTHERWISE ALLOWED UNDER ANY STATE OR FEDERAL LAW WITH RESPECT TO
ANY PREJUDGMENT REMEDY WHICH THE LENDER MAY DESIRE TO USE, AND FURTHER WAIVES
ITS RIGHTS TO REQUEST THE LENDER POST A BOND, WITH OR WITHOUT SURETY, TO PROTECT
BORROWER AGAINST DAMAGES THAT MAY BE CAUSED BY ANY PREJUDGMENT REMEDY SOUGHT OR
OBTAINED BY LENDER. THE BORROWER ACKNOWLEDGES THAT IT MAKES THESE WAIVERS
KNOWINGLY, VOLUNTARILY, WITHOUT DURESS AND ONLY AFTER CONSIDERATION OF THE
RAMIFICATIONS OF THESE WAIVERS WITH ITS ATTORNEYS.
THE BORROWER WAIVES TRIAL BY JURY IN ANY COURT IN ANY SUIT, ACTION,
PROCEEDING OR ANY MATTER ARISING IN CONNECTION WITH OR IN ANY WAY RELATED TO
THIS NOTE OR THE FINANCING TRANSACTION OF WHICH THIS NOTE IS A PART, OR THE
DEFENSE OR ENFORCEMENT OF ANY OF THE LENDER'S RIGHTS AND REMEDIES IN CONNECTION
THEREWITH. THE BORROWER ACKNOWLEDGES THAT IT MAKES THIS WAIVER KNOWINGLY,
VOLUNTARILY, WITHOUT DURESS AND ONLY AFTER CONSIDERATION OF THE RAMIFICATIONS OF
THIS WAIVER WITH ITS ATTORNEYS.
This Note shall be governed by and construed in accordance with the
laws of the State of Connecticut without regard to principles of conflicts of
law.
Upon receipt of an affidavit of an officer of Lender as to the loss,
theft, destruction or mutilation of this Note or any other document or security
instrument which is not of public record, and in the case of any such
mutilation, upon surrender and cancellation of such Note or other document or
security instrument, Borrower and/or any guarantor, endorser, surety or obligor,
as the case may be, shall be obligated to issue, in lieu thereof a replacement
Note or other document or security instrument in the same principal amount
thereof and otherwise of like tenor.
All references to the "Borrower" or the "Lender" shall apply to their
respective successors and assigns.
ZIPLINK, INC.
By: /s/ Henry M. Zachs
---------------------------
Henry M. Zachs
Its Chief Executive Officer
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