Exhibit 10.2
SECOND AMENDED AND RESTATED
REVOLVING CREDIT NOTE
$30,000,000.00 Baltimore, Maryland
September 28, 2000
FOR VALUE RECEIVED, TESSCO TECHNOLOGIES INCORPORATED, a corporation
organized and existing under the laws of the State of Delaware, TESSCO
COMMUNICATIONS INCORPORATED, a corporation organized under the laws of the State
of Delaware, TESSCO INCORPORATED, a corporation organized under the laws of the
State of Delaware, TESSCO FINANCIAL CORPORATION, a corporation organized under
the laws of the State of Delaware, WIRELESS SOLUTIONS INCORPORATED, a
corporation organized under the laws of the State of Maryland, and CARTWRIGHT
COMMUNICATIONS COMPANY, a corporation organized under the laws of the State of
Delaware, jointly and severally (collectively, the "Borrower"), promises to pay
to the order of BANK OF AMERICA, N.A., a national banking association, formerly
"NationsBank, N.A.," its successors and assigns (the "Lender"), the principal
sum of THIRTY MILLION DOLLARS ($30,000,000.00) (the "Principal Sum"), or so much
thereof as have been or may be advanced to, or for, the account of the Borrower
pursuant to the terms and conditions of the Financing Agreement (as hereinafter
defined) as "AutoBorrow Advances" (as that term is defined in the Financing
Agreement) and "Other Advances" (as that term is defined in the Financing
Agreement), together with interest thereon at the rate or rates hereinafter
provided, in accordance with the following;
1. INTEREST. Until repayment in full of all sums due hereunder, the
unpaid Principal sum shall bear interest from the date hereof until paid at the
Revolving Loan Rate as defined and set forth in the Financing Agreement for
AutoBorrow Advances (as defined in the Financing Agreement) and Other Advances
(as defined in the Financing Agreement), as the case may be. All interest
payable under the terms of this Note shall be calculated on the basis of a
360-day year and the actual number of days elapsed.
2. PAYMENTS. Accrued interest on the unpaid Principal Sum hereunder
shall be due and payable at the times set forth in the Financing Agreement and
additionally, for the AutoBorrow Advances (as defined in the Financing
Agreement), also at the times set forth in the AutoBorrow Service Agreement (as
defined in the Financing Agreement), up to and including maturity (whether by
acceleration, declaration, extension or otherwise).
The fact that the balance hereunder may be reduced to zero from time to
time pursuant to the Financing Agreement and also, for the AutoBorrow Advances
(as defined in the Financing Agreement) only, under the AutoBorrow Service
Agreement (as defined in the Financing Agreement), will not affect the
continuing validity of this Note or the Financing Agreement, and the balance may
be increased to the Principal Sum after any such reduction to zero.
Unless sooner paid, the entire unpaid Principal Sum, together with all
interest accrued and unpaid thereon, shall be due and payable in full on
September 30, 2003.
3. DEFAULT INTEREST. Upon the occurrence of an Event of Default (as
hereinafter defined), the unpaid Principal Sum shall bear interest thereafter at
a rate of interest equal to the Post-Default Rate (as defined in the Financing
Agreement).
4. LATE CHARGES. If the Borrower shall fail to make any payment under
the terms of this Note within fifteen (15) days after the date such payment is
due, the Borrower shall pay to the Lender on demand a late charge equal to five
percent (5%) of such payment.
5. APPLICATION AND PLACE OF PAYMENTS. All payments including permitted
prepayments made on account of this Note shall be applied first to the payment
of any late charge, second to the payment of any Early Termination Fees (as
defined in the Financing Agreement), if any, due hereunder or under the
Financing Agreement, third to the payment of any unpaid and accrued Enforcement
Costs (as defined in the Financing Agreement), if any, fourth to the payment of
accrued and past due interest, fifth, to the payment of all current due and
unpaid amounts hereunder and the remainder, if any, shall be applied to the
unpaid Principal Sum. All payments on account of this Note shall be paid in
lawful money of the United States of America in immediately available funds
during regular business hours of the Lender at its office at 10 Light Street,
Baltimore, Maryland, or at such other times and places as the Lender may at any
time and from time to time designate in writing to the Borrower.
6. PREPAYMENT. The Borrower may prepay the Principal Sum in accordance
with, and subject to, the terms and conditions of the Financing Agreement.
7. FINANCING AGREEMENT AND OTHER FINANCING DOCUMENTS. This Note is the
"Revolving Credit Note" described in a Financing Agreement by and between the
Borrower and the Lender, dated March 31, 1995 (as amended by First Amendment to
Financing Agreement dated September 26, 1996, by Second Amendment to Financing
Agreement dated February 28, 1997, by Third Amendment to Financing Agreement
dated June 13, 1997, by Fourth Amendment to Financing Agreement dated September
30, 1999 (the "Fourth Amendment"), by Fifth Amendment to Financing Agreement
dated the same date as this Note, and as amended, modified, substituted,
extended and renewed from time to time, the "Financing Agreement"), and
evidences the Borrower's obligations to repay the AutoBorrow Advances (as
defined in the Financing Agreement) and Other Advances (as defined in the
Financing Agreement) with interest. The indebtedness evidenced by this Note is
included within the meaning of the term "Obligations," and this Note is one of
the "Financing Documents," as defined in the Financing Agreement. This Note
amends and restates the Borrower's $15,000,000 Amended and Restated Revolving
Credit Note dated September 30, 1999 that, in accordance with the terms of the
Fourth Amendment, immediately prior hereto constituted the "Revolving Credit
Note" (as defined in the Fourth Amendment) and is not intended to and shall not
cause a novation with respect to any or all of the Obligations.
8. EVENTS OF DEFAULT. The occurrence of any one or more of the
following events shall constitute an event of default (individually, an "Event
of Default" and collectively, the "Events of Default") under the terms of this
Note:
(a) The failure of the Borrower to pay to the Lender when due any and
all amounts payable by the Borrower to the Lender under the terms of this Note
and, only in the
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case of periodic payments of interest, such failure continues incurred for a
period of ten (10) Business Days (as that term is defined in the Financing
Agreement); or
(b) The occurrence of an event of default (as defined therein) under
the terms and conditions of any of the other Financing Documents and such
default is not cured within any grace or cure period provided therefor, if any.
9. REMEDIES. Upon the occurrence of an Event of Default, at the option
of the Lender, all amounts payable by the Borrower to the Lender under the terms
of this Note shall immediately become due and payable by the Borrower to the
Lender without notice to the Borrower or any other person, and the Lender shall
have all of the rights, powers, and remedies available under the terms of this
Note, any of the other Financing Documents and all applicable laws. The Borrower
and all endorsers, guarantors, and other parties who may now or in the future be
primarily or secondarily liable for the payment of the indebtedness evidenced by
this Note hereby severally waive presentment, protest and demand, notice of
protest, notice of demand and of dishonor and non-payment of this Note and
expressly agree that this Note or any payment hereunder may be extended from
time to time without in any way affecting the liability of the Borrower,
guarantors and endorsers.
10. MANDATORY ARBITRATION. Any controversy or claim between or among
the Borrower and the Lender including but not limited to those arising out of or
relating to this Note or any related agreements or instruments, including any
claim based on or arising from an alleged tort, shall be determined by binding
arbitration in accordance with the Federal Arbitration Act (or if not
applicable, the applicable state law), as promulgated from to time, by the Rules
of Practice and Procedure for the Arbitration of Commercial Disputes of Judicial
Arbitration and Mediation Services, Inc. predecessor in interest to Endispute,
Inc, doing business an "J.A.M.S./Endispute", and the "Special Rules" set forth
below. In the event of any inconsistency, the Special Rules shall control.
Judgment upon any arbitration award may be entered in any court having
jurisdiction. Any party to this Note may bring an action, including a summary or
expedited proceeding, to compel arbitration of any controversy or claim to which
this Note applies in any court having jurisdiction over such action.
(a) SPECIAL RULES. The arbitration shall be conducted in the City of
Baltimore, Maryland and administered by J.A.M.S./Endispute who will appoint an
arbitrator; if J.A.M.S./Endispute is unable or legally precluded from
administering the arbitration, then the American Arbitration Association will
serve. All arbitration hearings will be commenced within 90 days of the demand
for arbitration; further, the arbitrator shall only, upon a showing of cause, be
permitted to extend the commencement of such hearing for up to an additional 60
days.
(b) RESERVATIONS OF RIGHTS. Nothing in this Note shall be deemed to (i)
limit the applicability of any otherwise applicable statutes of limitation or
repose and any waivers contained in this Note or (ii) be a waiver by the Lender
of the protection afforded to it by 12 U.S.C. Sec. 91 or any substantially
equivalent state law; or (iii) limit the right of the Lender (A) to exercise
self help remedies such as (but not limited to) setoff, or (B) to foreclose
against any real or personal property collateral, or (C) to obtain from a court
provisional or ancillary remedies such as (but not limited to) injunctive relief
or the appointment of a receiver. The Lender may exercise such self help rights,
foreclose upon such property, or obtain such
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provisional or ancillary remedies before, during or after the pendency of any
arbitration proceeding brought pursuant to this Note. At the Lender's option,
foreclosure under a deed of trust or mortgage may be accomplished by any of the
following: the exercise of a power of sale under the deed of trust or mortgage,
or by judicial sale under the deed of trust or mortgage, or by judicial
foreclosure. Neither the exercise of self help remedies nor the institution or
maintenance of an action for foreclosure or provisional or ancillary remedies
shall constitute a waiver of the right of any party, including the claimant in
any such action, to arbitrate the merits of the controversy or claim occasioning
resort to such remedies.
11. EXPENSES. The Borrower promises to pay to the Lender an demand by
the Lender all actual reasonable costs and expenses incurred by the Lender in
connection with the collection and enforcement of this Note, including, without
limitation, all reasonable attorneys, fees and expenses and all court costs.
12. NOTICES. All notices, requests and demands hereunder shall be
deemed to have been given or made if made or given in the manner provided in
Section 7.1 of the Financing Agreement.
13. MISCELLANEOUS. Each right, power, and remedy of the Lender as
provided for in this Note or any of the other Financing Documents, or now or
hereafter existing under any applicable law or otherwise shall be cumulative and
concurrent and shall be in addition to every other right, power, or remedy
provided for in this Note or any of the other Financing Documents or now or
hereafter existing under any applicable law, and the exercise or beginning of
the exercise by the Lender of any one or more of such rights, powers, or
remedies shall not preclude the simultaneous or later exercise by the Lender of
any or all such other rights, powers, or remedies. No failure or delay by the
Lender to insist upon the strict performance of any term, condition, covenant,
or agreement of this Note or any of the other Financing Documents or to exercise
any right, power, or remedy consequent upon a breach thereof, shall constitute a
waiver of any such term, condition, covenant, or agreement or of any such
breach, or preclude the Lender from exercising any such right, power, or remedy
at a later time or times. By accepting payment after the due date of any amount
payable under the terms of this Note, the Lender shall not be deemed to waive
the right either to require prompt payment when due of all other amounts payable
under the terms of this Note or to declare an Event of Default for the failure
to effect such prompt payment of any such other amount. No course of dealing or
conduct shall be effective to amend, modify, waive, release, or change any
provisions of this Note.
14. PARTIAL INVALIDITY. In the event any provision of this Note (or any
part of any provision) is held by a court of competent jurisdiction to be
invalid, illegal, or unenforceable in any respect, such invalidity, illegality,
or unenforceability shall not affect any other provision (or remaining part of
the affected provision) of this Note; but this Note shall be construed as if
such invalid, illegal, or unenforceable provision (or part thereof) had not been
contained in this Note, but only to the extent it is invalid, illegal, or
unenforceable.
15. CAPTIONS. The captions herein set forth are for convenience only
and shall not be deemed to define, limit, or describe the scope or intent of
this Note.
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16. GOVERNING LAW. WITHOUT IN ANY WAY LIMITING ANY ADDITIONAL RIGHTS
AND REMEDIES WHICH THE LENDER MAY HAVE UNDER THE LAWS OF ANY OTHER JURISDICTION,
THIS NOTE IS TO BE GOVERNZD BY, CONSTRUED UNDER AND ENFORCED ACCORDING TO THE
LAWS OF THE STATE OF MARYLAND WITH THE SAME FORCE AND EFFECT AS IF THIS NOTE HAD
BEEN EXECUTED, DELIVERED, ADMINISTERED AND REPAID SOLELY WITHIN MARYLAND.
17. CONSENT TO JURISDICTION. The Borrower irrevocably submits to the
jurisdiction of any state or federal court sitting in the State of Maryland over
any suit, action, or proceeding arising out of or relating to this Note. The
Borrower irrevocably waives, to the fullest extent permitted by law, any
objection that the Borrower may now or hereafter have to the laying of venue of
any such suit, action, or proceeding brought in any such court and any claim
that any such suit, action, or proceeding brought in any such court has been
brought in an inconvenient forum. Final judgment in any such suit, action, or
proceeding brought in any such court shall be conclusive and binding upon the
Borrower and may be enforced in any court in which the Borrower is subject to
jurisdiction by a suit upon such judgment provided that service of process is
effected upon the Borrower as provided in this Note or as otherwise permitted by
applicable law.
18. SERVICE OF PROCESS. The Borrower hereby consents to process being
served in any suit, action, or proceeding instituted in connection with this
Note by the mailing of a copy thereof by certified mail, postage prepaid, return
receipt requested, to the Borrower. The Borrower irrevocably agrees that such
service shall be deemed to be service of process upon the Borrower in any such
suit, action, or proceeding upon the date which is four (4) days after the
sending thereof. Nothing in this Section shall affect the right of the Lender to
serve process in any manner otherwise permitted by law and nothing in this
Section will limit the right of the Lender otherwise to bring proceedings
against the Borrower in the courts of any jurisdiction or jurisdictions.
19. WAIVER OF TRIAL BY JURY. THE BORROWER AND THE LENDER HEREBY WAIVE
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH THE BORROWER AND THE LENDER
MAY BE PARTIES, ARISING OUT OF OR IN ANY WAY PERTAINING TO (A) THIS NOTE OR (B)
THE FINANCING DOCUMENTS. IT IS AGREED AND UNDERSTOOD THAT THIS WAIVER
CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH
ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES TO
THIS NOTE.
This waiver is knowingly, willingly and voluntarily made by the
Borrower and the Lender, and the Borrower hereby represents that no
representations of fact or opinion have been made by any individual to induce
this waiver of trial by jury or to in any way modify or nullify its effect. The
Borrower further represents that it has been represented in the signing of this
Note and in the making of this waiver by independent legal counsel, selected of
its own free will, and that it has had the opportunity to discuss this waiver
with counsel.
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20. INTEREST RATE NOT TO EXCEED APPLICABLE LAWS. The interest rate or
rates required by this Note, the Financing Agreement or any of the other
Financing Documents shall not exceed the maximum rate permissible under
applicable laws, and any amounts paid in excess of such rate or rates shall be
applied to reduce the unpaid balance of the Principal Sum or shall be refunded
to the Borrower at the option of the Lender.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Note
under seal as of the day and year first written above.
SIGNATURES TO THIS NOTE BEGIN ON THE FOLLOWING PAGE
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Signature Page 1 of 2 to
SECOND AMENDED AND RESTATED
REVOLVING CREDIT NOTE
WITNESS: TESSCO TECHNOLOGIES INCORPORATED
/S/ ROBERT C. SINGER BY: /S/ ROBERT B. BARNHILL, JR. (Seal)
- ------------------------- -------------------------------------
Robert B. Barnhill, Jr.
President and Chief Executive Officer
WITNESS: TESSCO COMMUNICATIONS INCORPORATED
/S/ ROBERT C. SINGER By: /S/ ROBERT B. BARNHILL, JR. (Seal)
- -------------------------- -------------------------------------
Robert B. Barnhill, Jr.
President and Chief Executive Officer
WITNESS: TESSCO INCORPORATED
/S/ ROBERT C. SINGER BY: /S/ ROBERT B. BARNHILL, JR. (Seal)
- -------------------------- -------------------------------------
Robert B. Barnhill, Jr.
President and Chief Executive Officer
WITNESS: TESSCO FINANCIAL CORPORATION
/S/ ROBERT C. SINGER BY: /S/ ROBERT B. BARNHILL, JR. (Seal)
- -------------------------- -------------------------------------
Robert B. Barnhill, Jr.
President and Chief Executive Officer
WITNESS: WIRELESS SOLUTIONS INCORPORATED
/S/ ROBERT C. SINGER BY: /S/ ROBERT B. BARNHILL, JR. (Seal)
- -------------------------- -------------------------------------
Robert B. Barnhill, Jr.
President and Chief Executive Officer
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Signature Page 2 of 2 to
SECOND AMENDED AND RESTATED
REVOLVING CREDIT NOTE
WITNESS: CARTWRIGHT COMMUNICATIONS COMPANY
/S/ ROBERT C. SINGER By: /S/ ROBERT B. BARNHILL, JR. (Seal)
- -------------------------- -------------------------------------
Robert B. Barnhill, Jr.
President and Chief Executive Officer
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