Exhibit 10.2
REVOLVING CREDIT NOTE
(this "NOTE")
FOR VALUE RECEIVED, ON OR BEFORE the Termination Date (as defined in the
Credit Agreement), 1st TECH CORPORATION and DARKHORSE SYSTEMS, INCORPORATED,
(jointly and severally, "BORROWERS") promise to pay to the order of CHEMICAL
BANK ("Bank") at its office at 633 Third Avenue, New York, NY 10017 or such
other location as Bank may designate, in immediately available funds and
lawful money of the United States of America, the sum of SIX MILLION AND
NO/100THS UNITED STATES DOLLARS (U.S. $6,000,000.00) or the aggregate unpaid
amount of all advances hereunder, whichever is lesser, plus interest on the
unpaid balance outstanding from time to time at a rate per annum equal to the
lesser of (i) the Stated Rate (as hereinafter defined) from time to time in
effect or (ii) the Highest Lawful Rate. If the Stated Rate at any time
exceeds the Highest Lawful Rate, the actual rate of interest to accrue on
the unpaid principal amount of this Note will be limited to the Highest
Lawful Rate, but any subsequent reductions in the Stated Rate due to
reductions in the Prime Rate will not reduce the interest rate payable upon
the unpaid principal amount of this Note below the Highest Lawful Rate until
the total amount of interest accrued on this Note equals the amount of
interest which would have accrued if the Stated Rate had at all times been in
effect.
The "STATED RATE" at any time shall be: (i) from the Credit Agreement
Effective Date through September 30, 1996, a rate equal to the Prime Rate as
it changed plus 3.0%; and (ii) on and after October 1, 1996, the rate
indicated by the following chart:
DETERMINING RATIO STATED RATE
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Over 3.0X Prime Rate +3.0%
1.5X to 3.0X Prime Rate +2.0%
1.0X top 1.4X Prime Rate +1.5%
Less than 1.0X Prime Rate +1.0%
The "DETERMINING RATIO" on any date shall be the ratio (determined for
both Borrowers combined, as of the end of the most recently ended calendar
month) of (i) Indebtedness to (ii) Annualized EBDITA (Adjusted). Annualized
EBDITA (Adjusted) shall mean (i) for the first 11 months after the Credit
Agreement Effective Date, Borrowers' average combined monthly EBDITA
(Adjusted) (as correctly reported in Borrowers' Compliance Certificates in
the form of Exhibit C of the Credit Agreement) for all months reported to the
date the ratio is determined, times twelve; and (ii) thereafter, the sum of
Borrowers' combined monthly EBDITA (Adjusted) (as correctly reported) for the
12 months preceding the date the ratio is determined.
"PRIME RATE" means that rate as determined from time to time by Bank as
being its prime rate in effect at its principal office in New York City.
Without notice to Borrowers or any other Person, the Prime Rate shall change
automatically from time to time as and in the amount by which said prime rate
shall fluctuate with each such change to be effective as of the date of each
change in such prime rate. THE PRIME RATE IS A REFERENCE RATE AND DOES NOT
NECESSARILY REPRESENT THE LOWEST OR BEST RATE. BANK MAY MAKE LOANS AT RATES
OF INTEREST AT, ABOVE OR BELOW THE PRIME RATE.
This Note is the Revolving Credit Note described in Section 1.1 of the
Credit Agreement (Borrowing Base) between Borrowers and Bank dated as of May
20, 1996 (as amended, restated and supplemented from time to time, the
"Credit Agreement" and "Agreement") and sometimes referred to therein as the
Note. Capitalized terms used in this Note have the meanings used in the
Agreement.
Accrued and unpaid interest shall be due and payable monthly, beginning
on June 30, 1996, and continuing on the last day of each month thereafter and
at Termination Date when all unpaid principal and accrued and unpaid interest
shall be finally due and payable. Borrowers must make the payments required
by Sections 1.3, 1.4 and 1.5 of the Agreement.
Interest shall be computed on the basis of the actual number of days
elapsed and a year comprised of 360 days, unless such calculation would
result in a usurious interest rate, in which case interest will be calculated
on the basis of a 365 or 266 day year, as applicable.
All past-due principal and, as permitted by applicable law, interest on
this Note, shall, at Bank's option, bear interest at the Highest Lawful Rate,
or if applicable law shall not provide for a maximum nonusurious rate of
interest, at a rate per annum equal to eighteen percent (18%).
The unpaid principal balance of this Note at any time shall be the total
amounts advanced by Bank, less the amount of all payments of principal.
Absent manifest error, the records of Bank shall be conclusive as to amounts
owed. Subject to the terms and conditions of the Agreement, Borrowers may use
all or any part of the credit provided for herein at any time before the
Termination Date.
Time is of the essence. Borrowers may at any time pay the full amount or
any part of this Note without the payment of any premium or fee. At Bank's
sole option, all payments may be applied to accrued interest, to principal,
or to both.
If any Event of Default occurs, then Bank may exercise any and all
rights and remedies under the Loan Documents, at law, in equity or otherwise.
Each and all Obligators severally waive notice, demand, presentment for
payment, notice of nonpayment, notice of intent to accelerate, notice of
acceleration, protest, notice of protest, and the filing of suit and
diligence in collecting this Note and all other demands and notices, and
consent and agree that their liabilities and obligations shall not be
released or discharged by any or all of the following, whether with or
without notice to them or any of them, and whether before or after the stated
maturity hereof: (i) extensions of the time of payment; (ii) renewals; (iii)
acceptances of partial payments; (iv) releases or substitutions of any
collateral or any Obligor; and (v) failure, if any, to perfect or maintain
perfection of any security interest in any collateral. Each Obligor agrees
that acceptance of any partial payment shall not constitute a waiver.
Bank and any subsequent owner or holder hereof reserves the right, in
its sole discretion, without notice to Borrowers, to sell participations or
assign its interest or both, in all or any part of this Note. For purposes of
this Note, any assignee or subsequent holder of this Note will be considered
the "Bank," and each successor to each Borrower will be considered a
"Borrower."
IN WITNESS WHEREOF, Borrowers have executed this Note effective as of the
Effective Date.
BORROWER: 1st TECH CORPORATION
By: /s/ GARY PANKONIEN
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Typed Name:
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Title:
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BORROWER: DARKHORSE SYSTEMS, INCORPORATED
By: /s/ GARY PANKONIEN
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Typed Name:
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Title:
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BANK: CHEMICAL BANK
By: /s/ DAVID BONHAM
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Typed Name: David Bonham
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Title: Vice President
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