Exhibit 10(b)
SECOND AMENDED AND RESTATED REVOLVING CREDIT PROMISSORY NOTE
$3,150,000.00 Stamford, Connecticut
May _14_, 1999
FOR VALUE RECEIVED, ASTREX, INC., a Delaware corporation (the
"Borrower"), hereby unconditionally promises to pay to the order of FLEET
NATIONAL BANK (the "Lender" or "Bank"), at the office of the Lender located at
One Landmark Square, Stamford, Connecticut, or such other office as the holder
hereof may designate, in lawful money of the United States and in immediately
available funds, the principal sum of Three Million One Hundred Fifty Thousand
Dollars ($3,150,000.00) or, if less, the aggregate unpaid amount of all
Revolving Credit Loans (as defined in the Credit and Security Agreement referred
to below) made by the Lender to the Borrower pursuant to the Credit and Security
Agreement, together with interest thereon as provided for below. All capitalized
terms unless defined herein shall have the meanings assigned to them in the
Credit and Security Agreement.
1. Payment of Principal. Borrower shall pay the outstanding principal balance of
each Revolving Credit Loan in full on the Revolving Credit Maturity Date.
2. Interest Rate; Payment of Interest. Borrower shall pay interest on the
aggregate unpaid principal balance of the Revolving Credit Loans outstanding
from time to time at the applicable rate or rates set forth in Credit and
Security Agreement, dated July 9, 1997 between the Borrower, T.F. Cushing, Inc.
and the Lender, as amended, supplemented or otherwise modified from time to time
(the "Credit and Security Agreement"). Interest shall be payable, in arrears,
and on each Revolving Credit Interest Payment Date and shall also be payable on
the Revolving Credit Maturity Date. Anything contained in this Note to the
contrary notwithstanding, during any period in which an Event of Default is
continuing, the interest rate hereunder shall, at the option of the Lender, be
increased to the Default Rate, and all interest accruing at such rate shall be
payable upon demand by the Lender.
Interest shall commence to accrue on the date hereof and shall continue
to accrue until all principal hereof is paid in full (whether before or after
maturity or judgment). Interest under this Note shall be computed on the basis
of a year of three hundred sixty (360) days and the actual number of days
elapsed.
3. Optional and Mandatory Prepayments. Optional and mandatory prepayments of the
Revolving Credit Loans shall be made in accordance with Section 1.7 of the
Credit and Security Agreement.
4. Expenses. Borrower shall pay or reimburse the Lender, on demand, for all
costs and expenses, including, but not limited to, the reasonable fees and
disbursements of legal counsel, appraisers, accountants and other experts
employed by the Lender, incurred in the administration, preservation, defense,
protection, or collection or other enforcement of this Note or in foreclosing or
otherwise enforcing any security interest securing the payment of this Note or
in sustaining or protecting the lien or priority of any such security interest,
or in attempting to do any of the foregoing.
5. Credit and Security Agreement; Lender's Records. This Note evidences
Revolving Credit Loans under, and has been executed and delivered by the
Borrower in accordance with, the terms and conditions of the Credit and Security
Agreement, which Credit and Security Agreement, among other things, contains
provisions with respect to prepayment (optional and mandatory), and the
acceleration of the unpaid principal of, and accrued and unpaid interest on the
Revolving Credit Loans upon the occurrence and at any time during the
continuance of any Event of Default. The Lender is entitled to the benefits of
the Credit and Security Agreement and the other Financing Documents and may
enforce the covenants and other agreements of the Borrower contained therein,
and the Lender may exercise the respective rights, remedies and powers provided
for thereby or otherwise available in respect thereof, all in accordance with
the respective terms thereof.
The records of the Lender shall be prima facie evidence of the
Revolving Credit Loans, any accrued interest thereon and all principal and
interest payments made in respect thereof; provided, that no failure of the
Lender to timely record any transaction, or any error therein, shall in any way
affect or impair any liability or other obligation of the Borrower to the
Lender.
6. Certain Waivers. Borrower and any indorser hereof or any other party hereto
or any guarantor hereof (collectively, the "Obligors") and each of them (i)
waive(s) presentment, diligence, protest, demand, notice of demand, notice of
acceptance or reliance, notice of non-payment, notice of dishonor, notice of
protest and all other notices to parties in connection with the delivery,
acceptance, performance, default or enforcement of this Note, any indorsement or
guaranty of this Note, or any collateral or other security; (ii) consent(s) to
any and all delays, extensions, renewals or other modifications of this Note,
any other Financing Document or the debt(s) or collateral evidenced hereby or
thereby or any waivers of any term hereof or thereof, any release, surrender,
taking of additional, substitution, exchange, failure to perfect or record any
interest in, failure to preserve or realize upon, failure to lawfully dispose
of, or any other impairment of, any collateral or other security, or any other
failure to act by the Lender or any other forbearance or indulgence shown by the
Lender, from time to time and in one or more instances (without notice to or
assent from any of the Obligors) and agree(s) that none of the foregoing shall
release, discharge or otherwise impair any of their liabilities; (iii) agree(s)
that the full or partial release or discharge of any Obligor(s) shall not
release, discharge or otherwise impair the liabilities of any other Obligor(s);
and (iv) waive(s) any defenses based on suretyship or impairment of collateral.
7 Commercial Transaction; Jury Waiver. (a) THE BORROWER ACKNOWLEDGES THAT THE
TRANSACTION OF WHICH THIS NOTE IS A PART IS A "COMMERCIAL TRANSACTION" WITHIN
THE MEANING OF CHAPTER 903a OF THE CONNECTICUT GENERAL STATUTES, AS AMENDED, AND
THAT ANY MONIES, PROPERTY OR SERVICES WHICH ARE THE SUBJECT OF SUCH TRANSACTION
ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES. THE BORROWER HEREBY WAIVES
ANY RIGHT WHICH BORROWER MIGHT HAVE TO A NOTICE AND A HEARING, UNDER SECTIONS
52-278a-52-278g, INCLUSIVE, OF THE CONNECTICUT GENERAL STATUTES, AS AMENDED, OR
OTHER APPLICABLE FEDERAL OR STATE LAW, IN THE EVENT THE LENDER (OR ITS
SUCCESSORS OR ASSIGNS) SEEKS ANY PREJUDGMENT REMEDY IN CONNECTION WITH THIS
NOTE, THE CREDIT AND SECURITY AGREEMENT OR ANY OTHER FINANCING DOCUMENT.
(b) THE BORROWER HEREBY KNOWINGLY AND VOLUNTARILY WAIVES TRIAL BY JURY
AND THE RIGHT THERETO IN ANY ACTION OR PROCEEDING OF ANY KIND, ARISING UNDER OR
OUT OF, OR OTHERWISE RELATED TO OR OTHERWISE CONNECTED WITH THIS NOTE OR ANY
OTHER FINANCING DOCUMENT.
8. Binding Nature. This Note shall bind the Borrower and Borrower's successors
and assigns and shall inure to the benefit of the Lender and its successors and
assigns. The term "Lender" as used herein shall include, in addition to the
Lender, any successors, indorsees, or other assignees of Lender and shall also
include any other holder of this Note. Any transferee of this Note shall have
the rights of a holder in due course under Article 3 of the Connecticut Uniform
Commercial Code if the transferee took rights under this Note in good faith for
value and without notice of a claim or defense.
9. Governing Law. This Note shall be governed by, and construed and interpreted
in accordance with the laws the State of Connecticut, without regard to its
rules pertaining to conflicts of laws thereunder.
10. Amended and Restated Note. This Note (i) amends and restates the Amended and
Restated Revolving Credit Promissory Note, dated August 31, 1998, from the
Borrower to the Lender (the "Existing Note"), (ii) evidences, in addition to any
Revolving Credit Loans made by the Lender on or after the date hereof, any
Revolving Credit Loans outstanding as of the date hereof and previously
evidenced by the Existing Note and (iii) and is a modification with respect to,
and does not constitute a novation of, any such outstanding Revolving Credit
Loans.
Anything contained herein to the contrary notwithstanding, and in
addition to, and not in limitation of, any other obligations of the Borrower
hereunder, the Borrower shall pay to the Lender in accordance with the Credit
and Security Agreement any unpaid interest which has accrued under the Existing
Note, as of the date hereof, on any outstanding Revolving Credit Loans.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Note
as of the day and year first written above.
WITNESSES: ASTREX, INC.
/s/ Keri Jones By: /s/ Michael McGuire
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Name: Keri Jones Michael McGuire
President
/s/ Lori Sarnataro
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Name: Lori Sarnataro