EXHIBIT 10.2
AMENDED AND RESTATED REVOLVING NOTE
EXECUTED AS OF THE 1ST DAY OF DECEMBER, 2002 AMOUNT $3,000,000.00
FOR VALUE RECEIVED, the undersigned jointly and severally
promise to pay to the order of LASALLE BUSINESS CREDIT, INC. (hereinafter,
together with any holder hereof, called "LaSalle"), at the main office of
LaSalle, 135 South LaSalle Street, Chicago, Illinois 60603, the principal sum of
THREE MILLION AND 00/100 DOLLARS ($3,000,000.00) plus the aggregate unpaid
principal amount of all advances made by LaSalle to the undersigned pursuant to
and in accordance with Paragraph 2 of the Loan Agreement (as hereinafter
defined) in excess of such amount, or, if less, the aggregate unpaid principal
amount of all advances made by LaSalle to the undersigned pursuant to and in
accordance with Paragraph 2 of the Loan Agreement. The outstanding principal
balance shall be payable in accordance with the terms and conditions in the Loan
Agreement. The undersigned further promises to pay interest on the outstanding
principal amount hereof on the dates and at the rates provided in the Loan
Agreement from the date hereof until payment in full hereof.
This Amended and Restated Revolving Note (the "Note") is
referred to in and was delivered pursuant to that certain Loan and Security
Agreement, as it has been and may be amended from time to time, together with
all exhibits thereto, dated July 31, 2000, between LaSalle and HEI, Inc. (the
"Loan Agreement"). This Note is issued and accepted not in payment or
satisfaction, but as an amendment and restatement of that certain Amended and
Restated Revolving Note dated October 31, 2001 issued by HEI and payable to the
order of the Lender in the original principal amount of $5,000,000. All terms
which are capitalized and used herein (which are not otherwise defined herein)
shall have the meanings ascribed to such terms in the Loan Agreement.
The undersigned hereby authorizes LaSalle to charge any
account of the undersigned for all sums due hereunder. If payment hereunder
becomes due and payable on a Saturday, Sunday or legal holiday under the laws of
the United States or the State of Minnesota, the due date thereof shall be
extended to the next succeeding business day, and interest shall be payable
thereon at the rate specified during such extension. Credit shall be given for
payments made in the manner and at the times provided in the Loan Agreement. It
is the intent of the parties that the rate of interest and other charges to the
undersigned under this Revolving Note shall be lawful and shall be limited to
the maximum nonusurious rate of interest permitted by law; therefore, if for any
reason the interest or other charges payable hereunder are found by a court of
competent jurisdiction, in a final determination, to exceed the limit which
LaSalle may lawfully charge the undersigned, then the obligation to pay interest
or other charges shall automatically be reduced to such limit and, if any amount
in excess of such limit shall have been paid, then such amount shall be refunded
to the undersigned.
The principal and all accrued interest hereunder may be
prepaid by the undersigned, in part or in full, at any time; provided, however,
that if the undersigned prepays all of the Liabilities prior to the end of the
Original Term or any Renewal Term, the undersigned shall pay a prepayment fee as
provided in the Loan Agreement.
The undersigned waives the benefit of any law that would
otherwise restrict or limit LaSalle in the exercise of its right, which is
hereby acknowledged, to set-off against the Liabilities, without notice and at
any time hereafter, any indebtedness matured or unmatured owing from LaSalle to
the undersigned. The undersigned waives every defense, counterclaim or setoff
which the undersigned may now have or hereafter may have to any action by
LaSalle in enforcing this Note and/or any of the other Liabilities, or in
enforcing LaSalle's rights in the Collateral and ratifies and confirms whatever
LaSalle may do pursuant to the terms hereof and of the Loan Agreement and with
respect to the Collateral and agrees that LaSalle shall not be liable for any
error in judgment or mistakes of fact or law.
The undersigned, any other party liable with respect to the
Liabilities and any and all endorsers and accommodation parties, and each one of
them, if more than one, waive any and all presentment, demand, notice of
dishonor, protest, and all other notices and demands in connection with the
enforcement of LaSalle's rights hereunder.
The loan evidenced hereby has been made and this Note has been
delivered at Chicago, Illinois. THIS NOTE SHALL BE GOVERNED AND CONTROLLED BY
THE INTERNAL LAWS OF THE STATE OF MINNESOTA AS TO INTERPRETATION, ENFORCEMENT,
VALIDITY, CONSTRUCTION, EFFECT, AND IN ALL OTHER RESPECTS, INCLUDING WITHOUT
LIMITATION, THE LEGALITY OF THE INTEREST RATE AND OTHER CHARGES, and shall be
binding upon the undersigned and the undersigned's heirs, legal representatives,
successors and assigns. If this Note contains any blanks when executed by the
undersigned, LaSalle is hereby authorized, without notice to the undersigned to
complete any such blanks according to the terms upon which the loan or loans
were granted. Wherever possible, each provision of this Note shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Note shall be prohibited by or be invalid under
such law, such provision shall be severable, and be ineffective to the extent of
such prohibition or invalidity, without invalidating the remaining provisions of
this Note, the term "undersigned" as used herein shall mean all parties signing
this Note, and each one of them, and all such parties, their respective heirs,
executors, administrators, successors and assigns, shall be jointly and
severally obligated hereunder.
To induce LaSalle to make the loan evidenced by this Note, the
undersigned (i) irrevocably agrees that, subject to LaSalle's sole and absolute
election, all actions arising directly or indirectly as a result or in
consequence of this Note or any other agreement with LaSalle, or the Collateral,
shall be instituted and litigated only in courts having situs in the County of
Hennepin, Minnesota, (ii) hereby consents to the exclusive jurisdiction and
venue of any State or Federal Court located and having its situs in said city,
and (iii) waives any objection based on forum non-conveniens. IN ADDITION, THE
UNDERSIGNED HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WHICH
PERTAINS DIRECTLY OR INDIRECTLY TO THIS NOTE, THE LIABILITIES, THE COLLATERAL,
ANY ALLEGED TORTIOUS CONDUCT BY THE UNDERSIGNED OR LASALLE OR WHICH IN ANY WAY,
DIRECTLY OR INDIRECTLY, ARISES OUT OF OR RELATES TO THE RELATIONSHIP BETWEEN THE
UNDERSIGNED AND LASALLE, and consents that service of process may be made in
accordance with the Loan Agreement; and service so made shall be completed five
(5) days after the same has been deposited in the U.S. mails as aforesaid.
As used herein, all provisions shall include the masculine,
feminine, neuter, singular and plural thereof, wherever the context and facts
require such construction and in particular the word "undersigned" shall be so
construed.
IN WITNESS WHEREOF, the undersigned has executed this Note on
the date above set forth.
HEI, INC.
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By: Anthony J. Fant
Title: Chairman and CEO
CROSS TECHNOLOGY, INC.
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By: Anthony J. Fant
Title: Chairman and CEO