EXHIBIT 10.2c
AMENDED AND RESTATED CAPITAL EXPENDITURE NOTE
EXECUTED AS OF THE 31ST OF OCTOBER, 2001 AMOUNT $658,933.32
FOR VALUE RECEIVED, the undersigned ("Borrower"), hereby jointly and
severally promise to pay to the order of LASALLE BUSINESS CREDIT, INC., a
Delaware corporation ("Lender"), in such coin or currency of the United States
which shall be legal tender in payment of all debts and dues, public and
private, at the time of payment, the principal sum of SIX HUNDRED FIFTY-EIGHT
THOUSAND NINE HUNDRED THIRTY-THREE AND 32/100 DOLLARS ($658,933.32), together
with interest from and after the date hereof on the unpaid principal balance
outstanding at the Prime Rate plus Three-Fourths Percent (0.75%), as the same
changes in accordance with this Note, or as otherwise set forth in the Loan and
Security Agreement between Borrower and Lender dated July 31, 2000, as amended
("Loan Agreement").
This Amended and Restated Capital Expenditure Note ("Note") is a Capex Note
referred to in, and is issued pursuant to, the Loan Agreement and is entitled to
all of the benefits and security of the Loan Agreement. This Note is issued and
accepted not in payment or satisfaction, but as an amendment and restatement, of
that certain Capital Expenditure Note dated May 30, 2001 issued by HEI, Inc. and
payable to the order of the Lender in the original principal amount of $706,000
(the "Original Note"). All of the terms, covenants and conditions of the Loan
Agreement and all other instruments evidencing or securing the indebtedness
hereunder are hereby made a part of this Note and are deemed incorporated herein
in full. All capitalized terms used herein, unless otherwise specifically
defined in this Note, shall have the meanings ascribed to them in the Loan
Agreement.
Borrower acknowledges and understands that the Prime Rate merely serves as
a basis upon which effective rates of interest are calculated for loans making
reference to the per annum rate of interest publicly announced by LaSalle
National Bank at its office in Chicago, Illinois, from time to time as its Prime
Rate for commercial loans and that such rate may not be the lowest or best rate
at which such bank calculates interest or extends credit. The Prime Rate as of
the date of this Note is Five and One-Half Percent (5.50%) per annum and,
accordingly, the interest rate in effect hereunder as of the date hereof,
expressed in simple interest terms, is Six and One-Fourth Percent (6.25%). After
the date hereof, the rate of interest in effect hereunder shall be increased or
decreased, as the case may be, by an amount equal to any increase or decrease in
the Prime Rate, with such adjustments to be effective as of the opening of
business on the date that any such change in the Prime Rate becomes effective.
The Prime Rate in effect on the date hereof shall be the Prime Rate effective as
of the opening of business on the date hereof, but if this Note is executed on a
day that is not a business day, the Prime Rate in effect on the date hereof
shall be the Prime Rate effective as of the opening of business on the last
business day immediately preceding the date hereof. Interest hereunder shall be
computed on the basis of actual days elapsed over the period of a 360-day year.
If any Event of Default shall occur then, at Lender's option, the outstanding
principal balance of this Note shall bear interest from and after the occurrence
of such Event of Default at a variable rate per annum equal to the default rate
set forth in the Loan Agreement until either the Event of Default is cured with
Lender's permission and to Lender's satisfaction or the principal balance of
this Note is paid in full.
In no contingency or event whatsoever, whether by reason of advancement of
the proceeds hereof or otherwise, shall the amount paid or agreed to be paid to
Lender for the use, forbearance or detention of money advanced hereunder exceed
the Highest Lawful Rate permissible under any law which a court of competent
jurisdiction may deem applicable hereto.
Regardless of any provision contained herein, the holder hereof shall never
be entitled to receive, collect, or apply as interest on this Note, any amount
in excess of the Highest Lawful Rate and, in the event the holder hereof ever
receives, collects, or applies as interest, any such excess, such amount which
would be excessive interest shall be deemed a partial prepayment of principal
and treated hereunder as such; and, if the principal hereof is paid in full, any
remaining excess shall forthwith be paid to the Undersigned. In determining
whether or not the interest paid or payable, under any specific contingency,
exceeds the Highest Lawful Rate, the Undersigned and the holder hereof shall, to
the maximum extent permitted under applicable law, (a) treat all advances
hereunder as but a single extension of credit, (b) characterize any nonprincipal
payment as an expense, fee, or premium rather than as interest, (c) exclude
voluntary prepayments and the effects thereof, and (d) "spread" the total amount
of interest throughout the entire contemplated term hereof; provided that, if
the principal hereof is paid in full prior to the end of the full contemplated
term hereof, and if the interest received for the actual period of existence
thereof exceeds the Highest Lawful Rate, the holder hereof shall refund to the
Undersigned the amount of such excess, and, in such event, the holder hereof
shall not be subject to any penalties provided by any laws for contracting for,
charging, taking, reserving, or receiving interest in excess of the Highest
Lawful Rate. As used herein, the term the "Highest Lawful Rate" means the
maximum rate of interest (or, if the context so requires, an amount calculated
at such rate) which the holder hereof is allowed to contract for, charge, take,
reserve, or receive under applicable law after taking into account, to the
extent required by applicable law, any and all relevant payments or charges made
in connection with this Note.
For so long as no Event of Default shall have occurred under the Loan
Agreement, the principal amount and accrued interest of this Note shall be due
and payable on the dates and in the manner hereinafter set forth:
(a) Interest shall be due and payable monthly, in arrears, on the first
day of each month, commencing on November 1, 2001, and continuing
until such time as the full principal balance, together with all other
amounts owing hereunder, shall have been paid in full;
(b) Commencing on November 1, 2001, and continuing on the first day of
each month thereafter to and including the first day of May, 2006,
principal payments in the amount of ELEVEN THOUSAND SEVEN HUNDRED
SIXTY-SIX AND 67/100 DOLLARS ($11,766.67) each and one principal
payment in the amount of ELEVEN THOUSAND SEVEN HUNDRED SIXTY-SIX AND
47/100 DOLLARS ($11,766.47) payable on June 1, 2006;
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(c) On June 1, 2006, a final principal payment equal to the entire unpaid
principal balance hereof, together with any and all other amounts due
hereunder.
Any payments applied to principal under this Note are intended to permanently
reduce the outstanding amount of the Note and may not be re-borrowed.
Notwithstanding the foregoing, the entire unpaid principal balance and accrued
interest on this Note shall be due and payable immediately upon any termination
of the Loan Agreement. Borrower may voluntarily prepay this Note in whole at any
time, from time to time, provided that such prepayment shall be made together
with accrued interest on the principal amount so prepaid at the prepayment date
plus the early termination fee as set forth in the Loan Agreement.
The occurrence of an Event of Default under the Loan Agreement, including
the failure to pay any installment of principal or interest in full on the due
date thereof in accordance with the terms of this Note, shall constitute an
event of default under this Note and shall entitle Lender, at its option, to
declare the then outstanding principal balance and accrued interest hereof to
be, and the same shall thereupon become, immediately due and payable without
notice to or demand upon Borrower, all of which Borrower hereby expressly
waives. If this Note is collected by or through an attorney at law, then
Borrower shall be obligated to pay, in addition to the principal balance and
accrued interest hereof, reasonable attorney's fees, not to exceed Fifteen
Percent (15%) of such principal and interest, and court costs.
Borrower represents and warrants that the proceeds of this note are to be
used by Borrower exclusively for non-consumer purposes.
Time is of the essence of this Note. To the fullest extend permitted by
applicable law, Borrower, for itself and its legal representatives, successors
and assigns, expressly waives presentment, demand, protest, notice of dishonor,
notice of non-payment, notice of maturity, notice of protest, presentment for
the purpose of accelerating maturity, diligence in collection, and the benefit
of any exemption or insolvency laws.
Wherever possible each provision of this Note shall be interpreted in such
a manner as to be effective and valid under applicable law, but if any provision
of this Note shall be prohibited or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or remaining provisions of this
Note. No delay or failure on the part of Lender in the exercise of any right or
remedy hereunder shall operate as a waiver thereof, nor as an acquiescence in
any default, nor shall any single or partial exercise by Lender of any right or
remedy preclude any other right or remedy. Lender, at its option, may enforce
its rights against any collateral securing this Note without enforcing its
rights against Borrower, any guarantor of the indebtedness evidenced hereby or
any other property or indebtedness due or to become due to Borrower. Borrower
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agrees that, without releasing or impairing Borrower's liability hereunder,
Lender may at any time release, surrender, substitute or exchange any collateral
securing this Note and may at any time release any party primarily or
secondarily liable for the indebtedness evidenced by this Note.
This Note shall be governed by, and construed and enforced in accordance
with, the laws of the State of Illinois, and is intended to take effect as an
instrument under seal.
IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed,
sealed and delivered on the date first above written.
HEI, INC.
a Minnesota corporation
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By: Steve E. Tondera
Title: CFO
CROSS TECHNOLOGY, INC.
a Minnesota corporation
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By: Anthony J. Fant
Title: CFO
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ACKNOWLEDGMENT OF SIGNATURE
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
I, ______________________________, a Notary Public in and for the state and
county aforesaid, do hereby certify that before me this day personally appeared
Steve E. Tondera, the CFO of HEI, Inc., known to me to be the same person whose
name is subscribed to the foregoing Capital Expenditure Note, and acknowledged
to me that he executed and delivered the foregoing Capital Expenditure Note as
his free and voluntary act, for the uses set forth therein.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this ____
day of October, 2001.
-----------------------------------------
Notary Public
My Commission Expires:
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STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
I, ______________________________, a Notary Public in and for the state and
county aforesaid, do hereby certify that before me this day personally appeared
Steve E. Tondera, the CFO of Cross Technology, Inc., known to me to be the same
person whose name is subscribed to the foregoing Capital Expenditure Note, and
acknowledged to me that he executed and delivered the foregoing Capital
Expenditure Note as his free and voluntary act, for the uses set forth therein.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this ____
day of October, 2001.
-----------------------------------------
Notary Public
My Commission Expires:
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