Exhibit 10.2
REVOLVING CREDIT NOTE
$25,000,000.00 July 31, 2006
Chicago, Illinois
FOR VALUE RECEIVED, the undersigned, FUEL TECH, INC., a Massachusetts
corporation (the "BORROWER") hereby promises to pay to the order of WACHOVIA
BANK, NATIONAL ASSOCIATION, a national banking association ("LENDER") at its
office at 2240 Butler Pike, Plymouth Meeting, Pennsylvania 19462 or at such
other place as the holder hereof may designate in writing, in lawful money of
the United States of America, the principal sum of Twenty Five Million and
No/100 Dollars ($25,000,000.00), or such lesser principal sum as may then be
owed by the Borrower to the Lender hereunder, on or before the Revolving Credit
Termination Date, as defined in the Loan Agreement referenced herein (the
"STATED MATURITY DATE").
THE INDEBTEDNESS EVIDENCED HEREBY SHALL BECOME IMMEDIATELY DUE AND
PAYABLE UPON THE EARLIEST TO OCCUR OF (X) THE STATED MATURITY DATE; (Y) THE
ACCELERATION OF THE OBLIGATIONS (AS DEFINED IN THE LOAN AGREEMENT OF EVEN DATE
HEREWITH AMONG THE BORROWER AND THE LENDER (AS AMENDED OR MODIFIED FROM TIME TO
TIME, THE "LOAN AGREEMENT")) PURSUANT TO SECTION 8.1 OF THE LOAN AGREEMENT; AND
(Z) THE TERMINATION OF THE LOAN AGREEMENT (WHETHER BY PREPAYMENT OR OTHERWISE)
IN ACCORDANCE WITH ITS TERMS. Capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the Loan Agreement.
This Revolving Credit Note shall bear interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until the
Stated Maturity Date, or until maturity due to acceleration or otherwise and,
after maturity, until paid, at the rates per annum and upon the terms specified
in the Loan Agreement. Accrued interest on the Revolving Credit Loans (as
defined in the Loan Agreement) shall be due and payable and shall be made by the
Borrower to the Lender in accordance with Section 2.2 of the Loan Agreement.
Interest payments on such Revolving Credit Loans shall be computed using the
interest rate then in effect pursuant to the Loan Agreement and based on the
outstanding principal balance of the Revolving Credit Loans. Upon maturity, the
outstanding principal balance of the Revolving Credit Loans shall be immediately
due and payable, together with any remaining accrued interest thereon.
All payments on account of indebtedness evidenced by this Revolving
Credit Note shall be first applied to interest on the unpaid balance and the
remainder to principal, unless otherwise specified in the Loan Agreement.
Payments of both principal and interest hereunder are to be made in same day or
immediately available funds.
This Revolving Credit Note is the Revolving Credit Note referred to in
the Loan Agreement, and is subject to all of the terms and conditions of the
Loan Agreement, as such Loan Agreement may from time to time be amended,
supplemented, or modified, which terms and conditions are hereby made a part of
this Revolving Credit Note to the same extent and with the same force and effect
as if they were fully set forth herein.
Upon the occurrence and during the existence of any Event of Default
(as such term is defined in the Loan Agreement), including the failure to pay
any principal, interest and/or fees in accordance with the terms set forth in
the Loan Agreement, which shall constitute an Event of Default under this
Revolving Credit Note, the Lender shall be entitled, at its sole option, to
accelerate the then outstanding indebtedness hereunder and take such other
action as may be provided for in the Loan Agreement or otherwise by law.
The remedies of the holder hereof as provided in this Revolving Credit
Note, in the Loan Agreement, and in any other Loan Documents (as defined in the
Loan Agreement) shall be cumulative and concurrent, and may be pursued singly,
successively, or together against the Borrower, and/or against any collateral or
guarantor, at the sole discretion of the holder hereof.
The Borrower hereby waives presentment for payment, demand, notice of
nonpayment, notice of dishonor, protest of any dishonor, notice of protest, and
protest of this Revolving Credit Note and all other notices in connection with
the delivery, acceptance, performance, default, or enforcement of the payment of
this Revolving Credit Note, and agrees that its liability shall be unconditional
without regard to the liability of any other party or person and shall not in
any manner be affected by any indulgence, extension of time, renewal, waiver or
modification granted or consented to by the holder hereof; and the Borrower
agrees that additional makers, endorsers, guarantors, or sureties may become
parties hereto without notice to the Borrower or affecting the Borrower's
liability hereunder.
It being the intent of the Lender and the Borrower that the rate of
interest and all other charges to the Borrower be lawful, if for any reason the
payment of a portion of the interest or other charges otherwise required to be
paid under this Revolving Credit Note would exceed the limit which the Lender
may lawfully charge the Borrower, then the obligation to pay interest or other
charges shall automatically be reduced to such limit and, if any amounts in
excess of such limit shall have been paid, then such amounts shall at the option
of the Lender either be refunded to the Borrower or credited to the principal
amount of this Revolving Credit Note so that under no circumstances shall the
interest or other charges required to be paid by the Borrower hereunder exceed
the maximum rate allowed by law.
The holder hereof shall not by any act of omission or commission be
deemed to waive any of its rights or remedies hereunder unless such waiver be in
writing and signed by the holder hereof (and then only to the extent
specifically set forth therein). A waiver of any one event shall not be
construed as continuing or as a bar to or waiver of such right or remedy on a
subsequent event.
Whenever possible, each provision of this Revolving Credit Note and the
Loan Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Revolving Credit Note or the
Loan Agreement shall be prohibited or invalid under such law, such provision
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provisions of this Revolving Credit
Note or the Loan Agreement.
This Revolving Credit Note shall not be amended, supplemented or
modified except pursuant to a writing signed by both Lender and Borrower.
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Without limiting the expansiveness of any similar provision contained
in the Loan Agreement, if at any time or times, Lender: (a) employs counsel in
good faith for advice or other representation (i) with respect to this Revolving
Credit Note, the Loan Agreement, any of the other Loan Documents, (ii) to
represent Lender in any restructuring, workout, litigation, contest, dispute,
suit or proceeding or to commence, defend or intervene or to take any other
action in or with respect to any litigation, contest, dispute or proceeding
(whether instituted by Lender, Borrower or any other person or entity) in any
way or respect relating to this Revolving Credit Note, the Loan Agreement, any
of the other Loan Documents, or Borrower's affairs, or (iii) to enforce any
rights of Lender against Borrower; and/or (b) attempts to or enforces any of
Lender's rights and remedies against Borrower; the costs and expenses incurred
by Lender in any manner or way with respect to the foregoing shall be part of
the indebtedness evidenced by this Revolving Credit Note, payable by Borrower to
Lender on demand. Without limiting the generality of the foregoing, such
expenses and costs include: court costs, reasonable attorneys' fees and
expenses, and accountants' fees and expenses.
This Revolving Credit Note shall inure to the benefit of Lender and its
permitted successors and assigns and shall be binding upon the Borrower and its
permitted successors and assigns. As used herein the term "Lender" shall mean
and include the successors and assigns of the identified payee and the holder or
holders of this Revolving Credit Note from time to time.
THIS REVOLVING CREDIT NOTE SHALL BE CONSTRUED IN ALL RESPECTS IN
ACCORDANCE WITH, AND ENFORCED AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
THE BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS REVOLVING CREDIT NOTE, OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL
JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS, THE COURTS OF THE UNITED
STATES OF AMERICA FOR THE NORTHERN DISTRICT OF ILLINOIS AND APPELLATE COURTS
FROM ANY THEREOF. NOTWITHSTANDING THE FOREGOING, THE LENDER IN ITS ABSOLUTE
DISCRETION MAY ALSO INITIATE PROCEEDINGS IN THE COURTS OF ANY OTHER JURISDICTION
WHICH HAS SUBJECT MATTER JURISDICTION;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH
COURTS AND WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW IN CONNECTION WITH ANY
SUCH ACTION OR PROCEEDING (i) ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION
OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR
CLAIM THE SAME, (ii) THE RIGHT TO ASSERT OR IMPOSE ANY CLAIM, NONCOMPULSORY
SET-OFF, COUNTERCLAIM OR CROSS-CLAIM IN RESPECT THEREOF IN SUCH PROCEEDING;
PROVIDED, HOWEVER, THIS WAIVER DOES NOT PRECLUDE THE RIGHT TO ASSERT A DEFENSE
IN SUCH ACTION OR PROCEEDING OR TO ASSERT OR IMPOSE ANY CLAIM, COUNTERCLAIM OR
CROSS-CLAIM WHICH THE BORROWER WISHES TO PURSUE IN A SEPARATE PROCEEDING AT ITS
SOLE COST AND EXPENSE, AND (iii) ALL STATUTES OF LIMITATIONS WHICH MAY BE
RELEVANT THERETO; AND
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(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY
BE EFFECTED BY MAILING A COPY THEREOF BY REGULAR OR CERTIFIED MAIL (OR ANY
SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, RETURN RECEIPT REQUESTED,
TO THE BORROWER AT ITS ADDRESS SET FORTH IN THE LOAN AGREEMENT OR AT SUCH OTHER
ADDRESS OF WHICH THE LENDER SHALL HAVE BEEN NOTIFIED PURSUANT THERETO. THE
BORROWER AGREES THAT SUCH SERVICE, TO THE FULLEST EXTENT PERMITTED BY LAW (i)
SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE BORROWER
IN ANY SUIT, ACTION OR PROCEEDING, AND (ii) SHALL BE TAKEN AND HELD TO BE VALID
PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO THE BORROWER. SOLELY TO THE
EXTENT PROVIDED BY APPLICABLE LAW, SHOULD THE BORROWER, AFTER BEING SERVED, FAIL
TO APPEAR OR ANSWER TO ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED
WITHIN THE NUMBER OF DAYS PRESCRIBED BY LAW AFTER THE DELIVERY OR MAILING
THEREOF, THE BORROWER SHALL BE DEEMED IN DEFAULT AND AN ORDER AND/OR JUDGMENT
MAY BE ENTERED BY THE COURT AGAINST THE BORROWER AS DEMANDED OR PRAYED FOR IN
SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS. NOTHING HEREIN SHALL AFFECT THE
LENDER'S RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW, OR LIMIT
THE LENDER'S RIGHT TO BRING PROCEEDINGS AGAINST THE BORROWER OR ITS PROPERTY IN
ANY COURT OR ANY OTHER JURISDICTION.
THE BORROWER AND THE LENDER HEREBY IRREVOCABLY AND KNOWINGLY WAIVE TO
THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION
OR PROCEEDING (INCLUDING, WITHOUT LIMITATION, ANY COUNTERCLAIM) ARISING OUT OF
THIS REVOLVING CREDIT NOTE, THE LOAN AGREEMENT OR ANY OTHER AGREEMENTS OR
TRANSACTIONS RELATED HERETO OR THERETO, INCLUDING, WITHOUT LIMITATION, ANY
ACTION OR PROCEEDING (A) TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR IN CONNECTION
WITH THIS REVOLVING CREDIT NOTE, THE LOAN AGREEMENT OR ANY INSTRUMENT, DOCUMENT
OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH, OR (B) ARISING FROM ANY DISPUTE OR CONTROVERSY IN CONNECTION WITH OR
RELATED TO THIS REVOLVING CREDIT NOTE AND THE LOAN AGREEMENT. THE LENDER AND THE
BORROWER AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT
AND NOT A JURY.
[Signature Page Follows]
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Exhibit 10.2
IN WITNESS WHEREOF, the Borrower has caused this Revolving Credit Note
to be duly executed by its authorized officer as of the date first above
written.
FUEL TECH, INC., a Massachusetts corporation
By:
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Its:
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