Exhibit 10.43
AMSOUTH NOTE FOR BUSINESS AND COMMERCIAL LOANS REVOLVING
AmSouth Bank
$ 1,000,000.00 2330 University Blvd
------------ Tuscaloosa, AL 35401
DATE: May 13, 2003
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FOR VALUE RECEIVED, the undersigned (hereinafter called, whether one or more,
the "Borrower"), Jointly and severally and solidarily (if more than one),
promises to pay to the order of AmSouth Bank (the "Bank"), its successors and
assigns (hereinafter sometimes, together with any other holder of this note,
called "Holder"), the sum of One Million and 00/100 Dollars or so much thereof
as the Holder has advanced to the Borrower hereunder (the "Loan"), plus interest
on the remaining unpaid principal balance of the Loan from the date hereof until
maturity at the rate of:
A per annum rate equal to the rate per annum offered by prime banks in the
London interbank eurodollar market for deposits in United States dollars having
a one month maturity, as determined by Holder with reference to the financial
information reporting service used by Holder at the time of such determination
(the "LIBOR Rate") plus 2.25%. This rate is subject to change on 05/31/2003,
will be subject to change on the same day of every month thereafter (the "Change
Date"). The interest rate change is based on changes in the LIBOR Rate. The
Holder will determine the LIBOR Rate that will be in effect as of the Change
Date; however, if the Change Date is not a Business Day, then the Holder will
determine the LIBOR Rate that will be in effect as of the Business Day
immediately following the Change Date. Changes in the interest rate on the Loan
will be effective as of the Change Date. As used herein, "Business Day" means a
day of the year on which banks are not required or authorized to close in
Birmingham, Alabama, and a day on which dealings are carried on in the London
interbank eurodollar market.
See the Addendum to Note for Business and Commercial Loans for provisions
related to the LIBOR Rate.
Interest will be computed on the basis of the actual number of days elapsed over
an assumed 360-day year.
The Borrower hereby agrees to repay principal and interest as follows:
The Borrower will pay the interest on the Loan in monthly installments and the
principal and any unpaid interest on the Loan shall be due and payable in full
on 5/31/2004. The first installment will be due and payable on May 31, 2003 and
the remaining installments will be due and payable on the same day of every
month thereafter until both the principal of and interest on the loan have been
paid in full.
All agreements herein made are expressly limited so that in no event whatsoever,
whether by reason of advancement of proceeds hereof, acceleration of maturity of
the unpaid balance hereof or otherwise, shall the interest and loan charges
agreed to be paid to Holder for the use of the money advanced or to be advanced
hereunder exceed the maximum amounts collectible under applicable laws in effect
from time to time. If for any reason whatsoever the interest or loan charges
paid or contracted to be paid in respect of the indebtedness evidenced hereby
shall exceed the maximum amounts collectible under applicable laws in effect
from time to time, then, ipso facto, the obligation to pay such interest and/or
loan charges shall be reduced to the maximum amounts collectible under
applicable laws in effect from time to time, and any amounts collected by Holder
that exceed such maximum amounts shall be applied to the reduction of the
principal balance remaining unpaid hereunder and/or refunded to Borrower so that
at no time shall the interest or loan charges paid or payable in respect of the
indebtedness evidenced hereby exceed the maximum amounts permitted from time to
time by applicable law. This provision shall control every other provision in
any and all other agreements and instruments now existing or hereafter arising
between Borrower and Holder with respect to the indebtedness evidenced hereby.
For purposes of sending periodic billing statements in advance of each interest
payment date, at Holder's option, the Prime Rate in effect 15 days prior to each
interest payment date shall be deemed to be the Prime Rate that continues in
effect until the date prior to such interest payment date for purposes of
computing the amount of interest payable on such interest payment date. If the
Prime Rate changes during such 15-day period, the difference between the amount
of interest that in fact accrues during such period and the amount of interest
actually paid will be added to or subtracted from as the case may be, the
interest otherwise payable in preparing the periodic billing statement for the
next succeeding interest payment date. In determining the amount of interest
payable at the final maturity or upon full prepayment of this note, all changes
in the Prime Rate occurring on or prior to the date before the final maturity
date or the date of such full prepayment shall be taken into account.
The Borrower agrees to pay to Holder, on demand, late charge equal to 5% of any
installment that is not paid within 12 days after it is due and 5% of the
interest portion on the payment due upon the final maturity date of this note if
that payment is not paid within 12 days after it is due. This late charge will
never be less than $10.00 nor more than $250.00. This provision shall not be
deemed to excuse a late payment or be deemed a waiver of any other right Holder
may have, including, without limitation, the right to declare the entire unpaid
principal and interest immediately due and payable.
All payments coming due on this note shall be made in cash or immediately
available funds at Holder's office in Birmingham, Alabama. At its option, Holder
may elect to give the Borrower credit for any payment made by check or other
instrument in accordance with Holder's availability schedule in effect from time
to time for such items and instruments, which Holder will make available to the
Borrower on request unless otherwise required by applicable law, payments will
be applied as follows: (1) Each payment on the Loan will first reduce charges
owed by the Borrower that are neither principal nor interest, (2) The remainder
of each such payment will be applied first to accrued but unpaid interest and
then to unpaid principal; and (3) Any partial prepayments of principal will be
applied to installments due in the inverse order of their maturity and no such
partial prepayment of principal will have the effect of postponing, satisfying,
reducing, or otherwise affecting any scheduled installment before the Loan is
paid in full.
This note is a master note, and it is contemplated that the proceeds the loan
evidenced hereby will be advanced from time to time to the Borrower by Holder in
installments, as requested by the Borrower and agreed to by Holder. It is
further contemplated that any amounts advanced under this note may be prepaid
from time to time by the Borrower and subsequently re-advanced by Holder, so
long as the principal amount outstanding does not exceed the face amount of this
note. By reason of repayments hereon there may be times when no indebtedness is
owing hereunder, and notwithstanding any such occurrence, this note shall remain
valid and shall be in full force and effect as to each subsequent principal
advance made hereunder. The Holder shall maintain a record (by computer or
otherwise) of all principal advances and repayments under this master note and
that record shall be presumed to be correct on the absence of clear and
convincing evidence to the contrary. Unless the Holder has otherwise agreed in
writing, the Holder is not obligated to make any advances or re-advances
hereunder, and all advances and re-advances shall be made at the option of the
Holder. This note shall be valid and enforceable as to the aggregate amount
advanced at any time hereunder, whether or not the full face amount hereof is
advanced.
If the Loan is payable on demand, this paragraph is inoperative and not
applicable; otherwise, this paragraph is operative and shall apply to the Loan
in accordance with its terms. In the event of default in the payment of any one
or more installments of principal or interest that may become due hereunder,
when and as the same fall due, or default in the payment of all principal and
interest due hereunder at maturity, or the failure of any maker, endorser,
surety or guarantor hereof (hereinafter called the Obligors) to pay when due or
perform any of the Obligations (meaning thereby this note and any and all
renewals and extensions thereof and all other liabilities and indebtedness of
the Borrower to Holder, now existing or hereafter incurred or arising, direct or
indirect, and however incurred) or any part thereof or the failure of any
Obligor to pay when due any other liability to Holder, in the event a default
occurs under the terms of any loan agreement or other instrument (other than
this note) or other document evidencing, securing, guaranteeing, or executed in
connection with all or any part of the Obligations (herein, together with this
note, called the "Loan Documents"), or in the event Holder shall in good faith
deem itself insecure for any reason, or on the happening of any one or more of
said events, Holder shall have the right at its election and without notice to
any Obligor to declare the Obligations immediately due and payable with interest
to date. No delay in making such election shall be construed to waive the right
to make such election. Holder may note the fact of acceleration hereon without
stating the ground therefor, and whether or not noted hereon such election to
accelerate shall be effective.
In the event of death of, insolvency of, general assignment by, judgment
against, filing of a petition in bankruptcy by or against, filing a petition for
the reorganization of, filing of application in any court for receiver for, or
issuance of a writ of garnishment or attachment in a suit or action against any
Obligor or against any of the assets of any Obligor, or on the happening of any
one or more of said events, the Obligations shall immediately become due and
payable with interest to date unless Holder shall on notice of such event elect
to waive such acceleration by written notation hereon. Commencing upon and
continuing after the maturity of this note, whether such maturity is by
acceleration or otherwise, and, if by acceleration, whether such acceleration is
automatic or at the election of Holder, and commencing upon and continuing after
any judgment obtained on or under this note, any and all amounts due under this
note or under any judgment obtained on or under this note, whether such amounts
are denominated as principal, interest or otherwise, shall, if permitted by
applicable law, bear interest at a rate of interest equal to 2% in excess of the
rate of interest set forth above.
Each of the Obligors hereby severally (a) waives as to the Loan or any renewal
or extension thereof all rights of exemption under the Constitution or laws of
any state as to personal property; (b) waives demand, presentment, protest,
notice of protest, notice of dishonor, suit against any party and all other
requirements necessary to hold any Obligor liable; (c) agrees that time of
payment may be extended or renewal notes taken or other indulgence granted
without notice of or consent to such action and, without release of liability as
to any Obligor; (d) as to all or any part of the Obligations, consents to
Holder's releasing, agreeing not to sue, suspending the right to enforce this
instrument against or otherwise discharging or compromising any Obligation of
any Obligor or other person against whom any Obligor has or may have a right of
recourse, all without notice to or further reservations of rights against any
Obligor, and all without in any way affecting or releasing the liability of any
Obligor; (e) consents to Holder's releasing, exchanging or otherwise dealing in
any manner with all or any portion of any collateral, lien, or right of set-off
that may now or hereafter secure this note, all without notice to or further
reservations of rights against any Obligor, and all without in any way affecting
or releasing the liability of any Obligor, even though such release, exchange or
other dealing may in any manner and to any extent impair any such collateral,
lien or right of set-off (f) warrants that this Loan is for business, commercial
or agricultural purposes, and not for personal, family or household purposes;
(g) agrees to pay all costs of collecting or securing or attempting to collect
or secure this note or defending any unsuccessful claim asserted against Holder
in connection with this note, including reasonable attorneys' fees.
In addition to all liens upon, and rights of setoff against, any moneys,
securities, or other property of any of the Obligors given to Holder by law,
Holder shall have a lien upon and a right of setoff against and (to the extent
allowed by law), a lien and continuing security interest upon, all moneys,
securities and other property of any of the Obligors now or hereafter in the
possession of, or on deposit with, Holder, whether held in a general or special
account or deposit, for safekeeping, or otherwise; and every such lien, security
interest, and right of setoff may be exercised without demand upon or notice to
any Obligor, and Holder shall have no liability with respect to any of Obligor's
checks or other items that may be returned or other funds transfers that may not
be made due to insufficient funds thereafter.
The borrower understands that Holder may from time to time enter into a
participation agreement or agreements with one or more participants pursuant to
which such participant or participants shall be given participations in the Loan
and that such participants may from time to time similarly grant to other
participants sub-participations in the Loan. The Borrower agrees that any
participant and any subparticipant may exercise any and all rights of banker's
lien or set-off, whether arising by operation of law or given to Holder by the
provisions of this note, with respect to the Borrower as fully as if such
participant or subparticipant had made the Loan directly to the Borrower. For
the purposes of this paragraph only, the Borrower shall be deemed to be directly
obligated to each participant or subparticipant in the amount of its
participating interest in the principal of, and interest on, the Loan.
No failure or delay on the part of Holder in exercising any right, power or
privilege under this note shall operate as a waiver thereof, nor shall a single
or partial exercise thereof preclude any other or further exercise or the
exercise of any other right, power or privilege. No modification, amendment or
waiver of any provisions of this note shall be effective unless in writing and
signed by a duly authorized officer of Holder, and then the same shall be
effective only in the specific instance and for the purpose for which given. No
notice to or demand on any Obligor in any case shall entitle any Obligor to any
other or further notice or demand in the same, similar or other circumstances.
Any controversy, claim, dispute or issue related to or arising from (A) the
interpretation, negotiation, execution, assignment, administration, repayment,
modification, or extension of this note or the Loan; (B) any charge or cost
incurred under this note or the Loan; (C) the collection of any amounts due
under this note or any assignment thereof; (D) any alleged tort related to or
arising out of this note or the Loan; or (E) any breach of any provision of this
note, shall be settled by arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association (the "AAA Rules"). Any
disagreement as to whether a particular dispute or claim is subject to
arbitration under this paragraph shall be decided by arbitration in accordance
with the provisions of this paragraph. Commencement of litigation by any person
entitled to demand arbitration under this paragraph shall not waive any right
that person has to demand arbitration with respect to any counterclaim or other
claim that may be made against that person, whether in, relating to, or arising
out of such litigation, or otherwise. The Expedited Procedures of the AAA Rules
shall apply in any dispute where the aggregate of all claims and the aggregate
of all counterclaims each is in an amount less than $500,000. Judgment upon any
award rendered by the arbitrator(s) in any such arbitration may be entered in
any Court having jurisdiction thereof. Any demand for arbitration under this
note shall be made no later than the date when any judicial action upon the same
matter would be barred under any applicable statute of limitations. Any dispute
as to whether the statute of limitations bars the arbitration of such matter
shall be decided by arbitration in accordance with the provisions of this
paragraph. The locale of any arbitration proceedings under this note shall be in
Birmingham, Alabama or such other location as is mutually acceptable to all
parties. The arbitrator(s) in any such arbitration shall establish such
reasonable procedures as may be necessary for the reasonable exchange of
information between the parties prior to such arbitration. Any arbitration under
this paragraph shall be on an individual basis between the parties to this note
only and shall not be commenced as a member or representative of or on behalf of
a class of persons, it being the intention of the parties that there shall be no
class action arbitrations under this note. All parties to this note specifically
acknowledge and agree that this note evidences a "transaction involving
commerce" under the Federal Arbitration Act, and each party to this note hereby
waives and relinquishes any right to claim otherwise. WITH RESPECT TO DISPUTES
SUBMITTED TO ARBITRATION, EACH PARTY WAIVES ALL RIGHT TO TRIAL BY JURY.
NOTWITHSTANDING THE PRECEDING PARAGRAPH OR THE EXERCISE OF ARBITRATION RIGHTS
UNDER THIS NOTE, each party may (1) foreclose against any real or personal
property collateral under any mortgage, deed of trust, security agreement,
pledge agreement or any other document or instrument creating a security
interest in such property or under applicable law: (2) excercise any legal
remedies such as set off, foreclosure or repossession: or (3) obtain any
provisional or ancillary remedies such as replevin, injunctive relief,
attachment, sequestration, or appointment of a receiver from a court having
jurisdiction, before, during or after the pendency of any arbitration
proceedings. This arbitration provision shall not be interpreted to require that
any such remedies be stayed, abated or otherwise suspended pending any
arbitration or request for arbitration. The exercise of a remedy shall not waive
the right of either party to resort to arbitration.
Any provision of this note that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
The provisions of this note shall inure to the benefit of Holder, its successors
and assigns, and shall be binding upon the heirs, successors and assigns of each
Obligor, except that no Obligor may assign or transfer his, her or its
obligation hereunder without the written consent of Holder.
All rights, powers and remedies of Holder under this note and now or hereafter
existing at law, in equity or otherwise shall be cumulative and may be exercised
successively or concurrently.
The Loan Documents contain the entire understanding and agreement between the
Borrower and Holder with respect to the Loan and supersede any and all prior
agreements, understandings, promises, and statements with respect to the Loan.
This note may not be modified, amended, or supplemented in any manner except by
a written agreement executed by both the Borrower and Holder.
This note shall be construed in accordance with and governed by the laws of the
State of Alabama and Title 9 of the United States Code.
Time is of the essence of this note.
The proceeds of the Loan represented by this note are for a business or
commercial purpose.
Obligor Number: 0000687193 Due: 05/31/2004
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ATTEST: SURGICAL LASER TECHNOLOGIES. INC.
By: /s/ Davis Woodward (SEAL) By: /s/ Jeffrey F. O'Donnell (SEAL)
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Davis Woodward Jeffrey F. O'Donnell
Its: Corporate Counsel Its: President and CEO
By: /s/ Davis Woodward (SEAL) By: /s/ Dennis McGrath (SEAL)
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Davis Woodward Dennis McGrath
Its: Corporate Counsel Its: VP of Finance and CFO
This note is made and executed for the purpose of continuing, modifying and
amending the terms of that certain promissory note in the principal amount of
$1,400,000.00, dated 03/26/2003, executed by the Borrower and payable to the
Bank or its predecessor or assignor. This note shall constitute a true
modification or amendment of the terms of the original note, which shall
continue in full force and effect except as specifically modified herein. This
note shall not constitute a novation, payment in full or satisfaction of the
original note, nor shall this note in any other way supercede the original note
or any of the Loan Documents. This note shall continue to be secured by any and
all collateral securing the original note.