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EXHIBIT 10.2
AMENDED AND RESTATED PROMISSORY NOTE
$12,500,000 June 24, 1999
THIS AMENDED AND RESTATED PROMISSORY NOTE ("Note") amends and
restates that certain promissory note dated February 17, 1998, (the maturity
date of which was extended to January 22, 1999 by a forbearance agreement dated
October 8, 1998), between Borrower and First Union National Bank, which note was
assigned to Lender by an assignment agreement of even date herewith.
FOR VALUE RECEIVED and intending to be legally bound, the undersigned,
ECC INTERNATIONAL CORP., ECC VENDING CORP. and EDUCATIONAL COMPUTER CORPORATION
INTERNATIONAL (collectively the "Borrower"), promises to pay, in lawful money of
the United States of America, to the order of MELLON BANK, N.A., a national
banking association ("Lender"), at Lender's offices at Mellon Bank Center, Asset
Based Lending Dept., 0000 Xxxxxx Xxxxxx, 0xx xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000, on the Revolving Credit Maturity Date the sum of Twelve Million Five
Hundred Thousand ($12,500,000) Dollars or such lesser sum which represents the
principal balance outstanding under the Revolving Credit established pursuant
to the provisions of the Loan and Security Agreement (as it may from time to
time be amended, modified or supplemented, the "Loan Agreement") of even date
herewith by and among Borrower and Lender. The actual amount due and owing from
time to time hereunder shall be evidenced by Lender's records of receipts and
disbursements with respect to such Revolving Credit, which records shall be
conclusive evidence of such amount due and owing.
Borrower further agrees to pay this Note in accordance with the Loan
Agreement and to pay interest on the unpaid principal amount outstanding
hereunder from time to time at the per annum rate or rates set forth in the Loan
Agreement. Interest shall be calculated on a basis of a year of 360 days but
computed for the actual number of days elapsed, and shall be due and payable
monthly on the first day of each calendar month, in arrears, commencing on the
first day of the first full calendar month after the date hereof and thereafter
on the same day of each successive calendar month. In no event shall the amount
of interest paid or agreed to be paid to Lender hereunder exceed the highest
lawful rate permissible under any law which a court of competent jurisdiction
may deem applicable hereto. In such event, the interest rate shall automatically
be reduced to the maximum rate permitted by such law and the amount of any
excess previously received by Lender shall be offset and applied against such
other Obligations as Lender may determine.
This Note is that certain Revolving Credit Note referred to in the Loan
Agreement and other Loan Documents. This Note shall evidence Borrower's
obligation to repay all sums advanced by Lender from time to time under and as
part of the Revolving Credit. If Borrower fails to make any payment required
hereunder or if an Event of Default occurs under the Loan Agreement, Lender may
declare the unpaid principal balance of and all other obligations under this
Note to be immediately due and payable. Lender shall thereupon have the option
at any time and from time to time to exercise all rights and remedies set forth
herein, and in the other Loan Documents,
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as well as all rights and remedies otherwise available to Lender at law or in
equity, to collect the unpaid Obligations hereunder and thereunder. This Note is
secured by the Collateral described in the Loan Agreement.
This Note can and shall only be prepaid in accordance with the terms
and conditions of the Loan Agreement.
Except as otherwise provided in the Loan Documents, Borrower hereby
waives protest, demand, notice of nonpayment and all other notices in connection
with the delivery, acceptance, performance or enforcement of this Note. Any
failure or delay of Lender to exercise any right hereunder shall not be
construed as a waiver of the right to exercise the same or any other right at
any other time or times. The waiver by Lender of a breach or default of any
provision of this Note shall not operate or be construed as a waiver of any
subsequent breach or default thereof. Borrower agrees to reimburse Lender for
all expenses (including, without limitation, attorneys' fees) incurred by Lender
to enforce the provisions of this Note, to protect, preserve and defend Lender's
rights under the Loan Documents, and to collect Borrower's Obligations hereunder
as described in the Loan Agreement.
Notwithstanding the entry of any judgment under this Note, the unpaid
principal balance under this Note shall continue to bear interest at the
applicable rates set forth above.
The provisions of this Note are severable and the invalidity or
unenforceability of any provision shall not alter or impair the remaining
provisions of this Note. All capitalized terms not otherwise defined herein
shall have the respective meanings as set forth in the Loan Agreement.
This Note shall be governed by, and construed and enforced in
accordance with, the laws of the Commonwealth of Pennsylvania.
BORROWER AND LENDER (BY ITS ACCEPTANCE HEREOF) HEREBY WAIVE ANY AND ALL
RIGHTS EACH MAY HAVE TO A JURY TRIAL IN CONNECTION WITH ANY LITIGATION COMMENCED
BY OR AGAINST LENDER WITH RESPECT TO RIGHTS AND OBLIGATIONS OF THE PARTIES
HERETO OR UNDER THE LOAN DOCUMENTS.
If an Event of Default shall occur under this Agreement, or a default
shall exist under any of the Loan Documents which has not been cured within the
applicable cure periods (without duplication of any periods of notice or cure
provided elsewhere) or defaults under any other obligation whatsoever of
Borrower to Lender, the undersigned hereby irrevocably authorizes and empowers
any attorney or clerk of any court of record in the Commonwealth of Pennsylvania
or elsewhere (either by amicable action or in a proceeding commenced by
Complaint) to appear for and CONFESS JUDGMENT against all, or any of them, (a)
for such sums for which the undersigned are or may become liable to Lender
and/or (b) in any action of replevin or upon any Writ of Ejectment and/or
Possession instituted by Lender to obtain possession of any Collateral securing
the undersigned's liability hereunder or any Collateral in possession of any of
the undersigned which secures any of their obligations to Lender, in either
case, with or without declaration, with costs of suit, without stay of
execution, and with fifteen percent (15%) of the principal amount thereof but
not less than $5,000 added for attorneys' fees together with interest on said
judgment at the highest annual rate permitted by law, or if no such rate is
specified by
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law, then at the rate of five percent (5%) per annum in excess of the rate set
forth in the Note and Loan and Security Agreement or other documents evidencing
the undersigned's obligations to Lender, calculated from the date of confession
until full payment of same is received by Lender. Undersigned each (a) waive the
right of inquisition on any real estate levied on, voluntarily condemn the same,
authorize any attorney or clerk to enter upon the Writ of Execution said
voluntary condemnation and agree that said real estate may be sold on a Writ of
Execution; (b) waive and release all relief from any and all appraisement, stay,
exemption or appeal clause of any state now in force or hereafter enacted; and
(c) release Lender and any said attorney from all errors and damages arising out
of compliance with this warrant.
NOTE RE TAXES: THIS NOTE REPRESENTS AN AMENDMENT AND RESTATEMENT OF
THAT CERTAIN AMENDED AND RESTATED REVOLVING CREDIT NOTE FEBRUARY 17, 1998, WHICH
NOTE AMENDED AND RESTATED THE REVOLVING CREDIT NOTE IN THE PRINCIPAL AMOUNT OF
$11,000,000 DATED SEPTEMBER 20, 1994, FROM BORROWER TO FIRST FIDELITY BANK,
NATIONAL ASSOCIATION (THE "NOTE"), AS AMENDED AND RESTATED. INTANGIBLE PERSONAL
PROPERTY TAXES CALCULATED ON THE AMOUNT OF $9,700,000 WERE PAID UPON THE
RECORDING OF THE MORTGAGE SECURING THE NOTE, WHICH MORTGAGE IS RECORDED AT O.R.
BOOK 48877, PAGE 4562, PUBLIC RECORDS OF ORANGE COUNTY, FLORIDA (THE
"MORTGAGE"). INTANGIBLE PERSONAL PROPERTY TAXES IN THE AMOUNT OF $9,800.00
(CALCULATED ON THE AMOUNT OF THE INCREASE IN THE LIMIT OF LIABILITY TO
$12,500,000, WHICH INCREASE IS $2,800,000), ARE BEING PAID ON THE RECORDING OF
THE AMENDED AND RESTATED MORTGAGE, ASSIGNMENT OF RENTS AND LEASES AND SECURITY
AGREEMENT.
This Note has been executed and delivered by Borrower by a duly
authorized officer of Borrower on the date first set forth above.
IN WITNESS WHEREOF, and intending to be legally bound hereby, Borrower
has executed these presents the day and year first above written.
ECC INTERNATIONAL CORP.
Attest: /s/ Xxxxxxx Xxx Xxxxxxxxxxx By /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxxxx Xxx Xxxxxxxxxxx Name: Xxxxx X. Xxxxxxx
Title: President
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ECC VENDING CORP.
Attest: /s/ Xxxxxxx Xxx Xxxxxxxxxxx By /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxxxx Xxx Xxxxxxxxxxx Name: Xxxxx X. Xxxxxxx
Title: President
EDUCATIONAL COMPUTER
CORPORATION INTERNATIONAL
Attest: /s/ Xxxxxxx Xxx Xxxxxxxxxxx By /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxxxx Xxx Xxxxxxxxxxx Name: Xxxxx X. Xxxxxxx
Title: President
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